# Piyush Bhattacharya &Anr v. Samaj Sangathan&Anr

- **Citation:** (2019) 1 ILRA 1307
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-07-19
- **Case number:** Matter Under Art. 227 No. 1181 of 2019
- **Bench:** Vivek Kumar Birla
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/piyush-bhattacharya-anr-v-samaj-sangathan-anr-44454
- **Pages:** 13

## Headnote

A. Limitation Act, 1963 - Section 5 and
Municipal Corporation Act, 1959. When
substantial
justice
and
technical
considerations are pitted against each
other, cause of - substantial justice
deserves to be preferred - the present-
petitions stands allowed.

Challenge to - Application Under Section 5 of
The Limitation Act - in this instant petition
there is an inordinate delay i.e. of 33 years-
rejection of Application Under Section 5 of The
Act- by small causes Court-The same has been
restored and affirmed Appellate Court because
it is the sufficiency of the cause and not the
number of the days, which is material for the
purpose of consideration of application Under
Section 5.
 (Para 23, 24, 25, 26, 27, 29) (E-2)

## Text

_Characters 0–39,814 of 43,760. This is a partial read: ask again with offset=39814 for what follows._

1 All. Piyush Bhattacharya & Anr. Vs. Samaj Sangathan & Anr.
1307
within a period of three months from the
date of production of certified copy of this
order.

40. It is further provided that above
time period is being fixed only on the
undertaking by the parties through their
respective counsels that they will not seek
unnecessarily adjournment in the case
except for compelling circumstances.
-------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.07.2019

BEFORE
THE HON'BLE VIVEK KUMAR BIRLA, J.

Matter Under Art. 227 No. 1181 of 2019
With Writ -C NO. 3990 of2018

Piyush Bhattacharya &Anr. ...Petitioners
Versus
Samaj Sangathan&Anr. ...Respondents

Counsel for the Petitioners:
Sri Udai Chandani.

Counsel for the Respondents:
Sri Adarsh Kumar, Sri Brijesh Ojha, Sri
P.N. Saxena

A. Limitation Act, 1963 - Section 5 and
Municipal Corporation Act, 1959. When
substantial
justice
and
technical
considerations are pitted against each
other, cause of - substantial justice
deserves to be preferred - the present-
petitions stands allowed.

Challenge to - Application Under Section 5 of
The Limitation Act - in this instant petition
there is an inordinate delay i.e. of 33 years-
rejection of Application Under Section 5 of The
Act- by small causes Court-The same has been
restored and affirmed Appellate Court because
it is the sufficiency of the cause and not the
number of the days, which is material for the
purpose of consideration of application Under
Section 5.
 (Para 23, 24, 25, 26, 27, 29) (E-2)

(Delivered by Hon'ble Vivek Kumar Birla J.)

1. Heard Sri Udai Chandani, learned
counsel for the petitioners, Sri P.N.
Saxena, learned Senior Counsel assisted
by Sri Adarsh Kumar, learned counsel for
the respondent and Sri Brijesh Ojha,
learned
counsel
appearing
for
the
respondent no. 2.

2. Present petition has been filed
for setting aside the order dated 2.2.2019
passed by Additional District & Session
Judge, Court No. 10, Varanasi in
Mutation Second Appeal No. 2 of 2019
(Bhola Nath Bhattacharya and others vs.
Samaj Sangthan & another) as well as
order dated 30.11.2018 passed by Judge
Small Causes Court, Varansi in Misc.
Mutation Case No. 75 of 2013 (Samaj
Sangthan vs. Bhola Nath Bhattacharya).

3. The writ petition being Writ Petition
No. 3990 of 2018 has been filed for setting aside
the order dated 8.9.2017 passed by Additional
District Judge, Court No. 14, Varanasi in
Mutation Appeal No. 133 of 2014 (Samaj
Sangathan vs. Nagar Nigam and others).

4. Both the parties agree that in view
of the filing of this leading petition the
connected
petition
has
become
infructuous. They also agree that in any
case decision of leading petition would
govern the fate of the connected petition.

5. Before proceeding further it
would be appropriate to quote the detailed
order passed by this Court on 2.4.2019,
which contains necessary facts and the
arguments broadly made by learned
counsel for the parties at the initial stage.
The said order is quoted as under:-
1308 INDIAN LAW REPORTS ALLAHABAD SERIES

"The present application is
directed against the order dated 2.2.2019
passed
by
Additional
District
and
Sessions Judge, Court No.10, Varanasi in
Mutation Second Appeal No.2 of 2019,
invoking jurisdiction under Article 227 of
the Constitution of India.

The categorical submission of
learned counsel for the petitioner is that
the appeal under section 472 of the
Municipal Corporation Act,1959 filed by
respondent no.1 namely Samaj Sangathan
through SAnr.akshak Dilip Kumar Yadav,
son of Satya Narain Yadav against the
order
dated
6.4.2013
rejecting
the
complaint filed by Sri Parthjeet Sen
Gupta,
Pradesh
Adhyaksh,
Samaj
Sangathan, Uttar Pradesh, Varanasi, was
not maintainable.

The submission is that the
respondent no.1 being a complainant, is
an outsider to the proceeding in the
matter of mutation of name of the
petitioners on the disputed property i.e
House No.D-47/236 Ramapura, Varanasi.
The submission is that the property in
dispute admittedly belonged to Yogendra
Nath Bagchi, who was original owner and
the petitioners/appellants are claiming
their
right
through
Pulin
Behari
Bhattacharya, heir of Yogendra Nath
Bagchi, whose name was mutated in the
Municipal record as owner of the
disputed
property
as
early
as
on
23.10.1980.

In
the
complaint
filed
by
Parthjeet Sen Gupta dated 11.1.2013, it
was sought to be submitted that Sri Pulin
Behri Bhattacharya got himself mutated
as heir of Yogendra Nath Bagchi by
fraudulent manner whereas Sri Pulin
Behari Bhattacharya was one of the
tenants of house in question alongwith
another person named as Sri Satya
Narain Yadav.

The complaint dated 11.1.2013
was rejected vide order dated 6.4.2013
passed
by
the
competent
authority
namely, Nagar Ayukt, Nagar Palika,
Varanasi with the observation that before
mutation of name of Pulin Behari
Bhattacharya, notice under section 213 of
U.P. Municipal Corporation Act,1959
had been issued and no objections were
received to the said notice. It was
simultaneously recorded therein that the
complainant had failed to file any
document or material to establish that Sri
Pulin Behari Bhattacharya son of late
Syama Charan Bhattacharya was not the
heir of Yogendra Nath Bagchi, admitted
original owner of the disputed property.

It is submitted by learned counsel
for the petitioner that the Mutation Appeal
No.75 of 2013 has been filed by son of
another tenant namely, Sri Satya Narain
Yadav claiming him as Patron of Samaj
Sangthan, Uttar Pradesh, i.e the respondent
no.1. The submission is that the complaint
was filed by Parthjeet Sen Gupta claiming
himself to be the President of the Sanghthan
whereas, the appeal has been filed by a
person, who has no concern with the said
Sanghthan. Moreover, the appeal is sought to
be entertained on the alleged certificate dated
9.4.2013 given by Parthjeet Sen Gupta to
certify that Mr. Dilip Kumar Yadav is a
member of NGO, namely Samaj Sangathan,
Uttar Pradesh as a Patron and has been
working as such for a longtime. Further
submission is that it
has not been
demonstrated by Sri Dilip Kumar Yadav who
had filed appeal under section 472 of
Municipal Corporation Act, namely Mutation
Appeal No.75 of 2013 that he was authorized
1 All. Piyush Bhattacharya & Anr. Vs. Samaj Sangathan & Anr.
1309
to file the said appeal by any resolution
passed by the alleged Sanghthan.

On a pointed query made by the
Court, learned counsel for the respondent
no.1 is not in a position to intimate the Court
as to with what right or capacity, Mutation
Appeal No.75 of 2013 has been filed by
respondent no.1.

The status of respondent no.1 i.e
as to whether it is registered Organization
or not, is not known.

It is alleged that Dilip Kumar
Yadav is son of the tenant Satya Narain
Yadav and all proceedings are instituted
at
his
instance.
Moreover,
the
complainant or respondent no.1 had no
right to maintain the complaint or the
Mutation Appeal under section 472 of the
Municipal Corporation Act' 1959.

Learned
counsel
for
the
respondent no.1 prays for and is
granted ten days time to complete his
instructions and file a short counter
affidavit bringing on record the copy
of the registration certificate of the
Organization,
who
has
filed
the
complaint dated 11.1.2013.

List of the office bearers and
members of said Organization, if any,
registered in office of the Registrar for
the year 2012-13 and onwards i.e upto
the date, shall also be placed before
the
court,
the
resolution
of
Organization to depute the appellant
namely Sri Dilip Kumar Yadav son of
Satya Narain Yadav to file appeal on
behalf of the Sanghthan, challenging
the order dated 6.4.2013, shall also be
filed along with said affidavit. The
copy of the complaint dated 11.1.2013
filed by Parthjeet Sen Gupta, Pradesh
Adhyaksh Samaj Sanghthan U.P. be
also placed on record.

The
memorandum
of
Association
and
bye-laws
of
the
Organization so as to demonstrate the
activities of the said Organization shall
also be brought on record. In the opinion
of the Court these documents are
necessary, to be examined by the court so
as to know the actual motive of the
complaint
and
appellant
namely,
respondent no.1 and to examine whether
respondent no.1 can maintain mutation
appeal
under
Section
472
of
the
Municipal Corporation Act' 1959.

As prayed, put up this matter on
12.4.2019 as fresh."

6. Case of the petitioner is that the
owner of the property bearing H.No. D47/236, Ramapura, Varanasi was one Sri
Yogendra Nath Bagchi, who was having
only one daughter namely Chandra Kala
Devi, who was married to Shyama Charan
Bhattacharya and out of the said wedlock
father of the petitioners was born, namely,
late Pulin Behari Bhattacharya. Father of
the
petitioners
preferred
mutation
application after death of his father and
mother and on 23.10.1980 in place of
Yogendra Nath Bagchi the name of Pulin
Behari Bhattacharya was recorded in the
revenue record. Father of the petitioners
died on 20.10.2012 leaving behind
petitioners as legal heirs. After his death
the
petitioners
preferred
mutation
application before the office of Nagar
Ayukt, Nagar Nigam, Varanasi and an
objection was preferred by one Sri
Parthjeet Sen Gupta, President of Samaj
Sangathan with the pleading that there are
two tenant in the property in question,
namely, Satya Narain Yadav and Pulin
Behari Bhattacharya and by playing fraud
1310 INDIAN LAW REPORTS ALLAHABAD SERIES
he got his name mutated in place of
Yogendra Nath Bagchi showing himself
as his heirs. Thereafter, Nagar Ayukt,
Varanasi by a detailed order dated
6.4.2013 dismissed the objection and a
categorical finding was recorded that
Parthjeet Sen Gupta was unable to
establish that the petitioners are not the
legal heirs of Pulin Behari Bhattacharya
and Yogendra Nath Bagchi. Thereafter, in
a very arbitrary and illegal manner the
respondent who was not even a party to
Mutation Case No. D-1015/12/M as well
as Mutation Case No. D-973/12/M and
neither he filed any objection to the
mutation application preferred by the
petitioners before the Nagar Ayukt,
straightway preferred a mutation appeal
against the order dated 6.4.2013 before
the Judge Small Causes Court, which was
registered as Mutation Appeal No. 75 of
2013 bearing paper no. 4-Ga. Alongwith
memo of appeal the respondent also filed
a delay condonation application supported
with affidavit bearing paper no. 5-Ga and
6-Ga in which it was prayed before the
learned appellate court to condone the
delay and recall the order dated 6.4.2013
as well as 23.10.1980. The petitioners
preferred
objection
supported
with
affidavit bearing paper no. 16-Ga and 17Ga to the delay condonation application
preferred by the respondent and prayed
before the learned appellate court to
dismiss the mutation appeal preferred by
the respondent on the ground of laches as
the order which has been challenged is of
23.10.1980 and 6.4.2013. The respondent
filed
replication
on
frivolous
and
vexatious
grounds
to
the
objection
preferred by the petitioners without there
being
any
material
evidence
to
demonstrate any illegality relating to
mutation of the name of the petitioners. It
is alleged that the respondent as well as
Parthjeet Sen Gupta are hand in gloves as
the respondent is the Patron of the
N.G.O., namely Samaj Sangathan and
Parthjeet Sen Gupta is the President of the
said Sangathan and the said fact will be
quite clear from the bare perusal of the
letter dated 9.4.2013 on the letter pad of
the Sangathan. On 22.8.2014 the mutation
appeal no. 75 of 2013 was dismissed with
cost of Rs. 5,000/- by the learned Judge
Small Causes Court in which a categorical
finding has been recorded that the
respondent has preferred the present
petition
against
the
order
dated
23.10.1980 i.e. about after 33 years and
the
same
is
unexplained
by
the
respondent, therefore, the delay cannot be
condoned by the learned court and hence
the delay condonation application was
dismissed with cost of Rs. 5,000/-.
Against the order dated 22.8.2014 second
appeal no. 133 of 2014 was preferred by
the respondent before the District Judge,
Varanasi supported with affidavit bearing
paper no. 4-Ka and 6-Ka. The petitioners
preferred an objection in the second
appeal in which categorical assertions
were brought on record. The respondent
filed replication on untenable grounds
without explaining the delay to the
objection preferred by the petitioners on
6.10.2015. In between an amendment
application was filed by the respondent on
5.5.2016 with the prayer to incorporate
father of the respondent namely Satya
Narain as a party as he was the tenant of
the property in question. The petitioners
strongly objected to the amendment
application and has specifically stated that
in the mutation case there is no
requirement of impleading any party who
has no concerned relating to the property
in question as the same is a summary
proceeding. The petitioners also brought
on record before the learned appellate
1 All. Piyush Bhattacharya & Anr. Vs. Samaj Sangathan & Anr.
1311
court the copy of the judgment dated
24.9.2015 passed by this Hon'ble Court by
means of an affidavit to demonstrate the
fact that the father of the petitioners was
the owner of the property in question and
the father of the respondent was evicted
from the same in compliance of the order
passed by this Hon'ble Court. The
amendment application of the respondent
was dismissed by the learned court below
by a detailed and reasoned order. The
court below without appreciating the
material evidence on record relating to
delay of 33 years set aside the order dated
22.8.2014 and remanded back the matter
before the learned court below for again
consider the issue of delay at the earliest.
The petitioner preferred Writ Petition No.
3990 of 2018 challenging the order dated
8.9.2017 passed by Additional District
Judge, Court No. 14, Varanasi in
Mutation Appeal No. 133 of 2014.
Thereafter, during pendency of the
aforesaid petition the Judge Small Causes
Court heard the parties and allowed the
application under Section 5 of the
Limitation
Act
vide
order
dated
30.11.2018. Against the order dated
30.11.2018 the petitioners filed detailed
Mutation Appeal No. 2 of 2019. The
mutation
appeal
preferred
by
the
petitioners was dismissed vide order dated
2.2.2019 without recording any finding
relating to the submissions and grounds
raised by the petitioners.

7. Submission is that both the courts
below committed manifest error of law in
deciding the title by exceeding the
jurisdiction
vested
under
law
and
allowing
the
delay
condonation
application
against
the
provision
contained under the Limitation Act; the
orders passed by the court below are in
utter
disregard
of
the
judgment
pronounced by the Hon'ble High Court as
well as by the Hon'ble Apex Court
relating to the ground of limitation;
learned court below committed manifest
error of law while passing the order dated
8.9.2017 as in the second appeal the order
dated 6.4.2013 and 21.5.2013 was never
challenged and ignoring the said fact as
well as the other material evidence the
impugned order has been passed; there is
violation of the provisions of Section 213
of U.P. Municipal Corporation Act, 1959
by the respondents and the court below
ignoring
the
said
fact
passed
the
impugned order which is unjustified and
illegal; the fact remains that against the
order passed by the Hon'ble High Court
the respondent preferred S.L.P. before the
Hon'ble Supreme Court which was
dismissed and the respondent vacated the
premises belonging to the petitioners in
compliance of the order passed by the
Hon'ble High Court; the delay in filing the
appeal as well as the objection has not
been established by the respondent from
any documents whatsoever; bare perusal
of the amendment application would
disclose
that
the
respondents
have
admitted the fact that his father was the
tenant of the property in question and was
evicted by the order of a competent court
from the disputed property of whom the
owners are the petitioners; the names of
the petitioners were duly mutated in the
Nagar Nigam register and the same is in
existence till today; the petitioners are
having the peaceful possession and title
on the property in question till today;
there is an inordinate delay of more than
36 years which has not been explained by
the respondent in challenging the order of
mutation; no evidence whatsoever has
been brought by the respondents to
demonstrate that the petitioners are not
the legal heirs of Yogendra Nath Bagchi
1312 INDIAN LAW REPORTS ALLAHABAD SERIES
and Pulin Behari Bhattacharya; and the
appeal preferred by the respondent is not
maintainable from the very inception as
the objection before the Nagar Ayukt was
preferred by Parthjeet Sen Gupta and not
by Dilip s/o Satya Narain as is evident
from the material evidence on record and
hence he has no locus to challenge the
order as he has no right, title or interest in
the property.

8. Learned counsel for the petitioner
has placed reliance on judgments in the
cases of Smt. Nirmala Devi and others
vs.
Upper
Commissioner,
Nagar
Nigam, Allahabad 2011 (8) ADJ 385,
Kanhaiya Lal and others vs. District
Deputy
Director
of
Consolidation,
Pratapgarh and others 1974 All LJ 552,
Gauhar Ali vs. Municipal Corporation,
Malviya Road, Raipur (C.G.) 2017 (1)
CGLJ 77, Moti Ram vs. Shiv Saran
2003 (1) JKJ 801, Girraj Prasad vs.
State of Rajasthan and others 2013 (3)
WLC 526, State of Nagaland vs. Lipok
AO and others AIR 2005 SC 2191,
Sohan vs. Abdul Hameed Khan AIR
1976 All 159, Oriental Aroma Chemical
Industries Ltd. vs. Gujarat Industrial
Development Corporation and another
2010(5) SCC 459, Pundik Jalam Patil
(D) by Lrs vs. Ex. En. Jalgaon Medium
Progject and another 2008 (6) All MR
954, State of U.P. vs. Dhampur Sugar
Mills Ltd. 2013 (98) ALR 434, Adi
Pherozshah Gandhi vs. H.M. Seervai,
Advocate General of Maharashtra,
Bombay 1971 AIR (SC) 385, Hari
Shankar Kushwaha and others v. State
of U.P. thru Secretary Revenue Deptt.,
Lucknow and others 2019 (139) RD
521,
Collector,
Land
Acquisition,
Anantnag and another vs. Mst. Katiji
and others 1987 AIR (SC) 1353, Ram
Kumar Goyel and others vs. Bhuwan
Singh Pradhan AIR 2007 Sik 39,
Mahesh
Yadav
and
another
vs.
Rajeshwar Singh and others 2009 AIR
(SCW) 218 and B.R. Mallikarjuna vs.
Smt. D. Geetha 2016 (2) ICC 24.

9. According to the respondent, both
the petitions have arisen on account of
grabbing
of
public
property
by
committing fraud. The dispute relates to
House No. D-47/236 Ramapura, Varanasi
whose real owner was Yogendra Nath
Bagchi who died intestate on 1.3.1990.
This house was purchased by the said
Yogendra Nath Bagchi on 2.2.1938 in an
auction sale. Father of the petitioners late
Pulin Behari Bhattacharya was tenant in
the house in dispute hence, Pulin Behari
Bhattacharya
without
consent
or
knowledge of Yogendra Nath Bagchi
moved an application dated 18.4.1980
without annexing any death certificate of
Yogendra Nath Bagchi alleging that he
died in the year 1929 in Chatgaon and
claiming himself to be the son of one
Chandra Kala Devi, who had also died in
the year 1953 in Chatgaon without any
proof or succession certificate and death
certificate got his name mutated in a
collusive manner as owner of House No.
D-47/236, Ramapura, Varanasi. When
this fact came to the knowledge of
fraudulent grabbing of property by late
Pulin Behari Bhattacharya, Sri Parth Sen
Gupta, President of Samaj Sangathan
moved
a
complaint
disclosing
the
fraudulent grabbing of public property by
late Pulin Behari Bhattacharya to ADM
City, Varanasi for fraudulent mutation.
The above complaint was investigated by
the Additional City Magistrate, Varanasi
and finding fraud in the matter referred
the complaint for an enquiry regarding the
fraudulent succession of late Pulin Behari
Bhattacharya to Municipal Commissioner,
1 All. Piyush Bhattacharya & Anr. Vs. Samaj Sangathan & Anr.
1313
Varanasi by its Administrative Order
dated
17.1.2013.
The
Municipal
Commissioner, Varanasi rejected the
complaint by its Administrative Order
dated 6.4.2013.

10. Crux of the submissions of
learned counsel for the respondents is that
hence, both the petitions arisen out of
mutation proceedings by fraudulently
grabbing property by late Pulin Behari
Bhattacharya
and
for
the
reason
highlighted above the property in dispute
devolve upon the heirs of true owners and
in absence of any heir to succeed it will
vest in the state and hence, it is a case of
grabbing of public property by fraudulent
means.

11. Learned counsel for the
respondent
has
placed
reliance
on
judgments
in
the
cases
of
A.A.
Gopalakrishnan vs. Cochin Devaswom
Board and others 2007 (7) SCC 482,
A.V. Papayya Sastry and others vs.
Govt. of A.P. and others 2007 (4) SCC
221, State of A.P. and another vs. T.
Suryachandra Rao 2005 (6) SCC 149,
Ram Chandra Singh vs. Savitri Devi
and others 2003 (8) SCC 319, Indian
Bank vs. Satyam Fibres (India) Pvt.
Ltd. 1996 (5) SCC 550, S.P. Chengal
Varaya Naidu (dead) by Lrs. vs.
Jagannath (dead) by Lrs and others
1994 (1) SCC 1 and Raj Kumar Bhatia
vs. Subhash Chander Bhatia 2018 (2)
SCC 87.

12. I have considered the rival
submissions and have perused the record.

13. Before proceeding further, from
the case of the respondents, it is,
therefore, clear that the respondents is not
claiming any right or title over the
property in question and only claim is that
the petitioners are grabbing the public
property by playing fraud.

14. It is not in dispute that names of
the petitioners have already been mutated
in the municipal records. It is also not in
dispute that present proceedings are
arising out of the mutation proceedings in
respect of house no. D-47/236 Ramapura,
Varanasi. It is not in dispute that initially
one Yogendra Nath Bagchi was the owner
of the house in question. Father of the
petitioner Pulin Behari Bhattacharya s/o
late Shyama Charan Bhattacharya sought
mutation of the house in question in his
favour
claiming
that
daughter
of
Yogendra
Nath
Bagchi,
namely,
Chandrakali Devi was his mother. He is
claiming that Yogendra Nath Bagchi died
in Chittagong (now in Bangladesh) in the
year 1929 and Chandrakali Devi, his
mother died in 1953 and his father
Shyama Charan Bhattacharya died in
1932. Thereafter, he applied for mutation
of the house in question in his favour on
which a notice dated 10.09.1980 under
Section 213 of the Act was issued to
which no objection was filed by anyone
and thereafter the name of Pulin Behari
Bhattacharya, father of the petitioners was
mutated on 23.10.1980. Pulin Behari
Bhattacharya
died
on
20.10.2012.
Thereafter, the petitioners applied for
mutation in their name on the basis of
registered Will executed by their father
Pulin Behari Bhattacharya. On this
mutation application dated 30.01.2013
notice under Section 213 of the Act was
issued but was suspended as a dispute was
raised by complainant Parthjeet Sen
Gupta claiming himself to be the
Adhyaksha of Samaj Sangathan Uttar
Pradesh. A complaint was filed on the
ground that in the house in question there
1314 INDIAN LAW REPORTS ALLAHABAD SERIES
were two tenants one is Satya Narayan
Yadav and another is Pulin Behari
Bhattacharya, father of the petitioners but
by playing fraud claiming himself to be
the legal heir of Yogendra Nath Bagchi,
late Pulin Behari Bhattacharya got his
name mutated. It is because of this
complaint
the
mutation
proceedings
initiated on the application submitted by
the petitioner were stayed. This complaint
was decided and rejected by the Nagar
Ayukt vide order dated 06.04.2013. In
this order it was found by the Nagar
Ayukt that a due notice was given under
Section 213 of the Act before mutating
the name of Pulin Behari Bhattacharya
and, therefore, there is no illegality in the
order of mutation dated 30.10.1980 hence,
the complaint was rejected. It is pertinent
to note that earlier complaint was filed by
Parthjeet Sen Gupta claiming himself to
be the Adhyaksha of one Organization,
namely, Samaj Sangathan Uttar Pradesh,
however, the Mutation Appeal No. 75 of
2013 was filed by Samaj Sangathan Uttar
Pradesh through its SAnr.akshak (patron)
Dilip Kumar. The memo of appeal filed
under Section 472 of the Nagar Nigam
Adhiniyam is Annexure-3 of the petition.
A perusal of page 35 of the appeal
disclosed that the name of father of Dilip
Kumar, who claims himself to be the
SAnr.akshak of the organization has not
been disclose. A perusal of the memo of
appeal further reflects that it has not been
disclosed in the appeal that father of Dilip
Kumar was infact Satya Narayan Yadav
who was admittedly a tenant in the house
in question. This appeal was filed with a
delay condonation application. This fact
becomes important inasmuch as there had
been a litigation between Pulin Behari
Bhattacharya and Satya Narayan Yadav
and ultimately Writ A No. 25254 of 1991
(Pulin Behari Bhattacharya vs. ADJ and
others), wherein Satya Narayan Yadav
was admittedly respondent no. 3 as
reflected from perusal of Annexure-14 to
the petition, which is a judgment passed
by this Court on 24.09.2015 in the
aforesaid case setting aside the order
dated 23.8.1991 passed by 8th Additional
District Judge, Varanasi in Revision No.
50 of 1990 (Satya Narayan Yadav and
another Vs. Additional District Judge
(Civil Supply)/Rent Control and Eviction
Officer, Collectorate, Varanasi. The writ
petition was allowed and the release order
in
favour
of
the
petitioner
dated
25.05.1988 was restored. Thus, status of
father
of
Dileep
Kumar
Yadav
(respondent) is clear as a tenant of the
house in question. In this respect it is also
pertinent to note that Annexure-12 is an
application filed under Order 6 Rule 17
C.P.C. filed by Dilip Kumar Yadav in
Second Appeal No. 133 of 2014, whereby
he was seeking impleadment of his father
Satya Narayan Yadav as appellant no.2
and a paragraph was also sought to be
added and that Satya Narayan Yadav was
tenant in the house in question. It is also
important to note that in paragraph 5 of
the said affidavit at page 88 of the paper
book it has been stated that when Satya
Narayan Yadav came to know about the
appeal Satya Narayan Yadav expressed
his desire to implead as party in the
litigation by stating that father of the
petitioners was also tenant in the house in
question and use to collect rent from him
on behalf of Yogendra Nath Bagchi.
Thus, it becomes an admitted fact that
father of Dilip Kumar (i.e. Satya Narayan
Yadav), who now claims to be patron of
the alleged
Samaj Sangathan
Uttar
Pradesh,
admits
that
Pulin
Behari
Bhattacharya used to collect rent. It is,
although, being claimed that rent was
being collected on behalf of the landlord
1 All. Piyush Bhattacharya & Anr. Vs. Samaj Sangathan & Anr.
1315
by another tenant (i.e. Pulin Behari
Bhattacharya). It may also be noticed that
this application filed by Dilip Kumar
under Order 6 Rule 17 CPC was rejected
vider order dated 20.02.2017 (Annexure
15 to the writ petition). It is, therefore,
clear that one organization namely Samaj
Sangathan Uttar Pradesh, which, from
perusal of the record annexed with the
supplementary counter affidavit, is a
society allegedly registered under the
Societies Registration Act. Section 5
application filed along with the case by
the contesting respondent was rejected by
the Judge Small Causes Court vide order
dated 22.08.2014 clearly holding therein
that the application was given after about
33 years by Samaj Sangathan (a registered
society) on the ground that the order was
not known to the Sangthan. The locus of
the Samaj Sangthan was not at all
established or clarified. The application
was dismissed with a cost of Rs. 5,000. It
may be noticed that initially some other
person has come forward to file the
complaint after 33 years and now son of
the earlier tenant Satya Narayan Yadav,
namely, Dilip Kumar, who claims to be
patron of the Samaj Sangathan further
took up the matter and filed the aforesaid
appeal. At the cost of repetition, it is
pertinent to note that Satya Narayan
Yadav, father of Dilip Kumar, who is
pursuing
these
proceedings
as
per
petitioners, had lost his case upto the
Apex Court and the release order passed
in favour of late father of the present
petitioners dated 25.05.1988 was restored.
The matter was further carried by the
contesting respondent by filing Mutation
Appeal No. 133 of 2014 challenging the
order dated 22.08.2014 passed by the
Judge Small Causes Court rejecting
Section 5 of the Limitation Act as noticed
above. The Second Appeal was allowed
vide order dated 8.9.2017 setting aside the
order dated 22.8.2014 passed by the
Additional District Judge and the matter
was remanded back to the lower court to
decide Section 5 application afresh. This
order was challenged by the petitioner by
filing Writ Petition No. 3990 of 2018
before this court which is still pending,
however,
during
pendency
of
the
aforesaid petition the Judge Small Causes
Court decided the application under
Section 5 of the Limitation Act and
allowed the same in the light of the
directions given by the second appellate
court
vide
order
dated
30.11.2018.
Against the same the petitioner preferred
Second Appeal No. 02 of 2019 the same
was rejected by the lower second
appellate court on the ground that at this
stage locus or maintainability of the
appeal is not to be seen and this is to be
considered only after hearing the appeal
on merits.

15. At this stage it would also be
relevant to note that vide order dated
02.04.2019 this court permitted the
learned counsel for the respondent no. 1
to file a short counter affidavit bringing
on record a copy of the registration
certificate of the Organization, list of
office bearers and members of the said
Organization upto the date and resolution
of the Organization to depute appellant,
namely, Dilip Kumar Yadav s/o Satya
Narayan Yadav to file appeal on behalf of
the Samaj Sangthan challenging the order
dated
06.08.2013.
Memorandum
of
association
and
bye-laws
of
the
Organization were also directed to be
brought on record to demonstrate the
activities of the said Organization for the
purpose of examining the actual motive of
the complaint and the appellant, namely,
respondent no. 1 and to examine whether
1316 INDIAN LAW REPORTS ALLAHABAD SERIES
respondent no. 1 can maintain mutation
appeal
under
Section
472
of
the
Municipal Corporation Act, 1959. A
perusal of the documents annexed with
the
supplementary
counter
affidavit
indicates that on request made by Dilip
Kumar Yadav on the letterhead of Samaj
Sangathan Uttar Pradesh, written to the
Mahanagar Adhyaksha/Upadhyaksha of
Samaj Sangathan Uttar Pradesh Varanasi
on the ground that he is aware of the facts
of the case, therefore, he may be granted
permission to look after the case, this
permission was allegedly granted by
Mahanagar Adhyaksha Samaj Sangthan
U.P. signed by Mahanagar Upadhyaksha
on 15.04.2013. This is clearly not a
resolution passed by the registered society
Samaj Sangathan and a perusal of
Annexure-5 to the supplementary counter
affidavit further indicates that the society
was formed for educational purposes. It
was constituted with the object of helping
physically challenged person in education
to make them self-dependent and to
provide them vocational training. Further
object is to help the helpless persons and
widows by providing job oriented training
and another object was to make the
educated unemployed youth to do the
educational work. Thus, the complaint
that has been filed is not directed towards
any of the objects to be achieved by the
society. Further, as directed by this court
the
current
status
of
organization
activities and current list of members has
not been annexed and document annexed
as Annexure-5 to the supplementary
counter affidavit is dated 24.09.1994. The
alleged complaint annexed as Annexure-4
to the supplementary counter affidavit has
been written by Parthjeet Sen Gupta,
Upadhyaksha of the society on his
letterhead and the resolution of the society
for filing of such compliant on behalf of
the organization has not been placed on
record. Thus, the documents placed on
record by respondent no.1 in support of
his case do not inspire confidence and do
not prove the locus of Dilip Kumar Yadav
as according to Annexure-3 to the
supplementary counter affidavit the object
of looking after the case by Dilip Kumar
Yadav is that his father was tenant in the
house in question and he is aware of the
facts. The aforesaid facts clearly proved
that petitioner was aware of the facts
regarding status of his father as tenant in
the house in question. He himself has
stated that Pulin Behari Bhattacharya used
to collect rent of the house in question on
behalf of Yogendra Nath Bagchi from
Satya Narayan Yadav, who was tenant in
the house in question though it has been
claimed that he is used to collect rent on
behalf of the earlier owner Yogendra Nath
Bagchi. In this background of the case it
is clear that the assertion made by
respondent no. 1 and stated on affidavit
by Dilip Kumar that prior to 08.05.2013
he was not aware of the order of mutation
in favour of Pulin Behari Bhattacharya
dated 23.10.1980 is patently false.

16. In such view of the matter I find
that the Judge Small Causes Court rightly
rejected the application under Section 5 of
the Limitation Act filed by respondent no.
1 vide order dated 22.08.2014 by
imposing cost.

17. I have gone through the
judgments placed before this court by
both the parties and there is no quarrel
with law, therefore, I am not inclined to
deal with each and every citation
separately.

18. No doubt, it is the sufficiency of the
cause and not the number of the days,
1 All. Piyush Bhattacharya & Anr. Vs. Samaj Sangathan & Anr.
1317
which is, prima facie, material for the
purpose of consideration of an application
under Section 5 of the Limitation Act,
however, once there is an inordinate
delay, which in the present case is of 33
years, and it is found that the application
has been moved by a third person, who
himself is not at all claiming any right,
title or interest of property in question, he
cannot be lightly permitted to drag other
person in frivolous litigation on the
ground that all such facts, without
consideration of which the case cannot
proceed, cannot be seen at the stage of
consideration
of Section 5
of the
application.

19. It cannot be denied that the
ultimate aim of the present litigation
initiated by the contesting respondent no.
1 is to unsettle the mutation entry dated
23.10.1980,
whereby
in
place
of
Yogendra Nath Bagchi name of Pulin
Behari
Bhattacharya,
father
of
the
petitioners, was recorded. It also cannot
be disputed that without claiming any
right, title or interest in the property the
contesting respondent is trying to dispute
the title of the petitioners in mutation
proceedings, which are summary in
nature. The relationship of Dileep Kumar
Yadav
with
Satya
Narayan
Yadav
(admittedly tenant in the house in
question and who had admittedly lost upto
this
Court
against
Pulin
Behari
Bhattacharya) as son and father is also
relevant in the present case.

20. In Collector, Land Acquisition,
Anantnag vs. Mst. Katiji (supra) it was
observed by the Hon'ble Apex Court that
when substantial justice and technical
considerations are pitted against each
other, cause of substantial justice deserves
to be preferred. Here is a delay of about
33 years in attacking the mutation
proceedings concluded in the year 1980 in
accordance with law. It is a case of
inordinate delay.

21. In Vedabai @ Vaijayanatabai
Baburao vs. Shantaram Baburao Patil
and others JT 2001 (5) SC 608 it was
observed that a distinction must be made
between a case where the delay is
inordinate and a case where the delay is of
a
few
days.
In
the
former
case
consideration of prejudice to the other
side will be a relevant factor so the case
calls for a more cautious approach. It was
also observed that no hard and fast rule
can be laid down in this regard and the
basic guiding factor is advancement of
substantial justice.

22. In Pundlik Jalam Patil (supra)
the Hon'ble Apex Court observed that
statutes of limitation are sometimes
described as 'statutes of peace'. It was
further observed that an unlimited and
perpetual threat of limitation creates
insecurity and uncertainty; some kind of
limitation is essential for public order.
This observation was made on the law
already settled by the Hon'ble Apex
Court. It may also be relevant to observe
that even such claim for condonation of
delay / limitation can be claimed by the
person, who is the 'person aggrieved'.

23. In the present case the contesting
respondent no. 1 is not claiming any right,
title or interest in the property and his
claim is that the petitioners are grabbing
public property by playing fraud. This is
being claimed by Dileep Kumar Yadav as
patron of the respondent no. 1, whereas
his father, as tenant, has lost the litigation
upto this Court and the release order of
the year 1980 was restored in favour of
the Pulin Behari Bhattacharya as landlord
1318 INDIAN LAW REPORTS ALLAHABAD SERIES
and the same was never challenged. Thus,
even for the purpose of consideration of
an application filed under Section 5 of the
Limitation Act it has to be seen as to
whether the person initiating litigation
after such a long gap after 33 years is a
person aggrieved or not, that too, by
initiating proceedings in the name of
registered society by challenging title of
the petitioners in mutation proceedings,
which are summary in nature, on the
ground of fraud.

24. In State of Nagaland (supra) it
was observed that if the refusal to
condone the delay results in grave
miscarriage of justice it would be a
ground to condone the delay. In the
present case, dragging the petitioners to
contest the case, defending the mutation
entries carried about 33 years back in the
year 1980 now on a complaint /
application challenging the title of the
father of the petitioners in summary
proceedings,
would
amount
to
miscarriage of justice.

25. It may also be noted that in all the
rulings that have been relied on by learned
counsel for the parties are related to a case
where the agitating party, subject to
correction, is claiming right, title or interest
in the property in question. This is not so in
the present case. Further, the judgments that
have been relied on by learned counsel for
the respondents are relating to fraud and was
under challenge by the parties concerned and
not by any stranger, and subject to correction,
that too, were carried and agitated on the
regular side of common civil law of the
litigation and not in summary proceeding
like mutation.

26. There is yet another aspect of the
matter which is required to be taken note
of is that it is well settled that mutation
proceedings do not confer any title. It is
always open to the aggrieved person to
seek declaration in a court of law.
Admittedly,
as
already
noticed
the
contesting respondent no.1 is not claiming
any right, title or interest in the property
in question. His only claim is that the
petitioners
are
grabbing
the
public
property by playing fraud. Needless to
point out that mutation proceedings are
summary in nature, whereas the question
of fraud is a question of fact that has to be
proved by leading evidence and any such
allegation can be seen under the common
civil law which prevail on all other such
proceedings. Thus, challenge to mutation
proceedings on the ground of fraud, has to
be taken into account moreso when the
mutation entries were in existence for last
more than 33 years.

27.