Allahabad High Court
Krishi Utpadan Mandi Samiti, Amroha vs Ganga Ram S/O Mohan, And Others on 2 April, 1992
Equivalent citations: AIR1992ALL275
ORDER B. M. Lal, J.
1. First Appeal No. 676 of 1991 (State of U.P. v. Jagdish Prasad) and First Appeal No. 954 of 1990 Krishi Utpadan Mandi Samiti v. Ganga Ram though heard oh different dates but since in both the appeals similar question relating to S. 5 of the Limitation Act (hereinafter referred to as the Act) is involved, these two appeals are being disposed of by this common judgment.
FIRST APPEAL NO. 954/1990 Krishi Utpadan Mandi Samiti v. Ganga Ram and others.
2. The point in issue involved is whether this appeal is to be treated within the period of limitation, and if not whether appellant has furnished explanation within the meaning of sufficient cause and good cause so as to exercise discretion in his favour in condoning the delay under S. 5 of the Act ?
3. Before dealing with the rival submissions made by learned counsel for the respective parties, certain material facts and dates are necessary to be stated.
4. Admittedly, the appellant was not a party to the reference proceedings made under S. 18 of the Land Acquisition Act. The Reference Court (XIIth Addl. District Judge, Moradabad) delivered the order impugned on 1-1-1990.
5. The case as set up by the appellant in the first affidavit dated 1-2-1991 for condoning delay in filing the appeal is as under:
6. The appellant Mandi Samiti for the first time came to know about the impugned order on 22-6-1990 through a letter dated 18-6-1990 received from the Special Land Acquisition Officer. On 28-6-1990 the Secretary of the Mandi Samiti wrote a letter to local counsel for his opinion, who gave his opinion on 12-7-1990. Thereafter, Chairman of the Mandi Samiti sent a letter on 23-7-1990 to Deputy Director, Moradabad Region, who thereafter sent a D.O. letter to the Addl. District Magistrate that he should arrange for certified copy of the judgment and order. The Deputy Director also sent a letter dated 30-7-1990 to the Director Mandi Parishad. On 4-8-1990 the Secretary, Mandi Samiti authorised the Mandi Inspector to obtain certified copy of the judgment and decree. The same was applied for on 20-8-1990 and certified copy was delivered on the same day. On 22-8-1990 the District Magistrate sent a letter to Deputy Legal Remembrancer for his opinion and on 6-10-1990 after obtaining opinion, Secretary Mandi Samiti came to Allahabad on 15-10-1990 to file the appeal but requisite Court-fee was not brought and the same was brought on 27-10-1990. The appeal was filed on 8-11-1990 as between the period from 23-10-1990 to 8-11-1990 the Advocates of the High Court Bar Association were on strike.
7. In this way, the delay in filing the appeal has been explained.
8. Repudiating the pleas as set up by the appellant, the respondents in their counter-affidavit contended that the Mandi Samiti is a statutory authority constituted under the Act and therefore it is the Mandi Samiti who takes decision on the question of filing the appeal and consequently the reference given by the appellant of various correspondence including with the Deputy Legal Remembrancer etc., is totally incorrect. It is further contended that though approval was accorded on 6-10-1990 by the Chairman for filing the appeal, yet appeal was not filed till 8-11-1990 and therefore the appeal is hopelessly barred by time, and since no sufficient cause or good cause is made out by showing due diligence in prosecuting the proceedings well within the period of limitation prescribed for filing the appeal or even from the date of knowledge i.e. 22-6-1990, no indulgence is called for in favour of the appellant extending the period of limitation under S. 5 of the Act.
9. 'Sri B. D. Mandhyan, learned counsel appearing for the appellant firstly contended that the appellant having not been made a party to the reference proceedings and behind its the order impugned is passed, the same is a nullity, In support of his contention, the learned counsel referred to the decision of the Apex Court in Neelagangabai v. State of Karnataka, AIR 1990 SC 1321.
10. Suffice it to say that this case relates to the States' of Karnataka and keeping in view the State Amendment to" the provisions of S. 20 of the Land Acquisition Act introduced by the Karnataka State which deals about service of notice and particularly clause (c) which reads as under:
"If acquisition is not made for Government, the person or authority for whom it is made."
the Apex Court considered this provision particularly "person" of "authority" for whom the land is acquired and held that failure, tp issue notice to such person or authority for whom acquisition is made, judgment rendered by the Reference Court is illegal. Therefore, according to clause (c) referred to above, it is incumbent upon the Reference Court to issue notice to the "person" or "authority" for when the acquisition is made.
11. But such amendment referred to above is not in the State of U.P. and therefore the. ratio laid down in Neelaganbai's case (supra) is of no avail.
12. The learned counsel further referring the decision of the Apex Court in Krishi Upaj Mandi Samiti v. Ashok Singhal, AIR 1991 SC 1320 and making emphasis that even if the acquisition is not for the Government but for a statutory authority, notice to the statutory authority is a must, without which the order would be a nullity.
13. A perusal of paragraph 5 of the judgment in Krishi Upaj Mandi Samiti (supra) reveals that on making concession by the respondents' counsel, the case was remitted for fresh disposal after giving opportunity of being heard to Krishi Upaj Mandi Samiti. The decision in that case is only having obiter observations and as such has no binding force. In Municipal Corporation of Delhi v. Gurman Kaur, AIR 1989 SC 38, it is ruled by the Apex Court that when a direct ion or order is made by consent of the parties, the Court does lay down any principle as such is not binding on others and the High Court should not follow it as a precedent. This being so, the decision in Krishi Upaj Mandi Samiti (supra) is also of no help to the appellant.
14. Now coming to the main question of condoning the delay in filing of this appeal, it is relevant to note here that the party who claims Court's indulgence must prove cause and good cause which has prevented him in approaching the Court well within the period of limitation and that action to prosecute the proceedings has been taken by the party with due care and diligence in a bona fide manner. If these requirements are proved to the satisfaction of the Court, certainly indulgence in his favour extending the period of limitation is called for and the party cannot be made to travel with penal consequences and discretion in all fours shall be exercised in his favour.
15. Sri Mandhyan, learned counsel for the appellant while raising the bone contention in support of his case for condoning the delay relied upon two decisions of the Apex Court in Collector, Land Acquisition v. Mst. Katiji, AIR 1987 SC 1353 and G. Rame-gowda, Major etc. v. Special Land Acquisition Officer, AIR 1988 SC 897 and contended that since, the appellant is a body corporate having instrumentality of the State within the meaning of Article 12 of the Constitution, it requires same treatment as being given in such matters to the Government cases and submitted that in both the above referred cases the Apex Court having held that in the cases where Government is a party and makes out a case where public interest was shown to have suffered, lenient view is to be taken in condoning the delay.
16. The learned counsel made much emphasis of "public interest" and contended that if the delay is not condoned, "public interest" would suffer as no person individually is affected. Further, decisions of such bodies or Government are collective and institutional decisions and do not share the characteristics of decisions of private individuals, and therefore contended that taking a liberal view the delay deserves to be condoned.
17. Having gone through the decisions in Collector, Land Acquisition (supra) and G. Rarnegowda, Major (supra), we find that in both the cases the Apex Court ruled that where good cause and sufficient cause is made out in explaining the delay and the party acted diligently throughout then certainly indulgence under S. 5 of the Act is to be made in favour of that party.
18. It is not that a party by virtue of being Government or a body corporate having instrumentality of the State, a different yard stick is to be applied giving benefit law. Even if Government is a party to any proceedings, the same is not standing on a different footing, but similar treatment is to be accorded 'to it as being accorded to an in-dividual.
19. In this context the case of the appellant has to be examined as to whether the appellant has acted diligently in prosecuting the proceeedings and shown sufficient cause and good cause which has prevented it in filing the appeal well within limitation.
20. Admittedly the appellant was not a party to the reference proceedings, but according to the statement in the first affidavit dated 1-2-1991 filed by one Ram Chandra son of Sukhdeo, in the capacity of pairokar of the appellant, the appellant came to know about the impugned judgment dated 1-1-1990 on 22-6-1990 when Mandi Samiti received letter dated 18-6-1990 from the Special Land Acquisition Officer. Therefore from the date of knowledge it has to be seen that whether the appeal is filed within 90 days.
21. The date of knowledge is admittedly 22-6-1990, as such 90th day falls on21-9-1990, meaning thereby the appeal should have been filed on or before 21-9-1990 and if not what prompt action has been taken by the appellant so as to seek indulgence of this Court in condoning the delay.
22. Information about the impugned judgment was received on 22-6-1990, but secretary of the appellant wrote a letter after six days i.e. on 28-6-1990 to the local counsel Sri K. K. Gupta for his opinion, and according to Ram Chandra (deponent of the affidavit), the opinion was given by Sri K. K. Gupta on 12-7-1990. Thereafter Chairman, Mandi Samiti sent a letter after 11 days (23-7-1990) to the Deputy Dirctor, who in turn wrote a D.O. letter to the Additional District Magistrate that he should arrange for certified copy of the judgment and order.
23. Surprisingly enough, the falsehood of the affidavit speaks in itself in volumes that when certified copy was not obtained till 28-6-1990 as is apparent from the certified copy itself, how legal opinion was obtained from the local counsel without certified copy. This falsify the entire explanation furnished in the affidavit.
24. Further, vide letter dated 4-8-1990 the Mandi Inspector was authorised to obtain certified copy of the judgment, whereas the certified copy was applied for on 20-8-1990 that is after 16 days, for which no explanation is furnished. Similarly in paragraph 7 of the affidavit it is stated that Secretary, Mandi Samiti was reminding the Chairman to accord his permission to file the appeal but the file was taken by him to his residence and he gave approval only on 6-10-1990 but returned the file on 13-10-1990. Thereafter, Secretary came to Allahabad on 15-10-1990 and got prepared the appeal but without money for paying the requisite Court fee which was received on 27-10-1990 and the appeal was presented on 8-11-1990.
25. The facts in the affidavit of Rani Chandra are based on information, but the affidavit is silent in disclosing the name of the person from whom the deponent received such information.
26. However, in his second affidavit dated 28-2-1992 a different turn has been taken stating that it was only on 6-8-1990 for the first time the appellant came to know about the impugned judgment. This statment is said to have been based on the letter dated 6-8-1990. A careful perusal of both the affidavits filed by Ram Chandra, speaks in itself that how contradictory statements have been made by the deponent even not disclosing the name of the person who gave him such information and at whose instance he has filed the affidavit as pairokar when admittedly he is registered clerk of Sri B. D. Mandhyan, Advocate.
27. Allahabad Amendment to the provisions of Order 19, Rule 3 specifically says that it is incumbent upon the deponent to state the name and address of the person from whom information is received.
28. As such both the affidavits filed by Ram Chandra are not in consonance with the Allahabad Amendment. It appears that deponent Ram Chandra has filed the affidavits under the impression that filing of an affidavit is an empty formality having no legal sanctity.
29. No doubt, by filing their counter-affidavit the respondents have denied the statement of Ram Chandra, but since we are convinced that the affidavits of Ram Chandra do not inspire confidence, therefore there is no need to discuss the counter-affidavit" in detail.
30. However, after receipt of the counter-affidavit, rejoinder affidavit has been filed on behalf of the appellant by one Mohd. Yamin, in which there is no reference of the date 6-8-1990. On the other hand reiterating the earlier date 22-6-1990, the stand taken in the counter-affidavit has been denied, and further it is contended in the rejoinder-affidavit that since the officials of the appellant were busy to attend the V.I.Ps. Such as Ministers that took some time to accord sanction etc. This shows how much appellant is careful about the Court's proceedings in giving preferences to Ministers forgetting that no one is above the law whosoever and howsoever great he may be.
31. In this background and.the ratio laid down by the Apex Court in the cases of Collector, Land Acquisition (supra) and G. Ramegowda, Major (supra), we have to see whether a case is made out for condoning the delay.
32. As observed above discussing depositions in both the affidavits filed by the appellant, we are of the opinion that it is not a case of only negligence but is a case of gross negligence and deliberate inaction which cannot be said to be bona fide. The impugned judgment is delivered on 1-1-1990. According to the appellant it came to know about it on 22-6-1990. However, this stand is tried to be changed unsuccessfully by supplying another date of knowledge i.e. 6-8-1990. Therefore, according to first date of knowledge the appeal should have been preferred within 90 days i.e. on or before 21-9-1990, but by filing this appeal on 8-11-1990 no plausible explanation is furnished with effect from 22-9-1990 to 8-11-1990 i.e. for about 17 days except the period for which the Advocates of the High Court Bar Association were on strike. The above detailed discussion suggests that the appellant on every stage was negligent.
33. No doubt the discretion in condoning the delay is to be exercised in favour of the party who successfully proves sufficient cause and good cause which has prevented him in approaching the Court well within the period of limitation,
34. Applying the maxim "vigilantibus et non dormientibus jura subveniunt" means the laws come for rescue of those who are vigilant but were not sleepy. In Rajendra Singh v. Santa Singh, AIR 1973 SC 2537 it has been ruled by the Apex Court that:--
"Object of the law of limitation is to prevent disturbance or deprivation of what may have acquired in equity and justice."
35. In this context, the maxim "Interest reipublicae ut sit finis litium" cannot be lost sight of which means that there should be an end of litigation and interest of the State also requires that there should be an end to the litigation so as to avoid uncertainities and possibilities of the parties being dragged in the Court for indefinite period and to get over this the law of limitation has been enacted extending a valuable right in favour of party against whom within the period of limitation no action is brought before the Court save in exceptional cases where a case for condonation of delay is made out otherwise liberal exercise of the jurisdiction under S. 5 of the Act will lead not only to uncertainities of litigation but also no and to any litigation. The contention of the learned counsel that discretion is to be exercised in favour of the appellant in condoning the delay has therefore no force. No doubt, explaining sufficient cause and good cause in seeking condonation of delay is a condition precedent for Courts' indulgence and the same is to be exercised in favour of the party who has acted reasonably, diligently and in a bona fide manner. The principle behind it, is that once limitation is passed, within which no step with due diligence is taken by the party, a valuable right accrues in favour of the decree holder and the decree-holder may not be deprived of that right lightly. See Ramlal v. Rewa Colafields Ltd., AIR 1962 SC 361 : (1961 All LJ 815). Therefore apart from sufficient cause and good cause, the party claiming indulgence must prove that he has reasonably diligent in prosecuting the proceedings. This being the acid test for condoning the delay as discussed above the appellant's case does not fall in it who has acted with gross negligence, and accordingly the submission of the learned counsel for condoning the delay has no force and the ratio laid down in the cases of Collector Land Acquisition (supra) and G. Ramegowda, Major (supra) does not apply to the facts of the instant case.
36. Besides this, the instant appeal also suffers from numerous legal infirmities in as much as no application was made along with memo of the appeal for taking leave to file the appeal, but the same was filed on 24-2-1992. Even at the time of filing the appeal i.e. on 8-11-1990, the application under S. 5 of the Act was not supported by an affidavit and the same was filed on 1-2-1991. All these irregularities indicate about the carefulness of the appellant who has come before this Court seeking Court's indulgence under S. 5 of the Act. As such in the opinion of this Court no case is made out for condoning the delay.
First Appeal No. 676/1991. State of U.P. v. Jagdish Prasad.
37. As far as First Appeal No. 676/1991 is concerned, it is barred by 190 days. In the affidavit filed in support of the application under S. 5 of the Act, simply it is contended that the order impugned was passed on 6-2-1991. Application for certified copy was made on 25-9-1991 and the same was got ready and shown on the notice Board on 1-11-1991. The certified copy was received on 12-11-1991. The opinion was sought on 16-11-1991 and the appeal was filed on 18-11-1991.
38. In this case even after expiry of the limitation, certified copy was applied for and no explanation whatsoever has been furnished except the dates on which the certified copy was applied for and the appeal was presented.
39. When in such a creptic manner the application under S. 5 of the Act is drafted furnishing no explanation for the delay, it is difficult to extend the period of limitation simply on the basis of the decisions of the Apex Court in Collector, Land Acquisition (supra) and G. Ramegowda Major (supra).
40. In the opinion of this Court this case also meets the same fate as that of the earlier one.
41. The Apex Court in both the cases referred to above AIR 1987 SC 1353 and AIR 1988 SC 897 ruled that:
"Generally delays in preferring appeals are required to be condoned in the interest of justice where no gross negligence or deliberate inaction or lack of bona fides is imputable to the party seeking condonation of the delay."
42. It was further observed at page 1354 (of AIR'87)):
"It must be grasped that judiciary is respected not on account of its power to legalise injustice on technical grounds but because it is capable of removing injustice and is expected to do so."
"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 non-deliberate delay."
43. Therefore, while removing injustice an onerous duty is cast upon the Court to consider plight of the other party who has not committed any default and is the winning party so that relief in favour of one may not become injustice to other and only where, there is no deliberate delay, inaction or gross negligence, indulgence is certainly to be shown extendng the period of limitation and in such cases the other party cannot claim to have a vested right. Bul the cases in hand do not fulfil the above test and in both the appeals the appellant throughout remained inactive.
44. Before parting with these appeals, we must observe that now-a-days Central Government, State Government or corporate bodies having instrumentality of the State, are emerging as litigants and fighting as canta-kerus in quite high percentage as compared to individual litigants, therefore in such delayed matters certainly no person as an individual is affected but the public interest suffers, and hence it is for such public bodies, State Government or Central Government as the case may be to get the cause of delay probed fastening liability upon the officer concerned so as to proceed against such irresponsible officer departmentally and recover caused to the appellant on account of his inaction or gross negligence. In this way alone, carelessness amongst the officers towards their duties can be reformed tuning up the administration.
45. In both the cases if the appellant so chooses let an enquiry be made by the department and if need be the matter may be referred to the vigilance cell of the State.
46. In the result, the applications as framed and filed under S. 5 of the Act in both the appeals are dismissed with costs. Consequently, the appeals also stand dismissed as barred by limitation.
47. Copy of this order be communicated to the Chief Secretary, Slate of U.P., Luck-now for ready reference.
48. Appeal dismissed.