Karnataka High Court
Shivasharanappa By Lrs. And Anr vs The Spl.Land Aquisition Officer on 24 October, 2017
Author: Rathnakala
Bench: Rathnakala
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 24TH DAY OF OCTOBER, 2017
BEFORE
THE HON'BLE MRS. JUSTICE RATHNAKALA
MSA No.848/2012
Between:
Shivasharanappa since dead by LRs.,
1. Baburao S/o late Shivasharanappa
Age: 25 years, Occ: Agriculture
2. Sushilabai W/o Shivasharanappa
Age: 45 years, Occ: Agriculture
Both R/o. Sangolgi "G" village
Tq: Aland, Dist: Gulbarga
... Appellants
(By Sri S. S. Sajjanshetty, Advocate)
And:
The Spl. Land Acquisition Officer
M & MIP, Room No.7
Mini Vidhan Soudha
Gulbarga-585102
... Respondent
(By Smt. Archana P. Tiwari, Advocate)
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This Miscellaneous Second Appeal is filed Under Section
54(2) of the LA Act, 1984 against the judgment and award dated
06.08.2011 passed in LACA No.14/2010 on the file of the IV
Addl. District Judge at Gulbarga wherein the appeal was
dismissed and the judgment and award dated 27.08.1997
passed in LAC No.724/1996 on the file of the Prl. Civil Judge
(Sr.Dn.) at Gulbarga was confirmed.
This appeal coming on for disposal, this day, the Court
delivered the following:
JUDGMENT
Heard Sri. S.S.Sajjanshetty, learned counsel for the appellants and Smt.Archana P. Tiwari, learned Additional Government Advocate for the respondent.
2. As facts unfurl, 12 acres and 5 guntas of dry land and 5 guntas of phut kharab land in Sy. No.52, situated at Sangolgi-G village, Aland taluk and Kalaburagi district was acquired for the purpose of Amarja Project. Possession of the acquired property was taken over on 31.01.1984. The award was passed by the Land Acquisition Officer. 3
3. Protest petition having been filed, reference under Section 18 of the Land Acquisition Act, 1894 was made and the same was registered in LAC No.724/1996 on the file of Prl. Civil Judge (Sr. Dn.) Gulbarga. The said reference was consolidated with LAC No.722/1986 and taken up together. By a common Judgment dated 27.08.1997 passed in LAC No.724/1996, the market value of the acquired land was determined at Rs.27,000/- per acre i.e. in respect of 12 acres 5 guntas of dry land and Rs.7,000/- per acre for the phut kharab land. Statutory benefits and interest was allowed with effect from 31.05.1994. Dissatisfied with the said determination, appellants filed LAC No.14/2010 with an application for condonation of delay of 4486 days, restricting the claim at Rs.35,000/- per acre. The said application having been dismissed on the ground of inordinate delay vide order dated 06.08.2011 (Annexure-A), present appeal is filed.
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4. The learned counsel Sri.S.S.Sajjanshetty for the appellants submits that the first appellate Court by refusing to condone the delay of 4486 days virtually non- suited the appellants. The appellants had explained the said delay by bringing on record the fact that the appellants are the widow and son of the deceased - Shivasharanappa/the owner of the land measuring 12 acres 5 guntas plus 5 guntas of phut kharab in Sy.No.52 of Sangolgi-G village, Aland taluk, Kalaburgi district. Though, the referral Court had passed the award in the year 1992, it took almost 15 years to deposit whole of the compensation amount, for them to deposit on the pretext that appeal in MFA No.9557/2005 which is a connected case is pending for adjudication before this Court.
5. The deceased/original owner was suffering from cancer and was taking treatment in various hospitals. However, he succumbed to the cancer in the year 2008. The appellants hail from a remote village and are not 5 worldly wise. After the death of Shivasharanappa though they approached their counsel, they were not able to mobilize the required Court fee.
6. Learned Counsel further submits that the explanation offered by the appellants for the delay though was not disputed by the lower appellate Court, the application was rejected mainly on the ground that the original owner during his life time did not challenge the quantum of compensation by way of appeal or else they could have availed the services of Legal Service Authority, if they were under financial constraint. The approach of the lower appellate Court is mechanical and not addressing the contentions raised by the appellants hence is perverse. The order of rejecting the application to condone the delay of 4486 days in preferring the appeal may be set aside in the interest of justice so the appellants can prosecute their appeal.
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7. While opposing the appeal, Smt.Archana P. Tiwari, learned Additional Government Advocate for the respondent submits that the Apex Court in the case of Brijesh Kumar & Ors. vs. Sate of Haryana & Ors. reported in 2014 (2) SC 717 has categorically held that the sufficient cause is a condition precedent for exercise of discretion by the Court for condoning the delay. The discretionary jurisdiction exercised by the Court below is judicious and the inordinate delay of almost 12 years cannot be condoned at this length of time.
8. In the light of the rival submissions, perused the lower Court records.
9. The Apex Court in its judgment reported in 2017 AIAR (Civil) 821 in the case K. Subbarayudu & Ors. vs. Special Deputy Collector (Land Acquisition) while addressing a similar situation has observed as under:
"12. The term "sufficient cause" is to receive liberal construction so as to advance 7 substantial justice, when no negligence, inaction or want of bona fide is attributable to the appellants, the Court should adopt a justice- oriented approach in condoning the delay. In State of Nagaland v. Lipok AO and Others (2005) 3 SCC 752: 2005 (4) JT 10, it was held as under:
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"Section 5 is to be construed liberally so as to do substantial justice to the parties. The provision contemplates that the Court has to go into the position of the person concerned and to find out if the delay can be said to have been resulted from the cause which he had adduced and whether the cause recorded in the peculiar circumstances of the case is sufficient".
13. With the acquisition of lands, the lifeline of the agriculturist is lost. There may be omission on the part of the claimants to adopt extra vigilance; but same need not be used as a ground to depict them with negligence or want of bona fide. In case of acquisition of lands of 8 agriculturists, the courts ought to adopt a pragmatic approach to award just and reasonable compensation and not pedantic in their approach. In Dhiraj Singh (D) Thr. Lrs. Etc. Etc. v. Haryana State and Ors. Etc. Etc. 2014 (9) SCALE 441, it was held as under:-
"15. Equities can be balanced by denying the appellants interest for the period for which they did not approach the Court. The substantive rights of the appellants should not be allowed to be defeated on technical grounds by taking hyper technical view of self-imposed limitations. In the matter of compensation for land acquisition, we are of the view that approach of the Court has to be pragmatic and not pedantic."
14. When the concerned court has exercised its discretion either condoning or declining to condone the delay, normally the superior Court will not interfere in exercise of such discretion. The true guide is whether the 9 litigant has acted with due diligence. Since the appellants/claimants are the agriculturists whose lands were acquired and when similar situated agriculturists were given a higher rate of compensation, there is no reason to decline the same to the appellants. Merely on the ground of delay such benefit cannot be denied to the appellants. The interest of justice would be served by declining the interest on the enhanced compensation and also on the solatium and other statutory benefits for the period of delay."
10. Considering the situation that the respondent till 2012 had not complied the award passed by the referral Court and the original owner of the land was in distress during his life time subsequent to the award of the referral Court because of this ailment, it probablises that the appellants were not only in financial constrain to prefer an appeal but also they are emotionally distressed on the death of the original owner. The approach of the Court below in not addressing the explanation offered by the 10 appellants for the delay is not judicious and the order is without application of mind hence needs to be interfered.
Accordingly, the appeal is allowed. The impugned order dated 06.08.2011 passed in LACA No.14/2010 by the IV Addl. District Judge at Gulbarga is set aside. Consequently, I.A.I filed under Section 5 of the Limitation Act along with the appeal in LACA No.14/2010 on the file of IV Addl. District Judge, Kalbuargi is allowed. Delay of 4486 days in preferring the appeal before the lower appellate Court is condoned. The matter is remitted to the Court below for consideration on merits. In the event of appellants succeed in the appeal, they are not entitled for interest on enhanced compensation for delayed period of 4486 days.
Registry is directed to refund the entire Court fee to the appellants in accordance with the provisions of Section 64 of the Karnataka Court Fee and Suit Valuation Act. 11
This Court places on record its appreciation for the assistance rendered by the learned counsel Sri. Ameet Kumar Deshpande for adjudication of this appeal.
Sd/-
JUDGE Srt