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Madhya Pradesh High Court · body

2013 DIGILAW 962 (MP)

State of M. P. v. Amar Kaur

2013-08-16

G.D.SAXENA, S.K.GANGELE

body2013
ORDER Saxena, J. -- 1. Since the order challenged in the aforesaid review petitions is one and the same, all these petitions are herewith, taken up together for final disposal by this common order. 2. As the instant review preferred by the petitioners/State is hit with delay of 62 days for which an I.A. No.3990/12 under section 5 of the Limitation Act has been moved, before considering the contents of review, we think it proper to take up first the contents of application seeking condonation of delay. 3. The grounds for causing delay in submitting the review petition are that after pronouncement of the order dated 6th July, 2012 in Writ Appeal No.205/2012, the certified copy was obtained on 31st August, 2012 by the concerning department. Then, the matter was referred for obtaining necessary sanction and after receiving concurrence, the review petition came to be filed. It is mentioned in the application that the time was exhausted due to departmental procedure which was not based on mala fide on the part of the petitioners. Hence, it is requested that by allowing the application, delay that was caused in preferring the review petition may be condoned and the review itself may be heard on merits. To support submissions contained in the application, reliance is placed on the decision of Hon’ble apex Court in the case of State of Bihar v. Kameshwar Prasad [ (2000)9 SCC 94 ]. 4. Opposing the aforesaid prayer, learned counsel for the respondent vehemently contended that the delay was caused due to negligent acts of the officer-in-charge of the case who, despite of getting knowledge, did not take proper steps for legal recourses in compliance of the directions contained in the order dated 6th July, 2012. The officer-in-charge further failed to take requisite steps for contesting the matter before the Court of law within the period prescribed of limitation. So, according to the learned counsel the State cannot take the advantage of the negligent acts of its employees in this way. On this basis, it is prayed that the application for condonation of delay may be dismissed. 5. In Collector (LA) v. Katiji [ (1987)2 SCC 107 , at p.108], the Hon’ble apex Court considered the question of delay in filing the appeal beyond limitation and was pleased to observe as follows : “2. On this basis, it is prayed that the application for condonation of delay may be dismissed. 5. In Collector (LA) v. Katiji [ (1987)2 SCC 107 , at p.108], the Hon’ble apex Court considered the question of delay in filing the appeal beyond limitation and was pleased to observe as follows : “2. 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 justice -- that being the life-purpose 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 realised 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 days’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 non-deliberate 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. 6. 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. 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.” 6. On considering the reasons as shown in the application under consideration, it is gathered that although the delay was caused for not applying in proper time the certified copy of the order, which was essential for further consideration of submitting the review and as soon as the certified copy was received the process of filing became faster so, taking in to consideration these facts and the observations made in the case of Collector (LA) (supra), liberal approach for deciding the case on merits is adopted while condoning the delay in filing the review petitions before this Court. Consequently, all I.As No.3990/2012, 3991/2012, 3998/2012, 3997/2012, 3992/2012, 3993/2012, 4000/2012, 3994/2012, 3995/2012 and 3996/2012 are hereby allowed. 7. Now,l we are proceeding to hear the arguments on merits of the review petitions. 8. This review petition under section 114 read with Order 47 rule 1 of CPC has been filed against the order passed on 6th July, 2012 in Writ Appeal No.205/2011. 9. A large number of averments have been made in the review petition, but the mainly to which the petitioners have restricted themselves are as below : “(i) During hearing of the writ appeal no reply in the shape of return was filed by the State. After hearing the submissions of the Government Advocate and the learned counsel appearing on behalf of the appellant, the order was passed. (ii) That, in the order dated 6th July, 2012 there is no whisper on factual aspects as well as legal questions as answered by the Hon’ble apex Court on the point whether the awardees who received the award without protest can file the petition under section 18 of the Land Acquisition Act beyond period of limitation prescribed therefore even after having constructive knowledge of the order passed by the Land Acquisition Officer.” 10. So, as per the learned Government Advocate the conclusion of this Court in the order dated 6th July, 2012 suffers from an error or a mistake apparent on the face of the record. Hence, it is prayed that by allowing the review petition, the order dated 6th July, 2012 may be reviewed/recalled. 11. Learned counsel appearing for the respondent, on the other hand, opposed the prayer of the learned Government Advocate on the grounds that prior to submitting the review petition on behalf of the State, the case was neither referred nor permission was sought for filing the review petition under section 114 read with Order 47 rule 1 of CPC by the officer-in-charge appointed for defending/filing the review petition, hence, this review petition is liable to be dismissed on this sole ground. In addition to it, on merits, it is submitted that the learned appellate Court after considering the aspects involved in the case, adopted a correct approach committing no such error or mistake on the face of the record which is sought to be rectified by way of this review petition. 12. Heard the learned Government Advocate representing the State and the learned counsel appearing on behalf of the respondent/claimant. 13. Before going into detail, we apt it proper to gather the intention of the legislation in inserting the provisions of section 114 with their explanation : “114. Review. -- Subject as aforesaid, any person considering himself aggrieved. -- (a) by a decree or order from which an appeal is allowed by this Code, but from which no appeal has been preferred, (b) by a decree or orer from which no appeal is allowed by this Code, or (c) by a decision on a reference from a Court of small causes, may apply for a review of judgment to the Court which passed the decree or made the order, and the Court may make such order thereon as it thinks fit. Order 47 rule 1. Application for review of judgment. Order 47 rule 1. Application for review of judgment. -- (1) Any person considering himself aggrieved -- (a) by a decree or order from which an appeal is allowed, but from no appeal has been preferred, (b) by a decree or order from which no appeal is allowed, or (c) by a decision on a reference from a Court of small causes, and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment of the Court which passed the decree or made the order. (2) A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the appellate Court the case on which he applies for the review. [Explanation : The fact that the decision on a question of law on which the judgment of the Court is based has been reversed or modified by the subsequent decision of a superior Court in any other case, shall not be a ground for the review of such judgment.] 14. On perusal of the present case, the admitted facts that have emerged from the record are that by Notification dated 2nd January 1986, the lands of the owners/respondents and others were proposed to be acquired for extension of Madhav National Park, Shivpuri. After lapse of 12 years, the Notification dated 4th March, 1998 under sections 19 to 23 and 24 of the Wild Life (Protection) Act, 1972 was promulgated and the powers of land acquisition were delegated to the Sub-Divisional Officers (Revenue). Thereafter, the order dated 30th December, 2005 under section 24 of the said Act was passed. No process of disbursement took place under the law for a long period. Thereafter, the order dated 30th December, 2005 under section 24 of the said Act was passed. No process of disbursement took place under the law for a long period. Resultantly, in Writ Petition No.3165/2007 by issuing similar directions dated 25th July, 2007 which were issued earlier in Writ Petition No.4425/2006, the respondents were directed to scrutinize the case of each of the petitioners independently. It was further directed that in case the petitioners are found similarly situated and their land was found to be acquired, each of the petitioners shall be entitled to the benefits on identical terms otherwise the respondents would be a liberty to pass appropriate orders indicating the reasons after following due procedure of law. Learned Government Advocate for the petitioners/State has been unable to point out as to on which date the order in compliance of the aforesaid directions issued on dated 25th July, 2007 has been passed by the Land Acquisition Officer-cum-Sub-Divisional Officer, Shivpuri under section 12(2) of the Act. It is true that under the provisions contained in Article 300A of the Constitution of India as also the provisions of the Land Acquisition Act, the State in exercise of its power of “eminent domain” may deprive a person of this right to a property only when there exists a public purpose and a reasonable amount by wayof compensation is offered for acquisition of his land and the procedural safeguards for depriving such right must be scrupulously complied with. 15. In a recent decision based on the similar set of facts in the case of Tukaram Kana Joshi v. M.I.D.C. [ AIR 2013 SC 565 ], the Hon’ble apex Court has been pleased to observe : “7. The right to property is now considered to be, not only a constitutional or a statutory right, but also a human right. Though, it is not a basic feature of the Constitution or a fundamental right, human rights are considered to be in realm of individual rights, such as the right to health, the right to livelihood, the right to shelter and employment etc. Now however, human rights are gaining an even greater multi faceted dimension. The right to property is considered, very much to be a part of such new dimension. 8. In the case at hand, there has been no acquisition. Now however, human rights are gaining an even greater multi faceted dimension. The right to property is considered, very much to be a part of such new dimension. 8. In the case at hand, there has been no acquisition. The question that emerges for consideration is whether, ina democratic body polity, which is supposedly governed by the Rule of Law, the State should be allowed to deprive a citizen of his property, without adhering to the law.The matter would have been different had the State pleaded that it has right, title and interest over the said land. It however, concedes to the right, title and interest of the appellants over such land and pleads the doctrine of delay and laches as grounds for the dismissal of the petition/appeal. 9. There are authorities which state that delay and laches extinguished the right to put forth a claim. Most of these authorities pertain to service jurisprudence, grant of compensation for a wrong done to them decades ago, recovery of statutory dues, claim for educational facilities and other categories of similar cases, etc. Though, it is true that there are a few authorities that lay down that delay and laches debar a citizen from seeking remedy, even if his fundamental right has been violated, under Articles 32 or 226 of the Constitution, the case at hand deals witha different scenario altogether. Functionaries of the State took over possession of the land belonging to the appellants without any sanction of law. The appellants had asked repeatedly for grant of the benefit of compensation. The State must either comply with the procedure laid down for acquisition, or requisition, or any other permissible statutory mode. There is a distinction, a true and concrete distinction, between the principle of “eminent domain” and “police power” of the State. Under certain circumstances, the police power of the State may be used temporarily, to take possession of property but the present case clearly shows that neither of the said powers has been exercised. A question then arises with respect to the authority or power under which the State entered upon the land. It is evident that the act of the State amounts to encroachment, in exercise of “absolute power” which in common parlance is also called abuse of power or use of muscle power. A question then arises with respect to the authority or power under which the State entered upon the land. It is evident that the act of the State amounts to encroachment, in exercise of “absolute power” which in common parlance is also called abuse of power or use of muscle power. To further clarify this position, it must be noted that the authorities have treated the land owner as a ‘subject’ of medieval India, but not as a ‘citizen’ under our Constitution. 10. The State especially a welfare State which is governed by the Rule of Law, cannot arrogate itself to a status beyond one that is provided by the Constitution. Our Constitution is an organic and flexible one. Delay and laches is adopted as a mode of discretion to decline exercise of jurisdiction to grant relief. There is another facet. The Court is required to exercise judicial discretion. The said discretion is dependent on facts and circumstances of the cases. Delay and laches is one of the facets to deny exercise of discretion. It is not an absolute impediment. There can be mitigating factors, continuity of cause action, etc. That apart, if whole thing shocks the judicial conscience, then the Court should exercise the discretion more so, when no third party interest is involved. Thus analysed, the petition is not hit by the doctrine of delay and laches as the same is not a constitutional limitation, the cause of action is continuous and further the situation certainly shocks judicial conscience. 11. The question of condonation of delay is one of discretion and has to be decided on the basis of the facts of the case at hand, as the same vary from case to case. It will depend upon what the breach of fundamental right and the remedy claimed are and when and how the delay arose. It is not that there is any period of limitation for the Courts to exercise their powers under Article 226, nor is it that there can never be a case where the Courts cannot interfere in a matter, after the passage of a certain length of time. There may be a case where the demand for justice is so compelling, that the High Court would be inclined to interfere in spite of delay. There may be a case where the demand for justice is so compelling, that the High Court would be inclined to interfere in spite of delay. Ultimately, it would be a matter within the discretion of the Court and such discretion must be exercised fairly and justly so as to promote justice and not to defeat it.The validity of the party’s defence must be tried upon principles substantially equitable. 12. No hard and fast rule can be laid down as to when the High Court shoujld refuse to exercise its jurisdiction in favour of a party who moves it after considerable delay and is otherwise guilty of laches. Discretion must be exercised judiciously and reasonably. In the event that the claim made by the applicant is legally sustainable, delay should be condoned. In other words, where circumstances justifying the conduct exist, the illegality which is manifest, cannot be sustained on the sole ground of laches. When substantial justice and technical considerations are pitted against each other, the cause of substantial justice deserves to be preferred, for the other side cannot claim to have a vested right in the injustice being done, because of a non-deliberate delay. The Court should not harm innocent parties if their rights have in fact emerged, by delay on the part of the petitioners. 14. The High Court committed an error in holding the appellants non-suited on the ground of delay and non-availability of records, as the Court failed to appreciate that the appellants had been pursuing their case persistently. Accepting their claim, the statutory authorities had even initiated the acquisition proceedings in 1981, which subsequently lapsed for want of further action on the part of those authorities. The claimants are illiterate and inarticulate persons, who have been deprived of their fundamental rights by the State, without it resorting to any procedure prescribed by law, without the Court realising that the enrichment of a welfare State, or of its instrumentalities, at the cost of poor farmers is not permissible, particularly when done at the behest of the State itself. The appellants belonged to a class which did not have any other vocation or any business/calling to fall back upon, for the purpose of earning their livelihood. 15. Depriving the appellaqnts of their immovable properties, was a clear violation of Article 21 of the Constitution. The appellants belonged to a class which did not have any other vocation or any business/calling to fall back upon, for the purpose of earning their livelihood. 15. Depriving the appellaqnts of their immovable properties, was a clear violation of Article 21 of the Constitution. In a welfare State, statutory authorities are bound, not only to pay adequate compensation, but there is also a legal obligation upon them to rehabilitate such persons. The non-fulfilment of their obligations would tantamount to forcing the said uprooted persons to become vagabonds or to indulge in anti-national activities as such sentiments would be born in them on account of such ill-treatment. Therefore, it is not permissible for any welfare State to uproot a person and deprive him of his fundamental/constitutional/human rights, under the garb of industrial development. 16. The appellants have been deprived of their legitimate dues for about half a century. In such a fact-situation, we fail to understand for which class of citizens, the Constitution provides guarantees and rights in this regard and what is the exact percentage of the citizens of this country, to whom Constitutional/statutory benefits are accorded, in accordance with the law. 17. The appellants have been seriously discriminated against qua other persons, whose land was also acquired. Some of them were given the benefits of acquisition, including compensation in the year 1966. This kind of discrimination not only breeds corruption, but also dis-respect for governance, as it leads to frustration and to a certain extent, forces persons to take the law into their own hands. The findings of the High Court, that requisite records were not available, or that the appellants approached the authorities at a belated stage are contrary to the evidence available on record and thus, cannot be accepted and excused as it remains a slur on the system of governance and justice alike, and an anathema to the doctrine of equality, which is the soul of our Constitution. Even under valid acquisition proceedings, there is a legal obligation on the part of the authorities to complete such acquisition proceedings at the earliest, and to make payment of requisite compensation. The appeals etc. Even under valid acquisition proceedings, there is a legal obligation on the part of the authorities to complete such acquisition proceedings at the earliest, and to make payment of requisite compensation. The appeals etc. are required to be decided expeditiously, for the sole reason that, if a person is not paid compensation in time, he will be unable to purchase any land or other immovable property, for the amount of compensation that is likely to be paid to him at a belated stage.” 16. The next submission of the learned Government Advocate for the petitioners/State is that in this case wrong analogy has been applied by this Court and the relevant provision has been ignored while passing the impugned order. By inviting attention of this Court on the document Annexure-D, he further submits that the amount of compensation was not received by the claimants under protest. 17. On perusal of the document (Annexure-D), it is seen that the payments were received by the claimants on 2nd July, 2007. This was the same date on which all the claimants by approaching the SDO (Revenue) brought to his notice that they were receiving the compensation so awarded and shall file the objections regarding insufficiency of the Award, which they submitted in writing as per Annexure P-5, but the Collector instead of sending the matter to the Court for consideration refused their request holding the same as barred by time. There is nothing on record to indicate that the claimants/owners had ever received any notices as required under section 12(2) of the Act from the side of the Collector regarding passing of the Award. Under the circumstances, it cannot be held that claimants/owners were having any knowledge about passing of the Award.Therefore, no question of limitation would have any applicable to their case as the provisions of section 18(2) of the Act come into play when the claimants/owners get knowledge of the declaration of the Award. Same has been discussed by Hon’ble apex Court in the case of Steel Authority of India Ltd. v. Sunti Sutni Sangam [ (2009)16 SCC 1 ]. Relevant para 59 of the decision is reproduced below : “59. Now, knowledge of the award does not mean a mere knowledge of the fact that an award has been made. The knowledge must relate to the essential contents of the award. These contents may be known either actually or constructively. Relevant para 59 of the decision is reproduced below : “59. Now, knowledge of the award does not mean a mere knowledge of the fact that an award has been made. The knowledge must relate to the essential contents of the award. These contents may be known either actually or constructively. If the award is communicated to a party under section 12(2) of the Act, the party must be obviously fixed with knowledge of the contents of the award whether he reads it or not. Similarly when a party is present in Court either personally or through his representative when the award is made by the Collector, it must be presumed that he knows the contents of the award. Having regard to the scheme of the Act we think that knowledge of the award must mean knowledge of the essential contents of the award. Looked at from that point of view, we do not think that it can be inferred from the petition dated 24.12.1954 that the respondents had knowledge of the award.” 18. Having thus gone through the order impugned dated 6th July, 2012 and the order dated 23rd February, 2011 passed in Writ Petition No.1025/2011 (S), it is clear that the claimants received the compensation under protest and in that eventuality, the Collector was enjoined to refer the objection to the civil Court as the interests and rights of the parties in regard to compensation are protected by the provisions relating to apportionment of compensation and provisions for referring the disputes to a civil Court for apportionment of compensation. This having not been done, the order impugned dated 30th August, 2010 (Annexure P-1) as well as the order passed by the learned Single Judge dated 23rd February, 2011 (Annexure A-1) was rightly set aside by this Court in the writ appeal. The petitioners/State has been unable to show that the order sought to be reviewed suffers from some mistake or error apparent on the face of the record or there exists some other reason, which, in the opinion of this Court, is sufficient for reviewing the earlier order. This being so, no error apparent appears from the face of the order. Accordingly, all the review petitions are liable to be and are hereby dismissed. This being so, no error apparent appears from the face of the order. Accordingly, all the review petitions are liable to be and are hereby dismissed. The costs of the petitions shall be paid within a period of three months from the date of this order by the petitioners/State to the respondent. Counsel fee Rs.1,000/-, if certified.