# Vijay Pal Singh v. State of U.P. & Ors

- **Citation:** (2020) 7 ILRA 116
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-03-03
- **Case number:** Matters Under Article 227 No. 1831 of 2020
- **Bench:** Ajay Bhanot
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vijay-pal-singh-v-state-of-u-p-ors-45845
- **Pages:** 5

## Headnote

A. Civil Law - Limitation Act, 1963 - Section
5 - Law of limitation - Condonation of delay -
Principle to be followed by the Court - The
purpose of laws of limitation is to ensure that the
parties may remain vigilant to their cause and
institute their claim in good time - Laws of
limitation are statutes of repose. They are usually
triggered in cases of inordinate delay caused by
apathy of litigants - The mandate of laws of
limitation is not to shut the doors of justice to the
parties or decline adjudication on merits - The
courts should adopt a liberal, pragmatic and a
justice oriented approach matters of condonation
of delay - Equally the courts should avoid a
pedantic view and eschew servitude to procedure
in such matters. (Para 6 and 7)
Held -

## Text

116 INDIAN LAW REPORTS ALLAHABAD SERIES
these unauthorized occupants is not valid.
We are of the opinion that such letters are
wholly illegal and without jurisdiction. In
our opinion such illegalities cannot be
regularized. We cannot allow the common
interest of the villagers to suffer merely
because the unauthorized occupation has
subsisted for many years.

14. n M.I. Builders (P) Ltd. vs.
Radhey Shyam Sahu, 1999(6) SCC 464 the
Supreme Court ordered restoration of a
park after demolition of a shopping
complex constructed at the cost of over
Rs.100
crores.
In
Friends
Colony
Development Committee vs. State of
Orissa, 2004 (8) SCC 733 this Court held
that
even
where
the
law
permits
compounding
of
unsanctioned
constructions, such compounding should
only be by way of an exception. In our
opinion this decision will apply with even
greater force in cases of encroachment of
village
common
land.
Ordinarily,
compounding in such cases should only be
allowed where the land has been leased to
landless
labourers
or
members
of
Scheduled Castes/Scheduled Tribes, or the
land is actually being used for a public
purpose of the village e.g. running a school
for the villagers, or a dispensary for them.
"

13. In view of the above, we do not
find
it
appropriate
either
to
cause
interference in the direction to remove the
encroachment or for allotment of land to
the petitioners. The Nazul Manual does not
promote allotment of Nazool land to the
encroachers. The circulars issued by the
government are in ignorance of the
provisions of the Nazul Manual. They
cannot be applied de-hors the Nazul
manual. It is more so when the petitioners,
who themselves have urged for strict
compliance of the provisions of Nazul
Manual while contesting the writ petition
of the Society.

14. The encroachment of the
government or Nazul Land takes place
either in connivance of the Government
officials or their negligence otherwise there
was no reason for the petitioners to occupy
the land without applying the means,
provided under the law.

15. The Apex Court has not endorsed
the direction for regularizing of the land in
favour of the encroachers even if they
raised construction or are even running a
school.

16. In view of the above, we do not
find any reason to direct the respondents to
allot the land to the encroachers or to
restrain them to remove the encroachment
rather
learned Standing Counsel has
emphasized immediate eviction of the
trespassers to make land free from
encroachment.

17. In view of the above, we do not
find any merit in the petition to cause
interference in para 4 of the impugned
judgment and it is accordingly, dismissed.
----------
(2020)07ILR A116
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 03.03.2020

BEFORE

THE HON'BLE AJAY BHANOT, J.

Matters Under Article 227 No. 1831 of 2020
(CIVIL)

Vijay Pal Singh ...Petitioner
Versus
State of U.P. & Ors. ...Respondents
7 All. Vijay Pal Singh Vs. State of U.P. & Ors.
117
Counsel for the Petitioner:
Sri Abhishek Tripathi

Counsel for the Respondents:
C.S.C., Sri Krishna Mohan Asthana, Sri
Prabhav Srivastava

A. Civil Law - Limitation Act, 1963 - Section
5 - Law of limitation - Condonation of delay -
Principle to be followed by the Court - The
purpose of laws of limitation is to ensure that the
parties may remain vigilant to their cause and
institute their claim in good time - Laws of
limitation are statutes of repose. They are usually
triggered in cases of inordinate delay caused by
apathy of litigants - The mandate of laws of
limitation is not to shut the doors of justice to the
parties or decline adjudication on merits - The
courts should adopt a liberal, pragmatic and a
justice oriented approach matters of condonation
of delay - Equally the courts should avoid a
pedantic view and eschew servitude to procedure
in such matters. (Para 6 and 7)
Held -
17.
The
petitioner
is
the
sole
heir
of
deceased/Vijay Pal Singh whose lands were
acquired. The petitioner is entitled to prosecute the
claim for compensation on behalf of his father and
is liable to be substituted. There was no inordinate
delay on part of the petitioner to institute the
substitution
application.
The
petitioner
was
reasonably diligent to his cause. Part of the delay
was caused by systematic deficiencies.
Petition allowed (E-1)
Cases relied on :-
1. Collector, Land Acquisition Vs Mst. Kati Ji & ors.
(1987) 13 ALR 306 SC
2. N. Balakrishnan Vs M. Krishnamurthy (1998) 7
SCC 123
3. Smt. Prabha Vs Ram Prakash Kalra (1987)
Suppl. SCC 339
4. Vedabai @ Vaijayanatabai Baburao Patil Vs
Shantaram Baburao Patil & ors. (2001) 44 ALR 577
SC
5. New India Insurance Co. Ltd. Vs Smt. Shanti
Misra AIR (1976) SC 237
6. Shakuntala Devi Jain Vs Kuntal Kumari AIR
(1969) SC 575
7. O.P. Kathpalia Vs Lakhmir Singh AIR (1984) SC
1744
(Delivered by Hon'ble Ajay Bhanot, J.)

1. Heard Sri Akhilesh Tripathi,
learned counsel for the petitioner, learned
Standing Counsel for the respondent-State
and Sri K.M. Asthana, learned counsel
assisted by Sri Prabhav Srivastava, learned
counsel for the respondent No.4.

2. The father of the petitioner late
Vijay Pal Singh had carried the order
passed by the learned reference court in
appeal by instituting the First Appeal
No.395 of 2001 (Vijay Pal Singh Vs. State
of U.P. and others). The father of the
petitioner was prosecuting the first appeal
before this Court. The first appeal was
decided by this Court by judgment and
order dated 09.10.2014. The matter was
remitted by this Court to the learned
reference court by judgment and order
dated 09.10.2014.

3. The father of the petitioner had
expired in the year 2012. The records of the
first appeal were transmitted to the court of
learned reference court in the year 2017.
The petitioner moved an application before
the learned reference Court in Misc. Case
No.557 of 2017 (Vijay Pal Singh Vs. State
of U.P. and others) for hearing of the
reference. The hearing of the reference
commenced thereafter. The petitioner was
able to access the full records of the case
only on 04.11.2019, before the learned
reference court. It was on that date the
petitioner
got
knowledge
that
the
substitution application was not filed on his
118 INDIAN LAW REPORTS ALLAHABAD SERIES
behalf after the death of his father. The
petitioner immediately upon getting such
knowledge
moved
a
substitution
application for being substituted in place of
deceased father/Vijay Pal Singh. An
application
under
Section
5
of
the
Limitation Act for condonation of delay
was filed in aid of the substitution
application.

4. While rejecting the delay condonation
application the learned reference court in the
impugned order dated 13.12.2019 has set forth
these findings. The father of the petitioner died
on 29.09.2012. This Court decided the First
Appeal No.395 of 2001 (Vijay Pal Singh Vs.
State of U.P. and others) by the judgment and
order rendered on 09.10.2014. The petitioner
has made a substitution application seven years
after the death of his father. This inordinate
delay is not liable to be condoned.

5. I am afraid the learned reference court
misdirected itself in law by taking an entirely
pedantic view in a matter which engages the
most substantive rights of the petitioner. The
learned reference court is overlooked the fact
that the delay was inbuilt in the system itself.
This Court had rendered its judgment and
remitted the matter to the reference court way
back in the year 2014. The records of the case
were transmitted to the reference court three
years after the judgment of the court. The
proceedings before the learned reference court
commenced only in the year 2017 and that also
on the misc. application made by the petitioner.

6. The purpose of laws of limitation is to
ensure that the parties may remain vigilant to
their cause and institute their claim in good
time. Laws of limitation are statutes of repose.
They are usually triggered in cases of inordinate
delay caused by apathy of litigants. The
mandate of laws of limitation is not to shut the
doors of justice to the parties or decline
adjudication on merits. On the contrary it
should be the constant endeavour the courts of
law to adjudicate issues on merits and dispense
justice on a substantive basis.

7. There is good authority to say that the
courts should adopt a liberal, pragmatic and a
justice
oriented
approach
matters
of
condonation of delay. Equally the courts should
avoid a pedantic view and eschew servitude to
procedure in such matters.

8. The narrative shall now be reinforced
with such authorities in point.

9. The Hon'ble Supreme Court in the case
of Collector, Land Acquisition V. Mst. Kati Ji
and others, reported at 1987 (13) ALR 306
(SC) held as follows:

"The legislature has conferred the
power to condone delay by enacting section 5
of the 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 of 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
7 All. Vijay Pal Singh Vs. State of U.P. & Ors.
119
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 he
decided on merit 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 and pragmatic manner.

4. When substantial justice and
technical considerations are pitted against
each other, the cause of substantial justice
deserves to be preferred, for the other side
can not 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 restoring to delay. In
fact, he runs a serious risk.

6. It must be grapped that the
judiciary is respected not on account of its
power to legalise injustice on technical
grounds but because it is capable of
removing injustice and is expected to do
so."

10. A similar view was taken by the
Hon'ble Supreme Court in the case of N.
Balakrishnan
Vs
M.
Krishnamurthy
reported at 1998 (7) SCC 123. The relevant
portion of the judgment is extracted here
under:-

"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. 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. Time is precious and the
wasted time would never revisit. During
efflux of time newer causes would sprout
up necessitating newer persons to seek
legal remedy by approaching the courts. So
a life span must be fixed for each remedy.
Unending period for launching the remedy
may lead to unending uncertainty and
consequential anarchy. Law of limitation is
thus founded on public policy."

11. In Smt. Prabha V. Ram Prakash
Kalra reported in 1987 (Suppl.) SCC 339,
the Supreme Court took the view that the
Court should not adopt an injusticeoriented
approach
in
rejecting
the
application for condonation of delay.

12. The Apex Court made a
distinction in delay and inordinate delay in
Vedabai @ Vaijayanatabai Baburao Patil
V. Shantaram Baburao Patil and others
reported at 2001 (44) ALR 577 (SC) by
holding :

"In exercising discretion under
section 5 of the Limitation Act, the Courts
should adopt a pragmatic approach. A
distinction must be made between a case
where the delay is inordinate and a case
where the delay is of a few days. Whereas
in the former case the consideration of
prejudice to the otherwise will be a relevant
120 INDIAN LAW REPORTS ALLAHABAD SERIES
factor so the case calls for a more cautious
approach...."

13. The importance of discretion of
the court was emphasized by the Hon'ble
Supreme Court in New India Insurance
Co. Ltd. V. Smt. Shanti Misra reported at
AIR 1976 SC 237 by holding that
discretion given by section 5 should not be
defined or crystallized so as to convert a
discretionary matter into a rigid rule of law.
The express "sufficient cause" should
receive a liberal construction.

14. The Hon'ble Supreme Court in
Shakuntala Devi Jain V. Kuntal Kumari
reported at AIR 1969 SC 575, held that
unless want of bona fides of such inaction
or negligence as would deprive a party of
the protection of section 5 is proved, the
application must not be thrown out or any
delay can not be refused to be condoned.

15. Adopting a justice oriented
approach to delay condonation application
the Hon'ble Supreme Court in O.P.
Kathpalia V. Lakhmir Singh reported in
AIR 1984 SC 1744 held that if the refusal
to condone the delay results in grave
miscarriage of justice, it would be a ground
to condone the delay.

16. The petitioner was not substituted
in place of his father even before this Court
confirms the fact that the father of the
petitioner was prosecuting the first appeal
and not the petitioner. There is nothing
abnormal in this conduct. In fact it is the
most natural manner in which litigations
are prosecuted in this State.

17. The petitioner is the sole heir of
deceased/Vijay Pal Singh whose lands were
acquired. The petitioner is entitled to
prosecute the claim for compensation on
behalf of his father and is liable to be
substituted. There was no inordinate delay
on part of the petitioner to institute the
substitution application. The petitioner was
reasonably diligent to his cause. Part of the
delay
was
caused
by
systematic
deficiencies. Substantive rights of the
petitioner are engaged in the controversy
and in these facts rejection of the delay
condonation application has resulted in a
serious miscarriage of justice.

18. The authorities cited in the
preceding part of the judgment are thus
squarely applicable to the facts of the case.

19. The delay condonation application
is liable to be allowed. The delay
condonation application is allowed.

The
order
dated
13.12.2019
passed
by
the
learned
reference
court/learned Additional District Judge,
Moradabad is set aside.

20. The matter is remitted to the
learned reference court/learned Additional
District Judge, Moradabad to execute the
following direction:

21.

The
learned
reference
court/learned Additional District Judge,
Moradabad shall decide the substitution
application immediately upon receipt of a
certified copy of this order.

22. The petition is allowed.
----------
(2020)07ILR A120
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 20.05.2020

BEFORE

THE HON'BLE SIDDHARTH VARMA, J.