Jetmul Bhojraj (A Partnership firm) v. State of Jharkhand
2017-11-29
AMITAV K.GUPTA, D.N.PATEL
body2017
DigiLaw.ai
ORDER : Per D.N. Patel, J. LA. No. 5721 of 2017 This Civil Miscellaneous Petition has been preferred for recalling of an order passed by the Division Bench of this Court dated 8th January, 2002 in LPA No.15 of 2002, with delay condonation application of 5635 days. The said order reads as under : "After arguing for a while, Mr. Tiwary, learned counsel appearing for the appellant, seeks leave of the Court to withdraw this appeal with liberty to file a regular civil suit in a Civil Court of competent jurisdiction. He prays that the Civil Court be directed by us to expedite the disposal of the suit. The appeal is dismissed as withdrawn. The liberty prayed for is allowed. We direct that the civil suit shall be disposed of on its merits and in accordance with law but very expeditiously," (Emphasis supplied) 2. There is also a prayer in this Civil Miscellaneous Petition for the development of the land and convert the barren land into fully mechanized agricultural farm and also for the other prayers. 3. This Civil Miscellaneous Petition has been preferred with delay condonation application for 5635 days. 4. Much has been argued by the counsel for the applicant on the merits of the case, about the earlier acquisition of the land in the year 1953-54 under the Land Acquisition Act, thereafter on 8.9.1966 and thereafter, partial withdrawal thereof under Section 48 of the Land Acquisition Act. 5. Partial withdrawal of the land acquisition under Section 48 of the Land Acquisition Act was challenged by this applicant-partnership firm by way of writ petition being CWJC No. 434 of 1966 and CWJC No. 435 of 1966, which were dismissed by Hon'ble Patna High Court vide judgment and order dated 14th October, 1966 (reported as AIR 1967 Pat 287 ). This order was challenged by way of Special Leave Petition which was granted and was converted into Civil Appeal No. 379 of 1967 and Civil Appeal No. 741 of 1967 which was also dismissed by the Hon’ble Supreme Court vide judgment and order dated 25th January, 1972 (which is reported as 1972 SCC 1363). 6. Thus, partial withdrawal of the land acquisition was confirmed. 7.
6. Thus, partial withdrawal of the land acquisition was confirmed. 7. It further appears from the facts of the case, as argued out by the counsel for the applicant, that thereafter there was total withdrawal of the acquisition of the land which was also challenged by this applicant in CWJC No. 252 of 1968 as well as CWJC No. 253 of 1968. These writ petitions were dismissed by Hon'ble Patna High Court vide judgment and order dated 18th September, 1975 (reported as 1975 BLJR 162). 8. This order was challenged by this applicant before Hon'ble Supreme Court by way of Special Leave Petition which was granted by Hon'ble Supreme Court and it was converted into Civil Appeal No.609 of 1976 and 610 of 1976 and later on, they were dismissed by Hon'ble Supreme Court vide judgment and order dated 11th January, 1994 [reported as (1995) Supp. 4 SCC 255]. 9. Meanwhile, it appears that land, which is narrated in this Court Miscellaneous Petition at page 4, para 6, was mortgaged to one Mr. Chogyal, who was at the relevant time Ruler of State of Sikkim, as alleged by the counsel for the applicant. 10. It appears that ultimately, there was an agreement between State of Sikkim and said Mr. Chogyal. The loan which was taken by this applicant upon mortgage of the land in question which is narrated at page 4, para 6 of this Court Miscellaneous Petition, for Rs. 55,25,583/- later on, a suit was filed by the State of Sikkim Vs. the present applicant against the uncle of this applicant being Suit No.1 of 1985 before the Hon'ble Sikkim High Court. 11. It is further submitted by the counsel for the applicant that the said suit was decreed in favour of the plaintiff and the amount ordered to be paid at Rs.96,18,082/-. 12. This judgment and decree was appealed by this applicant as a Civil Appeal No. 4212 of 1996 before the Hon'ble Supreme Court of India. In fact, this appeal was preferred by one Sri Devi Dayal, one of the partners of the firm and others against the State of Sikkim. The said appeal was dismissed by the Hon'ble Supreme Court vide judgment and order dated 26th September, 2001. 13.
In fact, this appeal was preferred by one Sri Devi Dayal, one of the partners of the firm and others against the State of Sikkim. The said appeal was dismissed by the Hon'ble Supreme Court vide judgment and order dated 26th September, 2001. 13. It is further contended by the counsel for the applicant that as the land acquisition was withdrawn upon several arguments by the erstwhile State of Bihar including that possession was not taken over by the State Government this applicant applied for change of mutation entry which was wrongly made in favour of the State as a Protected Forest, but, State has failed to change the said mutation entry and ultimately IA No.1 was preferred in Civil Appeal No. 4212 of 1986 for sale of the land for which the land acquisition was withdrawn. 14. The said IA No.1 in Civil Appeal No. 4212 of 1986 was decided and a conditional sale was permitted vide order dated 10th March, 1997 by the Hon'ble Supreme Court. Partial modification was again sought by this applicant by way of IA No.2 in Civil Appeal No. 4212 of 1986 and the IA No. 2 was decided by the Hon'ble Supreme Court vide order dated 28th April, 1997. 15. It further appears from the contentions raised by the counsel for the applicant that as the mutation entry was not carried out in favour of the applicant ultimately, writ petition was preferred being CWJC No. 2570 of 1996(R) before Hon'ble Patna High Court for correction of Revenue Entry which was allowed vide order dated 25.9.1995. 16. It is further contended by the counsel for the applicant that Civil Review was preferred by the State of Bihar for review of an order, passed by Hon'ble Patna High Court dated 25.9.1996 in CWJC No.2570 of 1995(R) being Civil Review No. 28 of 1996(R). 17. This Civil Review preferred by the State of Bihar was dismissed by Hon’ble Patna High Court vide order dated 9.7.1999 (Annexure-7 to the memo of this Civil Miscellaneous Petition) against which Letters Patent Appeal No. 253 of 1999(R) was preferred by the State of Bihar. 18. This Letters Patent Appeal was decided by the Division Bench of this Court and the matter was remanded to the learned Single Judge. Thus, CWJC No. 2570 of 1995(R) was revived and was ordered to be decided afresh. 19.
18. This Letters Patent Appeal was decided by the Division Bench of this Court and the matter was remanded to the learned Single Judge. Thus, CWJC No. 2570 of 1995(R) was revived and was ordered to be decided afresh. 19. The misfortune of this applicant starts now. The said writ petition was dismissed by this Court vide order dated 26th November, 2001 as submitted by the counsel for the applicant (Annexure-9 to the memo of this Civil Miscellaneous Petition). 20. Being aggrieved and feeling dissatisfied by the judgment and order passed by this Court in CWJC No. 2570 of 1995(R), Letters Patent Appeal was preferred by this applicant being LPA No.15 of 2002. 21. Counsel appearing for the applicant sought permission to withdraw this Letters Patent Appeal and the said permission was sought with a view to file a civil suit, which was granted by the Division Bench of this Court vide order dated 8th January, 2002. 22. And now Civil Miscellaneous Petition has been preferred for review/modification of the said order after 15 long years and CMP No. 210 of 2017 has been preferred with IA No. 5721 of 2017 with a prayer for condonation of delay of 5635 days. Reasons 23. Having heard counsels for both the sides and looking to the reasons stated in this Interlocutory Application No. 5721 of 2017, we see no reason to condone the delay mainly for the following facts and reasons: (i) The reasons upon which the reliance is placed are not sufficient for condonation of delay of 5635 days. (ii) It appears that this applicant is not an ignorant applicant. Before this Court as stated hereinabove and very proudly by the counsel for the applicant that the applicant is a partner of such a firm which was a financier to the kings and queens of this country. From the previous litigations also, as stated hereinabove, time and again writ petitions, Special Leave Petitions and Civil Appeals have been preferred. This applicant is absolutely well versed with the Court proceedings and the law of limitation also. (iii) Looking to the facts, as stated hereinabove, lots of litigations have been generated by this applicant either as a plaintiff/petitioner or as a defendant/ respondent. Nothing is unknown to this applicant so far as Court proceedings are concerned.
This applicant is absolutely well versed with the Court proceedings and the law of limitation also. (iii) Looking to the facts, as stated hereinabove, lots of litigations have been generated by this applicant either as a plaintiff/petitioner or as a defendant/ respondent. Nothing is unknown to this applicant so far as Court proceedings are concerned. Even, fine ninety of the law has been argued in past, before several Courts, including upto Hon'ble Supreme Court, time and again. (iv) Reasons canvassed by the counsel for the applicant during the course of argument that after LPA No. 15 of 2002 was disposed of by the Division Bench of this Court, vide order dated 8th January, 2002, they approached some elected members of the State Legislative Assembly and even the highest leader of the State Legislative Assembly for any reason whatsoever. It appears that the applicant knows fully well where to approach. In past they have time and again filed special leave petitions which were converted into Civil Appeals and now for the reasons best known to this, well versed with the law-applicant approached the members of the State Legislative Assembly and even with the leaders thereof with a hope that what is decided in CWJC No. 2570 of 1995(R) vide order dated 26th November, 2001 and what is decided in LPA No. 15 of 2002 vide order dated 8th January, 2002 will be overruled by some elected members of the State Legislative Assembly. This applicant has lavishly wasted his time, though in past immediately higher forums were approached. This type of approach of knowledgeable applicant, is known as "deliberate negligent approach". Hence, the time consumed in such type of pursuation, is not a reasonable reason for condonation of delay. Therefore, we are not condoning the delay. This applicant looking to earlier more than half dozen litigations, is fully aware about the availability of the Superior Courts. Special Leave Petitions and Civil Appeals are not unknown to this applicant. (v) It appears that deliberately, time was wasted, after the LPA No. 15 of 2002 was disposed of by the Division Bench of this Court vide order dated 8th January, 2002. The laws assist those who are vigilant, not those who sleep over their rights viz. "Vigilantibus, Non Dormientibus, Jura Subveniunf'.
(v) It appears that deliberately, time was wasted, after the LPA No. 15 of 2002 was disposed of by the Division Bench of this Court vide order dated 8th January, 2002. The laws assist those who are vigilant, not those who sleep over their rights viz. "Vigilantibus, Non Dormientibus, Jura Subveniunf'. There was no justifiable reason with this applicant, after LPA No.15 of 2002 was disposed of by this Court, vide order dated 8th January, 2002, to approach the persons/institutions other than appellate Courts or the same Forums. (vi) Looking to the reasons stated in this interlocutory application, it appears that this applicant has more faith in the persons/institutions other than Courts. Previously, they have already approached the High Courts and Hon'ble Supreme Court, but, nothing has been done after LPA No. 15 of 2002 was disposed of by this Court vide order dated 8th January, 2002 and hence, also there are no justifiable reasons for this Court, to condone the delay of 5635 days. (vii) Looking to the reasons canvassed by the counsel for the applicant for condonation of delay, the counsel has referred the leader of the elected parties of the State Legislative Assembly, and then he had moved to the Revenue Department, to the Deputy Commissioner and opinion from the Advocate General. All these reasons are no valid reasons for condonation of delay of 5635 days. It is submitted by the counsel for the applicant that Revenue Department and Deputy Commissioner etc. has sought opinion from the Advocate General and not this applicant. Be as it may, if the time is spent by the Government then the delay of this applicant cannot be condoned. This applicant is not vigilant after LPA No.15 of 2002 was disposed of as withdrawn vide order dated 8th January, 2002. For no justifiable reasons, nothing has been done, by this applicant, except moving from persons to persons without approaching the competent Courts or Appellate Forums. Letters Patent Appeal was withdrawn by the counsel for the applicant, but, as we are not condoning the delay hence, we are not going into the merits of the Civil Miscellaneous Petition for review or modification of the order passed by the Division Bench of this Court in LPA No. 15 of 2002 dated 8th January, 2000.
Letters Patent Appeal was withdrawn by the counsel for the applicant, but, as we are not condoning the delay hence, we are not going into the merits of the Civil Miscellaneous Petition for review or modification of the order passed by the Division Bench of this Court in LPA No. 15 of 2002 dated 8th January, 2000. Suffice it to say that there is no justifiable reason for such a vigilant applicant to remain document and passive for 5635 days, after LPA No. 15 of 2002 was disposed of, as withdrawn, by the Division Bench of this Court vide order dated 8th January, 2002. This applicant has withdrawn LPA No. 15 of 2002, with a view to file a regular Civil Suit. Now advise of counsel is changed, hence mind of applicant is changed and after withdrawal of LPA, now, this applicant after 5635 days, wants review in the withdrawal order. (viii) It has been held by Hon'ble Supreme Court in the case of Cicily Kallarackal v. Vehicle Factory, reported in (2012) 8 SCC 524 , paras 6, 7 and 8 as under : 6. This Court in Anshul Aggarwal v. Noida has explained the scope of condonation of delay in a matter where the Special Courts/Tribunals have been constituted in order to provide expeditious remedies to the person aggrieved and the Consumer Protection Act, 1986 is one of them. Therefore, this Court held that while dealing with the application for condonation of delay in such cases the Court must keep in mind the special period of limitation prescribed under the statute(s). 7. In the instant case, condoning such an inordinate delay without any sufficient cause would amount to substituting the period of limitation by this Court in place of the period prescribed by the legislature for filing the special leave petition. Therefore, we do not see any cogent reason to condone the delay. 8. Hence, in the facts and circumstances of the case as explained hereinabove, we are not inclined to entertain these petitions. The same are dismissed on the ground of delay. (Emphasis supplied) (ix) It has been held by Hon'ble Supreme Court in the case of Londhe Prakash Bhagwan v. Dattatraya Eknath Mane and others, reported in (2013) 10 SCC 627 , para No.9 as under: 9.
The same are dismissed on the ground of delay. (Emphasis supplied) (ix) It has been held by Hon'ble Supreme Court in the case of Londhe Prakash Bhagwan v. Dattatraya Eknath Mane and others, reported in (2013) 10 SCC 627 , para No.9 as under: 9. Even if we assume that no limitation is prescribed in any statute to file an application before the Court in that case, can an aggrieved person came before the Court at his sweet will at any point of time? The answer must be in the negative. If no time-limit has been prescribed in a statute to apply before the appropriate forum, in that case, he has to come before the Court within a reasonable time. This Court on a number of occasions, while dealing with the matter of similar nature held that where even no limitation has been prescribed, the petition must be filed within a reasonable time. In our considered opinion, the period of 9 years and 11 months, is nothing but an inordinate delay to pursue the remedy of a person and without submitting any cogent reason therefore. The Court has no power to condone the same in such case. (See Cicily Kallarackal v. Vehicle Factory. State of Orissa v. Mamata Mohanty and K.R. Mudgal v. R.P. Singh). In these cases, it has been held that the application should be rejected on the ground of inordinate delay. Furthermore, it is to be noted that appointment of the appellant was within the knowledge of respondent No. 1 from day one but he did not take any step for such a long time. (Emphasis supplied) (x) It has been held by Hon'ble Supreme Court in the case of Brijesh Kumar and others v. State of Haryana, reported in 2014 (3) JCR 48 (SC) : (2014) 11 SCC 351 . paras 6, 10, 11 and 15 as under : 6. The issues of limitation, delay and laches as well as condonation of such delay are being examined and explained everyday by the Courts. The law of limitation is enshrined in the legal maxim interest reipulicae ut sit finis litium (it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the rights of the parties, rather the idea is that every legal remedy must be kept alive for a legislatively fixed period of time. 10.
Rules of limitation are not meant to destroy the rights of the parties, rather the idea is that every legal remedy must be kept alive for a legislatively fixed period of time. 10. The Courts should not adopt an injustice-oriented approach in rejecting the application for condonation of delay. However, the Court while allowing such application has to draw a distinction between delay and inordinate delay for want of bona fides of an inaction or negligence would deprive a party of the protection of Section 5 of the Limitation Act, 1963. Sufficient cause is a condition precedent for exercise of discretion by the Court for condoning the delay. This Court has time and again held that when mandatory provision is not complied with and that delay is not property, satisfactorily and convincingly explained, the Court cannot condone the delay on sympathetic grounds alone. 11. It is also a well-settled principle of law that if some person has taken a relief approaching the Court just or immediately after the cause of action had arisen, other persons cannot take benefit thereof approaching the Court at a belated stage for the reason that they cannot be permitted to take the impetus of the order passed by the behest of some diligent person. 15. In the instant case, after considering the facts and circumstances and the reasons for inordinate delay of 10 years, 2 months and 29 days, the High Court did not find sufficient grounds to condone the delay. (Emphasis supplied) 24. In view of the aforesaid facts, reasons and judicial pronouncements, there is no substance in this Interlocutory Application and there are no reasonable reasons, for condonation of delay. Hence, this IA No. 5721 of 2017 is hereby, dismissed. As the delay is not condoned, this Civil Miscellaneous Petition is declared dead in embryo. I.A. Dismissed.