Karnataka High Court
The Executive Engineer Knnl vs Jeejabai And Ors on 25 July, 2024
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NC: 2024:KHC-K:5326
MSA No. 200514 of 2023
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 25TH DAY OF JULY, 2024
BEFORE
THE HON'BLE Mrs JUSTICE K S HEMALEKHA
MISCL SECOND APPEAL NO.200514 OF 2023 (LAC)
BETWEEN:
THE EXECUTIVE ENGINEER,
KNNL, KARANJA PROJECT, D.NO.2
TQ. BHALKI.DIST. BIDAR-585101.
...APPELLANT
(BY SRI KRUPA SAGAR PATIL, ADVOCATE)
AND:
Digitally signed SMT. JEEJABAI,
by SWETA
KULKARNI W/O GANAPATH RAO,
Location: HIGH
COURT OF SINCE DECEASED BY LR'S.
KARNATAKA
1. VANDANA BAI,
W/O APPA RAO,
AGE: MAJOR, OCC: AGRICULTURE.
2. PRASHANT,
S/O APPA RAO,
AGE: MAJOR, OCC: AGRICULTURE,
BOTH R/O. KASHEMPUR VILLAGE
TQ. BHALKI.DIST. BIDAR-585 101.
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NC: 2024:KHC-K:5326
MSA No. 200514 of 2023
3. THE SPECIAL LAND ACQUISITION OFIFCER,
KARANJA PROJECT,
BIDAR-585101.
...RESPONDENTS
(BY SMT. ARCHANA P. TIWARI, AAG AND
SRI. F.M. INAMDAR HCGP FOR R3)
THIS MSA IS FILED UNDER SEC. 54(2) OF LAND
ACQUISITION ACT, PRAYING TO CALL FOR THE RECORDS
FROM THE REFERENCE COURT AS WELL AS THE APPELLATE
COURT IN LAC NO.201/2006 AND LACA NO.99/2014, AND SET
ASIDE THE JUDGMENT AND AWARD IN MISC. APPEAL
NO.99/2014, DATED 10.10.2014 ON THE FILE OF THE ADDL.
DISTRICT AND SESSIONS JUDGE, BIDAR, SITTING AT BHALKI.
THIS APPEAL, COMING ON FOR ORDERS, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE Mrs JUSTICE K S HEMALEKHA
ORAL JUDGMENT
(PER: HON'BLE Mrs JUSTICE K S HEMALEKHA) The beneficiary is before this Court assailing the legality and correctness of the order in MA No.99/2014, wherein, the First Appellate Court modified the award passed by the reference Court by enhancing the compensation amount to Rs.2,24,000/- per acre for wet land as against Rs.1,14,468/- per acre with all statutory -3- NC: 2024:KHC-K:5326 MSA No. 200514 of 2023 benefits, along with the appeal an application is preferred to condone the delay of 2314 days in filing the appeal, the reasons indicated in the application to condone the inordinate delay of 2314 days is culled out at paragraph Nos.4 and 5, which reads as under:
"4. I state that, the Appellate Court had disposed the Appeal in MA No.99/2014, dated 10-10-2014. The Counsel before the trial court upon receiving the certified copy of the Final Order has sent the same to the Central Office. The Central Office after securing the papers from KNNL Division Kalaburagi has handed over the entire case docket to the counsel on panel to opine feasibility in preferring any/Appeal in the matter. The said counsel after through verification of papers provided by the KNNL Central Office, the said counsel had sought for some more papers from the court below to arrive at conclusion and also having two rounds of meeting with the KNNL Legal Cell, have finally decided to the 2nd Appeal before the Hon'lde High Court questioning Judgment and Award passed by the Appellate Court.
5. I state that, alter receiving the considerable opinion, our legal cell has entrusted the entire case docket to one of the panel Advocate for preferring appeal. But due to some unavoidable circumstances, the appeal was not filed be the said counsel. That finally when he said counsel resigned from the penal in the year 2023, upon verification of the files allotted to the said counsel it was known that the present appeal was not filed. That after receiving the entire case papers from the earlier counsel, the same was handed over to the present counsel for preferring 2nd Appeal to this Hon'ble Court. I state that, securing -4- NC: 2024:KHC-K:5326 MSA No. 200514 of 2023 required papers and also transit of papers from Kalaburagi to Dharwad, and thereafter from Dharwad to Kalaburagi KNNL Office and thereafter the passing of papers to the previous counsel and then to the present counsel to do the needful, it has consumed time which is unintentional, but in a bonafide nature."
2. Reasons indicated in the above paragraphs is that after receiving the certified copy of the final order had sent the same to the Central office, the Central office after securing the papers from KNNL division Kalaburagi has handed over the entire case docket to the counsel on panel.
3. It is stated that the said counsel after a thorough verification of the papers provided by the KNNL Central office, the said counsel has sought for some more papers from the Court below, who arrived at a conclusion and after two rounds of meeting with the legal cell of KNNL, they finally decided to file second appeal before this Court, questioning the judgment and award of the First Appellate Court, it is further stated that after receiving the considerable opinion, the legal cell has entrusted the case -5- NC: 2024:KHC-K:5326 MSA No. 200514 of 2023 docket to one of the panel advocate for preferring the appeal but due to unavoidable circumstances the appeal was not filed and finally when the counsel resigned from the panel in the year 2023, upon of verification of the files allotted to the said counsel, it was known that the present appeal was not right and after receiving entire papers from the previous counsel, the second appeal is filed before this Court.
4. It is stated that securing the required papers and also the transit of papers from Kalaburagi to Dharwad and thereafter from Dharwad to Kalaburagi KNNL office and passing of the papers to the previous counsel and then to the present counsel. It consumed so much of time and the delay in preferring the appeal is unintentional and it is due to bonafide reasons.
5. The question that falls for consideration before this Court is that "whether in the facts and circumstances of the reasons indicated above, the appellant has made out sufficient ground to condone the inordinate delay?" -6-
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6. The law of limitation finds its routes in the legal maxim "Interest reipublicae ut sit fanis litum" which means that in the interest of the state as whole there should be a limit to litigation and "vigilantibus non dormeientibus jura subveniunt" which means the law will assist only those who are vigilant to their rights and not those who sleep upon it. The law of limitation specifies the statutory time frame within which a person may initiate a legal proceedings or a legal action can be brought. If the suit is filed after the expiry of the time prescribed, it will be barred by limitation, it means that the suit brought before the Court after the expiry of the time within which a legal proceedings to be initiated will be restricted.
7. Section 3 of the Limitation Act 1963 lays down the general rule that if any suit, appeal and application made after the prescribed period shall be dismissed although limitation has not been setup as a defence, the exceptions are culled out under Section 4 to 24 of the -7- NC: 2024:KHC-K:5326 MSA No. 200514 of 2023 Limitation Act, and this Court is concerned about Section 5 of the Limitation Act, which empowers the Court to admit an appeal even if it is preferred after the prescribed period provided the proposed appellants gives "sufficient cause"
for not preferring the appeal within the prescribed period, in other words the Courts have conferred with discretionary powers to admit an appeal even after the expiry of the prescribed period provided the proposed appellant is able to establish "sufficient cause" for not filing within time.
8. The said power to condone the delay and admit the appeal preferred after the expiry of the time is discretionary in nature and may not be exercised even if "sufficient cause" is shown based upon post of other factors such as negligence, failure to exercise due diligence etc., the Apex Court in the case of Collector, Land Acquisition, Anantnag and Other Vs. Katiji and Others1 has held in advocating the liberal approach in 1 (1987) 2 SCC 107 -8- NC: 2024:KHC-K:5326 MSA No. 200514 of 2023 condoning the delay for sufficient cause held that ordinarily a litigant does not stand to benefit by lodging an appeal late: it is not necessary to explain every days delay in filing the appeal: and since some time refusal to condone the delay may result in throwing out the meritorious matter, it is necessary in the interest of justice that cause of substantial justice should be allowed to prevail upon the technical consideration and if the delay is not deliberate, it not be condoned. Notwithstanding the above, howsoever liberal approach is adopted in condoning the delay, existence of "sufficient cause" for not filing the appeal in time is a condition precedent for exercising the discretionary power to condone the delay.
9. The phrases "liberal approach, justice oriented approach" and cause for the advancement of "substantial justice" cannot be employed to defeat the law of limitation so as to allow the stale matters or as a matter of fact dead matters to be revived and reopened by taking aid of Section 5 of the Limitation Act. In the instant case, the -9- NC: 2024:KHC-K:5326 MSA No. 200514 of 2023 delay is of not few days but inordinate delay of 2314 days, Section 5 of the Limitation Act, prescribes certain period for filing an appeal, substantial right is already been created in favour of the decree holder/claimants herein and this right ought not to be lightly disturbed, the claimants have already created a decree in their favour by lapse of time. The Apex Court in the case of Ramlal, Motilal and Chhotelal Vs. Rewa Coalfields ltd.,2 has emphasized that even after sufficient cause has been shown by a party for not filing an appeal within time, the said party is not entitled to the condonation of delay as excusing the delay is the discretionary jurisdiction vested with the Court. The Court, despite establishment of "sufficient cause" for various reasons may refuse to condone the delay depending upon the bonafide of the party.
10. The Apex Court in the case of Lanka Venkateswarlu (Dead) By LRs Vs. State of Andhra 2 AIR 1962 SC 361
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NC: 2024:KHC-K:5326 MSA No. 200514 of 2023 Pradesh and Others3 has observed that despite unsatisfactory explanation for the delay of 3703 days, the High Court had allowed application for condonation of delay, the Apex Court held that the High Court failed to exercise its discretion in a reasonable and objective manner. The High Court should have exercised the discretion in a systematic and in informed manner. The liberal approach in considering the sufficiency of the cause for delay should not allowed to over ride the substantial law of limitation. The Court further observed that the concepts such as "liberal approach" "justice oriented approach" and "substantial justice" cannot be employed to jettison the substantial law of limitation. The Apex Court in the later judgment of Basawaraj and Anr. vs. Special Land Acquisition Officer4 (Basawaraj) has observed that the discretion to condone the delay has to be exercised judiciously based upon the facts and circumstances of each case. "Sufficient cause", as 3 (2011) 4 SCC 363 4 (2013) 14 SCC 81
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NC: 2024:KHC-K:5326 MSA No. 200514 of 2023 occurring in Section 5 of the Limitation Act, cannot be liberally interpreted if negligence, inaction or lack of bonafide is writ large. It has also observed even though limitation may harshly affect the rights of the parties but it has to be applied with all its rigour as prescribed under the statute and the Courts have no choice but to apply the law as it stands and they have no power to condone the delay on equitable grounds and at paragraph No.12 and 15 has held as under:
"12. It is a settled legal proposition that law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribes. The court has no power to extend the period of limitation on equitable grounds. "A result flowing from a statutory provision is never an evil. A court has no power to ignore that provision to relieve what it considers a distress resulting from its operation." The statutory provision may cause hardship or inconvenience to a particular party but the court has no choice but to enforce it giving full effect to the same. The legal maxim dura lex sed lex which means "the law is hard but it is the law", stands attracted in such a situation. It has consistently been held that, "inconvenience is not" a decisive factor to be considered while interpreting a statute.
15. The law on the issue can be summarised to the effect that where a case has been presented in the court beyond limitation, the applicant has to explain the court as to what was the "sufficient cause" which
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NC: 2024:KHC-K:5326 MSA No. 200514 of 2023 means an adequate and enough reason which prevented him to approach the court within limitation. In case a party is found to be negligent, or for want of bonafide on his part in the facts and circumstances of the case, or found to have not acted diligently or remained inactive, there cannot be a justified ground to condone the delay. No court could be justified in condoning such an inordinate delay by imposing any condition whatsoever. The application is to be decided only within the parameters laid down by this court in regard to the condonation of delay. In case there was no sufficient cause to prevent a litigant to approach the court on time condoning the delay without any justification, putting any condition whatsoever, amounts to passing an order in violation of the statutory provisions and it tantamounts to showing utter disregard to the legislature."
11. In the recent decision the Apex Court in the case of Pathapati Subba Reddy (Died) by L.Rs. and Ors. v. The Special Deputy Collector (LA)5 has given a consideration to the provisions of law as aforesaid and has held at paragraph No.26 as under:
"26. On a harmonious consideration of the provisions of the law, as aforesaid, and the law laid down by this Court, it is evident that:5
2024 SCC Online SC 513
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(i) Law of limitation is based upon public policy that there should be an end to litigation by forfeiting the right to remedy rather than the right itself;
(ii) A right or the remedy that has not been exercised or availed of for a long time must come to an end or cease to exist after a fixed period of time;
(iii) The provisions of the Limitation Act have to be construed differently, such as Section 3 has to be construed in a strict sense whereas Section 5 has to be construed liberally;
(iv) In order to advance substantial justice, though liberal approach, justice-oriented approach or cause of substantial justice may be kept in mind but the same cannot be used to defeat the substantial law of limitation contained in Section 3 of the Limitation Act;
(v) Courts are empowered to exercise discretion to condone the delay if sufficient cause had been explained, but that exercise of power is discretionary in nature and may not be exercised even if sufficient cause is established for various factors such as, where there is inordinate delay, negligence and want of due diligence;
(vi) Merely some persons obtained relief in similar matter, it does not mean that others are also entitled to the same benefit if the court is not satisfied with the cause shown for the delay in filing the appeal;
(vii) Merits of the case are not required to be considered in condoning the delay; and
(viii) Delay condonation application has to be decided on the parameters laid down for condoning the delay and condoning the
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NC: 2024:KHC-K:5326 MSA No. 200514 of 2023 delay for the reason that the conditions have been imposed, tantamounts to disregarding the statutory provision."
12. The Apex Court in another judgment in the case of Ajay Dabra Vs. Pyare Ram and Ors6 has observed that an appeal has to be filed within a stipulated period prescribed under the law belated appeals can only be condoned, when "sufficient reasons" are shown before the Court for the delay and the Courts should not be pedantic in their approach while condoning the delay and the explanation of each day's delay should not be taken literally but the fact remains there must be a reasonable explanation for the delay and at paragraph No.5 has held as under:
"5. What we have here is a pure civil matter. An appeal has to be filed within the stipulated period, prescribed under the law. Belated appeals can only be condoned, when sufficient reason is shown before the court for the delay. The appellant who seeks condonation of delay therefore must explain the delay of each day. It is true that the courts should not be pedantic in their approach while condoning the delay, and explanation of each day's delay should not be taken literally, but the fact remains that there 6 2023 live law (SC) 69
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NC: 2024:KHC-K:5326 MSA No. 200514 of 2023 must be a reasonable explanation for the delay. In the present case, this delay has not been explained to the satisfaction of the court. The only reason assigned by the appellant for the delay of 254 days in filing the First Appeal was that he was not having sufficient funds to pay the court fee! This was not found to be a sufficient reason for the condonation of delay as the appellant was an affluent businessman and a hotelier. In any case, even it is presumed for the sake of argument that the appellant was short of funds, at the relevant point of time and was not able to pay court fee, nothing barred him from filing the appeal as there is provision under the law for filing a defective appeal, i.e., an appeal which is deficient as far as court fee is concerned, provided the court fee is paid within the time given by the Court. We would refer to Section 149 of Civil Procedure Code, 1908 which reads as under :-
"Section 149: Power to make up deficiency of Court Fees.- Where the whole or any part of any fee prescribed for any document by the law for the time being in force relating to court fees has not been paid, the Court may, in its discretion, at any stage, allow the person, by whom such fee is payable, to pay the whole or part, as the case may be, of such court-fee, and upon such payment the document, in respect of which such fee is payable, shall have the same force and effect as if such fee had been paid in the first instance."
It also needs to be emphasized that this Court as well as various High Courts, have held that Section 149 CPC acts as an exception, or even a proviso to Section 4 of Court Fees Act 1870. In terms of Section 4, an appeal cannot be filed before a High Court without court fee, if the same is prescribed. But this provision has to be read along with Section 149 of CPC which we have referred above. A short background to the incorporation of Section 149 in CPC would explain this aspect."
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13. The reasons indicated in the affidavit at paragraph No.4 and 5 by a responsible officer of the KNNL, a statutory body, is not just enough for this Court to condone an inordinate delay of 2314 days in filing the appeal. The reasons at paragraph No.2 indicates that the authority was aware about the disposal of the appeal in MA No.99/2014 itself, the inordinate delay in seeking the appeal and challenging the order passed by the Appellate Court cannot be entertained by way of this appeal and needs to dismissed on the ground of delay. Accordingly, the appeal has to be dismissed on the ground of delay itself and accordingly IA No.1/2023 is dismissed and the appeal is dismissed as devoid of merits.
14. In light of the dismissal of the appeal on ground of delay the appellant is entitled for refund of Court fee as per Section 63(2) Karnataka Court-Fees and Suits Valuation Act, 1958.
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NC: 2024:KHC-K:5326 MSA No. 200514 of 2023 Pending IA's if any, would not survive for consideration.
Sd/-
(K S HEMALEKHA) JUDGE AT List No.: 2 Sl No.: 9 CT: VD