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2002 DIGILAW 226 (JK)

Hakim Nusrat Jabeen v. State Of J. &K.

2002-07-26

MUZAFFAR JAN, SYED BASHIR-UD-DIN

body2002
Per Syed Bashir-ud-din (J): Petitioners land measuring 15 Marlas and 37 sqft. in Khasara No. 5 of village Theed is in the process of compulsory acquisition under Jammu and Kashmir Land Acquisition Act. Petitioner challenges the acquisition on the ground that the notification issued under the Land Acquisition Act for acquisition of his land does not reveal in detail the public purpose for which the land is required and the notification is not published in the Government Gazette. Challenging the acquisition on these grounds, the writ court in OWP No. 126/2001 filed by the petitioner on 18-10-2001 dismissed the writ after both contentions of the counsels were rejected. Instead agitating the matter further in appeal, the petitioner choose to question the proceedings and the factum of acquisition in a regular suit. Ad-interim relief of injunction against the State Land Acquisition Authorities was rejected by the trial court (Sub Judge, Municipal Magistrate Sgr.), and in appeal by the appellate court, against which order a civil revision petition is pending in the High Court. The suit is pending trial before the court below. In the meanwhile, petitioner has come up with a Letters Patent Appeal alongwith an application seeking exclusion of the time period spent in prosecuting the civil suit and the miscellaneous applications arising therein, specifically under section 14 of the Limitation Act. The main argument plank pressed for sustainance of exclusion of the period of limitation of the letters Patent Appeal, as stated in the application and further submitted by the Senior Advocate, Mr. S.T.Hussain, is that the petitioner filed a suit for declaration and perpetual injunction on the advice of the counsel, who, after the dismissal of the appeal against the order of the trial court, again advised applicant to file the Letters Patent Appeal against the impugned judgment of October, 19, 2001 of the learned Single Judge. 2. The respondents, Lakes and Waterways Department and its authorities have in their objections stated that the application for exclusion of time is malafide. The same counsel has been pursuing the matter in Revision before the High Court and the writ petition. The Revision as also the Letters Patent Appeal, the two parallel proceedings, are being prosecuted which sufficiently indicate that this act is wilful and conscious, enough not to launch and prosecute the proceedings in the civil court, bonafide. 3. The learned counsel Mr. The Revision as also the Letters Patent Appeal, the two parallel proceedings, are being prosecuted which sufficiently indicate that this act is wilful and conscious, enough not to launch and prosecute the proceedings in the civil court, bonafide. 3. The learned counsel Mr. S. T. Hussain, Senior Advocate, submits that the time taken to prosecute the proceedings before the Lower Court has been with due diligence and in good faith. The petitioner has, on the advice of his counsel, filed a suit, taken the proceedings and filed the revision. It is only then that the petitioner knew that the court below is not able to proceed further in the matter and therefore again, on legal advice, applicant filed the Letters Patent Appeal alongwith the application for condonation of delay. The learned counsel further submits that the case also falls under section 5 of the limitation Act and the period of limitation merits to be condoned on sufficiency of cause made out by the petitioner. 4. The respondents counsel has put up a stout defence to the submissions made by the petitioners counsel, in as much as the counsel submits that the land with built up house in question is required for development of Dal Lake by Lakes and Waterways Development authorities. The petitioner on one or other pretext, is taking proceedings and questioning mode and method to acquire the land for the public purpose as indicated above. The claimed exclusion of time under section 14 of the Limitation Act is nothing but to protract the proceedings malafide. The element of due diligence and good faith is wanting in the matter. 5. There is hardly any dispute with regard to the fact that whether the time spend in prosecuting the civil suit and other miscellaneous civil proceedings connected thereto, can be excluded in computing the prescribed period of limitation, in the facts and circumstances of the case, lies in a small compass. The petitioner challenged acquisition of the land with her house in writ petition (OWP) No. 126/2001. When she failed in the writ on 19th October, 2001, she did not opt to file the Letters Patent Appeal against this dismissal order in time. The petitioner challenged acquisition of the land with her house in writ petition (OWP) No. 126/2001. When she failed in the writ on 19th October, 2001, she did not opt to file the Letters Patent Appeal against this dismissal order in time. As per Petitioner, the reason being that her counsel advised her to leave the matter there and instead to pursue the matter in a civil suit, she filed suit for declaration and perpetual injunction before the court below. She also moved an application for interim relief. However, she failed to get the relief from the trial court where her prayer was rejected on 08.03.2002. She filed an appeal against the order before the forum at Srinagar. Again, the appeal was dismissed on 30-03-2002. It was thereafter that her counsel again advised her to file the Letter Patent Appeal. It is seen from the application that filing and pendency of the Revision petition against the order of the appellate court of District Judge, in temporary injunction matter in the suit, is not mentioned anywhere in the application. The name and particulars of the counsel, who tendered above legal advice to the petitioner, is not also given in the application or in the affidavit. The main suit for declaration and injunction is Pending, as admitted by counsel for the parties. 6. Non-applicants counsel submits that with-holding of information of factum of pendency of the suit and the Revision petition is deliberate. There is no good faith in as much as the Letters Patent Appeal is filed with the malafides to gain time and protract the proceedings at the cost of public interest. 7. For applicability of Section 14 of the Limitation Act, the following conditions have to co-exist :----- (i) The parties must have been prosecuting another civil proceedings with due diligence. (ii) The earlier and the latter proceedings have to be founded on same cause of action. (iii) The proceedings must have been prosecuted in good faith in a court which from defect of jurisdiction or other cause of a like nature, is unable to entertain it. 8. The third condition, as above, is not fitting in, in the facts and circumstances of this case. It is nobodys case that the matter should not be entertained due to defect of jurisdiction or other cause of like reason. 8. The third condition, as above, is not fitting in, in the facts and circumstances of this case. It is nobodys case that the matter should not be entertained due to defect of jurisdiction or other cause of like reason. The civil suit, as also the revision, is pending before the Courts below. It cannot be even said that the civil proceedings pressed in aid for exclusion of time have been with due diligence. Exercise of due care and attention is wanting in this case. When it is vaguely mentioned in the application that some counsel, without naming the counsel, advised the applicant, to file the suit and challenge the acquisition Proceedings therein, rather than to pursue the matter in the Letters Patent Appeal against the judgment of the learned Single Judge in writ jurisdiction, no ground for exclusion of time can be said to be made out. The record infact shows that the whole exercise is with a view to thawart the efforts of Lakes and Waterways Departmental authorities to utilize the land in question for development of the Dal Lake. The individual interest has to give way to public interest, more so, when the petitioner is being compensated for compulsory acquisition of the land in question in exercise of powers under Jammu and Kashmir Land Acquisition Act. 9. The learned counsel Mr. S.T. Hussain, submits that the matter may be dealt with Section 5 of the Limitation Act and the period of limitation taken on legal advice may be excluded. However, we do not find ourselves in agreement with what Mr. Hussain states. The application for exclusion of time specifically and unequivocally states that time spend in prosecuting the other civil proceedings before the courts below, may be excluded under section 14 of the Limitation Act. Besides, the wrong advice can be no basis to condone the delay as in this case. Even the counsel, who is stated to have advised the petitioner, is not mentioned either in the application or in affidavit filed in support of the application for exclusion of the delay. There is a vague mention in the application about this matter. We do not find that the mistake in not filing the Letters Patent Appeal in time is bonafide. No due care and attention is taken in this matter. There is a vague mention in the application about this matter. We do not find that the mistake in not filing the Letters Patent Appeal in time is bonafide. No due care and attention is taken in this matter. There is no such rule that every wrong advice given by a legal advisor/ Lawyer, will necessarily amount to sufficiency of cause for condonation of delay. There is no strait jacket formula for condoning the delay and treating the cause as sufficient cause. Whether wrong legal advice can constitute sufficient cause would depend on the facts and circumstances of a case, wherein such question is raised. 10. The authority cited, Ramnathan Sao and others v. Gobardhan Sao, AIR 2002 SC 1201 by Mr. S.T.Hussain for the purpose that the expression, "sufficient cause" is to receive liberal construction with a purpose to advance substantial justice, is not applicable to the facts and circumstances of this case. Even so, it is observed in this case that :-- "Thus it becomes plain that the expression `sufficient cause within the meaning of Section 5 of the Act or Order 22 Rule 9 of the Code or any other similar provision should receive a liberal construction so as to advance substantial justice when no negligence or inaction or want of bona fide is imputable to a party. In a particular case whether explanation furnished would `constitute sufficient cause or not will be dependent upon facts of each case. There can not be a strait jacket formula for accepting or rejecting explanation furnished for the delay caused in taking steps." 11. In the above view, the motion is disallowed and as foretiorari the Letters Patent Appeal shall also stand disposed of.