Kalawati vs Land Acquisition Collector & Others on 4 September, 2019

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Himachal Pradesh High Court

Kalawati vs Land Acquisition Collector & Others on 4 September, 2019

Bench: Sandeep Sharma

     IN THE HIGH COURT OF HIMACHAL PRADESH
                     SHIMLA

                                      RFA No.300 of 2019
                    Date of decision: 4th September, 2019




                                                              .

    Kalawati                                               ... ...Appellant
                             Versus
    Land Acquisition Collector & Others              ... ...Respondents





    Coram
    The Hon'ble Mr. Justice Sandeep Sharma,Judge.
    Whether approved for reporting ?





    For the Appellant:       Mr. Diwan Singh Negi & Mr. D.S.Verma,
                     r       Advocates.

    For the Respondents:     Mr. Sudhir Bhatnagar & Mr. Sanjeev Sood,
                             Additional Advocate Generals with Mr.

                             Kunal Thakur, Deputy Advocate General,
                             for respondents No.1 and 3.
                             Mr. Neeraj Gupta, Senior Advocate with Mr.
                             Janesh Gupta, Advocate, for respondent


                             No.2.


    Sandeep Sharma,J.

CMP(M) No.302 of 2019

By way of instant application filed under Section 5 of the Limitation Act, prayer has been made on behalf of the applicant/appellant for condonation of delay in filing the accompanying appeal.

2. Averments contained in the application, which is duly supported by an affidavit, clearly suggest that the applicant was unable to maintain accompanying appeal well within stipulated time on ::: Downloaded on - 29/09/2019 03:07:43 :::HCHP 2 account of nonavailability of sufficient funds. Applicant has categorically stated that she was informed by the counsel representing her that she is required to pay .

Court fee @ Rs.15:00 lac per bigha approximately and she does not have that much amount, but subsequently when she came to know that similarly situate persons came to be awarded enhanced compensation at the rate of Rs.4.5 lacs per bigha in the appeals having been filed by them, she arranged money from her near and dears and requested her counsel to prepare and file appeal on here behalf.

3. Hon'ble Apex Court in Dhiraj Singh (Dead) through Legal Representatives and Others vs. State of Haryana and Others, (2014)14 SCC 127, while dealing with the land acquisition matters, has categorically held that approach of the Court, while condoning the delay in filing the appeal, should be pragmatic and not pedantic. Court has further held that the substantive rights of the appellants should not be allowed to be defeated on technical grounds by taking hyper technical view of selfimposed limitation. The Hon'ble Apex Court has held as under: "16. The principles regarding condonation of delay particularly in land acquisition ::: Downloaded on - 29/09/2019 03:07:43 :::HCHP 3 matters, have been enunciated in Collector (LA) v. Katiji, (1987)2 SCC 107, wherein it is stated in para 3 as under: (SCC p.108) "(3). The legislature has conferred the power to condone delay by enacting Section 5 of the .

Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on 'merits'. The expression "sufficient cause" employed by the legislature is adequately elastic to enable the courts to apply the law in a meaningful manner which subserves the ends of justicethat being the lifepurpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:

1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.

2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.

3. "Every day's delay must be explained" does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay? The doctrine must be applied in a rational common sense pragmatic manner.

4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a nondeliberate delay.

5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.

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6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so."

(emphasis in original)

17. The aforesaid judgment was followed by this Court in DDA vs. Bhola Nath Sharma, (2011)2 SCC 54, which was also a matter concerning land acquisition.

18. We, accordingly, allow these appeals.

Impugned orders of the High Court are set aside. Delay in filing the LPAs is condoned. It is held that the appellants shall be entitled to enhanced compensation @ Rs.200 per square yard. However, for the period of delay in approaching the High Court by way of LPAs, in all these cases, no interest should be paid to them. Compensation shall be worked out accordingly and paid to the appellants within a period of three months from today."

4. In the aforesaid judgment Hon'ble Apex Court has reiterated that when substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a nondeliberate delay.

5. In the case at hand, as has been taken note hereinabove, applicantappellant has fairly stated that she was unable to file the appeal well within time on account of nonavailability of funds for affixing Court fee, but subsequently, factum with regard to ::: Downloaded on - 29/09/2019 03:07:43 :::HCHP 5 enhancement of compensation to the similar situate persons came to her knowledge and as such she arranged money and filed appeal without any further .

delay. In the case at hand, if delay is not condoned, great prejudice would be caused to the applicant.

Applicant has certainly not gained anything by not filing the appeal within prescribed period of limitation, rather, in the event of dismissal of her appeal on the ground of delay, she would r loose opportunity to get the compensation enhanced by approaching this Court in the appropriate proceedings, laying therein challenge to the award passed by the reference Court.

6. Consequently, in view of aforesaid law laid down by the Hon'ble Apex Court as well as explanation rendered in the application, this Court is convinced and satisfied that delay in maintaining the accompanying appeal deserves to be condoned. This application is accordingly allowed. The delay of 6 years 3 months and 7 days in maintaining the appeal, which has sufficiently been explained, is condoned in the interest of justice.

The application is disposed of.

7. Appeal be registered.

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8. By way of instant application filed under Order 1 Rule 12 and Rule 10(2) read with Section 151 .

CPC, prayer has been made on behalf of proforma respondent/applicant for authorizing the appellant to appear, plead and act on behalf of proforma respondent No.4 or in the alternative to transpose the proforma respondent No.4 as appellant in the present appeal.

9. Learned r counsel representing the respondents states that they do not intend to file any reply to the application and have no objection in case the prayer made in the application is allowed.

10. Averments contained in the application, which is duly supported by an affidavit, suggest that present appellant and proforma respondent No.4 were coowners of the land acquired by respondent No.2, NTPC for the construction of Koldem Hydro Project. It has been specifically averred by proforma respondent No.4 in the application that coowner of the land under acquisition and has the same and similar interest in the present appeal alongwith the appellant and as such, he has authorized the appellant to appear, plead and act on his behalf.

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11. Consequently, in view of the aforesaid explanation rendered in the application, this Court sees no impediment in accepting the prayer made in the .

instant application, the same is allowed. Appellant is permitted to appear, plead and act on behalf of proforma respondent No.4 and respondent No.4 is ordered to be transposed as appellant No.2 in the present appeal.

12. Learned counsel representing the appellant states that requisite Court fee on account of transposing proforma respondent No.4 as appellant would be deposited during the course of the day. The application stands disposed of.

RFA No.300 of 2019

13. By way of aforesaid appeal filed under Section 54 of the Land Acquisition Act, 1894 (hereinafter referred to as the Act), challenge has been laid to award dated 08.11.2012 passed by learned District Judge(Forest), Shimla in various Land Reference petitions as described in the award.

14. Undisputedly, the suit land belonging to claimant, situate in Mohal Garyana, Tehsil Sunni, District Shimla, H.P., came to be acquired for public ::: Downloaded on - 29/09/2019 03:07:43 :::HCHP 8 purpose; namely; construction of Kol Dam and acquisition proceedings commenced with the issuance of Notification under Section 4 of the Act on 18.12.2000.

The Land Acquisition Collector (for short 'LAC') passed award dated 23.9.2005. It is not in dispute that market value of acquired land came to be determined/assessed on different rates, classification/ category wise,ranging from Rs.87,376/ to Rs.3,93,170/ per bigha.

15. Claimant, being aggrieved and dissatisfied with the amount awarded by LAC, preferred reference petition under Section 18 of the Act, seeking therein enhancement of compensation, however, fact remains that vide impugned award dated 08.11.2012 learned District Judge(Forest) rejected the claim put forth by claimants for enhancement of compensation.

16. Being aggrieved and dissatisfied with the rejection of her claim for enhancement of original award passed by LAC vide its award dated 23.09.2005, claimant has approached this Court in the instant proceedings, laying therein challenge to award dated 08.11.2012, passed by learned District Judge(Forest), Shimla in the petition having been filed under Section 18 of the Act.

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17. It is not in dispute before this Court that similar situate claimants, whose land also came to be acquired for construction of Kol Dam in the acquisition .

proceedings commenced with the publication of Notification issued under Section 4 of the Act on 18.12.2000, had filed land reference petition before the learned District Judge(Forest), Shimla, praying therein to enhance the compensation awarded by LAC in award dated 23.09.2005.

r As has been noticed above, LAC, while passing award dated 23.9.2005, determined the market value of acquired land on different rates, classification/categorywise, ranging from Rs.87,376/ to Rs.3,93,170/ per bigha. However, fact remains that similar situated claimants, being dissatisfied with quantum of compensation awarded by LAC in award dated 23.9.2005, filed reference petitions under Section 18 of the Act and those reference petitions were clubbed and disposed of by a common award passed in Reference Petition No.15S/4 of 2008/06, titled as:

Krishan Chand vs. NTPC, wherein the Reference Court redetermined the market value of entire land irrespective of classification on uniform basis and awarded a sum of Rs.4.5 lacs per bigha.

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18. Being aggrieved and dissatisfied with the aforesaid award passed by learned District Judge(Forest), Shimla, respondent No.2 NTPC, filed RFA .

No.481 of 2012, titled as: NTPC Limited vs. Krishan Chand Sharma & Others, in this Court.

19. A Coordinate Bench of this Court vide judgment dated 26.11.2016, passed in aforesaid RFA No.481 of 2012, upheld the award dated 30.10.2009 passed by District Judge(Forest), Shimla in the aforesaid Reference Petition No.15S/4 of 2008/06, titled as:

Krishan Chand vs. NTPC and reiterated the market value of entire acquired land irrespective of its category and classification as done by Reference Court.

20. Mr. Diwan Singh Negi, learned Counsel representing the appellants, while placing reliance upon the aforesaid judgment dated 26.12.2016, passed in RFA No.481 of 2012, by the Coordinate Bench of this Court, contended that the appeal at hand also deserves to be allowed in terms of aforesaid judgment because undisputedly claimant in the case at hand alongwith the claimants who had filed Reference Petition No.15 S/4 of 2008/06, titled as: Krishan Chand vs. NTPC, were awarded compensation vide common award. No.36 of ::: Downloaded on - 29/09/2019 03:07:43 :::HCHP 11 2005. He further argued that since this Court had upheld the findings of Reference Court, returned in the aforesaid Reference Petition No. 15S/4 of 2008/06, .

therefore, the claimant in the instant case is also entitled to market value of entire acquired land irrespective of its category/classifications by uniformly awarding a sum of Rs.4.5 lacs per bigha.

21. Mr. Neeraj Gupta, learned Senior counsel representing respondent r No.2, while fairly acknowledging the factum with regard to passing of judgment dated 26.12.2016, passed in RFA No.481 of 2012, conceded that claimant in the case at hand is also entitled to enhanced market value of acquired land @ Rs.4.5 lacs per bigha, as has been held in Reference Petition No.15S/4 of 2008/06, titled as: Krishan Chand vs. NTPC which has further been upheld by this Court in RFA No.481 of 2012.

22. Consequently, in view of aforesaid discussion as well as fair stand adopted by Mr.Neeraj Gupta, learned Senior counsel representing respondent No.2, present appeal is allowed and it is ordered that directions contained in RFA No.481 of 2012, titled as:

NTPC Limited, Kol Dam vs. Krishan Chand Sharma & ::: Downloaded on - 29/09/2019 03:07:43 :::HCHP 12 Others shall mutatis mutandis apply to the present case also. However, it is made clear that since appellant in the instant appeal arranged the Court fee after .

considerable delay of 6 years 3 months and 7 days, she shall not be entitled for interest qua the aforesaid period, as has been held by Hon'ble Apex Court in Dhiraj Singh's case supra.

23. Respondent No.2 is directed to deposit the entire award amount in the Registry of this Court within a period of eight weeks from today.

24. Interim order, if any, is vacated. All the miscellaneous applications are disposed of.




    4th September,2019                       (Sandeep Sharma)




          (shankar)                               Judge






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