# Mata Pher Mishra v. The State Of U.P. & Ors

- **Citation:** (2021) 7 ILRA 415
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-06-09
- **Case number:** Special Appeal Defective No. 242 of 2021
- **Bench:** Sanjay Yadav, A.C.J. Prakash Padia
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mata-pher-mishra-v-the-state-of-u-p-ors-47183
- **Pages:** 6

## Headnote

A. Constitution of India,1950 - Article 226
- Writ - Effect of delay/laches - UP State
Road Transport Corporation Employees
(Other than Officers) Service Regulation,
1981 - S. 69 - Statutory appeal, limitation
of three months provided - Effect of
delay/laches - Sufficient cause, defined -
Principle to be applied in condoning the
delay laid down - Held, Rules of limitation
are not meant to destroy the right 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 -
Court should adopt liberal approach for
condonation of delay - Order of Single
Judge as well as of appellate authority set
aside. (Para 7 and 11)
B. Interpretation of statute - Liberal
construction - Words 'sufficient cause' -
Condonation of delay - Applicability and
Scope - Words 'sufficient cause' should
receive a liberal construction so as to
advance substantial justice. (Para 9)
Special Appeal allowed. (E-1)
Cases relied on :-

## Text

7 All. Mata Pher Mishra Vs. The State of U.P. & Ors.
415
employment with, by, or on behalf of the
Samiti
concerned"
with
the
word
"knowingly". In P. Rama Natha Aiyar's
Treatise "Advanced Law Lexicon" (4th
Edition), it is provided that the primary
meaning of the word "knowingly" is with
"knowledge".
The
treatise
thereafter
proceeds to notice various facets of the
term "knowingly" as interpreted by courts
in different contexts. One of them being the
decision in Horn Vs. State Ind, 445 N.E.2d
976-978, wherein it was held that "act is
done "knowingly" or "purposely" if it is
willed, is the product of a conscious design,
intent or plan that it be done, and is done
with awareness of probable consequences.
As succession takes place by operation of
law on the death of the estate holder and
death though is certain but the time of it
cannot be controlled, particularly, when it
occurs naturally, the successor in the event
of death simply steps into the shoes of the
estate holder immediately on his death, by
operation of law and, therefore, no question
of seeking prior permission to acquire
interest arises. Accordingly, by keeping in
mind the legislative intent for inserting
Section 28-C as also the import of clause
(a) of the proviso to its sub-section (1), we
respectively agree with the view of the
learned Single Judge that the provisions of
Section 28-C of the U.P. Panchayat Raj
Act, 1947 will not place any restriction on
acquisition of interest in a fishery lease by
succession. The appeal has no merit and is,
accordingly, dismissed.
----------

(2021)07ILR A415
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.06.2021

BEFORE

THE HON'BLE SANJAY YADAV, A.C.J.
THE HON'BLE PRAKASH PADIA, J.

Special Appeal Defective No. 242 of 2021

Mata Pher Mishra ...Petitioner
Versus
The State Of U.P. & Ors. ....Respondents

Counsel for the Petitioner:
Dr. Rajesh Kumar Srivastav

Counsel for the Respondents:
C.S.C., Sri Sunil Kumar Misra

A. Constitution of India,1950 - Article 226
- Writ - Effect of delay/laches - UP State
Road Transport Corporation Employees
(Other than Officers) Service Regulation,
1981 - S. 69 - Statutory appeal, limitation
of three months provided - Effect of
delay/laches - Sufficient cause, defined -
Principle to be applied in condoning the
delay laid down - Held, Rules of limitation
are not meant to destroy the right 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 -
Court should adopt liberal approach for
condonation of delay - Order of Single
Judge as well as of appellate authority set
aside. (Para 7 and 11)
B. Interpretation of statute - Liberal
construction - Words 'sufficient cause' -
Condonation of delay - Applicability and
Scope - Words 'sufficient cause' should
receive a liberal construction so as to
advance substantial justice. (Para 9)
Special Appeal allowed. (E-1)
Cases relied on :-
1. N. Balakrishnan Vs M. Krishnamurthy; JT
1998 (6) SC 242
2. Shakuntala Devi Vs Kuntal Kumari; AIR 1969
SC 575
416 INDIAN LAW REPORTS ALLAHABAD SERIES
3. St. of W.B. Vs The Administrator, Howrah
Municipality; AIR 1972 SC 749
4. Collector, Land Acquisition, Anantnag & anr.
Vs Mst. Katiji & ors.; AIR 1987, S.C. 1353
(Delivered by Hon'ble Prakash Padia, J.

Order on Delay Condonation
Application No. 2 of 2021

1. Matter is taken up through video
conferencing.

2. Heard Sri Rajesh Kumar Srivastav,
learned counsel for the appellant, learned
Standing Counsel for the respondent no.1
and Sri Sunil Kumar Mishra, learned
counsel for the respondents no.2 and 3.

3. The appeal is reported to be beyond
time by 537 days.

4.

Learned
counsel
for
the
respondents
have
no
objection
in
condoning the delay.

5. The grounds taken for condonation
of delay are good and sufficient.

6. Delay condoned.

7. Application is allowed.

Order on Appeal

1 . The writ petitioner-appellant was
working on the post of Driver in Civil
Lines Bus Depot, District Allahabad. He
was placed under suspension by the
Assistant Regional Manager, Civil Lines,
Bus Depot, Allahabad vide order dated
10.10.2012, thereafter, matter was inquired
by an Enquiry Officer duly appointed by
the department. It was found by the
Enquiry Officer that the charges levelled
against the petitioner-appellant are correct
and as such a show cause notice was issued
to him on 24.4.2013. Reply to the aforesaid
notice was submitted by him on 13.5.2013.
Taking into consideration the aforesaid an
order dated 22.5.2013 was passed by the
respondent no.3/Regional Manager, U.P.
State
Road
Transport
Corporation,
Allahabad by which balance salary of the
suspension period and two increments were
with-held effective from future. Apart from
the same directions were given to recover
the amount of 28 litre diesel from the salary
of the petitioner-appellant.

2. Aggrieved against the aforesaid a
statutory appeal was preferred by the writ
petitioner-appellant as provided under
Section 69 of the U.P State Road Transport
Corporation
Employees
(Other
than
Officers) Service Regulation, 1981 before
the respondent no.2 namely Chief Manager
(Sa), U.P.S.R.T.C, Head Office, Lucknow.
It is provided under Section 69 of the
Regulations of 1981 that the appeal could
be preferred within a period of three
months but since appeal was preferred after
the expiry of three months the same was
rejected by the appellate authority on the
ground that the appeal submitted by the
petitioner appellant was time barred. The
aforesaid order was passed by the appellate
authority on 03.10.2016 rejecting the
appeal filed by the petitioner-appellant
being barred by time.

3. Aggrieved against the aforesaid
order the petitioner-appellant preferred a
writ petition before this Court being Writ A
No.12268 of 2019. The aforesaid writ
petition was dismissed by the learned
Single Judge vide judgement and order
dated 06.08.2019 solely on the ground of
unexplained laches on the part of the
petitioner-appellant. Aggrieved against the
7 All. Mata Pher Mishra Vs. The State of U.P. & Ors.
417
aforesaid petitioner-appellant has preferred
the present special appeal.

4. It is argued by learned counsel for
the appellant that reasons for delay in filing
the writ petition as well as in filing appeal
before
the
appellate
authority
was
satisfactorily explained by him in the writ
petition but without considering the same
the writ petition filed by him was rejected
by the learned Single Judge. It is further
argued that due to mental and physical
harassment he was not able to approach this
Court within time.

5. In view of the same, it is argued
that delay in filing the appeal before the
appellant authority as well as in the writ
petition be condoned and the appellate
authority be directed to decide the appeal
filed by the petitioner-appellant on merits.

6. The primary function of a court is
to adjudicate the dispute between the
parties and to advance substantial justice.
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.

7. Rules of limitation are not meant to
destroy the right 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. Law of limitation fixes a life-span
for such legal remedy for the redress of the
legal injury so suffered.

8. The Apex Court in the case of N.
Balakrishnan
vs.
M.
Krishnamurthy
reported in JT 1998 (6) SC 242 has laid
down that :-

"the primary function of a
court is to adjudicate the dispute between
the parties and to advance substantial
justice. 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.
In the judgement, it has been held that
Rules of limitation are not meant to destroy
the right 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.
Law of limitation fixes a life-span for such
legal remedy for the redress of the legal
injury so suffered. Ultimately, in para 14, it
has been stated that it must be remembered
that in every case of delay there can be
some lapse on the part of the litigant
concerned. That alone is not enough to turn
down his plea and to shut the door against
him. If the explanation does not smack of
mala fides or it is not put-forth as part of a
dilatory strategy the court must show
utmost consideration to the suitor. It has
been laid down that in such matters,
approach of the court should be justice
oriented.
The paragraph 14
of
the
aforesaid
judgement
is
reproduced
hereinbelow :-

14. It must be remembered that in
every case of delay there can be some lapse
on the part of the litigant concerned. That
alone is not enough to turn down his plea
and to shut the door against him. If the
explanation does not smack of mala fides
or it is not put forth as part of a dilatory
strategy the court must show utmost
consideration to the suitor. But when there
is reasonable ground to think that the delay
was occasioned by the party deliberately to
gain time then the court should lean
418 INDIAN LAW REPORTS ALLAHABAD SERIES
against acceptance of the explanation.
While condoning delay the Could should
not forget the opposite party altogether. It
must be borne in mind that he is a looser
and he too would have incurred quiet a
large litigation expenses. It would be a
salutary
guideline
that
when
courts
condone the delay due to laches on the part
of the applicant the court shall compensate
the opposite party for his loss."

9. The words "sufficient cause" should
receive a liberal construction so as to advance
substantial justice. The Supreme Court in the
case of Shakuntala Devi vs. Kuntal Kumari
reported in AIR 1969 SC 575 held that the
word "sufficient cause" receiving a liberal
construction so as to advance substantial
justice when no negligence nor inaction nor
want of bona fides is imputable to the
appellant. If the appellant makes out
sufficient cause for the delay, the Court may
in its discretion condone the delay in filing an
appeal. The relevant paragraph 7 in this
regard is reproduced hereinbelow :-

"7. The next question is whether
the delay in filing the certified copy or, to
put it differently, the delay in re-filing the
appeal with the certified copy should be
condoned under Section 5 of the Limitation
Act, If the appellant makes out sufficient
cause for the delay, the Court may in its
discretion condone the delay. As laid down
in Krishna v. Chathappan (4) "Section 5
gives the Courts a discretion which in
respect of jurisdiction is to be exercised in
the way in which judicial power and
discretion ought to be exercised upon
principles which are well understood; the
words "sufficient cause" receiving a liberal
construction so as to advance substantial
justice when no negligence nor inaction nor
want of bonafides is importable to the
appellant."

10. Similar view was again taken by
the Supreme Court in the case of State of
West Bengal vs. The Administrator,
Howrah Municipality reported in AIR
1972 SC 749. It was held in the aforesaid
case by the Supreme Court that the words
"sufficient cause" should receive a liberal
construction so as to advance substantial
justice when no negligence or inaction or
want of bona fide is imputable to a party.
The relevant paragraph 30 is reproduced
hereinbelow :-

"From the above observations it
is clear that the words "sufficient cause"
should receive a liberal construction so, as
to advance substantial justice when no
negligence nor inaction nor is, imputable to
a party."

11. In the case of Collector, Land
Acquisition, Anantnag and another vs.
Mst. Katiji and others reported in AIR
1987, S.C. 1353, it was held by the
Supreme Court that the Court should
adopt liberal approach for condonation
of delay. Certain observations were
made by the Sureme Court in paragraph
3 of the aforesaid judgement, which is
reproduced hereinbelow :-

"The legislature has conferred
the power to condone delay by enacting
Section 51 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 subserves
the ends of justice--that being the lifepurpose
for
the
existence
of
the
institution of Courts. It is common
knowledge that this Court has been
7 All. Mata Pher Mishra Vs. The State of U.P. & Ors.
419
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 con- doned
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."

12. In our considered opinion the
order passed by the appellate authority
dated 03.10.2016 rejecting the appeal
filed by the petitioner-appellant as well
as the order dated 06.08.2019 passed by
the learned Single Judge dismissing the
writ petition filed by the petitionerappellant are liable to be set aside and
they are hereby set aside.

13. The appellant authority is
directed to pass appropriate orders in
that appeal preferred by the petitionerappellant on merits in accordance with
law.

14. The aforesaid exercise be
completed by the aforesaid authority
expeditiously and preferably within a
period of four months from the date of
presentation of this order.

15. Accordingly, present appeal is
allowed.
----------
420 INDIAN LAW REPORTS ALLAHABAD SERIES
(2021)07ILR A420
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 19.02.2021

BEFORE

THE HON'BLE IRSHAD ALI, J.

Service Bench No. 327 of 2000

Ram Pratap Singh ...Petitioner
Versus
State of U.P. ...Respondent

Counsel for the Petitioner:
D.P. Singh, Sameer Kalia, Srideep Chatterjee

Counsel for the Respondent:
C.S.C., Brijesh Kr. Shukla, Hari Prakash Gupta,
N.K. Seth, S. Seth, Satyanshu Ojha

A. Service Law - Statute of UP Krishi Evam
Prodyogik Vishwavidyala Adhiniyam, 1958 - Ch.
XII - Designation of Assistant Professor
granted w.e.f 13.03.1992 - Subsequently
modified to the extent that the benefit
shall be provided from the date of
issuance
of
Government
Order
i.e.
22.07.1999
-
Validity
-
Held,
the
impugned order has been passed without
taking into consideration the provisions
contained under Chapter XII of the
Statute; It does not record reasons that
why the petitioners shall be paid salary
with effect from the date of issuance of
government order - Further held, the
impugned
order
being
illegal
and
unreasoned cannot be sustained. (Para
14, 29 and 33)
B. Statute and Government Order -
Overriding effect - Government order
cannot override the provisions contained
under the statute. ((Para 27)
C.
Precedent
-
Parity
of
wrong
-
Permissibility - Held, parity of wrongs
cannot be granted to similarly situated
persons - Respondents are taking parity
of wrongs, which is not permissible in the
eyes of law. (Para 30)
Writ Petition allowed .(E-1)
(Delivered by Hon'ble Irshad Ali, J.)

1. Heard Sri S.K. Kalia, learned
Senior Advocate assisted by Sri Srideep
Chatterjee,
learned
counsel
for
the
petitioners, Sri Alok Sharma, learned
Additional Chief Standing Counsel for
respondent-State and Sri Satyanshu Ojha,
learned counsel for respondent Nos.3 and
4.

2. By means of the present writ
petition, the petitioners are challenging the
order dated 18.2.2000 with a prayer to issue
writ in the nature of Mandamus directing
the opposite parties not to give effect
impugned order dated 18.2.2000.

3. Brief facts of the case are that the
petitioners were granted appointment on
the post of Senior Research Associates in
the
scale
of
Rs.570-1100
between
February, 1986-1988. Later on, they were
granted pay scale of Rs.700-1600 of
Assistant
Professor
/
Teacher
w.e.f.
06.06.1981, which was revised in the pay
scale of Rs.2200-4000 and subsequently, it
has been revised in the pay scale of
Rs.8000-13500/- in pursuance to 5th Pay
Commission.

4. Vide resolution dated 15.10.1990,
the Board of Management of the University
resolved
that
all
the
employees
of
University should be given U.G.C. scale, as
has been given by G.B. Pant University of
Agriculture & Technology, Pantnagar,
District Udhamsinghnagar (Nainital) and
communicated a letter dated 23.10.1990 in
this regard to the State Government.

5. The University again sent a
reminder to the State Government on