# U.P. State Indus. Dev. Auth., Unnao v. Gurmeet Singh

- **Citation:** (2023) 10 ILRA 794
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-10-04
- **Case number:** Rera Appeal No. 28 of 2023
- **Bench:** Alok Mathur
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/u-p-state-indus-dev-auth-unnao-v-gurmeet-singh-49533
- **Pages:** 7

## Headnote

Mohd. Murtaza Khan

Condonation
of
delay-Respondentcomplainant had preferred complaints before
the Real ESt. Regulatory Authority- which were
allowed on various dates-against the orders
Appeal was filed-Tribunal rejected the appeals
by the appellants only on the ground of delayany order passed on condonation of delay
without recording a finding sufficiently would be
arbitrary-Tribunal has not discussed the facts-
only concluded that they do not find any facts to
exercise the discretion to condone the delayand accordingly rejected 34 appeals -such
an order without necessary discussion and
consideration is clearly arbitrary and liable
to be set aside.

W.P. allowed. (E-9)

Cases cited:

## Text

794 INDIAN LAW REPORTS ALLAHABAD SERIES

(i) The law laid down by the learned
Single Judge in the decisions in Ajanta
Udyog Mandal Vidyalay (supra), Budhaee
(supra), Sukhdeo (supra), Kishore Singh
(supra) and Siya Ram (and other decisions
following the same line) do not reflect the
correct position in law and those decisions
are hence overruled;

(ii) A person against whom an order
of eviction has been passed under Section
122-B would not be entitled to a protection
against eviction on the grounds which have
weighed with the learned Single Judges in
the above cases. Once the legislature has,
by enacting a specific provision in subsection (4-F) of Section 122-B, made a
specific statutory provision which overrides
the other preceding sub-sections of Section
122-B, it would not be open for the Court
in the exercise of its extraordinary
jurisdiction under Article 226 of the
Constitution, to create a new legislative
category and to issue a mandamus contrary
to law;

(iii) The decision in Sukhdeo (supra)
to the effect that if a person is in possession
for more than 12 years, instead of eviction,
an award of damages would be the
appropriate relief, does not express the
correct position in law. No such
provision
has
been
made
by
the
legislature and it would not be open for
the Court to introduce a new legislative
category or to introduce a period of
limitation as was purported to be done
in the decisions of the learned Single
Judge noted above."

21. In the instant matter, no
proceeding has been undertaken by
respondent no.5 for exchange of the plot
whether permissible or not is another
matter or challenging the order passed by
this Court in the proceeding under Section
122-B of the U.P. Z.A. & L.R. Act before
Hon'ble the Apex Court rather respondent
no.5 is setting tight over the matter, as
such, there is no option except to allow the
instant P.I.L. and direct the authorities to
take action for removal of encroachment
from the gaon sabha land in compliance of
the final order dated 28.6.2001 passed in
the proceeding under Section 122-B of the
U.P. Z.A. & L.R. Act as maintained by this
Court while dismissing the writ petition
vide order dated 23.1.2014.

22. Considering the entire facts and
circumstances of the case as well as ratio
laid down by this Court, the instant P.I.L.
is allowed and respondent no.2/Collector,
Gorakhpur is directed to take steps for
removal of the encroachment made by
respondent no.5 from plot no.198 (Old Plot
No.258), area 44 decimal, within a period
of 3 months from the date of production of
the certified copy of the order.

23. Registrar (Compliance) is also
directed to communicate this order to
respondent
no.2/Collector
Gorakhpur
within three days for necessary compliance.
----------
(2023) 10 ILRA 794
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 04.10.2023

BEFORE

THE HON'BLE ALOK MATHUR, J.

Rera Appeal No. 28 of 2023
alongwith other connected cases

U.P. State Indus. Dev. Auth., Unnao
 ...Appellant
Versus
Gurmeet Singh ...Respondent

Counsel for the Appellant:
Kartikey
Dubey
10 All. U.P. State Indus. Dev. Auth., Unnao Vs. Gurmeet Singh
795
Counsel for the Respondent:
Mohd. Murtaza Khan

Condonation
of
delay-Respondentcomplainant had preferred complaints before
the Real ESt. Regulatory Authority- which were
allowed on various dates-against the orders
Appeal was filed-Tribunal rejected the appeals
by the appellants only on the ground of delayany order passed on condonation of delay
without recording a finding sufficiently would be
arbitrary-Tribunal has not discussed the facts-
only concluded that they do not find any facts to
exercise the discretion to condone the delayand accordingly rejected 34 appeals -such
an order without necessary discussion and
consideration is clearly arbitrary and liable
to be set aside.

W.P. allowed. (E-9)

Cases cited:

1. Raheem Shah & anr. Vs Govind Singh &
ors., Civil Appeal No. 4628 of 2023, decided
on 24.07.2023

2. Collector, Land Acquisition, Anantnagh &
anr. Vs MST. Katiji & ors., 1987 SCC 107

(Delivered by Hon'ble Alok Mathur, J.)

1. Heard Sri Kartikey Dubey,
learned counsel or appellant as well as
Sri Deepak Dwivedi and Sri Mohd.
Murtaza Khan, learned counsel for
respondents.

2. With the consent of learned
counsel for the parties, all the aforesaid
appeals are being heard and decided by
this common judgment.

3. Present appeals have been
preferred
against
the
order
dated
19.07.2023 passed by the Real Estate
Regulatory Authority Tribunal thereby
rejecting the appeals preferred by the
appellants only on the ground of delay.

4. It has been submitted by learned
counsel for appellant that respondentcomplainant
had
preferred complaints
before the Real Estate Regulatory Authority
which were allowed on various dates i.e. on
14.09.2022, 27.04.2022, 19.10.2022 and
24.08.2022. Against the said orders, the
appellant had preferred an appeal. There
were delay in filing of the appeal by a
period of 103, 242, 62, 124 days
respectively and along with the appeal, an
application for condonation of delay was
also preferred.

5. In the application of delay, it was stated
that the order of Real Estate Regulatory
Authority
dated
27.04.2022
was
communicated
to
the
appellant
on
05.05.2022. Subsequently legal opinion
was taken form their counsel which was
received in May, 2022 itself. It has further
been stated that in the meanwhile the
Office Superintendent of Trans Ganga City
Office retired on 31.07.2022 and due to the
said vacancy, the papers could not be
processed. It has further been stated that
unfortunately, the Finance and Accounts
officer, posted in Trans Ganga Office had
suffered from heart Attack on 03.09.2022
due to which he proceeded on leave till
November, 2022 and consequently the
papers could not be processed for filing
appeal. It has further been submitted that it
is during the aforesaid period, a similar
appeal being Appeal No. 84 of 2022
(UPSIDA Vs. Ankur Gupta) was pending
before before the Tribunal was decided on
31.08.2022 and legal opinion was sought
for preferring a second appeal before this
Court and after grant of approval, the
appeal was filed before the High Court
which was entertained and subsequently the
said counsel was directed to file all the
remaining appeals before the appellate
tribunal. It was submitted that there has
796 INDIAN LAW REPORTS ALLAHABAD SERIES
been some delay or the delay has been duly
explained for the reasons beyond the
control of the appellant and consequently
the said appeal ought to have been
condoned by the appellate tribunal.

6. It has been submitted that wherever
contested or disputed by the respondent the
facts asserted by the appellant in support of
his application for condonation of delay
should have been heard and consequently
the
appellate
tribunal
should
have
condoned the delay.

7. In the aforesaid circumstances, the
appeal
is
accordingly
admitted
on
following substantial question of law:-

"Whether
learned
Tribunal
was
justified in dismissing the application for
condonation of delay without appreciating
or dismissing the reasons stated by the
appellant for condonation of delay and as
to whether the exercise of power would be
de hors the principle enunciated in various
judgements of Hon'ble Supreme Court."

8. With the consent of learned counsels,
this Court proceeds to decide the matters finally.

9. It is noticed that the appeals were filed
by the appellant against the orders passed by
Real Estate Regulatory Authority on various
dates and the delay in filing the said appeals
ranged from 62 to 242 days. The appellant had
made specific assertions and had submitted
following facts, namely,:-

(a) That the order of Real Estate
Regulatory Authority was communicated
on 05.05.2022 and the legal opinion to file
an appeal was also received in May, 2022.

(b) The Office Superintendent of Trans
Ganga City Office retired on 31.07.2022
and thereafter no successor was appointed
and due to the said vacancy there was delay
in processing to file an appeal.

(c) That Finance and Accounts officer,
posted in Trans Ganga Office had suffered
from heart attack on 03.09.2022 due to
which
he
proceeded
on
leave
till
November, 2022 and
(d) That a similar matter was also pending
consideration before the Real Estate
Regulatory Authority in Appeal No. 84 of
2022 which was dismissed on 31.08.2022
where also an opinion was sought and the
said order was challenged before the High
Court and the said appeal was entertained.
It is only when the said appeal was
entertained the file was processed for filing
of the said appeal.

10. The Tribunal while rejecting the
application has noticed several judgments
passed by Hon'ble the Supreme Court but
has failed to consider whether the facts
were sufficient or not for condoning the
delay. Whenever a court or tribunal is
considering the application for condonation
of delay, it should take into account the
various facts asserted in support of the
application and findings have to be
recorded whether the facts are sufficient for
condoning the delay or otherwise.

11. Any order passed either allowing
the application for condonation of delay or
rejecting the same without recording a
finding sufficiently would be arbitrary and
liable to be interfered by the superior
courts.

12. In the present case, the Tribunal
has without discussing or considering the
aforesaid facts only concluded that they do
not find any facts to exercise the discretion
to condone the delay and accordingly
rejected 34 appeals preferred by the
10 All. U.P. State Indus. Dev. Auth., Unnao Vs. Gurmeet Singh
797
appellant. Such an order without necessary
discussion and consideration is clearly
arbitrary and liable to be set aside.

13. Before this Court, the grounds
taken by the appellant have not been
disputed by the learned counsel appearing
on behalf of respondents.

14. It is noticed that the legal opinion
in the said case was taken sometimes in the
month of May, 2022 and file was sent for
approval to the higher authorities. It is
stated that the Office Superintendent of
Trans Ganga City Office retired on
31.07.2022 in fact to process the entire files
makes an office noting and only after the
said process the file is looked into by the
Regional Manager who grants his approval
and subsequently the file travels to the
accounts department for financial sanction.
Unfortunately the Finance and Accounts
officer, posted in Trans Ganga Office had
suffered from heart attack on 03.09.2022 on
account on which no further action could
be taken in the said matter till November,
2022 when he rejoined his duties.

15. This court is of the considered
view that the appellant was able to
demonstrate sufficiently the reasons for not
filing the appeal within prescribed time and
accordingly the delay should be condoned.

16. Learned counsel for respondent
also have not opposed the application for
condonation of delay either before the
Tribunal or before this court..

17. Hon'ble the Supreme Court in the
case of Collector, Land Acquisition,
Anantnagh and another Vs. MST. Katiji
and others, 1987 SCC 107, held as under:

"3. The legislature has conferred the
power to condone delay by enacting
Section 51 (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) 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 meaning-
ful manner which subserves the ends of
justice--that being the life-purpose for the
existence of the institution of Courts. It is
common knowledge that this Court has
been 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:-

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
798 INDIAN LAW REPORTS ALLAHABAD SERIES
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 nondeliberate 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.

Making a justice-oriented approach
from this perspective, there was sufficient
cause for condoning the delay in the
institution of the appeal. The fact that it
was
the
'State'
which
was
seeking
condonation and not a private party was
altogether irrelevant. The doctrine of
equality before law demands that all
litigants, including the State as a litigant,
are accorded the same treatment and the
law is administered in an even handed
manner. There is no warrant for according
a stepmotherly treatment when the 'State' is
the applicant praying for condonation of
delay. In fact experi- ence shows that on
account of an impersonal machinary (no
one in charge of the matter is directly hit or
hurt by the judgment sought to be subjected
to appeal) and the inherited bureaucratic
methodology imbued with the note-mak-
ing, file pushing, and passing-on-the-buck
ethos, delay on its part is less difficult to
understand though more diffi- cult to
approve. In any event, the State which
represents the collective cause of the
community, does not deserve a litigant-nongrata status. The Courts therefore have to
be informed with the spirit and philosophy
of the provision in the course of the
interpretation of the expression "sufficient
cause". So also the same approach has to
be evidenced in its application to matters at
hand with the end in view to do even
handed justice on merits in preference to
the approach which scuttles a decision on
merits. Turning to the facts of the matter
giving rise to the present appeal, we are
satisfied that sufficient cause exists for the
delay. The order of the High Court
dismissing the appeal before it as time
barred, is therefore. set aside. Delay is
condoned. And the matter is remitted to the
High Court. The High Court will now
dispose of the appeal on merits after
affording
reasonable
opportunity
of
hearing to both the sides."

18. Hon'ble the Supreme Court in the
case of Raheem Shah & Anr. Vs. Govind
Singh & Ors, Civil Appeal No. 4628 of
2023, decided on 24.07.2023, held as
under:-

"4. This Court in the case of Collector,
Land Acquisition, Anantnag & Anr. Vs.
Mst. Katiji & Ors. reported in (1987) 2
SCC 107 has held as hereunder:

"The legislature has conferred the
power to condone delay by enacting
Section 5 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 life-purpose for the
existence of the institution of courts. It is
common knowledge that this Court has
been 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
10 All. U.P. State Indus. Dev. Auth., Unnao Vs. Gurmeet Singh
799
the hierarchy. And such a liberal approach
is adopted on principle as it is realized
that:

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 condoned 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 nondeliberate 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.

Making a justice-oriented approach
from this perspective, there was sufficient
cause for condoning the delay in the
institution of the appeal."
5. The above decision expressing the
intention of justice oriented approach
percolating down to all the courts was
rendered nearly three decades ago but
unfortunately
the
case
on
hand
demonstrates the pervading insensitive
approach, which apart from continuing the
agony of the litigants concerned has also
unnecessarily
burdened
the
judicial
hierarchy which after going through the
entire process will have to set the clock
back, at this distant point in time and
prolong their agony. If only the court
concerned had been sensitive to the justice
oriented approach rather than the iron-
cast technical approach, the litigation
between the parties probably would have
come to an end much earlier after decision
on the merits of their rival contention."

19. The Apex court has time and
again
emphasised
the
importance of
substantive rights of the people and has
held that when technicalities of the
procedural law are pitted against rights of
private parties, the former should yield to
the latter. Following the same line of
reasoning, this court is of the opinion that
when
any
authority/tribunal/court
is
deciding any appeal then the question of
condonation of delay should be construed
liberally rather than taking a parochial
approach. A pedantic approach while
deciding on matters where condonation is
in question shall only act as an obstacle in
the interest of justice and thus, while
exercising its discretion the courts should
apply their mind and ponder upon whether
there existed a legitimate cause due to
which the said delay became inevitable.

20. Considering the facts of the
present case, this Court is of the opinion
that the grounds taken by the appellant
were not discussed by the Tribunal and
accordingly, no finding with regard to
sufficient cause was arrived at in its proper
spirit as per the aforesaid judgment
800 INDIAN LAW REPORTS ALLAHABAD SERIES

21. In light of the above, sufficient
grounds exist for condonation of delay. The
appellants have been able to demonstrate
the reasons for the delay, where on one
occasion their Finance and Accounts
Officer suffered a heart attack while the
Regional Manager who grants approval
retired. It is further noticed that the delay
was between 62 to 242 days and the same
having been adequately explained and
already discussed by this Court, substantial
grounds exist for condonation of delay.
Accordingly, all the appeals are allowed.
The appeals are remanded to the Real
Estate Regulatory Authority for being
decided on merits.

23. Let the appeals be decided
expeditiously in accordance with law
without
giving
any
unnecessary
adjournments.
----------
(2023) 10 ILRA 800
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 04.10.2023

BEFORE

THE HON'BLE PANKAJ BHATIA, J.

Writ Tax No. 195 of 2023

M/S Dev Priya Indus. Pvt. Ltd....Petitioner
Versus
Cess Appellate Comm., U.P. Pollution
Control Board, Lko. & Ors. ...Respondents

Counsel for the Petitioner:
Samita Chitranshi

Counsel for the Respondents:
A.S.G.I., Ashok Kumar Verma

Water (Prevention and Control of Pollution) Cess
Act, 1977 - Section 13 - Assessment orders
passed without disclosing reasons and without
affording opportunity of hearing-violation of
principles of natural justice-merely providing
an
appellate
remedy
cannot
cure
such
foundational defect-appeal under Section 13 of
the Water (Prevention and Control of Pollution)
Cess Act, 1977 not a substitute for predecisional hearing-impugned orders quashed
with liberty to pass fresh orders in accordance
with law.

Case Law Discussed:

1. Whirlpool Corporation Vs Registrar of
Trademarks, Mumbai & ors. - (1998) 8 SCC 1

2. Tin Box Company Vs CIT, New Delhi - (2001)
9 SCC 725

3. M/s Dharampal Satyapal Ltd. Vs Dy.
Commissioner of Central Excise, Gauhati & ors.
- (2015) 8 SCC 519

(Delivered by Hon'ble Pankaj Bhatia, J.)

1. Heard Ms. Samita Chitranshi, learned
counsel for the petitioner, Sri Ashok Kumar
Verma, learned counsel appearing on behalf of
the respondent nos. 2 and 3 and perused the
material brought on record.

2. The present writ petition is being
disposed of with the consent of the parties as
the preliminary issue raised before this Court
pertains to not adherence of principles of
natural justice.

3. The facts in brief are that the petitioner
claims to be running an industry, which
consumes water and is liable to pay cess in
terms of the provisions of Water (Prevention
and Control of Pollution) Cess Act, 1977
(hereinafter referred as Cess Act). The case of
petitioner was that in terms of the provisions as
contained in Section 3 of the 1977 Act, the
petitioner was submitting the returns with
regard to the consumption of water, however,
without following the mandatory provisions as
required under Section 3, assessment orders
came to be passed against the petitioner on
08.03.2013 & 04.03.2015 assessing the liability
against the petitioner for the period 01.05.2010