Judgment:
Sunanda Bhandare, J.
(1) This petition under Article 226 and 227 of the Constitution of India is directed against the order of the Additional Collector, Delhi dated 25th July, 1983 whereby the appeal filed by the petitioner under Section 21(4) of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (hereinafter referred to as 'the Act') as applicable to Union Territory of Delhi, was dismissed.
(2) The petitioner is a Bhumidar in village Bijwasan, Delhi and respondents 2 to 4 also hold land in the same village. Respondent No. 2 purchased the land from respondent No. 3 during the pendency of consolidation proceedings in village Bijwasan, Delhi. Consolidation scheme for village Bijwasan in terms of the provisions of 19(1) of the Act was drawn and published by the Consolidation Officer and the same was confirmed under Section 20 of the Act. After the scheme became final, the re-partition under Section 21 of the Act started. The petitioner was allotted land comprising Khasra Nos. 75/16 (4-16), 17 East (1-16), 24 East (1-16) 25 (4-16), 76/11-12 South (2-15) and 20 (4-12) by an order dated 27th June, 1977. Feeling aggrieved by the order of 27th June, 1977, one Shri Bhagwana and few other filed an appeal under Section 21(4) of the Act before the Additional Collector. However the appeal was dismissed on 26th August, 1978 and the order of allotment in favor of the petitioner was confirmed. Since this order was not challenged by Shri Bhagwana and others by way of proceedings under Section 21(4) of the Act, the allotment in favor of the petitioner became final.
(3) Subsequently on an application made by respondent No. 3, the Consolidation Officer by order dated 27th March, 1980 changed the allotment and respondent No. 3 was allotted Khasra No. 76/20. The case of the petitioner is that this order was passed ex parte and the petitioner was not given any notice regarding the proceedings initiated by respondent No. 3 before the Consolidation Officer. The petitioner came to know about the order passed by the Consolidation Officer from the Patwari when he went to measure the land in possession of the petitioner on 27th January, 1981. The petitioner was told that the land comprising Khasra No. 76/20 had been allotted to respondent No. 2. The petitioner thus applied for a certified copy of the order which was made available to him on 13th March, 1981. The petitioner thereafter filed an appeal challenging the order of 27-3-1980. Along with the appeal, the petitioner also moved an application under Section 21(5) of the Act for condensation of delay giving the detailed facts why the appeal could not be filed within 30 days of the date of the order. The appeal however was dismissed on 26-8-82 as barred by time.
(4) Feeling aggrieved by the dismissal of the appeal, the petitioner filed an appeal before the Additional Collector under Section 21(4) of the Act. The Additional Collector by way of the impugned order dated 25th July, 1983 confirmed the order passed by the Settlement Officer dated 26th August, 1982.
(5) The short question for decision in this present writ petition is whether the appeal filed by the petitioner was within time and if not whether the petitioner had made out a sufficient ground for condensation of delay.
(6) It was contended by the learned counsel for the petitioner that the order of the Consolidation Officer itself makes it clear that the petitioner had no notice of the proceedings initiated by respondent No. 3 before the Consolidation Officer, whereas Bhagwana was present when the application was. heard but it was ex parte as far as the petitioner was concerned. The petitioner was not present when the order was passed There is nothing to show that notice of the application filed by respondent No. 3 was ever issued to the petitioner. Furthermore since the consolidation proceedings had been concluded and the land had been finally allotted to the petitioner there was no reason for the petitioner to expect that further corrections in the entries would be made unless notice had been given to him in that regard. Counsel submitted that it was only when on 27-1-81 the Patwari came to take the measurement that the petitioner came to know that an order alloting Khasra No. 76/20 to the respondent No. 2 had been passed by the Consolidation Officer. Counsel submitted that since the appeal was against an ex parte order, under Article 123 of the Limitation Act the time for filing the appeal would be 30 days from the date the petitioner came to know about the ex parte order. He further submitted that the Patwari measured the land of the petitioner on 27-1-1981, the petitioner applied for the certified copy on 28-1-1981 which was made available to him on 13-3-81 and the petitioner filed the appeal on 26-3-1981. thereforee if the time taken in obtaining the certified copy is excluded, the petitioner had filed the appeal within 30 days of the date on which he came to know about the ex parte order. The petitioner had filed an application for condensation of delay by way of abandoned caution. The petitioner was not expected to know what was the order passed till he obtained the copy of the same. Learned counsel, thereforee, stated that the orders of Settlement Officer (Consolidation) and the Collector, Delhi dismissing the appeals as time barred deserved to be set aside.
(7) On the other hand it was submitted by the learned counsel for the respondent that there is nothing to show that the petitioner was not aware of the order passed by the Consolidation Officer even before the Patwari went to measure the land on 27-1-1981. Even assuming the petitioner had come to know about the order on 27-1-1981, as soon as he came to know he should have filed an appeal. The petitioner filed the appeal 10 days after he had received the certified copy and bad not shown sufficient cause for the delay and thereforee the appeals were rightly dismissed.
(8) From the order of the Consolidation Officer, Annexure P-3/A to the petition, dated 27th March, 1980, I find that the Consolidation Officer had re-opened the consolidation on an application filed by Sh. Maha Ram, who is respondent No. 3 in the present case. Shri Bhagwana, the brother of respondent No. 2 was present when the said order was passed and apart from these two persons, appearance of no other person is recorded in the order. The order also indicates that Khasra No. 76/20 East in respect of which the present petitioner was named as a righparliesr was withdrawn from him and in lieu of this Khasra, the petitioner was allotted Khasra No. 76/11-12 North. By this very order the Palwari was asked to make entries in the consolidation record regarding the said amendment in the allotment and also to give demarcation to the parties on the spot. The Consolidation Officer further ordered that the file be consigned to record room after completion and service. It appears that pursuant to this order the Patwari went for demarcation on 27th January, 1981. Thus it is clear that the petitioner could not have known of the order before 27th January, 1981. So in the very nature of the thing, the petitioner could not have filed the appeal within 30 days of the order dated 27-3-1980.
(9) Now the next question is whether the petitioner was expected to file the appeal immediately after he came to know of the order. It is not disputed that the petitioner applied for the certified copy of the order on 28-1-1981, which was made available to him on 13-3-1981. Now if the time taken in obtaining the certified copy is excluded, since the petitioner filed the appeal on 25th March, 1981 the same would be within 30 days of the date on which the petitioner came to know about the ex parte order. Now if Article 123 of the Limitation Act is applicable to the present case there was no question of the petitioner showing sufficient cause for delay in filing the appeal. Both the authorities below have not considered the effect of Article 123 of the Limitation Act, and have proceeded only on the question whether the petitioner had shown sufficient cause for condensation of delay.
(10) Now even if Article 123 of the Limitation Act is not applicable in the present case, I find that there is a specific provision in the Act itself which provides for condensation of delay. Section 21 (5) of the Act gives power to the appellate authority to entertain an appeal under Sub-section (3) and Sub-section (4) after the expiry of the period of prescribed limitation if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal in time. It is well settled that the words 'sufficient cause' should receive a liberal construction because this discretion is vested in an authority so as to advance substantial justice. Thus though a party seeking condensation of delay is to explain each and every day's delay, Explanationn of each and every day's delay with mathematical precision is not expected to be given. Ordinarily this court does not interfere with a finding of facts but in the present case I find that both the authorities proceeded on the basis that there was. failure to show sufficient cause because each and every day's delay was not explained. The authorities completely ignored the fact that as soon as the petitioner came to know that some order had been passed by the Consolidation Officer he applied for the certified copy of the order and till the certified copy was obtained he could not file the appeal, because it was only then that he could decide whether his rights were affected. It is not disputed that within 10 days of the obtaining of certified copy, the petitioner filed the appeal. Now the petitioner who is an agriculturist is not expected to rush and file an appeal without consulting knowledgeable people and taking legal advice. He may have also had to inspect the revenue records before taking any further steps. Thus 10 days time to file the appeal after the certified copy was received cannot be considered to be unreasonable. The delay was. not in any event inordinate. Equity and justice of the case require that the delay ought to have been condoned. The two authorities below did not exercise the discretion vested in them which has resulted in miscarriage of justice.
(11) I, thereforee, make the rule absolute and set aside the impugned orders dated 27-3-1980 and 25-7-1983 ; condone the delay in filing the appeal and remand the case back to the Settlement Officer (Consolidation), Delhi to decide the appeal filed by the petitioner under Section 21(3) of the Act on merits. Since an order of status quo regarding possession has been in operation all throughout, the parties will maintain status quo till the decision on merits. is taken by the Settlement Officer (Consolidation).
(12) The appeal is allowed to the extent indicated hereinabove. There will be no order as to costs.