High Court
Case Details
Court No. - 59 Case :- WRIT - B No. - 1012 of 2022 Petitioner :- Raghuraj And Another Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Rahul Mishra Counsel for Respondent :- C.S.C.,Amrendra Nath Rai,Sanjay Singh Hon'ble Chandra Kumar Rai,J.
Legal Reasoning
There is no dispute about the fact that the appellant of the appeal before the Commissioner stood died in the year 2002 and an application was filed for substitution in the year 2020 when the appeal was heard after the remand order passed by the Board of Revenue. Since both the impugned orders have been passed on the ground that the substitution application has been made in the consolidation proceedings, as such, only formal application will be sufficient in the revisional proceedings, is not correct. The appeal under Section 331 of the U.P. Z.A. & L.R. Act, this in which substitution application of the appellant was filed, is separate proceeding and consolidation proceedings in which substitution application of same party was allowed, was separate proceeding, as such, it cannot be said that substitution in consolidation proceeding is sufficient and only formal application is required in appeal under Section 331(3) of U.P. Z.A. & L.R. Act is not correct view of the courts below. The Apex Court in Nagina Singh and Others (supra) as well as in Collector, Land Acquisition Anantnag and Another (supra) has held that in the substitution matter as well as in the delay condonation matter, liberal view should be taken. Paragraph no.9 of Nagina Singh and Others (supra) is quoted hereunder:- "Though there is a serious dispute as to the dates of death of respondents No.1(d) and 1(e), we are of the considered view that in the facts and circumstances of this case, the application for substitution of legal representatives of the aforesaid appellants should not have been rejected, having regard to the fact that all the contesting parties were on record and these appellants were brought on record only as legal representatives of appellant No.1 who had died during the pendency of the appeal. Having regard to the facts of the case and the interest of justice, the High Court ought to have condoned the delay, if any, in filing of the application for substitution and could have compensated the respondents by award of cost. This we consider appropriate, having regard to the interest of justice. The parties have litigated since the year 1974 and it is only fair that there should be adjudication on merit." Paragraph no.3 of Collector, Land Acquisition Anantnag and Another (supra) is as follows:- "The legislature has conferred the power to condone delay by enacting Section 51 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on 'merits'. The expression "sufficient cause" employed by the legislature is adequately elastic to enable the courts to apply the law in a meaningful manner which subserves the ends of justice that being the life-purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:- "Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 may be admitted after the prescribed period if the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period." 1. Ordinarily a litigant does not stand to benefit by lodging an appeal late. 2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties. 3. "Every day's delay must be explained" does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay? The doctrine must be applied in a rational common sense pragmatic manner. 4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non- deliberate delay. 5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk. 6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so. Making a justice-oriented approach from this perspective, there was sufficient cause for condoning the delay in the institution of the appeal. The fact that it was the 'State' which was seeking condonation and not a private party was altogether irrelevant. The doctrine of equality before law demands that all litigants, including the State as a litigant, are accorded the same treatment and the law is administered in an even handed manner. There is no warrant for according a stepmotherly treatment when the 'State' is the applicant praying for condonation of delay. In fact experience shows that on account of an impersonal machinary (no one in charge of the matter is directly hit or hurt by the judgment sought to be subjected to appeal) and the inherited bureaucratic methodology imbued with the note-making, file pushing and passing-on-the-buck ethos, delay on its part is less difficult to understand though more difficult to approve. In any event, the State which represents the collective cause of the community, does not deserve a litigant-non-grata status. The Courts therefore have to be informed with the spirit and philosophy of the provision in the course of the interpretation of the expression "sufficient cause". So also the same approach has to be evidenced in its application to matters at hand with the end in view to do even handed justice on merits in preference to the approach which scuttles a decision on merits. Turning to the facts of the matter giving rise to the present appeal, we are satisfied that sufficient cause exists for the delay. The order of the High Court dismissing the appeal before it as time barred, is therefore set aside. Delay is condoned. And the matter is remitted to the High Court. The High Court will now dispose of the appeal on merits after affording reasonable opportunity of hearing to both the sides." Considering the ratio of law laid down by the Apex Court as well as on the basis of evidence on record, it is well established that there should be adjudication on merit and matter should not be rejected on technical grounds. In the present matter, substitution application was not properly filed and court in place of taking liberal view, took a arbitrary view which cannot be sustained In view of above, the impugned orders are liable to be set aside and the matter should be remitted back before respondent no.2 to consider the substitution matter afresh with liberal approach so that matter be adjudicated on merit. Accordingly, writ petition is partly allowed. Impugned orders dated 2.2.2022 passed by respondent no.2 and impugned order dated 21.11.2020 passed by respondent no.3 are set aside. Matter is remanded back before respondent no.3 with following directions:- (i) Parties will appear before respondent no. 3 on 10.8.2022. (ii) Respondent no.5 (Manorma) be permitted to file appropriate substitution application, delay condonation application and affidavit in the appeal under Section 331 of U.P. Z.A. & L.R. At which shall be disposed of taking liberal view as held by the Apex Court in the judgement mentioned above, the application for substitution, etc. be disposed after affording opportunity of hearing to both parties expeditiously preferably within period of two months from 10.8.2022.
Arguments
Heard Sri Rahul Mishra, learned counsel for the petitioners, Sri Amrendra Nath Rai, counsel for respondent no.5 and the learned standing counsel for respondent nos. 1 to 4. The present writ petition has been filed by the petitioners against the revisional order dated 2.2.2022 passed by respondent no.2 as well as order dated 21.11.2020, passed by respondent no.3, allowing the substitution application in respect of respondent no.5. The brief facts of the case are that in the appeal under Section 331(3) of U.P. Z.A. & L.R. Act, arising out of suit under Section 229-B of the U.P. Z.A. & L.R. Act, before the Commissioner, an application for substitution was filed on 23.1.2020 with the prayer that Manorma be substituted in place of deceased - Girija Kumari, the appellant in the pending appeal. On the substitution application, objection was filed by the opposite parties, on the ground that in the substitution application, date of death of deceased - Girija Kumari has not been mentioned. The objection further was that the application was not accompanied by an application under Section 5 of the Limitation Act and the 3rd objection was to the effect that the application was also not supported by any affidavit as there is a delay in filing the substitution application and the deceased Girija Kumari was expired in the year 2002. The Commissioner allowed the substitution application on the payment of Rs.500/- on the ground that since the substitution has taken place in the consolidation proceedings, as such, only formal application is sufficient for substituting the legal heirs of deceased revisionist. The order of the Commissioner was challenged in the revision before the Board of Revenue and the Board of Revenue has also maintained the order of the Commissioner. Hence, the present petition. Counsel for the petitioner submitted that since the substitution application was not supported by Section 5 application and the affidavit as well as the date of death was also not mentioned in the application, as such, the application cannot be allowed unless the defect is cured by the appellant in the appeal. On the other hand, counsel for the respondent submitted that as soon as the matter came up before the Commissioner after remand made by the Board of Revenue, the necessary application was filed in the appeal to substitute the legal heirs and the application should not be rejected on the technical grounds. He further submitted that substitution of Girja Kumari took place in the consolidation proceedings as such substitution of Girja Kumari in the present appeal is formal in nature. He further submitted that cost for allowing the substitution application of Rs.500/- has been received by the petitioner in the courts below, as such, petitioners have no right to challenge the orders by which substitution applicant has been allowed. He also submitted that case should be decided on merit in place of technicalities. He placed reliance upon the judgment of the Supreme Court, reported in 2002 (93) R.D. 841, Nagina Singh and Others vs. Nagu Singh & Other as well as the judgment reported in AIR 1987 SC 1353, Collector, Land Acquisition Anantnagand Another vs. Mst. Kantiji & Others. Considered the submissions of the counsel for the parties and perused the record.
Decision
(iii) After disposal of substitution matter, appeal be heard and disposed of on merit, in accordance with law, after affording opportunity to both sides, expeditiously, preferably within a period of 6 months from the date of disposal of substitution matter as the matter is very old. No order as to costs. Order Date :- 6.7.2022/C.Prakash Digitally signed by CHANDRA PRAKASH Date: 2022.07.12 16:39:27 IST Reason: Location: High Court of Judicature at Allahabad