COLLECTOR OF CUTTACK v. RAMANBHAI PATEL — 1972 DIGILAW 144 (ORI)

JUDGMENT : S.K. Ray, A.C.J. - This is an application for leave to appeal to the Supreme Court under Article 133(1)(a)(b) and (c) of the Constitution of India from the decision dated 25-8-1971 of this Court passed in First Appeal No. 196/69. The petitioner has also filed another application under section 5 of the Limitation Act for condonation of delay in presenting this application for leave to appeal. 2. Two questions fall for consideration, viz., (a) whether this is a fit case for grant of leave to appeal to the Supreme Court under Article 133(1), clause (a), (b) and (c) ; and (b) whether there is sufficient cause shown so that the discretionary jurisdiction of this Court in condoning delay may be exercised in favour of the petitioner. 3. 39.32 acres of land belonging to opposite party No. 1 were acquired by notification dated 5-2-1955, under section 4(1) of the Land Acquisition Act, for the purpose of opposite party No. 2, Messrs Titagarh Paper Mills Co. Ltd. (here in after called 'the company'). The Land Acquisition Collector gave an award for compensation at the rate of Rs. 1200/- per acre towards the market value of the land, besides other compensations under other heads. Being dissatisfied with the award, the claimant moved the Collector of Cuttack for making a reference to the Subordinate Judge under section 18 of the Land Acquisition Act. Accordingly a reference was made. The claimant made claims on the following heads : (i) Market value of the land at the rate of Rs. 3500/- per acre. (ii) Loss sustained as a result of severance of the land from other properties left out of acquisition and rendered useless Rs. 2000/- (iii) Loss of earning sustained as a result of acquisition ..............Rs. 26,000/-. (iv) Expenses necessary and incidental to the shifting of the place of business Rs. 20,700/-. (v) Compensation, for a tank with an area approximately of 2? acres Rs. 15,000/-. (vi) Statutory solatium at the rate of 15%. (vii) Interest at the rate of 6%. The claimant examined four witnesses and opposite party No. 2 examined one witness. The land Acquisition Officer testified as a witness on behalf of the claimant. The learned Subordinate Judge by his judgment dated 17-5-1969 fixed the market value of the land at Rs. 2,500/- per acre. Besides, he awarded Rs. (vii) Interest at the rate of 6%. The claimant examined four witnesses and opposite party No. 2 examined one witness. The land Acquisition Officer testified as a witness on behalf of the claimant. The learned Subordinate Judge by his judgment dated 17-5-1969 fixed the market value of the land at Rs. 2,500/- per acre. Besides, he awarded Rs. 20,000/- on account of expenses necessary and incidental to the change of the place of business of the claimant, and a sum of Rs. 2,500/- towards the value of the tank. 4. The Collector appealed to this Court and First Appeal No. 198/69 was disposed of by a Division Bench of this Court. The learned Judges of this Court allowed the appeal in part modifying the order of the Subordinate Judge by reducing the market value per acre of land to Rs. 2,250/-, and by directing payment of interest on the excess amount over the amount awarded by the Land Acquisition Officer, payable from the date of dispossession till the date of payment. They held the market value of the land to be Rs. 1,800/-, and added 25% thereto as the potential value. Thus the total came to Rs. 2,250/-. 5. The Subordinate Judge had enhanced the award of the Land Acquisition Collector from Rs. 1,800/- to Rs. 2,500/-. The High Court reduced it to Rs. 2,250/-. The amount of value of the subject-matter of the dispute in the Court of first instance was, and still in dispute in appeal is, not less than Rs. 20,000/-. The amount in dispute would be about Rs. 40,000/-, as the petitioner disputes the award of Rs. 450/- per acre in excess of Rs. 1,800/- awarded by the Collector. The further question in dispute is the amount of compensation of Rs. 20,000/- awarded towards the expenses incurred for the establishment of tenancy on the site a claim which had been negatived by the Land Acquisition Officer. The award towards the value of the tank is still in dispute. Thus, the total amount or value of the subject-matter of the dispute in the Court of first instance was, and still in appeal is Rs. 84, 655.40. The judgment of the High Court is a judgment of reversal. Thus the petitioner is entitled, as a matter of right in the circumstances, to appeal to the Supreme Court under Article 133(1)(a) and (b) of the Constitution. 6. 84, 655.40. The judgment of the High Court is a judgment of reversal. Thus the petitioner is entitled, as a matter of right in the circumstances, to appeal to the Supreme Court under Article 133(1)(a) and (b) of the Constitution. 6. It is further contended that the Supreme Court having settled that the market value of the land is inclusive of the potential value, in Tribeni Devi v. Collector of Ranchi 1972 S.C.W.R. 397, the learned Judges of this Court were in error in awarding 25% of the market value determined at Rs. 1,800/- per acre towards the potential value. This obviously is an error of law on account of which alone the claimant would be entitled to receive a sum not less than rupees twenty thousand. We are therefore, of the opinion that for this reason also this is a fit case for appeal to the Supreme Court. Even if Article 133(1)(c) is not satisfied, nevertheless the other two clauses of that Article have been fully satisfied as indicated above and the petitioner is entitled to leave to appeal to the Supreme Court. 7. The next question now to be dealt with is whether in the circumstances disclosed by the affidavits of the parties, the delay can be condoned. The judgment in First Appeal No. 198/69, sought to be appealed from, was delivered on 25th August, 1971. The period of limitation for filing an application for leave to appeal expired on 22-1-1972 taking into account the 89 days taken for obtaining the certified copy of the judgment. Leave petition was filed on 12-5-1972, and was thus out of time. Accordingly, the petitioner has filed an application under section 5 of the Limitation Act for condonation of delay. The main petition under section 5 of the Limitation Act has been supplemented by an additional affidavit. It appears that the lands were acquired for industrial purpose by the Revenue Department at the instance of the Industries Department. The latter department being the sponsoring department was interested in the result of the First Appeal. Being aggrieved by the decision in the First Appeal, the Industries Department moved in the matter of obtaining necessary sanction for filing of the leave application. The Revenue Department had also to process the matter for obtaining the necessary orders from the Government. The latter department being the sponsoring department was interested in the result of the First Appeal. Being aggrieved by the decision in the First Appeal, the Industries Department moved in the matter of obtaining necessary sanction for filing of the leave application. The Revenue Department had also to process the matter for obtaining the necessary orders from the Government. The Law Department was approached for opinion as to whether it was a fit case for leave to appeal to the Supreme Court. Relevant papers were dispatched from the Law Department to the Advocate General. Thus, the file had to move from Industries Department to Revenue Department and from Revenue Department to Law Department and from Law Department to the Advocate General, and from the Collector to the Advocate General for obtaining the final decision of the Minister concerned. In order to obtain the opinion of the concerned department and the sanction of the Minister concerned, it was necessary to obtain certified copies of the judgment. Shortly after the judgment was delivered on 25th August, 1971, application was made for certified copy on 31st August, 1971. The certified copy was made ready for delivery on 27th November, 1971. The learned Advocate General after perusing the judgment gave his opinion on 4-12-1971 that this was not a fit case for appeal, and forwarded his opinion to Government on 7-12-1971, with a copy thereof to the Collector. The Collector thought that this was a fit case for appeal and again moved the Government to file leave application. The matter again came before the Advocate-General who reiterated his earlier opinion that this was not a fit case for appeal. In the meanwhile, the Titagarh Paper Mills, for whom the lands had been acquired, filed an appeal in the Supreme Court from the judgment of the High Court in the connected First Appeal No. 231 of 1969. It may be noted that this First Appeal No. 231/69 had been filed by the Titagarh Paper Mills from the decision of the Subordinate Judge in the Land Acquisition case No. 56/68 from which the petitioner's First Appeal No. 198/69 also arose. The company had intervened in the land acquisition proceedings before the Subordinate Judge, and therefore thought that it had a locus standi to go up in appeal therefrom. The company had intervened in the land acquisition proceedings before the Subordinate Judge, and therefore thought that it had a locus standi to go up in appeal therefrom. This First Appeal No. 231/69 was also dismissed by the same Bench which dismissed the Government's First Appeal No. 198/69. The Company ultimately went to the Supreme Court and obtained special leave to appeal, and also obtained a conditional stay order of the execution proceedings which had been started in the meanwhile by the decree-holder. When this matter came to the knowledge of the Collector he again pressed for re-examination of the matter afresh at the Government level. Ultimately a fresh decision was taken to file the application for leave to appeal to the Supreme Court, taking into consideration the heavy valuation, the points of law involved in the case, grant of special leave by the Supreme Court, and other relevant matters. The decision of the Government was communicated by the Law Department to the Advocate-General by letter dated 11th May, 1972, directing him to file the Supreme Court leave application in the High Court. Accordingly, the leave application was filed on 12th May, 1972. 8. It appears that there was no lack of diligence on the part of Government in obtaining certified copy of the judgment, and moving the various authorities for examining the question whether this was a fit case in which an application for leave to appeal should be filed, and that there was difference of opinion between various departments, Ultimately the opinion of the Advocate-General was sought to be followed despite the contrary opinion held by the Collector and some other concerned departments of Government. As soon as the Collector got information of the Supreme Court having given special leave to the company to appeal from the very judgment from which the desirability of the Government to file an appeal was considered by the Advocate-General he again pressed for re-examination of the matter at the Government level. Untimately, Government did not abide by the earlier opinion of the Advocate-General and directed the latter to file the leave application. 9. Untimately, Government did not abide by the earlier opinion of the Advocate-General and directed the latter to file the leave application. 9. Dealing with the question as to how far the mistake of the counsel of a party may be a sufficient ground under section 5 of the Limitation Act, the Supreme Court in the case of Mata Din v. Narayan AIR 1970 S.C. 1953 , laid down as follows: "The law is settled that mistake of counsel may in certain circumstances be taken into account in condoning delay although there is no general proposition that mistake of counsel by itself is always a sufficient ground. It is always a question whether the mistake was bona fide or was merely a device to cover an ulterior purpose such as laches on the part of the litigant or an attempt to save limitation in an underhand way....." 10. We are satisfied, having regard to the special facts and circumstances set out above, that the opinion of the Advocate-General was honest, that Government officers at different levels held different opinions as to the fitness of the case for the purpose of filing an application for leave to appeal, some of which were at variance with the opinion of the Advocate-General, and that Government was for a time swayed by the opinion of the Advocate-General, but again reviewed the matter and imposed their decision to file an application for leave to appeal on the Advocate-General. The mistake, if any, committed either by the Advocate-General or by any officer of the Government in deciding, at the first instance, not to file the appeal, was a bona fide one, and not a mere device to cover an ulterior purpose, such as laches on the part of the Government or an attempt to save limitation in an underhand way. 11. The fact that Government applied for certified copy of the judgment within six days after its delivery is a clear indication of the diligence and not of any laches. There was thus, in our opinion, sufficient cause for not making the application for leave to appeal within the prescribed period of limitation provided therefore. Therefore, we would condone the delay and direct the petitioner to pay a sum of rupees one hundred as costs to the respondent. 12. In the result we grant the leave to appeal to the Supreme Court. Therefore, we would condone the delay and direct the petitioner to pay a sum of rupees one hundred as costs to the respondent. 12. In the result we grant the leave to appeal to the Supreme Court. B.K. Patra, J. - I agree.