# Ashok Singh & Ors v. State of U.P. & Ors

- **Citation:** (2022) 6 ILRA 972
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-05-12
- **Case number:** Writ-B No. 303 of 2022
- **Bench:** Dr. Yogendra Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ashok-singh-ors-v-state-of-u-p-ors-48694
- **Pages:** 6

## Headnote

(A) Revenue Law - The U.P. Zamindari
Abolition and Land Reforms Act, 1950 -
Section 333 - Power to call for cases ,
The Limitation Act, 1963 - Section 5 -
Delay Condonation - Sufficient cause -
Rules of procedure are the handmaid of
the
justice
and
no
party
should
ordinarily be denied the opportunity of
participating in the process of justice
dispensation.(Para -15)

Recall application - dismissed by Board of
Revenue - substitution application filed with
delay - steps not taken for issuance of notice
pursuant to the order passed - rejection of
revision - ground - not taking steps based
on hyper technical reasoning
-
legally
unsustainable. (Para - 13,14)

HELD:-Impugned orders set aside. Matter
remitted to the Board of Revenue for passing
of
a
fresh
order
after
granting
due
opportunity to the parties concerned. (Para
- 17)

Writ Petition Allowed. (E-7)

List of Cases cited:-

## Text

972 INDIAN LAW REPORTS ALLAHABAD SERIES
198 for cancellation of the allotment was not
followed, it may only be stated that the order
of the Tahsildar granting approval being
without jurisdiction, the same was a nullity
and would have no effect. The District
Magistrate upon receiving a complaint and
after getting the matter inquired has rightly
held that since the Tahsildar was not
empowered to grant approval on the said date
in view of the amendment made to Section
195 the order of approval was beyond
jurisdiction and accordingly the same was
cancelled. It would be pertinent to underscore
the distinction between cancellation of an
order of approval on the ground that the same
was without jurisdiction, and cancellation of
an order of allotment on account of an
irregularity
which
would
require
the
procedure under sub-section (4) of Section
198 to be followed.

31. No other ground was urged.

32. In view of the above, the Court
finds no material error or illegality in the
orders impugned so as to persuade this Court
to exercise extra ordinary jurisdiction under
Article 226 of the Constitution of India.

33. The petition stands dismissed
accordingly.
----------
(2022)06ILR A972
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.05.2022

BEFORE

THE HON'BLE DR. YOGENDRA KUMAR
SRIVASTAVA, J.

Writ-B No. 303 of 2022

Ashok Singh & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents
Counsel for the Appellnts:
Sri Anup Kumar Srivastava, Sri Dharmendra
Prasad

Counsel for the Respondents:
C.S.C., Sri Jamwant Maurya, Sri Krishna Kant
Singh, Sri Deena Nath

(A) Revenue Law - The U.P. Zamindari
Abolition and Land Reforms Act, 1950 -
Section 333 - Power to call for cases ,
The Limitation Act, 1963 - Section 5 -
Delay Condonation - Sufficient cause -
Rules of procedure are the handmaid of
the
justice
and
no
party
should
ordinarily be denied the opportunity of
participating in the process of justice
dispensation.(Para -15)

Recall application - dismissed by Board of
Revenue - substitution application filed with
delay - steps not taken for issuance of notice
pursuant to the order passed - rejection of
revision - ground - not taking steps based
on hyper technical reasoning
-
legally
unsustainable. (Para - 13,14)

HELD:-Impugned orders set aside. Matter
remitted to the Board of Revenue for passing
of
a
fresh
order
after
granting
due
opportunity to the parties concerned. (Para
- 17)

Writ Petition Allowed. (E-7)

List of Cases cited:-

1. N. Balakrishnan Vs M. Krishnamurthy, (1998)
7 SCC 123

2. Esha Bhattacharjee Vs Managing Committee
of Raghunathpur Nafar Academy & ors., (2013)
12 SCC 649

3. The St. of Punj. & anr. Vs Shamlal Murari &
anr. , (1976) 1 SCC 719

(Delivered by Hon'ble Dr. Yogendra
Kumar Srivastava, J.)

1. Heard Sri Anup Kumar Srivastava,
learned counsel for the petitioners, Sri
6 All. Ashok Singh & Ors. Vs. State of U.P. & Ors.
973
J.P.N. Raj, learned Additional Chief
Standing Counsel appearing for the Staterespondents, Sri Deena Nath, holding brief
of Sri Jamwant Maurya, learned counsel for
the respondent nos. 3, 4 and 5 and Sri
Krishna Kant Singh, learned counsel
appearing for the respondent no.6.

2. The present petition has been filed
seeking to raise a challenge to the order
dated 10.08.2021 passed by the Board of
Revenue, U.P. at Allahabad in Case No.
Rev/06/2008-2009, Computerized Case No.
AL2008183499956, under Section 333 of
the U.P. Zamindari Abolition and Land
Reforms Act, 19501 as well as order dated
22.11.2021
passed
in
Case
No.
Rec/1828/2021,
Computerized
Case
No.AL20211834001828 under Section 333
of the Act.

3. It is pointed out that consequent to
the death of the sole revisionist on
26.10.2011, a substitution application dated
23.11.2015 was moved on behalf of the
petitioners
i.e.
legal
heirs
and
representatives of the deceased-revisionist
along
with
an
application
seeking
condonation of delay. The said application
was rejected by means of an order dated
10.08.2021 assigning the reason that the
substitution application had been filed with
a delay and that steps had not been taken
for issuance of notice pursuant to an order
passed with regard to the same.

4. It is further pointed out that a recall
application against the aforestated order
was moved by the petitioners wherein it
was submitted that the applicants i.e. legal
heirs and representatives of the deceasedrevisionist were already represented by
their counsel whose vakalatnama was on
record and the contesting respondent nos. 1
and 3 were also represented through their
counsel whose vakalatnama was also on
record. The recall application was also
dismissed by the Board of Revenue in
terms of an order dated 22.11.2021
reiterating the reasons that the substitution
application was filed with delay and that
steps were not taken for issuance of notice
pursuant to the order passed in regard to the
same.

5. On the point of delay in filing the
substitution application, learned counsel for
the petitioners has submitted that the
reasons for the same were fully explained
in the affidavit filed in support of the delay
condonation application. It is pointed out
that the affidavit contained a clear assertion
that the applicants were not aware with
regard to the pendency of the said case as
the pairvi of the revision was being done by
their father, Sobaran Singh. It was further
averred that the applicants became aware of
the pendency of the revision for the first
time in the year 2015 upon receiving a
communication from the counsel, which
was addressed in the name of Sobaran
Singh, their deceased father, and soon
thereafter they sought legal advice and filed
the substitution application along with an
application
under
Section
5
of
the
Limitation Act, 1963 seeking condonation
of delay.

6. It is accordingly submitted that the
delay in filing the restoration application
having been sufficiently explained and
there being no want of bonafides on the
part of the petitioners, the Court ought to
have adopted a liberal approach and
granted condonation of delay.

7.

The
manner
of
exercising
discretion
in
matters
relating
to
condonation of delay is fairly well settled
and it has been consistently held that while
974 INDIAN LAW REPORTS ALLAHABAD SERIES
exercising discretion in such matters, the
words "sufficient cause" under Section 5 of
The Limitation Act, 1963, should be
construed in a liberal manner and in the
absence of anything showing malafide or
deliberate delay as dilatory tactics, the
Court should normally condone the delay.

8.

The
manner
of
exercising
discretion by Courts in matters relating to
condonation of delay was subject matter of
consideration in N. Balakrishnan Vs. M.
Krishnamurthy2 wherein it was observed
as under -:

"9. It is axiomatic that condonation of
delay is a matter of discretion of the court.
Section 5 of the Limitation Act does not say
that such discretion can be exercised only if
the delay is within a certain limit. Length of
delay is no matter, acceptability of the
explanation is the only criterion. Sometimes
delay of the shortest range may be
uncondonable due to a want of acceptable
explanation whereas in certain other cases,
delay of a very long range can be condoned
as the explanation thereof is satisfactory.
Once the court accepts the explanation as
sufficient, it is the result of positive exercise
of discretion and normally the superior court
should not disturb such finding, much less in
revisional jurisdiction, unless the exercise of
discretion was on wholly untenable grounds
or arbitrary or perverse. But it is a different
matter when the first court refuses to condone
the delay. In such cases, the superior court
would be free to consider the cause shown for
the delay afresh and it is open to such
superior court to come to its own finding
even untrammelled by the conclusion of the
lower court.

10. The reason for such a different
stance is thus:

The primary function of a court is to
adjudicate the dispute between the parties and
to advance substantial justice. The time-limit
fixed for approaching the court in different
situations is not because on the expiry of such
time a bad cause would transform into a good
cause.

11. Rules of limitation are not meant
to destroy the rights of parties. They are
meant to see that parties do not resort to
dilatory tactics, but seek their remedy
promptly. The object of providing a legal
remedy is to repair the damage caused by
reason of legal injury. The law of limitation
fixes a lifespan for such legal remedy for
the redress of the legal injury so suffered.
Time is precious and wasted time would
never revisit. During the efflux of time,
newer causes would sprout up necessitating
newer persons to seek legal remedy by
approaching the courts. So a lifespan must
be fixed for each remedy. Unending period
for launching the remedy may lead to
unending uncertainty and consequential
anarchy. The law of limitation is thus
founded on public policy. It is enshrined in
the maxim interest reipublicae up sit finis
litium (it is for the general welfare that a
period be put to litigation). Rules of
limitation are not meant to destroy the
rights of the parties. They are meant to see
that parties do not resort to dilatory tactics
but seek their remedy promptly. The idea is
that every legal remedy must be kept alive
for a legislatively fixed period of time.
12. A court knows that refusal to condone
delay would result in foreclosing a suitor
from putting forth his cause. There is no
presumption that delay in approaching the
court is always deliberate. This Court has
held that the words "sufficient cause" under
Section 5 of the Limitation Act should
receive a liberal construction so as to
advance substantial justice vide Shakuntala
Devi Jain v. Kuntal Kumari, AIR 1969 SC
575 and State of W.B. v. Administrator,
Howrah Municipality, (1972) 1 SCC 366 ."
6 All. Ashok Singh & Ors. Vs. State of U.P. & Ors.
975

9. The question as to what would be
held to be "sufficient cause" while
considering
an
application
seeking
condonation of delay again came up for
consideration
in
the
case
of
Esha
Bhattacharjee vs. Managing Committee
of Raghunathpur Nafar Academy and
others3, wherein upon considering the
obligation of the Court while dealing with
an application for condonation of delay and
the
approach
to
be
adopted
while
considering the grounds for condonation,
the
principles
to
be
applied
were
summarized. The observations made in the
judgment in this regard are as follows -:

"21. From the aforesaid authorities the
principles that can broadly be culled out are:

21.1. (i) There should be a liberal,
pragmatic,
justice-oriented,
non-pedantic
approach while dealing with an application
for condonation of delay, for the courts are
not supposed to legalise injustice but are
obliged to remove injustice.

21.2. (ii) The terms "sufficient cause"
should be understood in their proper spirit,
philosophy and purpose regard being had to
the fact that these terms are basically elastic
and are to be applied in proper perspective to
the obtaining fact-situation.

21.3. (iii) Substantial justice being
paramount
and
pivotal
the
technical
considerations should not be given undue and
uncalled for emphasis.

21.4. (iv) No presumption can be
attached to deliberate causation of delay but,
gross negligence on the part of the counsel or
litigant is to be taken note of.

21.5. (v) Lack of bona fides imputable
to a party seeking condonation of delay is a
significant and relevant fact.

21.6. (vi) It is to be kept in mind that
adherence to strict proof should not affect
public justice and cause public mischief
because the courts are required to be vigilant
so that in the ultimate eventuate there is no
real failure of justice.

21.7. (vii) The concept of liberal
approach has to encapsulate the conception of
reasonableness and it cannot be allowed a
totally unfettered free play.

21.8. (viii) There is a distinction
between inordinate delay and a delay of short
duration or few days, for to the former
doctrine of prejudice is attracted whereas to
the latter it may not be attracted. That apart,
the first one warrants strict approach whereas
the second calls for a liberal delineation.

21.9. (ix) The conduct, behaviour and
attitude of a party relating to its inaction or
negligence are relevant factors to be taken
into consideration. It is so as the fundamental
principle is that the courts are required to
weigh the scale of balance of justice in
respect of both parties and the said principle
cannot be given a total go by in the name of
liberal approach.

21.10. (x) If the explanation offered is
concocted or the grounds urged in the
application are fanciful, the courts should be
vigilant not to expose the other side
unnecessarily to face such a litigation.

21.11. (xi) It is to be borne in mind that
no
one
gets
away
with
fraud,
misrepresentation or interpolation by taking
recourse to the technicalities of law of
limitation.

21.12. (xii) The entire gamut of facts are
to be carefully scrutinised and the approach
should be based on the paradigm of judicial
discretion which is founded on objective
reasoning and not on individual perception.

21.13. (xiii) The State or a public body
or an entity representing a collective cause
should be given some acceptable latitude."

10. Applying the aforesaid principles
to the facts of the present case, it would be
seen that the affidavit filed in support of
application seeking condonation of delay
976 INDIAN LAW REPORTS ALLAHABAD SERIES
spelt out the reasons for the delay in filing
the substitution application and the reasons
specified in that regard could not be held to
be insufficient and no want of bonafides
could have been imputed to the petitioners.

11. The order dated 10.08.2021 passed
by the respondent No.2 does not assign any
cogent reason which may have persuaded the
Court not to accept the explanation furnished
by the petitioners and to reject the application
seeking
condonation
of
delay
and
consequently to dismiss the revision as
having been abated.

12. The subsequent order dated
22.11.2021 on the recall application also does
not accord any consideration to the reasons
which were furnished by the petitioners in
support of the delay condonation application.

13. On the question with regard to
taking steps pursuant to the order directing
issuance of notice, it has been pointed out that
the
applicants
i.e.
legal
heirs
and
representatives of the deceased-revisionist
were already represented through their
counsel and the vakalatnama of their counsel
was on record. The contesting respondents
were also represented through their counsel
whose vakalatnama was also on record. The
recall application was also dismissed by the
Board of Revenue in terms of an order dated
22.11.2021 reiterating the reasons that the
substitution application was filed with delay
and that steps were not taken for issuance of
notice pursuant to the order passed in regard
to the same.

14. It is urged on behalf of the
petitioners that the rejection of the revision
on the ground of not taking steps is based
on hyper technical reasoning and would be
legally unsustainable.

15. In this regard, this Court may
reiterate the proposition that rules of
procedure are the handmaid of the justice
and no party should ordinarily be denied
the opportunity of participating in the
process of justice dispensation. It would be
apt to refer to the observations made in The
State of Punjab and another Vs. Shamlal
Murari and another4, wherein it was
observed as follows :-

"...processual law is not to be a tyrant
but a servant, not an obstruction but an aid
to justice. It has been wisely observed that
procedural prescriptions are the handmaid
and not the mistress, a lubricant, not a
resistant in the administration of justice..if
the breach can be corrected without injury
to a just disposal of the case, we should not
enthrone a regulatory requirement into a
dominant desideratum..."

16. Learned counsel appearing for the
respondents has not disputed the fact that in
matters relating to condonation of delay the
court has to adopt a liberal approach and in
a case where the delay has been sufficiently
explained by giving adequate reasons the
application ought not to be rejected on
some hyper technical reasoning. Learned
counsel also does not dispute that once the
parties were duly represented through their
counsel the revision ought not to have been
dismissed for not taking steps for issuance
of notice.

17. Having regard to the aforestated
facts and circumstances and looking to the
interest of justice, the impugned orders
dated 10.08.2021 and 22.11.2021 are set
aside and the matter is remitted to the
Board of Revenue, U.P. at Allahabad for
passing of a fresh order after granting due
opportunity to the parties concerned.
6 All. Ajay Bhandari Vs. U.O.I. & Ors.
977

18. The writ petition stands allowed
in the manner as indicated above.

19. The original records received
from the Board of Revenue, U.P. at
Allahabad, through the Standing Counsel
appearing for the State respondents, shall
be returned forthwith.
----------
(2022)06ILR A977
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.05.2022

BEFORE

THE HON'BLE SURYA PRAKASH
KESARWANI, J.
THE HON'BLE JAYANT BANERJI, J.

Writ Tax No. 347 of 2022

Ajay Bhandari ...Petitioner
Versus
U.O.I. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Alnkur Agarwal

Counsel for the Respondents:
A.S.G.I., Sri Anant Kumar Tiwari, Sri
Gaurav Mahajan

(A) Tax - The Income Tax Act, 1961 -
Sections 119, 142(1), 144-B, 147, 148,
148-A & 149 - Issue of notice where
income
has
escaped
assessment
-
Constitution of India - Article 142 -
Clauses 6.2 and 7.1 of the Board's
Circular - if a case does not fall under
Clause (b) of sub-Section (i) of Section
149
of
the
Act,
1961
-
for
the
Assessment Years 2013-14, 2014-15 and
2015-16
(where the income
of
an
assessee escaping assessment to tax is
less than Rs.50,00,000/-) - notice not
issued
within
limitation
under
the
unamended provisions of Section 149 -
then proceedings under the amended
provisions cannot be initiated. (Para-11)
Impugned notice under Section 148 of
Income Tax Act, 1961 - reason to believe -
income to the tune of Rs. 2,63,324/- -
escaped assessment for assessment year
2014-15 - re-assessment - Section 147 read
with 144B - without jurisdiction - jurisdiction
cannot be assumed after expiry of period of
limitation - barred by limitation - limitation
under the amended provisions of Section
148A and 149 of the Act - expired - allegation
of evaded income is Rs. 2,63,324/- -
provided to be read as Rs. 26,33,324/- - by
notice dated 17.3.2022 under Section 142(1)
of the Act - which is much below Rs. 50 Lacs.
(Para - 3,4,6)

HELD:-Impugned notice under Section 144,148
& Section 147 read with Section 144B of the
Act, 1961, for the Assessment Year 2014-15
quashed.(Para -12)

Writ Petition Allowed. (E-7)

List of Cases cited:-

1. Civil Appeal No. 3005 of 2022 (U.O.I. & ors.
Vs Ashish Agarwal) , 2022 SCC OnLine SC 543

2. Daujee Abhushan Bhandar Pvt. Ltd. Vs U.O.I.
& ors. , Writ Tax No. 78 of 2022

(Delivered by Hon'ble Surya Prakash
Kesarwani, J.
&
Hon'ble Jayant Banerji, J.)

1. Heard Shri Ankur Agarwal, learned
counsel for the petitioner, Shri S.P. Singh,
learned Additional Solicitor General of
India assisted by Shri Krishna Agarwal,
learned Senior Standing Counsel for the
respondent/Income Tax Department and
Shri Anant Kumar Tiwari, learned Central
Government Standing Counsel.

2. With the consent of the learned
counsel for the parties, this writ petition is
being finally heard without calling for a
counter affidavit inasmuch as no disputed