Himachal Pradesh High Court
________________________________________________________ vs The Land Acquisition Collector & ... on 26 November, 2024
Author: Sushil Kukreja
Bench: Sushil Kukreja
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Neutral Citation No. ( 2024:HHC:12976 )
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CMP(M) No.385 of 2024
Date of Decision: 26.11.2024
________________________________________________________
Kamal Dev & another
....Applicants/Appellants
Versus
The Land Acquisition Collector & another
...Respondents
________________________________________________________
Coram
Hon'ble Mr. Justice Sushil Kukreja, Judge
Whether approved for reporting?1 Yes.
____________________________________________________
For the applicants/appellants: Mr. Dheeraj K. Vashisht, Advocate.
For the respondents: Mr. C.N. Singh, Advocate.
____________________________________________________
Sushil Kukreja, Judge (Oral)
This order shall dispose of the application filed on behalf of the applicants-appellants under Sections 5 & 14 of the Limitation Act read with Section 151 of the Code of Civil Procedure (CPC) for condonation of delay in filing the appeal.
2. Brief facts of the case, as emerge from the record, are that the land of the applicants-appellants, comprised in Khasra Nos.804, 805, 807 to 813, situated in village Tabba, Tehsil and District Una, HP, was acquired by the State Government for construction of a 1 ? Whether reporters of Local Papers may be allowed to see the judgment? 2
Neutral Citation No. ( 2024:HHC:12976 ) Housing Colony. The necessary notification under Section 4 of the Land Acquisition Act (for short, the 'Act') was published on 25.06.1988 and thereafter notification under Sections 6 and 7 of the Act was published on 07.06.1989. Consequently, the Land Acquisition Collector announced the award on 25.06.1991. Aggrieved against the said award, the applicants-appellants preferred a reference petition being Land Reference Case No.7 of 1992 under Section 18 of the Act, which was dismissed by the learned District Judge, Una, HP, vide award dated 27.01.1995.
3. Being aggrieved and dissatisfied with the impugned award dated 27.01.1995, the applicants-appellants preferred an appeal alongwith the present application under Sections 5 and 14 of the Limitation Act for condonation of delay in filing the appeal. As per the applicants-appellants, they could not file the appeal within the stipulated period due to their weak financial position as well as lack of knowledge in this regard. However, one of the claimants, namely, Shawal Singh filed the appeal being RFA No.41/1995, which was allowed by this Court vide judgment dated 11.03.2005, as per which, a sum of Rs.23,115/- per kanal alongwith other statutory benefits were awarded. Since the reference petition filed by the applicants-appellant so also the reference petition preferred by aforesaid Shawal Singh had arisen out of the same Award No.1 dated 25.06.1991, therefore, the findings recorded by this Court in 3 Neutral Citation No. ( 2024:HHC:12976 ) RFA No.41/1995 are fully applicable to the case of the applicants, hence, they are also entitled for the enhanced amount of compensation alongwith all statutory benefits as the award passed by the learned Reference Court was set aside by this Court as a whole. It has been averred in the application that in furtherance to the decision in RFA No.41/1995 and dismissal of Appeal No.5885/2006 by the Hon'ble Supreme Court on 14.01.2006, Execution Petition No.210/2021 preferred by the applicants was dismissed on 27.07.2023 and thereafter the applicants assailed the said order before this Court by filing Civil Revision No.125/2023, which was dismissed as withdrawn as the applicants- appellants had chosen the wrong forum. The applicants-appellants were under the bonafide belief that because the award as a whole was set aside, vide judgment dated 11.03.2005 passed in RFA No.41/1995, therefore, the compensation enhanced was also applicable to the other claimants. However, the same was only applicable to the claimants therein, hence, the delay in filing the instant appeal is bonafide and the result of choosing the wrong forum by the applicant for redressal of their grievances. Therefore, the delay of 29 years, 1 month and 11 days in filing the appeal was neither intentional nor willful, but had occurred on account of the above stated reason, hence, it is prayed that the present application may be allowed and the delay in filing the appeal be condoned.
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Neutral Citation No. ( 2024:HHC:12976 )
4. In the reply filed by the non-applicants/respondents, the application is opposed on the ground that the delay in filing the appeal is not only inordinate, but the same has not been satisfactorily explained in the application. It has further been averred that the contention raised by the applicants are false and an afterthought, which cannot be accepted because the delay of more than 29 years has gone unexplained and no reason much less sufficient cause has been cited by the applicants for condoning such a huge delay. The applicants are fence-sitters and they cannot be permitted to approach the Court at any time and under the garb of Civil Revision No.125/2023, they cannot seek the benefit of Section 14 of the Limitation Act for condoning the entire period of delay of more than 29 years.
5. I have heard learned counsel for the applicants-appellant as well as learned counsel for the non-applicants and also gone through the material available on record.
6. Learned counsel for the applicants-appellants contended that the delay in filing the appeal is neither intentional nor willful but had occurred on account of the fact that the applicants-appellants remained under the bonafide belief that since the award as a whole was set aside by this Court in RFA No.41/1995, the enhanced amount 5 Neutral Citation No. ( 2024:HHC:12976 ) of compensation was also applicable to them as such, the delay in filing the appeal was bonafide and was a result of choosing the wrong forum by the applicants-appellants for redressal of their grievances
7. On the other hand, learned counsel for the non- applicants/respondents contended that no sufficient cause has been shown by the applicants for condonation of such a huge delay in filing the appeal.
8. At this stage, It would also be relevant to examine the provisions pertaining to condonation of delay, viz. Section 5 of the Limitation Act, 1963. Section 5 reads as under:-
"5. Extension' of prescribed period in certain- Any appeal or application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 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."
9. A plain reading of this provision indicates that this is an enabling provision and nothing more. It enables a Court to condone the delay, subject to the Court being satisfied that there was "sufficient cause" for condoning the delay. The Court can only examine the submissions of the parties on the basis of the facts averred and made out in the application for condonation. It is, however, necessary to 6 Neutral Citation No. ( 2024:HHC:12976 ) emphasise that even after sufficient cause has been shown, a party is not entitled to the condonation of delay in question as a matter of right.
10. Before considering the submission of learned counsel for the petitioner, a brief recapitulation of the law on the aspect of condonation of delay may be apposite. In Esha Bhattacharjee vs. Managing Committee of Raghunathpur Nafar Academy and others (2013) 12 SCC 649, the Hon'ble Supreme Court had added more guidelines taking note of the present day scenario to the principles for condonation of delay which have been culled out in B. Madhuri Goud v. B. Damodar Reddy , (2012) 12 SCC 693, which are as under:-
"20. In B. Madhuri Goud v. B. Damodar Reddy, the Court referring to earlier decisions reversed the decision of the learned single Judge who had condoned delay of 1236 days as the explanation given in the application for condonation of delay was absolutely fanciful.
21. From the aforesaid authorities the principles that can broadly be culled out are:
21.1 (i) There should be a liberal, pragmatic, justice-
oriented, non-pedantic approach while dealing with an application for condonation of delay, for the courts are not supposed to legalise injustice but are obliged to remove injustice.
21.2 (ii) The terms "sufficient cause" should be understood in their proper spirit, philosophy and purpose regard being had to the fact that these terms are basically elastic and are to be applied in proper perspective to the obtaining fact- situation.
21.3 (iii) Substantial justice being paramount and pivotal the technical considerations should not be given undue and uncalled for emphasis.
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Neutral Citation No. ( 2024:HHC:12976 ) 21.4 (iv) No presumption can be attached to deliberate causation of delay but, gross negligence on the part of the counsel or litigant is to be taken note of.
21.5(v) Lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact. 21.6 (vi) It is to be kept in mind that adherence to strict proof should not affect public justice and cause public mischief because the courts are required to be vigilant so that in the ultimate eventuate there is no real failure of justice. 21.7 (vii) The concept of liberal approach has to encapsule the conception of reasonableness and it cannot be allowed a totally unfettered free play.
21.8 (viii) There is a distinction between inordinate delay and a delay of short duration or few days, for to the former doctrine of prejudice is attracted whereas to the latter it may not be attracted. That apart, the first one warrants strict approach whereas the second calls for a liberal delineation. 21.9 (ix) The conduct, behaviour and attitude of a party relating to its inaction or negligence are relevant factors to be taken into consideration. It is so as the fundamental principle is that the courts are required to weigh the scale of balance of justice in respect of both parties and the said principle cannot be given a total go by in the name of liberal approach.
21.10 (x) If the explanation offered is concocted or the grounds urged in the application are fanciful, the courts should be vigilant not to expose the other side unnecessarily to face such a litigation.
21.11. (xi) It is to be borne in mind that no one gets away with fraud, misrepresentation or interpolation by taking recourse to the technicalities of law of limitation. 21.12.(xii) The entire gamut of facts are to be carefully scrutinized and the approach should be based on the paradigm of judicial discretion which is founded on objective reasoning and not on individual perception.
21.13 (xiii) The State or a public body or an entity representing a collective cause should be given some acceptable latitude.
22. To the aforesaid principles we may add some more guidelines taking note of the present day scenario. They are:-
22.1 (a) An application for condonation of delay should be drafted with careful concern and not in a half hazard manner harbouring the notion that the courts are required to condone delay on the bedrock of the principle that 8 Neutral Citation No. ( 2024:HHC:12976 ) adjudication of a lis on merits is seminal to justice dispensation system.
22.2 (b) An application for condonation of delay should not be dealt with in a routine manner on the base of individual philosophy which is basically subjective. 22.3 (c) Though no precise formula can be laid down regard being had to the concept of judicial discretion, yet a conscious effort for achieving consistency and collegiality of the adjudicatory system should be made as that is the ultimate institutional motto.
22.4 (d) The increasing tendency to perceive delay as a non-serious matter and, hence, lackadaisical propensity can be exhibited in a non-challant manner requires to be curbed, of course, within legal parameters."
11. In Basawaraj and another vs. Special Land Acquisition Officer (2013) 14 SCC 81. The Hon'ble Supreme Court was pleased to observe that what was essential for the applicant to prove 'sufficient cause' which means an adequate and enough reason which prevented him from approaching the court within the period of limitation and that no court could be justified in condoning such an inordinate delay by imposing any condition whatsoever, that the application was to be decided only within the parameters laid down by the Court in regard to the condonation of delay and that in case there was no sufficient cause to prevent a litigant to approach the Court on time, condoning the delay without any justification by putting any condition, whatsoever, amounted to passing an order in violation of the statutory provisions and tantamounts to showing utter disregard to the legislature. Relevant extracts of said judgment are reproduced below:-9
Neutral Citation No. ( 2024:HHC:12976 ) "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 whi1e interpreting a statute.
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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 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 bona fide 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."
12. In the case on hand, this Court has to consider whether there is any sufficient cause for condonation of delay. To explain the same, the applicants-appellants averred that they could not file the appeal against the award dated 27.01.1995 due to their weak financial position in this regard. It has further been averred that one of the claimants, namely Shaval Singh, had filed RFA No.41/1995 before this Court, which had arisen out of the same Award No.1, dated 10 Neutral Citation No. ( 2024:HHC:12976 ) 25.06.1991, passed by the Land Acquisition Officer, against which, an appeal was filed before the Hon'ble Apex Court, which was also dismissed on 14.01.2016. and the applicants-appellants were under the bonafide belief that in RFA No.41/1995, the award as a whole was set aside and the enhanced compensation was also applicable to other claimants as such, the delay in filing the appeal was bonafide and was a result of choosing the wrong forum by the applicants-
appellants for redressal of their grievances. However, the mere fact that one of the claimants had filed an appeal i.e. RFA No.41/1995 which had arisen out of the same Award No.1, dated 25.06.1991, passed by the Land Acquisition Officer is no ground for condonation of delay. In order to seek condonation of delay, sufficient cause for not filing the appeal within the stipulated period of time was required to be established by the applicants. Undisputed fact of the present case is that there is a delay of more than 29 years in filing the appeal. From the perusal of the material available on record, the only conclusion which can be drawn is that the averments made by the applicants- appellants are concocted and the reasons shown for the aforesaid delay cannot be said to be bonafide so as to condone such an inordinate and unexplained delay of more than 29 years. No doubt, the applicants have taken up the plea that their financial position was 11 Neutral Citation No. ( 2024:HHC:12976 ) weak and they had chosen the wrong forum for redressal of their grievances, however, it cannot be said that they were not aware of their rights. They were aware of their rights, however, they did not exercise the said right with due care and caution, while considering sufficient cause under Sections 5 and 14 of the Limitation Act.
13. Coming to the second plea raised by the applicants- appellants that since Land Reference No.9 of 1992 decided by the Reference Court/District Judge, Una, titled Shawal Singh Vs. LAC and another, had arisen out of the same Award No.1 dated 25.06.1991, passed by the Land Acquisition Officer, as such, the findings returned by this Court in RFA No.41/1995 are fully applicable to the case of the applicants and they are also entitled to enhanced amount of compensation alongwith all statutory benefits. However this plea raised by the applicants is devoid of any force. It needs to be noticed that the right to invoke Section 28-A of the Act is within a period of 3 months from the date of award of the court, whereas, here there is a delay of 29 years, 1 month and 11 days.
14. In a similar situation, in Brijesh Kumar and others vs. State of Haryana and others, (2014) 11 SCC 351, the petitioner and other interested persons filed references under Section 18 of the Act for enhancement of compensation and the Reference Court made the 12 Neutral Citation No. ( 2024:HHC:12976 ) award on 07.09.2001 assessing the market value of the land @ Rs.1,85,000/- per acre and they were also given other statutory benefits. Aggrieved, some of the persons interested filed appeals before the High Court, however, the petitioner has chosen not to file appeal at the initial stage, but filed the same after a lapse of 10 years, 2 months and 29 days. The High Court had refused to condone the delay in spite of the fact that other persons who had preferred the appeal in time had been given higher compensation. The Hon'ble Supreme Court after considering various judgments, dismissed the plea for condonation of delay in view of the facts of the case, as also the law on the subject. Relevant paras of the judgment read as under:-
"6. The issues of limitation, delay and laches as well as condonation of such delay are being examined and explained every day by the Courts. The law of limitation is enshrined in the legal maxim "Interest Reipublicae Ut Sit Finis Litium" (it is for the general welfare that a period be put to litigation). Rules of Limitation are not meant to destroy the rights of the parties, rather the idea is that every legal remedy must be kept alive for a legislatively fixed period of time.
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10. The courts should not adopt an injustice-oriented approach in rejecting the application for condonation of delay. However the court while allowing such application has to draw a distinction between delay and inordinate delay for want of bona fides of an inaction or negligence would deprive a party of the protection of Section 5 of the Limitation Act, 1963. Sufficient cause is a condition precedent for exercise of discretion by the Court for condoning the delay. This Court has time and again held that when mandatory provision is not complied with and that delay is not properly, satisfactorily and convincingly 13 Neutral Citation No. ( 2024:HHC:12976 ) explained, the court cannot condone the delay on sympathetic grounds alone.
11. It is also a well settled principle of law that if some person has taken a relief approaching the Court just or immediately after the cause of action had arisen, other persons cannot take benefit thereof approaching the court at a belated stage for the reason that they cannot be permitted to take the impetus of the order passed at the behest of some diligent person.
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15. In the instant case, after considering the facts and circumstances and the reasons for inordinate delay of 10 years 2 months and 29 days, the High Court did not find sufficient grounds to condone the delay."
( Emphasis supplied)
15. The decision of Hon'ble Supreme Court in Brijesh Kumar's case (Supra) is fully applicable to the facts of the present case, therefore, in view of the aforesaid decision, the applicants having failed to prove sufficient cause is not entitled to condonation of delay and they are not entitled to enhanced amount of compensation alongwith all statutory benefits simply because of the fact that RFA No.41/1995, which was filed by one of the claimants, namely, Shawal Singh was allowed by this Court vide judgment dated 11.03.2005, assessing the market value of the land @ Rs. Rs.23,115/- per kanal along with other statutory benefits as contended by the ld. Counsel for the petitioner.
16. In the light of the position noted above as also the judgments referred to therein, I am of the considered view that the 14 Neutral Citation No. ( 2024:HHC:12976 ) cause shown by the applicants resulting in 29 years, 1 month and 11 days delay in filing the appeal, does not constitute sufficient cause for condoning the colossal delay.
17. Accordingly, the present application for condonation of delay is dismissed and as a necessary corollary, the accompanying appeal also stands dismissed with no order as to costs.
Pending miscellaneous application(s), if any, also stand disposed of.
( Sushil Kukreja )
November 26, 2024 Judge
(VH)