Tilak Ram vs State of U.P. and Others

Devi Prasad Singh, J.—Present writ petition under Article 226 of the Constitution of India has been preferred against the order dated 30.8.1993, passed by the Commissioner, Lucknow Division, Lucknow and the order dated 5.4.1994, passed by the Board of Revenue, U.P. Lucknow as contained in Annexures 4 and 6 respectively.

An objection was filed against the auction and sale dated 16.8.1989 and sale was challenged before the Commissioner on the ground that the proceeding with regard to auction and sale was initiated in pursuance to the notice issued against Smt. Pachcho who does not survive. Since the auction and sale was done in pursuance to the proceedings initiated against the dead person, the petitioner submitted while filing the objections that the entire auction and sale was not sustainable.

The objection was filed after some delay and the Commissioner, Lucknow Division, Lucknow while considering the application for condonation of delay observed that since the sale-deed has been executed delay cannot be condoned and rejected the application without entering into the merit of the controversy.

The Board of Revenue too rejected the revision by passing the order contained in Annexure No. 6 to the writ petition.

It is settled law that the application for condonation of delay filed u/s 5 of the Limitation Act should be considered liberally. In the present case, prima facie, it appears that the auction and sale proceedings were initiated after issuing a notice on dead person. This Court after considering the judgments rendered by Hon''ble Hon''ble Supreme Court in the case reported in 2006 (24) LCD 1 Swadeshi Polytex Limited v. Board of Revenue, U.P. and Ors. held that the auction and sale of property as arrears of land revenue shall not be sustainable in case the estimated value is not published and thirty days clear notice is not issued.

In the present case, keeping in view the fact that the notice was issued in the name of a dead person, the Commissioner should have considered the application for condonation of delay liberally in the ends of justice.

The auction was held on 16.8.1989 and the application was moved on 17.11.1990. The petitioner has tried to explain the delay on the ground that he was not aware since the notice was issued in the name of Smt. Pachcho who is a dead person. The submission of the petitioner''s counsel carries weight, more so when the notice issued was in the name of a dead person. While considering the application for condonation of delay, the Commissioner should have given due weight to the fact that no notice was served upon the petitioner who is heir and successor of Smt. Pachcho. The notice was issued in the name of a dead person, i.e. Smt. Pachcho. When the auction and sale took place and the notices were sent, Smt. Pachcho was not alive. This fact on record was sufficient to condone the delay.

The Commissioner, Lucknow Division, Lucknow has been failed to exercise jurisdiction vested in him. It is a fit case where the delay should have been condoned by the Commissioner, Lucknow Division, Lucknow.

While rejecting the revision, the Board of Revenue, U.P. Lucknow observed that since the application was moved after lapse of thirty days, delay could not have been condoned. The finding recorded by the Board of Revenue seems to be not correct and being quasi-judicial authority, the Commissioner was well within power to condone the delay. The power of the Commissioner to condone the delay while entertaining the application under Rule 285-1 of U.P. Z.A.L.R. Rules is no more res integra. The Full Bench of this Court in a case reported in 1990 RD 279 Smt. Jagrani/Prakash Narain etc. v. State of U.P. has already held that in a proceeding under Rule 285-1 of the Rules, an objection filed after 30 days before the Commissioner is maintainable and the Commissioner has got right to condone the delay. Accordingly, the judgment passed by the Board of Revenue in the revision too seems to be not sustainable and liable to be set aside.

Accordingly, the writ petition is allowed. A writ in the nature of certiorari is issued quashing the impugned order dated 30.8.1993, passed by the Commissioner, Lucknow Division, Lucknow, as contained in Annexure No. 4 as well as the order dated 5.4.1994, passed by the Board of Revenue contained in Annexure No. 6 to the writ petition with consequential benefits. A further writ in the nature of mandamus is issued directing the Commissioner, Lucknow Division, Lucknow to restore the objection filed by the petitioner to its original number and decide the same afresh on the basis of evidence after providing opportunity of hearing to the parties and evidence on record.

The writ petition is allowed accordingly. No order as to costs.