High Court
Case Details
Court No. - 9 Case :- WRIT - C No. - 38613 of 2022
Legal Reasoning
Petitioner :- Chhote Lal Respondent :- State Of U P And 3 Others Counsel for Petitioner :- Shriprakash Mishra Counsel for Respondent :- C.S.C.,Bhupendra Kumar Tripathi Hon'ble Prakash Padia,J. 1.Heard counsel for the petitioner, learned Standing Counsel for respondent Nos. 1, 2 & 3 and Mr. Bhupendra Kumar Tripathi, Counsel for respondent No.4, Land Management Committee. 2. With the consent of the parties the writ petition is being disposed of finally at the admission stage without inviting counter affidavit. 3. Brief facts of the case are that plot No.47 area 0.060 hectare situated in village-Udho Patti, Pargana-Angali, Tehsil-Shahganj, District-Jaunpur is in possession the petitioner since before the date of vesting and petitioners have constructed residential house in plot No.47 since long. Petitioner has annexed the copy of Khasara of 1398 fasli in which possession of petitioners' father Ram Sundar is mentioned in plot No.47 area 0.061 hectare. Petitioners belong to Scheduled caste community and comes under the category of landless labourer as such the land in dispute has been settled with them under the provisions of Act Act and Rules framed there under. Proceeding under Section 67 of U.P. Revenue Code 2006 has been initiated against the petitioner and ex-parte order dated 31.10.2020 was passed by respondent No.3 for ejectment and damages. Petitioner filed an appeal on 18.12.2020 under Section 67 (5) of U.P. Revenue Code 2006 along with the prayer to condone the delay, the respondent No.2 vide order dated 18.07.2022 dismissed the appeal on the ground of limitation as well as on merit hence this writ petition. 4. Learned counsel for the petitioner submitted that in the proceeding under Section 67 of UP. Revenue Code, 2006 ex- parte order dated 31.10.2020has been passed for ejectment and damages against the petitioners. Against the order of respondent No.3 (Assistant Collector/Tehsildar) petitioners filed appeal under Section 67 (5) of the U.P. Revenue Code, 2006 along with prayer for condonation of delay on 18.12.2020 and respondent No.2 vide impugned order dated 18th July, 2022 has dismissed the appeal filed by the petitioner on the ground of delay as well as on merit without considering the case of the petitioner as pleaded and argued before the appellate Court. He further submitted that the petitioners are in possession of disputed plot since before the date of vesting, as such petitioners are entitled to the benefit of Section-67A of U.P. Revenue Code, 2006.
Decision
5. He next submitted that in khasara, which has been annexed along with the writ petition, the possession of the petitioners is proved over the disputed plot. He further submitted that petitioner is entitled to the benefit of Section 67A of U.P. Revenue Code, 2006/123 (2) of U.P.Z.A. & L.R. Act, 1950 which provides for settlement of house with existing owner. He placed reliance upon Section 67A of U.P. Revenue Code, which is as follows: "(1) If any person referred to in sub-section (1) of Section 64 has built a house on any land referred to in Section 63 of this Code, not being land reserved for any public purpose, and such house exists on the November 29, 2012, the site of such house shall be held by the owner of the house on such terms and conditions as may be prescribed. (2) Where any person referred to in sub-section (1) of Section 64, has built a house on any land held by a tenure holder (not being a government lessee) and such house exists on November 29, 2000, the site of such house, notwithstanding anything contained in this Code, be deemed to be settled with the owner of such house by the tenure holder on such terms and conditions as may be prescribed. Explanation. - For the purpose of sub-section (2), a house existing on November 29, 2000, on any land held by a tenure holder, shall, unless the contrary is proved, be presumed to have been built by the occupant thereof and where the occupants are members of one family by the head of that family" 6. On the other hand, learned Standing Counsel as well as Counsel for the complainant submitted that the impugned orders have been rightly passed against the petitioners and the petitioners are in unauthorized possession over the plot in dispute, as such no interference is required against the impugned order. 7. I have considered the arguments advanced by the counsel for the parties and perused the record. 8. There is no dispute about the fact that the order was passed against the petitioners by the respondent No.3 in ex-parte manner, as such petitioners filed an appeal along with the prayer for condonation of delay within period of about 1-1/2 month but the appellate court by cryptic order has dismissed the appeal filed by the petitioners. Since the petitioners are in possession, since before the date of vesting, as such the petitioners' case can be considered by the appellate authority on merit in accordance with law after passing order condoning the delay in filing Appeal, but appellate court has dismissed the appeal on the ground of limitation as well as on merit without considering the case of petitioner. Apex Court in the case of A.I.R. 1987 SC 1353 Collector, Land Acquisition Anantnag and another Vs. Mst Kantiji and others in which it has been held that in place of dismissing the matter on technical ground, matter should be decided on merits. Counsel for the petitioners placed reliance upon para No.3 of the above mentioned Supreme Court judgment, which is as follows: "3. The legislature has conferred the power to condone delay by enacting Section 5 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 sub-serves 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 step motherly treatment when the 'State' is the applicant praying for condonation of delay. In fact experience shows that on account of an impersonal machinery (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." 9. Considering the ratio of law laid down in Collector Land Acquisition Anantnag (Supra) the dismissal of petitioner's appeal on the ground of limitation cannot be sustained. So far as merit consideration is concerned, there is no proper consideration of the petitioner's case on merit with respect to long possession of the petitioner being member of Scheduled Caste community, as such there should be proper consideration of petitioner's case on merit by appellate Court. This Court in the case reported in (2019) 143 RD 692 Pyare Vs. M. Abdul Hafeez has discussed the provisions contained under Section- 123 (2) of U.P.Z.A. & L.R. Act. The paragraph no.37 of the judgment is relevant which is as follows: "37. Applying the principles which have been called out to the present giving facts and circumstances, it is clear that the construction of the defendant was existing admittedly according to the plaintiff, since 1985 i.e. prior to the cut of date as mentioned in sub-section (2) of Section 123. The plaintiff has also admitted that the possession of he defendant was forcibly taken by the defendant in 1982 and he had raised his construction. Thus, this Court is of the firm opinion that the defendant was entitled to the benefit of sub-section (2) of Section 123." 10. In view of ratio of law laid by the Apex Court in Collector, Land Acquisition Anantnag (supra) and Pyare (Supra) as well as considering the facts and circumstances of the case as mentioned above, the writ petition is allowed. The impugned appellate order dated 18.07.2022 passed by respondent No.2 under Section 67 (5) of the U.P. Revenue Code, 2006 is hereby set aside and the mater is remanded back before the respondent No.2 to decide the petitioners' appeal afresh after passing the order on delay condonation matter taking liberal view on delay condonation matter after affording opportunity of hearing to both parties expeditiously preferably within a period of three months from the date of production of certified copy of this order before him. Order Date :- 19.12.2022 Pramod Tripathi Digitally signed by PRAMOD TRIPATHI Date: 2022.12.21 10:52:31 IST Reason: Location: High Court of Judicature at Allahabad