State of Rajasthan v. Shri Hema Ram — 1995 DIGILAW 765 (RAJ)

Honble YADAV, J. — According to the office report the instant Misc. Appeal was presented u/S. 54 of the Land Acquisition Act which was found to be 184 days beyond limitation. The appellant State Government moved an application u/S. 5 of the Indian Limitation Act supported with an affidavit for condonation of delay. Upon the aforesaid application notice was issued to the sole respondent. After service of notice the respondent has filed an objection supported with an affidavit opposing condonation of delay. (2). I have heard Shri M.R. Singhvi learned counsel appearing on behalf of the State and Shri S.N. Sharma learned counsel appearing on behalf of the respondent. I have critically examined the application moved u/s. 5 of the Indian Limitation Act moved by the State Government for condonation of delay and objection filed by the respondent opposing condonation of inordinance delay of 184 days. (3). Since the decision of the State Government to file the instant time barred appeal is an institutional decision and does not share the characteristic of a private individual, therefore, in abundant caution I have also have a glance on the impugned award dated 23.3.94 given by the Civil Court in exercise of its power u/S. 18 of the Land Acquisition Act to satisfy my judicial conscience so that substantial justice between the parties may not be allowed by this judgment either to escape or to elide on mere technicalities. (4). The reasons which are alleged to have prevented the State Government to file the instance misc. appeal within limitation are disclosed in para 1 of the application moved u/s. 5 of the Indian Limitation Act which are reproduced below for ready reference : — "That the present appeal is being filed on 2.1.95 and the delay has occasioned for the following reasons :— That the reference was decided on 23.3.94 and the certified copy was applied for by the Government Advocate on 4.4.94 and the same was made available on 5.4.94. The Government Advocate did not opine in the matter expeditiously and finally submitted his opinion to the S.D.O. (Land Acquisition Officer) on 13.6.94 and thereafter the same was received in the office of Collectorate vide letter dated 17.6.94 on 22.6.94. The Government Advocate did not opine in the matter expeditiously and finally submitted his opinion to the S.D.O. (Land Acquisition Officer) on 13.6.94 and thereafter the same was received in the office of Collectorate vide letter dated 17.6.94 on 22.6.94. Thereafter the matter was examined there and the matter was referred to the State Government vide letter dated 27.7.94 and thereafter the matter was examined at various levels in the Government and finally the Government conveyed vide its letter dated 10.11.94 that immediate steps be taken so as to challenge the judgment and decree and thereafter the record of the case was collected and relevant material was further collected from the office of the Land Acquisition Officer and thereafter contact was made with the legal Lawyer and the appeal was got prepared in the last week of December, 1994 and since there were holidays in Honble Court the present appeal is being filed on the opening of the Courts i.e. on 2.1.1995." (5). It is conspicuously missing in the application u/S. 5 of the Indian Limitation Act as to when the letter alongwith relevant materials sent by the Collector on 27.7.94 seeking approval of the Government to file an appeal u/S. 54 of the Land Acquisition Act reached to the State government. (6). A close scrutiny of the application u/S. 5 of the Indian Limitation Act further reveals that in para 1 of the said application only sequence of dates have been mentioned but period after receiving opinion of Government Advocate in the office of Collector on 22.6.94 and the time consumed in referring the matter to the State Government on 27.7.94 has, not been explained at all. This period which remains unexplained comes to 35 days. Similarly the period taken by the State Government in taking decision to file an appeal on 10.11.94 has also not been explained. This unexplained period comes to 106 days from the date of the letter written by the Collector on 27.7.94 seeking an approval to file an appeal from the State Government. (7). According to the averments made in para 1 of the application u/s. 5 of the Indian Limitation Act the State Government has taken decision to file an appeal on 10.11.94 but the present appeal was presented on 2.1.1995 i.e. on the first reopening day of this Court after winter vacation. (7). According to the averments made in para 1 of the application u/s. 5 of the Indian Limitation Act the State Government has taken decision to file an appeal on 10.11.94 but the present appeal was presented on 2.1.1995 i.e. on the first reopening day of this Court after winter vacation. This period comes to 52 days for which it is alleged that the record of the case was collected and relevant materials were further collected from the office of Land Acquisition Officer and thereafter contact was made with a penal lawyer and the appeal was got prepared in the last week of December, 1994. Again date is not mentioned as to on which date the appeal was prepared by the learned penal lawyer. Assuming for the sake of argument that the appeal was prepared on 24.12.94 during winter vacation and it was present on 2.1.1995 i.e. on the first opening day of this Court after winter vacation even they only 8 days would be excluded as office of the court was functioning on 23.12.94. Thus even if 8 days of winter vacation are excluded then the State is required to explain 44 days. (8). It is a matter of common knowledge that a letter seeking approval for filing an appeal by the Collector is always accompanied with the certified copy of the order impugned together with the legal opinion on the subject matter alongwith other relevant materials having bearing on the merit of the case so that the State Government may accord its approval or its disapproval dispassionately, therefore, this Court can take judicial notice of the aforesaid facts. (9). The only compelling reason disclosed in the application u/S. 5 of the Indian Limitation Act which is alleged to have prevented the State Government to file the present appeal within limitation is about conduct of the Government Advocate who is alleged to have not opined in the matter expeditiously and his failure to submit his opinion with promptitude has prevented the State Government to file the present appeal within limitation. (10). It is apparent from the perusal of the application u/S. 5 of the Indian Limitation Act that award was given on 23.3.94. The learned G.A. applied for certified copy of award on 4.4.94 and the same was made available to him on 5.4.94. (10). It is apparent from the perusal of the application u/S. 5 of the Indian Limitation Act that award was given on 23.3.94. The learned G.A. applied for certified copy of award on 4.4.94 and the same was made available to him on 5.4.94. He submitted his opinion to the Land Acquisition Officer on 13.6,94 and to the Collector on 17.6.94 which reached to the office of Collector on 22.6.94. Thus even if limitation is computed from the date when the opinion of Government Advocate reached to the office of the Collector it was within the limitation. Hence the State Government is not required to explain the aforesaid delay. In fact there was no delay upto this stage when the legal opinion was received by the Collector on 22.6.1994. Since the appeal was within limitation upto 22.6.1994 hence appellant is liable to explain delay thereafter. (11). Learned counsel for the State Shri M.R. Singhvi strenuously argued before me that if an appeal is brought by Government is lost for such default no person is individually affected but what in the ultimate analysis suffers is public interest. According to him the decisions of Government are collective and institutional decisions, therefore, they cannot be treated at the par with private individuals. According to Mr. Singhvi certain amount of latitude is, therefore, not impermissible in those appeals which are preferred by the Slate Government. In support of his aforesaid contention the learned counsel for the appellant placed reliance on a decision rendered by the Apex Court in the case of G. Ramegowda, Major etc. vs. The Special Land Acquisition Officer, Bangalore(l). (12). Learned counsel Shri S.N. Sharma, appearing on behalf of the respondent refuted the aforesaid argument advanced on behalf of the appellant. He also placed reliance on the decision of G. Ramegowda (supra). (13). I have given my thoughtful consideration to the rival contentions raised at the bar. This Court is called upon to decide the present case on the basis of decision of p. Ramegowda (supra) on which both the learned counsel for the parties are placing reliance. (14). He also placed reliance on the decision of G. Ramegowda (supra). (13). I have given my thoughtful consideration to the rival contentions raised at the bar. This Court is called upon to decide the present case on the basis of decision of p. Ramegowda (supra) on which both the learned counsel for the parties are placing reliance. (14). For a deeper understanding of the decision rendered by the Apex Court in the case of G. Ramegowda (supra) relied upon by both the learned counsel for the parties the facts stated in the application u/S. 5 of the Indian Limitation Act in that case is required to be noticed which is reproduced below: — "I beg to submit that due to the unusual conduct of the District Government Pleaders who were in office during a particular period Government had to face the problem of delay in filing of appeals in hundreds of cases. The Government was not able to know the real state of affairs till the concerned Government Pleaders relinquished their office. In fact, for some time there [was utter confusion and it became practically impossible to find out as to which are the Land Acquisition cases which had been disposed of and in which appeals were not filed though appeals ought to have been filed .. . . .It is humbly submitted that the case of the Government for condonation of delay was that on account of the fraud played by the concerned Government Pleaders delay in filing the appeals has occurred and more than a crore of rupees would be a loss to the Government on account of the said fraud played by the Government Pleaders. In fact, in innumerable cases the Honble High Court has condoned the delay in filing of the appeals, taking into consideration the most unusual conduct of Government Pleaders which had landed the Government in difficulties. I beg to further submit the almost all the appeals which had been entertained by the Honble High Court after condoning the delay have been allowed on consideration of their merits....." (15). I beg to further submit the almost all the appeals which had been entertained by the Honble High Court after condoning the delay have been allowed on consideration of their merits....." (15). From the conjoined reading of para 7 and 8 of their lordships decision rendered in the case of G. Ramegowda (supra) the following legal principles are required to be kept in view while condoning the delay or passing an order refusing to condone the delay : — (a) If there is negligence, deliberate or gross inaction or lack of bonafides on the part of the party or its counsel there is no reason why the opposite party should be exposed to a time- barred appeal. Thus it is well to remember that once an appeal has become time barred a vested right accrued in favour of the opposite party. Hence the opposite party cannot be divested from his vested right if negligence, deliberate or gross inaction or lack of bonafides on the part of appellant is either proved or shown. (b) Each case will have to be considered on the particularities of its own special facts. (c) The expression sufficient cause in Sec. 5 must receive a liberal construction by a court of law so as to advance substantial justice between the parties. (d) 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." ( AIR 1987 SC 1353 ) (e) "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."( AIR 1987 SC 1353 ) (f) The decisions of government are collective an institutional decision and do not share the characteristic of decisions of private individuals, therefore, it must be kept in view that if an appeal is preferred by the government is lost for such default no person is individually affected but in ultimate analysis public interest is bound to suffer. (g) The law of limitation is the same for private citizen as for governmental authorities. (g) The law of limitation is the same for private citizen as for governmental authorities. (h) Where government makes a case where public interest was proved or shown to have suffered owing to acts of fraud or bad faith on the part of its officers or agents and where the officers were, clearly at cross-purposes with it a certain amount of latitude is permissible. (16). With the aforesaid circumspection now I propose to decide the application moved under Section 5 of the Indian Limitation Act by the State Government in the present misc. appeal in hand. (17). A close scrutiny of the application moved u/S. 5 of the Indian Limitation Act by the State Government reveals that in the present case the only reason for condonation of delay given by the State Government for filing this appeal after inordinate delay of 184 days is that the government was prevented to file this appeal within limitation as government advocate did not opined in the matter expeditiously with promptitude. He submitted his opinion to the Land Acquisition Officer on 13.6.1994 and to the Collector on 17.6.1994 which reached to him on 22.6.1994. He applied for certified copy of the award on 4.4.1994 and the same was made available to him on 5.4.1994. (18). In the present case in my humble opinion the conduct of the Government Advocate is not shown to be unusual which may have landed the government in difficulties in filing the appeal within time. The relationship of Government Advocate with the government is not of master and servant. A Government Advocate is required to act on the instructions of his client i.e. either a private client or government. (19). It is no where alleged that the Government Advocate has not informed the governmental authorities about the impugned award dated 23.3.94 passed by learned-civil court. Once the Government Advocate informed to the governmental authorities about decision of the Civil Court dated 23.3.94 his obligation towards his client is over and rest of decision whether to apply for a certified copy of the decision or whether to file an appeal is to be taken by his client i.e. private client or by the governmental authorities in case of government appeal. (20). (20). Nothing is alleged or brought to my notice by the learned counsel appearing on behalf of the State that the Government Advocates invariably are either under contractual obligation or under legal obligation to obtain a certified copy of the judgment at their own expenses and invariably in every case they are either under contractual obligation or under legal obligation to submit their legal opinion free of cost without being asked from governmental authorities. In a court of law only contractual and legal obligations can be noticed and not moral obligations. Since in the present case nothing has been alleged or brought to my notice casting upon a contractual obligation or legal obligation on the Government. Advocate to apply for a certified copy of the judgment at his own expenses and to invariably submit his legal opinion free of cost to the government, without being asked from him therefore, the reasons disclosed in the application u/S. 5 of the Indian Limitation Act which are alleged to have been prevented the government to file the present appeal are not proved. (21). The application moved u/S. 5 of the Indian Limitation Act reveals that in the said application no where it is alleged that prior to 4.4.94 expenses were given to the learned Government Advocate by the Governmental authorities to obtain a certified copy of the impugned award dated 23.3.94 and irrespective of the instructions of the governmental authorities to the Government Advocate he failed to obtain a certifie copy of the impugned award dated 23.3.94 deliberately prior to 4.4.94. It is no where alleged or shown that the governmental authorities sought the opinion of the Government Advocate prior to 13.6.94 and he deliberately avoided to submit his legal opinion expeditiously with promptitude. (22). Since no date is either alleged or shown to me that prior to 13.6.94 the governmental authorities sought legal opinion for filing the present appeal against the impugned award dated 23.3.94 from the Government Advocate and he failed to submit his opinion with promptitude, the reasons disclosed in the application even if construed liberally cannot said to be sufficient cause which has prevented the government to file the instant misc. appeal within limitation. Thus the allegation against the Government Advocate which is alleged to have prevented the government to file the present appeal within limitation is incorrect and does not inspire confidence. (23). appeal within limitation. Thus the allegation against the Government Advocate which is alleged to have prevented the government to file the present appeal within limitation is incorrect and does not inspire confidence. (23). There is yet another reason not to accept the aforesaid argument inasmuch as even on 22.6.94 when the Government Advocate submitted his legal opinion of file an appeal was within limitation. Since upto the submission of the legal opinion to the Collector on 22.6.94 appeal was within limitation, therefore, the government is not required to explain the delay upto 22.6.1994. (24). Approval for filing appeal was granted on 10.11.94 and even after approval for filing of appeal was granted on the aforesaid date yet the appeal was filed after 44 days thereafter. There is no allegation against the penal lawyer that he has not prepared the appeal with promptitude, further fortified my belief that the act of the Government Advocate submitting his legal opinion on 22.6.94 cannot said to have prevented the government to file the present appeal within limitation. (25). In the instant case even after 22.6.94 when legal opinion reached to the Collector there is no explanation whatsoever about filing of the appeal after 184 days beyond limitation. Such inordinate delay cannot said to be either bonafide or compelled by the reasons beyond control of the government. The conduct of the government in the present case is perilously close to such gross inaction which justify rejection of its prayer for condonation of delay so it is hereby rejected. (26). It is further true that malafide of the officer should not be imputed to the government but here in the present case no malafide has been alleged against any of the governmental authorities who can be said to have fraudulently prevented the government to file the present misc. appeal within time. No reasons have been brought to my notice which can said to be either bonafide or can said to be of compelling nature beyond the control of the State Government which may have prevented it to file the present misc. appeal within limitation. (27). The learned counsel for the appellant submits that the expression sufficient cause in Section 5 must receive liberal construction in favour of State so as to advance justice otherwise public interest would suffer. According to him approach of this Court should be justice oriented. (28). appeal within limitation. (27). The learned counsel for the appellant submits that the expression sufficient cause in Section 5 must receive liberal construction in favour of State so as to advance justice otherwise public interest would suffer. According to him approach of this Court should be justice oriented. (28). The aforesaid argument of Shri Singhvi on behalf of the State is although attractive but fallacious in as much as the expression sufficient cause in Section 5 must receive liberal construction not only in case of State but any other individual citizen also. The approach of this Court should always be judged oriented in case of State and also in case of an individual without any discrimination (29). The law of limitation is the same for private citizen as for governmental authorities. Each case has to be considered on the particularities of its own facts. If in the present appeal no sufficient cause has been shown at all from 22.6.1994 upto filing of appeal on 2.1.1995 then in such a situation this Court cannot afford to raise presumption about sufficient cause in favour of State in the garb of liberal interpretation of sufficient cause in Section 5 as suggested by the learned counsel for the State. (30). The next contention of the learned counsel Shri M.R. Singhvi appearing on behalf of the State is that in view of the decision rendered by the Apex Court in the case of G. Ramegowda (supra) merits of an appeal is also a relevant consideration in condonation of delay u/S. 5 of the Indian Limitation Act. According to Shri Singhvi in case of G. Ramegowada (supra) their lordships have quoted with approval para 4 and 6 of the decision rendered in the case of Collector, Land Acquisition, Anantnag and another vs. Mst. Katiji and others (2). The aforesaid para 4 and 6 have already been quoted in sub-para (d) and (e) of para 15 of this judgment in verbatim. (31). Katiji and others (2). The aforesaid para 4 and 6 have already been quoted in sub-para (d) and (e) of para 15 of this judgment in verbatim. (31). In my considered opinion the aforesaid argument of the learned counsel for the State is not without substance, therefore, at this stage I would like to have a glance on the impunged award dated 23.3.1994 given by the Civil Court in exercise of its power u/s. 18 of the Land Acquisition Act so that the governmental authorities may not have a lurking doubt in their minds that the State is being non suited on technical ground of limitation alone. But before entering into the merits of the case a basic question arises as to why this Court only should have a glance over the impugned award instead of examining it thread bare as it is done in a regular appeal. (32). In my humble opinion if an aggrieved party failed to file a regular appeal against the order impugned within limitation a vested right accrued to the opposite party and there is no reason why the opposite party should be exposed to a time barred appeal unless of course the appellant satisfied this court in a bonafide manner about compelling sufficient cause u/s. 5 of the Indian Limitation Act which can said to be beyond his/her/its control. Though it is true that expression sufficient cause in the aforesaid section is liable to receive a liberal construction. According to the aforesaid decision rendered by the Apex Court wherever and whenever an appeal is filed which is found to be time barred the approach of a court of law should required to be justice oriented. In my humble opinion in order to make justice oriented approach in such a situation merit should also be taken as one of the relevant considerations for allowing or rejecting an application u/s. 5 of the Indian Limitation Act. (33). While entering into the merit of the case it is also to be remembered that after expiry of limitation a statutory right which has been given a legal form has accrued in favour of the opposite party, therefore, its protection also becomes an integral part of the rule of law and administrative of justice. In fact it is a remedy which makes the right real. In fact it is a remedy which makes the right real. If there is no remedy to the opposite party then accrual of right in his favour after expiry of limitation would become illusory and non-est. (34). Keeping in view the ratio of the decision rendered by the Apex Court in the case of G. Ramegowda (supra) as well as Mst. Katiji & Ors. (supra) I have put a glance on the memo of appeal as well as the impugned award which reveal that the Union of India, Ministry of Defence has no objection about payment of aforesaid compensation and as such Union of India is not aggrieved. The appellant State was also not aggrieved with the final award made by the Land Acquisition Officer for a sum of Rs. 70,56, 700/- at the rate of Rs. 50/- sq. ft. In fact the respondent land holder Shri Hema Ram being aggrieved of the said award requested the land Acquisition Officer to make a reference in terms of Section 18 of the Act of 1984 and ultimately the matter was referred on 9.11.93 to Civil Court and thereafter the same was transferred to the court of learned Additional District Judge, Barmer on 7.1.94 for disposal in accordance with law. (35). The award given by the Land Acquisition Officer was accepted by all and only there was a dispute between the State appellant and with respondent Hema Ram land holder whose agricultural land was acquired by the State Government for the benefit of Union of India, Ministry of Defence. According to the respondent the maximum price of conversion from agricultural land into Abadi land in Barmer District is Rs. 15/- per sq. yard and as the total area of the land acquired comes to 15642 sq. yard, therefore, at the best the State Government is entitled to claim conversion charges to the tune of Rs. 2,35,230/-. Thus according to him the claim of the State Government was not to exceed Rs. 2,35,230/- whereas the Land Acquisition Officer has awarded a sum of Rs. 67,72,468/- which according to him is absolutely illegal. (36). yard, therefore, at the best the State Government is entitled to claim conversion charges to the tune of Rs. 2,35,230/-. Thus according to him the claim of the State Government was not to exceed Rs. 2,35,230/- whereas the Land Acquisition Officer has awarded a sum of Rs. 67,72,468/- which according to him is absolutely illegal. (36). The aforesaid contention of the respondent was opposed by the State Government and it was contended on its behalf that the land holder respondent is entitled to get compensation according to the nature of agricultural land as recorded in revenue records and not the market price within the meaning of Land Acquisition Act. (37). The learned Additional District Judge has accepted the market price calculated @ Rs. 50/- per sq. ft. by the Land Acquisition Officer. The final award for a sum of Rs. 70,56,700/- calculated by the Land Acquisition Officer was also accepted by the learned Additional District Judge and it is also found as a matter of fact that the maximum price of conversion in Barmer District is Rs. 15/- per sq. yard, therefore, the State Government is entitled at the best to claim conversion charges to the tune of Rs. 2,35,230/-. In view of the aforesaid positive finding recorded by the learned Additional District Judge the compensation calculated by the Land Acquisition Officer to the tune of Rs. 70,56,700/- @ Rs. 50/- per sq. ft. was made final but the respondent land holder was awarded the market price of the land after deducting the statutory conversion charges of agricultural land into abadi land @ Rs. 15/- per sq. yard and also development charges were directed to be excluded from the aforesaid market price. (38). After hearing learned counsel for the appellant and respondent the learned Additional District Judge held that land acquired under Land Acquisition Act is within the Municipal limits of Barmer city which is fast developing town in the minds of development Abadi surrounded by Pakka road, market, State Government Offices etc. having facility of telephone, electricity and water supply. In such a situation the respondent is entitled to receive market value of his agricultural land as urban Abadi and not at the rate of agricultural lands. having facility of telephone, electricity and water supply. In such a situation the respondent is entitled to receive market value of his agricultural land as urban Abadi and not at the rate of agricultural lands. It is further found by Civil Court that although the Land Acquisition Officer has correctly evaluated the market value of the land in dispute acquired by State Government belonging to the respondent Hema Ram but has committed a patent error on the face of record to direct to pay him compensation at agricultural rate instead as the rate of urban developed Abadi. The learned Additional District Judge was shocked to notice that although the Land Acquisition Officer has assessed the market value of the land in dispute at the rate of Urban Abadi land and not on the basis of agricultural qualities of the land in question yet according to him the Land Acquisition Officer directed to pay to the respondent Hema Ram at the rate of agricultural qualities of land which was found to be perse illegal. In support of his aforesaid finding the learned Additional District Judge has placed reliance on catena of decisions of the Apex Court, of this Court and various other High Courts which is apparent on the face of record. The aforesaid judgment of Civil Court against which the present misc. appeal is preferred is eminently just and proper and has been decided on the basis of ratio decidendi of decisions of the Apex Court, of this Court as well as various other High Courts. (39). The aforementioned discussion leads towards an irresistible conclusion that the present time barred appeal has been filed alongwith an application u/S. 5 of the Indian Limitation Act to delay the payment of legal compensation to the land holder Hema Ram which is impermissible. The State Government cannot claim to have a vested right to delay the payment of compensation to the land holder Hema Ram of his land acquired by the State Government for the benefit of Union of India, Ministry of Defence which appellant has already received from Govt. of India. In such a situation there is no reason whatsoever why the respondent Hema Ram should be exposed to the present time barred appeal. (40). As a result of the aforementioned discussion the instant application moved u/S. 5 of the Indian Limitation Act lacks merit and is hereby dismissed and the misc. of India. In such a situation there is no reason whatsoever why the respondent Hema Ram should be exposed to the present time barred appeal. (40). As a result of the aforementioned discussion the instant application moved u/S. 5 of the Indian Limitation Act lacks merit and is hereby dismissed and the misc. appeal filed u/S. 54 of the Land Acquisition Act, 1894 is also dismissed as barred by time.