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Madhya Pradesh High Court · body

2021 DIGILAW 117 (MP)

Rajkumar Gupta & Others v. Collector

2021-02-05

G.S.AHLUWALIA

body2021
ORDER 1. This petition under Article 226 of the Constitution of India has been filed against the order dated 29.7.2020 (Annexure P-1) passed by the Collector, Panna in Case No.26B/121/Year 2020-21 by dismissing the application filed by the petitioner under section 64 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013. 2. The controversy involved in the present case lies in narrow compass, therefore, it is not necessary to consider the facts of the case in detail. It is sufficient to mention that the land of the petitioners has been acquired and an award was passed on 9.10.2019, however, the application under section 64 of the Act, 2013 for reference was made before the Collector on 19.5.2020 which came to be dismissed by the impugned order dated 29.7.2020 passed by the Collector, Panna by holding that the application is barred by limitation. 3. Challenging the order passed by the Collector, it is submitted by Shri Dubey, counsel for the petitioner that the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 is beneficial legislation and the provision of reference has been made so that the persons whose land has been acquired may get just and fair compensation. 4. It is fairly conceded by the counsel for the petitioner that since the award was passed in the presence of the petitioner, therefore, section 64 (2) proviso (a) would be applicable and the period of limitation for filing an application under section 64 of Act, 2013 was six weeks. However, the application was filed after approximately seven months. It is fairly conceded that the application for reference was not accompanied by an application under section 5 of the Limitation Act/under section 64 (2) (second proviso) of the Act, 2013. It is submitted that in absence of the application for condonation of delay, the Collector Panna has not taken note of the powers of the Collector as provided under section 64 (2) second proviso by which he has the power to entertain an application, if the said application is filed after the expiry of period of limitation within a further period of one year. It is submitted that the application under section 64 of the Act, 2013 was filed on 19.5.2020. It is submitted that the application under section 64 of the Act, 2013 was filed on 19.5.2020. Although it was the duty of the petitioner to file the application under section 5 of the Limitation Act/under section 64 (2) (second proviso) of the Act, 2013 but for the fault of the lawyer, the petitioner may not be compelled to suffer irreparable loss and the Collector should have granted one opportunity to the petitioner to file an application for condonation of delay. 5. Per contra, the submissions made by the counsel for the petitioner is vehemently opposed by the counsel for the respondents. It is submitted by the counsel for the respondent No.3 that it was the mistake on the part of the petitioner of not filing an application under section 5 of the Limitation Act/under section 64 (2) (second proviso) for condonation of delay and under these circumstances, the Collector Panna did not commit any mistake by rejecting the application as barred by limitation. 6. Heard the counsel for the parties. 7. It is true that if the application is barred by limitation then an application under section 5 of the Limitation Act should also be filed explaining the sufficient cause for not filing the application within a period of limitation. 8. It is submitted that since the legislation in question is in the nature of beneficial legislation for protecting the legitimate rights of the owners of the land, then the Collector, Panna instead of dismissing the appeal on second day should have granted time to the petitioner to move an application under section 5 of the Limitation Act/under section 64 (2) (second proviso) of the Act, 2013. 9. The Supreme Court in the case of State of M.P. and another v. Pradeep Kumar and another reported in 2000(2) JLJ 340 = (2000) 7 SCC 372 has held as under :- “11. No doubt sub-rule (1) of Rule 3-A has used the word “shall”. It was contended that employment of the word “shall” would clearly indicate that the requirement is peremptory in tone. But such peremptoriness does not foreclose a chance for the appellant to rectify the mistake, either on his own or being pointed out by the Court. The word “shall” in the context need be interpreted as an obligation cast on the appellant. Why should a more restrictive interpretation be placed on the subrule? But such peremptoriness does not foreclose a chance for the appellant to rectify the mistake, either on his own or being pointed out by the Court. The word “shall” in the context need be interpreted as an obligation cast on the appellant. Why should a more restrictive interpretation be placed on the subrule? The Rule cannot be interpreted very harshly and make the non-compliance punitive to an appellant. It can happen that due to some mistake or lapse an appellant may omit to file the application (explaining the delay) along with the appeal. 12. It is true that the pristine maxim vigilantibus non dormientibus jura subveniunt (law assists those who are vigilant and not those who sleep over their rights). But even a vigilant litigant is prone to commit mistakes. As the aphorism “to err is human” is more a practical notion of human behaviour than an abstract philosophy, the unintentional lapse on the part of a litigant should not normally cause the doors of the judicature permanently closed before him. The effort of the Court should not be one of finding means to pull down the shutters of adjudicatory jurisdiction before a party who seeks justice, on account of any mistake committed by him, but to see whether it is possible to entertain his grievance if it is genuine. 19. The object of enacting Rule 3-A in Order 41 of the Code seems to be twofold. First is, to inform the appellant himself who filed a time-barred appeal that it would not be entertained unless it is accompanied by an application explaining the delay. Second is, to communicate to the respondent a message that it may not be necessary for him to get ready to meet the grounds taken up in the memorandum of appeal because the Court has to deal with application for condonation of delay as a condition precedent. Barring the above objects, we cannot find out from the Rule that it is intended to operate as unremediably or irredeemably fatal against the appellant if the memorandum is not accompanied by any such application at the first instance. In our view, the deficiency is a curable defect, and if the required application is filed subsequently the appeal can be treated as presented in accordance with the requirement contained in Rule 3-A Order 41 of the Code.” 10. In our view, the deficiency is a curable defect, and if the required application is filed subsequently the appeal can be treated as presented in accordance with the requirement contained in Rule 3-A Order 41 of the Code.” 10. Under these circumstances, this Court is of the considered opinion that instead of dismissing the application filed under section 64 (1) of the Act, 2013 on the second day, the Collector should have granted one opportunity to the petitioner to explain the sufficient cause for not filing the application under section 64 of Act, 2013 within a period of six weeks from the date of passing of award. Accordingly, the order dated 29.7.2020 passed in Case No.26B/121/Year 2020-21 is set aside and the matter is remanded back to the Collector, Panna. 11. The petitioner is directed to appear before the Collector, Panna on 24.3.2021 and to file an application under section 5 of the Limitation Act/under section 64 (2) second proviso of Act, 2013. 12. It is made clear that in case the petitioner fails to move an application under section 5 of the Limitation Act/under section 64 (2) (2nd proviso) of the Act, 2013 pointing out sufficient cause for not filing the application within a period of six weeks, then this order shall lose its effect. With the aforesaid observations, this petition is finally disposed of.