- (1.) THE only grievance raised in the present writ petition is condonation of delay of one year by the learned Board of Revenue in first appeal filed by the State by the impugned order dtd.29.1.2001 (Annex.8).
(2.) THE learned counsel for the petitioner, Mr. Varun Goyal urged that the reason assigned by the State in seeking condonation of delay in its application filed by it under Section 5 of the Limitation Act that due to preparation for Lok Sabha elections by the officials, the appeal could not be filed within limitation, was absolutely wrong since Lok Sabha elections were admittedly over prior to 5.6.1995, the date on which the impugned order in the first appeal was passed. The appeal was filed by the State before the learned Board of Revenue on 15.6.1996 after about one year, after prescribed period of limitation of 30 days. The learned counsel for the petitioner, Mr. Varun Goyal therefore, urged that said delay could not be condoned by the Board of Revenue. He also submitted that further proceedings before the learned Board of Revenue have been stayed by the coordinate Bench of this Court on 21.8.2001 and the appeal is, therefore, still pending before the learned Board of Revenue. He therefore, submitted that the impugned order dtd.29.1.2001 deserves to be quashed. Per contra, Mr. S. Bhandawat, learned counsel appearing for the Revenue Department submitted that the delay of one year in filing the first appeal cannot be said to be intentional and even though the reason as assigned in the application may not be factually available to the State, there were other genuine and sufficient reasons and mere condonation of delay does not entitle the present petitioner to invoke extraordinary jurisdiction of this Court under Articles 226 and 227 of the Constitution of India to challenge the order of the Board of Revenue condoning the delay. He urged that condonation of delay is matter within the discretion of the learned Board of Revenue and exercise of such discretion cannot be assailed by way of writ petition. He submitted that the Supreme Court decision reported in AIR 1997 SC 1390 quoted and relied upon by the Board in the impugned order duly recognizes the various factors under which delay may be caused in filing State appeal. However, without justifying the said delay, he prayed that the impugned order which mere condones the delay and entertains the appeal to be decided on its own merit being first appeal is not the order, which deserves to be quashed by this Court in writ jurisdiction.
(3.) HAVING heard the learned counsels, this Court is of the opinion that even though the reason assigned by the State in its application under Section 5 of the Limitation Act was unsustainable as rightly contended by the learned counsel for the petitioner, but the fact remains that condonation of delay is a discretionary matter and looking to the facts of this case, condonation of delay in the present case of 11 months approximately, cannot be held to be arbitrary and capricious exercise of discretionary powers by the Board of Revenue. Therefore, this Court is not inclined to disturb that order at this stage. The appeal filed by the State, therefore, deserves to be decided on its merit.;