Court No. - 39
Case :- WRIT - C No. - 42613 of 2018 Petitioner :- Harnarayan Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Gaurav Sisodia Counsel for Respondent :- C.S.C.,Amresh Singh
Hon'ble Piyush Agrawal,J.
By means of the present writ petition the petitioner has challenged the order dated 26.7.2018 passed by respondent no.2 by which Section 5 application of the petitioner filed along with the appeal has been rejected.
It has been stated that proceedings under section 67 of the U.P.Revenue Code, 2006 have been initiated against the petitioner on the basis of the report of Lekhpal alleging that the petitioner has illegally constructed his kachcha house over some portion of the Gram Sabha land being Gata No. 595 measuring 0.2100 hectare, Gata No. 578 measuring 2.6910 hectare and Gata No. 600 measuring 0.4570 hectare situated at village Gadha Kalan, Tehsil Puranpur, District Pilibhit.
The petitioner filed his objection on 4.7.2017 specifically stating therein that no construction has been made over the Gaon Sabha Land and his house is situated over his ancestral land. It has been further stated that without considering the objection of the petitioner the Assistant Collector Ist Class/ Tehsildar, Puranpur vide order dated 13.10.2017 had directed eviction of the petitioner from the land in dispute and also imposed damages of Rs. 1447200/-. The petitioner filed appeal under section 67 (5) of the U.P.Revenue Code, 2006 before the respondent no.2 on 23.5.2018 along with a section 5 application. The section 5 application has been rejected by the impugned order dated 26.7.2018.
Heard learned counsel for the parties and perused the record.
Learned counsel for the petitioner submits that there was sufficient explanation to condone the delay and the Collector has erred in rejecting the same. In his submissions, it is settled that while considering the application for condonation of delay, the court should take sympathetic view and also see the merit of the case. The courts are meant for imparting substantial justice to the parties and not to scuttle the justice on technicalities. In the submissions of learned counsel for the petitioner, in case, the impugned order is not set aside and allowed to continue the petitioner would suffer irreparable loss and injury as the respondent no.3 has directed to evict the petitioner from the land in question and also imposed damages of Rs. 14,47,200/-.
Refuting the submissions of learned counsel for the petitioner, counsel for the respondent submits that the petitioner has through out been negligent. A belated application was filed after eight months, therefore the Collector has rightly rejected the petitioner's delay condonation application.
From the perusal of the order dated 26.7.2018, it is clear that the Collector has not discussed the contents of section 5 application and rejected the same without assigning any positive reason.
In my view, the defaults occurred, may be due to omission or other compelling reasons in not filing the appeal within time as nothing was going to be gained by the petitioner.
The Hon'ble Apex Court in Collector, Land Acquisition, Anantnag & Anr. Vs. Mst. Katiji & Ors. ( JT 1987 (1) SC 537 = 1987 (2) SCR 387) has made following observations :-
"'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.
Apart above, other guideline has also been issued by the Hon'ble Apex Court, which reads as under:-
"Ordinarily a litigant does not stand to benefit by lodging an appeal late.
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.
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.
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.
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."
Following the above guidelines, the Hon'ble Apex Court as well as this Court in number of cases, has held that while considering the delay condonation application, the court must be sympathetic and it has to see the merit of the case also as the law of limitation is not meant to take away the right of Appeal. The courts are meant for imparting justice and not to scuttle the justice on technicalities. The length of delay is also not very much material if there is a substance on merit. It has also been held that if there was some slackness on the part of applicant and that has caused inconvenience to the other side that can be compensated in terms of money instead of closing the door of justice for ever.
Reference may be had to the judgments of the Apex Court in State of Bihar and others Vs. Kameshwar Prasad Singh and others JT 2000 (5) 389, Noharlal Verma Vs. District Cooperative Central Bank Ltd. Jagdalpur, 2008 14 SCC 445, V.M. Salgaocara and Bros. Vs. Board of Trustees of Port of Mormugao and Another 2005 (4) SCC 613, Sneh Gupta Vs. Devi Sarup and Others 2009 (6) SCC 194 and Ragho singh Vs. Mohan Singh 2001 (9) SCC 717, Jeet Narain and Another Vs. Govind Prasad and Others (2010) 3 ADJ SC 470 as well as this Court in Smt. Prem Wati and Another Vs. Smt. Munni Devi alias Minakshi and Another 2009 (2) AWC 1099, Ramesh and another Vs.
Collector Jalaun and others, 2013 (7) ADJ 376 and Mukesh and another Vs. Additional D.M. (F & R) Mathura and others 2015 (8) ADJ 73.
In my opinion, the Collector has erred in rejecting the petitioner's delay condonation application. In view of foregoing discussions, the impugned order dated 26.7.2018 cannot be sustained in the eye of law.
In the result, the writ petition succeeds and is allowed. The delay in filing the appeal is hereby condoned. The delay condonation application is allowed. The appeal is restored to its original number. The Collector is directed to hear the appeal on merits and decide the same expeditiously in accordance with law.
Order Date :- 20.12.2018 samz