Karam Chand vs Union Territory or Jammu and Kashmi

Vinod Chatterji Koul, J

The instant petition has been filed against theorder dated 22.06.2023 ( for brevity ‘impugned order’) passed by Additional Deputy Commissioner (with powers of Commissioner Agrarian Reforms), Reasi ( for short ‘Appellate Authority’), whereby the appeal filed by the respondent No.4-Bodh Raj under Section 21 of Agrarian Reforms Act for setting aside the mutation order No.238 dated 18.12.1983 under Section 8 passed by Tehsildar Gool Gulabgarh in favour of the petitioners with respect to the land falling under Khasra No.259 comprising 39 Kanals 12 Marlas situated at Village Sawlakote, has been allowed.

The impugned order is being challenged, precisely on the ground that the impugned order has been passed by the Appellate Authority in a time barred appeal which had been filed after a period of more than 37 years of passing of the orders of mutations.

Respondent No.4 had filed an appeal before the Appellate Authority challenging the aforesaid mutations on the grounds that the land in question was inherited jointly by him and one of his brother, namely, Late Thakur Dass, as a gift from their father-in-law, namely, Jodhu before 1971.Since inheritance, he remained in continuous possession on spot in his share of land i.e., 19 Kanal 16 Marlas of land under Khasra No. 259 in Village Sawalakote, Teghsil Gool Gulabgarh.On 20.02.2020 respondents-petitioners herein avowed openly that they would dispossess the appellant-respondent No.4 herein.He got the knowledge of the land in which he was in peaceful possession had been entered in the name of respondents-petitioners herein under Section 4 vide mutation order No.234 dated 17.12.1983 and under Section 8 vide mutation order No.238 dated 18.12.1983 passed by Tehsildar Gool Gulabgarh with respect to the land falling under Khasra No. 259 comprising 39 Kanals 12 Marlas situated at Village Sawlakote now Tehsil Arnas District Reasi without giving an opportunity of being heard to the appellant-respondent No. 4 herein.

The main ground on which the appeal filed by respondent No.4 was sought to be allowed and mutations set aside was that the said mutations had been attested without giving him an opportunity of being heard.

Heard learned counsel for the parties and perused the record of the case.

The mutations in question had been registered way back in the year 1983 i.e., more than 38 years back of filing of the appeal by the respondent No.4. He had neither filed anyapplication for condoning delay in filing the appeal nor provided any explanation for such a long inordinate period. While allowing the appeal, respondent No.2-Appellate Authority has simply stated that the delay in filing the appeal is condoned under Section 5 of the Limitation Act and appeal is accepted as substantiated by the reason that mutation orders have been passed in his absence. The Appellate Authority has not offered any explanation from respondent No.4 for such a long delay.

Operative part of the impugned order dated 22.06.2023 reads as under:-

“After hearing both the parties & their written arguments placed on file &examination of record it reveals that the Girdawari verified by circle officer in Kharief 1971 on dated 02-1974. The land under appeal has been found recorded in column of Kasht,self cultivationSarban co-sharerthrough Lalman& Bodh Raj sons in equal 1/2share &Makhan and Karam Chand Grand sons in equal1/2share. Mutation orders were passed bythe mutating officer only in the favour of Makhan and Karam Chand Grandsons of Sarbanwithout conducting proper enquiry. The delay in filing the appeal is condoned u/s 5 of theLimitation Act and appeal is accepted as substantiated by the reason that mutation ordershave been passed in his absence. Hence the mutation order No 234 dated 17-12-1983 u/s4 and mutation order No. 238 dated 18-12-1983 u/s 8 passed by Tehsildar GoolGulabgarh with respect to the land falling under Khasra No. 259 situated at villageSawlakote Tehsil Arnas District Reasi is setaside to the extent of 19K-16M. The case isremanded to Tehsildar Arnas for conducting denovo enquiry and passing appropriateorders in presence of all the concerned parties. The Status quo order, if any issued by thiscourt stands vacated. Both the parties are directed to appear before Tehsildar Arnas on 27-7-2023. The original file be consigned to record after its due completion.”

It would be clear from the impugned order that the Appellate Authority has not given any reason in condoning the delay under the provisions of Section 5 of the Limitation Act.

If a litigant applies to condone delay in filing appeal, he/she is required to explain why appeal was not filed within limitation period itself. An explanation of delay from the period when limitation ended is not sufficient. The litigant is required to explain why appeal was not filed before the expiry of limitation period. Recently, the Supreme Court in one of its judgements dated 29th November 2024, passed by it in Special Leave Petition (C) Diary no.48636 of 2024 titled as State of Madhya Pradesh v. Ramkumar Choudhary, 2024 INSC 932 : 2024 LiveLaw (SC) 953, has made observations while dismissing the appeal seeking to condone delay of over five years in filing an appeal. Appropriate portion of the said judgement is worthwhile to be reproduced hereunder:

“4. Evidently, there was enormous delay occurred at every stage i.e., from the date of receipt of the judgment passed by the First Appellate Court to till the date of filing the second appeal by the State. The judgement was passed by the First Appellate Court on 21.08.2014 and the same was communicated by the Government Advocate representing the State to the Collector, only on 25.08.2015 i.e., after a delay of one year. Causing 3 months’ delay, by letter dated 10.12.2015, the Collector informed to the Principal Secretary, Revenue Department, about the passing of the judgment against the State and preferring a second appeal against the same. Thereafter, the Law Department took three years’ time and gave permission for filing appeal on 26.10.2018, which was sent to the Collector on 31.10.2018. Based on the said opinion, after preparation of the appeal papers, the State filed the second appeal only on 18.10.2019.

Hence, there was inordinate delay of 1788 days occasioned in preferring the second appeal, but the same was not properly explained by the State.

The legal position is that where a case has been presented in the Court beyond limitation, the petitioner has to explain the Court as to what was the "sufficient cause" which means an adequate and enough reason which prevented him to approach the Court within limitation. In MajjiSannemma v. Reddy Sridevi, 2021 SCC Online SC 1260, it was held by this Court that even though limitation may harshly affect the rights of a party, it has to be applied with all its rigour when prescribed by statute. A reference was also made to the decision of this Court in Ajay Dabra v. Pyare Ram, 2023 SCC Online SC 92, wherein, it was held as follows:

“13. This Court in the case of Basawaraj v. Special Land Acquisition Officer [(2013) 14 SCC 81] while rejecting an application for condonation of delay for lack of sufficient cause has concluded in Paragraph 15 as follows:

“15. The law on the issue can be summarised to the effect that where a case has been presented in the court beyond limitation, the applicant has to explain the court as to what was the “sufficient cause” which means an adequate and enough reason which prevented him to approach the court within limitation. In case a party is found to be negligent, or for want of bona fide on his part in the facts and circumstances of the case, or found to have not acted diligently or remained inactive, there cannot be a justified ground to condone the delay. No court could be justified in condoning such an inordinate delay by imposing any condition whatsoever. The application is to be decided only within the parameters laid down by this Court in regard to the condonation of delay. In case there was no sufficient cause to prevent a litigant to approach the court on time condoning the delay without any justification, putting any condition whatsoever, amounts to passing an order in violation of the statutory provisions and it tantamounts to showing utter disregard to the legislature.”

Therefore, we are of the considered opinion that the High Court did not commit any mistake in dismissing the delay condonation application of the present appellant.

Thus, it is crystal clear that the discretion to condone the delay has to be exercised judiciously based on facts and circumstances of each case and that, the expression 'sufficient cause' cannot be liberally interpreted, if negligence, inaction or lack of bona fides is attributed to the party.”

Delay should not be excused as a matter of generosity, has been held by the Supreme Court in Union of India v. Jahangir ByramjiJeejeeboy (D) through his legal heir, 2024 SCC OnLine SC 489. It hardly matters whether a litigant is a private party or a State or Union of India when it comes to condoning inordinate delay. If litigant chooses to approach the court long after lapse of time prescribed under relevant provisions of law, then he cannot turnaround and say that no prejudice would be caused to either side by delay being condoned. The length of delay is a relevant matter which the court must take into consideration while considering whether the delay should be condoned or not. While considering the plea for condoning delay, the court must not start with merits of the main matter. The court owes a duty to first ascertain the bona fide of the explanation offered by party seeking condonation. It is only if sufficient cause assigned by litigant and the opposition of other-side is equally balanced that the court may bring into aid the merits of the matter for the purpose of condoning the delay. The question of limitation is not merely a technical consideration. The rules of limitation are based on principles of sound public policy and principles of equity. The Supreme Court in plethora of cases has said that delay should not be condoned as a matter of generosity.

In the present case, an appealwas filed by respondent No.4 before the Appellate Authority after a period of more than 37 years of passing of the orders of mutation without seeking permission to condone the delay. The Appellate Authority has not fully explainedthe reason for allowing the appeal despite there being a long delay of more than 37 years in filing the appeal. The Appellate Authority should have demanded an explanation or application before accepting the appeal, especially after such an extensive delay.

For the reasons discussed above, the instant petition is allowed and the order dated 22.06.2023 passed by Additional Deputy Commissioner (with powers of Commissioner Agrarian Reforms), Reasi, is set aside and the matter is remanded back for considering the matter afresh and decide the same in accordance with the provisions of law and on merits.