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2017 DIGILAW 545 (GUJ)

Joshi Narbheram Gokaldas v. Dy. Collector Nakhtrana

2017-03-09

A.S.SUPEHIA, HARSHA DEVANI

body2017
JUDGMENT : Harsha Devani, J. 1. By this application under section 5 of the Limitation Act, 1963, the applicants seek condonation of the delay of 2109 days that has occasioned in the filing of the application for restoration of First Appeal (Stamp) No. 2300 of 2007, which came to be dismissed for want of prosecution on account of non-removal of the office objections on or before 27.12.2007 as directed by this court. 2. The applicants herein filed the above referred first appeal challenging the judgment and award dated 09.03.2007 passed by the learned Principal Senior Civil Judge, Bhuj, Kachchh, in Land Acquisition Reference Case No. 162 of 2003. It appears that at the relevant time the applicants were not in a position to furnish the necessary court fee stamp and, accordingly, could not remove the office objections within the time limit stipulated by this court and hence, the appeal came to be dismissed for want of prosecution. It appears that similar appeals also came to be dismissed for want of prosecution at the relevant time, however, in those matters, applications for restoration of the appeals came to be filed and the appeals were restored by a common order dated 13.08.2009 made in Misc. Civil Application No. 1264 of 2009 and allied matters. It appears that insofar as the applicants herein are concerned, they were not in a position to pay the court fee at the relevant time and hence, had not filed any restoration application. 3. When the matter came up for hearing before this court, it was found that on the averments made in the memorandum of application, sufficient cause had not been made out for condonation of such a huge delay. Therefore, the applicants have filed a further affidavit giving further details to explain the delay caused in filing the restoration application. The main grounds put forth by the applicants in the further affidavit are paucity of funds and inter se disputes between the brothers who have jointly filed the present appeal. 4. Mr. M.A. Parikh, learned advocate for the applicants submitted that the delay caused in filing the restoration application has been sufficiently explained and that the applicants were facing genuine difficulties in arranging for the necessary court fee, due to which the application for restoration could not be filed during this period. 4. Mr. M.A. Parikh, learned advocate for the applicants submitted that the delay caused in filing the restoration application has been sufficiently explained and that the applicants were facing genuine difficulties in arranging for the necessary court fee, due to which the application for restoration could not be filed during this period. Reliance was placed upon a decision of the Supreme Court in the case of Imrat Lal vs. Land Acquisition Collector, (2014) 14 SCC 133 , wherein, the appeals had been preferred by a number of landowners under section 54 of the Land Acquisition Act, 1894 against the judgment and award passed by the Additional District Judge under Section 18 of the said Act. Almost three years after disposal of those appeals, the appellants therein filed appeals together with applications for condonation of delay of 1110 days. The learned Single Judge of the High Court was not satisfied with the cause shown therein and dismissed the applications and consequently the appeals filed under section 54 of the Land Acquisition Act, 1894 was also dismissed as barred by time. The appellants therein carried the matter before the Supreme Court, which held thus: "12. While we agree with Shri Narender Hooda that the averments contained in the application for condonation of delay were extremely vague and did not provide satisfactory explanation for the long delay of 1110 days, but it cannot be ignored that in identical matters another learned Single Judge had granted relief to the landowners by enhancing the compensation and this factor should not have been overlooked by learned Single Judge while deciding the application for condonation of delay. 13. We can take judicial notice of the fact that villagers in our country are by and large illiterate and are not conversant with the intricacies of law. They are usually guided by their co-villagers, who are familiar with the proceedings in the Courts or the advocates with whom they get in touch for redressal of their grievance. Affidavits filed in support of the applications for condonation of delay are usually drafted by the advocates on the basis of half baked information made available by the affected persons. They are usually guided by their co-villagers, who are familiar with the proceedings in the Courts or the advocates with whom they get in touch for redressal of their grievance. Affidavits filed in support of the applications for condonation of delay are usually drafted by the advocates on the basis of half baked information made available by the affected persons. Therefore, in the acquisition matters involving claim for award of just compensation, the Court should adopt a liberal approach and either grant time to the party to file better affidavit to explain delay or suo motu take cognizance of the fact that large number of other similarly situated persons who were affected by the determination of compensation by the Land Acquisition Officer or the Reference Court have been granted relief. 14. In Civil Appeal Nos. 5335-5336 titled Samiyathal and Others vs. Special Tahsildar and Others decided on 5.7.2013, this Court took cognizance of the fact that many landowners may not have been able to seek intervention of this Court for grant of enhanced compensation due to illiteracy, poverty and ignorance and issued direction that those who have not filed special leave petition should be given enhanced compensation. The relevant portion of the judgment passed in that case is extracted below: "We further direct the respondents and the State of Tamil Nadu to pay the same amount of compensation to other landowners whose land was acquired by notification dated 22.05.1991, but who may have on account of ignorance, poverty and other similar handicaps, not been able to approach the Reference Court or may not have been able to contest the matter before the High Court and this Court. The needful be done in respect of other landowners within a period of six months. This direction has been given in exercise of the power vested in this Court under Article 142 of the Constitution." 15. In view, of the above discussion, the appeal is allowed, the impugned order is set aside and the delay in filing RFA No. 5477/2011 by the appellants is condoned. 16. xxx xxx xxx 17. We appreciate the statement made by the learned Senior Additional Advocate General and hold that the appellants shall be entitled to enhanced compensation at the rate of Rs. 1216 per sq. yard with other statutory benefits. 16. xxx xxx xxx 17. We appreciate the statement made by the learned Senior Additional Advocate General and hold that the appellants shall be entitled to enhanced compensation at the rate of Rs. 1216 per sq. yard with other statutory benefits. However, it is made clear that the appellants shall not be entitled to interest for the period of delay, i.e. 1110 days." 4.1 It was further submitted that the applicants herein are in better position than the appellants before the Supreme Court, inasmuch as the applicants herein had approached this court together with other appellants in whose favour the judgment and order has been passed by this court enhancing the compensation; whereas in the facts of that case the appellants therein had filed appeals three years after the appeal had been disposed of by the High Court. It was urged that having regard to the fact that the applicants herein are also agriculturists, the above decision of the Supreme Court would be squarely applicable to the present case and hence, the delay caused in filing the restoration application deserves to be condoned. 5. Opposing the application, Mr. Rishin Patel, learned advocate for opponent No. 2-Gujarat Mineral Development Corporation, submitted that the grounds set forth by the applicants in the memorandum of application and further affidavit are regarding personal difficulties faced by the applicants and disputes between the brothers inter se, which cannot be said to constitute sufficient cause for condonation of such an inordinate delay. Reliance was placed upon the decision of the Supreme Court in the case of Basawaraj vs. Special Land Acquisition Officer, (2013) 14 SCC 81 , wherein the court has held that where a case has been presented in the court beyond limitation, the applicant has to explain to the court as to what was the "sufficient cause" which means an adequate and enough reason which prevented him to approach the court within limitation. In case a party is found to be negligent, or for want of bona fide on his part in the facts and circumstances of the case, or found to have not acted diligently or remained inactive, there cannot be a justified ground to condone the delay. No court could be justified in condoning such an inordinate delay by imposing any condition whatsoever. No court could be justified in condoning such an inordinate delay by imposing any condition whatsoever. The application is to be decided only within the parameters laid down by that Court in regard to the condonation of delay. In case there was no sufficient cause to prevent a litigant to approach the court on time condoning the delay without any justification, putting any condition whatsoever, amounts to passing an order in violation of the statutory provisions and it tantamounts to showing utter disregard to the legislature. Adverting to the facts of the present case, the learned advocate submitted that sufficient cause has not been shown by the applicants and hence, no case has been made out for condonation of delay. It was urged that the application being devoid of merits, deserves to be rejected. 6. From the facts noted hereinabove, it is evident that the applicants had initially filed an appeal within the prescribed period of limitation. However, on account of lack of funds the court fee could not be paid and consequently, the appeals preferred by the applicants as well as other similarly situated appellants came to be dismissed for want of prosecution somewhere in November-December 2007. While in case of certain other appellants, they were able to arrange for payment of court fees from the amount which was disbursed to them by the reference court, it appears the present applicants they were not in a position to make arrange for the amount required to be paid by way of the court fees. The applicants have made detailed submissions in the further affidavit filed by them stating the reasons as to why it was not in possible for them to arrange for the funds within the reasonable time. It further appears that there was some dispute inter se between the brothers, which also came in the way of the applicants in arranging for the court fee, which was required to be deposited by them. Accordingly, the applicants were not in a position to remove the office objections, which were raised by the Registry of this Court. 7. The facts as emerging from the record reveal that the lands of the applicants had been acquired under the land acquisition for the meager amount of Rs. 4/- per square metre. Accordingly, the applicants were not in a position to remove the office objections, which were raised by the Registry of this Court. 7. The facts as emerging from the record reveal that the lands of the applicants had been acquired under the land acquisition for the meager amount of Rs. 4/- per square metre. Thus, the applicants have received a pittance by way of compensation for acquisition of their lands; the applicants herein had, in fact, moved an appeal within the prescribed period of limitation and the delay that has occurred is in filing the application for restoration of the appeal which stood dismissed for want of prosecution on account of non-removal of office objections. The above facts are required to be considered in the light of the decision of Supreme Court in the case of Imrat Lal vs. Land Acquisition Collector (supra), wherein the Supreme Court has referred to the earlier order passed by it wherein it has taken cognizance of the fact that many landowners may not have been able to seek intervention of the court for grant of enhanced compensation due to illiteracy, poverty and ignorance and accordingly, issued direction that those who had not filed special leave petition should be given enhanced compensation. The court in the above decision took judicial notice of the fact that villagers in our country are by and large illiterate and are not conversant with the intricacies of law and usually guided by their co-villagers, who are familiar with the proceedings in the courts or the advocates with whom they get in touch for redressal of their grievance. The court held that in the acquisition matters involving claim for award of just compensation, the court should adopt a liberal approach and either grant time to the party to file affidavit to explain delay or suo motu take cognizance of the fact that large number of other similarly situated persons who were affected by the determination of compensation by the Land Acquisition Officer or the Reference Court have been granted relief. Adverting to the facts of the present case, the appeal of other appellants, who had filed appeals before this court against the common judgment and award passed by the reference court, came to be partly allowed by a common judgment and order dated 06.05.2004 made in First Appeal No. 4238 of 2007 and allied matters wherein this court enhanced the compensation from Rs. 4/- per square metre as determined by the reference court to Rs. 12/- per square metre. This court is of the view that the above decision of the Supreme Court, which states that the court should take cognizance of the fact that large number of other similarly situated persons who were affected by the determination of the compensation by the Land Acquisition Officer or the Reference Court have been granted relief, would be squarely applicable to the facts of the present case inasmuch as in case of other similarly situated persons compensation has been enhanced. Under the circumstances, the delay caused in filing the restoration application deserves to be condoned. 8. As regards the decision of Supreme Court in the case of Basawaraj vs. Land Acquisition Officer (supra), on which reliance has been placed on behalf of the respondents, it may be noted that in the facts of that case, the appeal itself had been preferred after a period of five years and it is in those circumstances, that the Supreme Court had made the observations referred to hereinabove, whereas in the present case there was no delay in filing the appeal at the initial stage and the delay has been caused in the filing of the restoration application. Under the circumstances, the said decision does not come to the aid of the respondents. 9. In the light of the above discussion, the application succeeds and is accordingly, allowed. The delay caused in filing the restoration application is hereby condoned. Rule is made absolute with no order as to costs. 10. It is clarified that in the light of the decision of Supreme Court in the case of Imrat Lal vs. Land Acquisition Officer (supra), while considering the grant of relief, the court would take into consideration the observations made by the Supreme Court in Paragraph No. 17 of the said judgment, whereby it is held that the appellants therein would not be entitled for interest for the period of delay. Application Allowed.