Civil Apln. No. 2077/11 1 IN THE HIGH COURT AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD CIVIL APPLICATION NO. 2077 OF 2011 IN FIRST APPEAL STAMP NO. 2330 OF 2011 1. The Spl. Land Acquisition Officer-3, Upper Tapi Prakalp (Hatnur), Jalgaon. 2. The Executive Engineer, Medium Project, Div. Jalgaon. ....Applicants. Versus 1. Akiluddin Mohamaduddin Faruki, Age 44 yrs., Occu. Agri., 2. Takiuddin Mohmaduddin Faruki, Age Nil, Occu. Agri., 3. Shakilabegum Barkat ali, Age Nil, Occu. Agri. 4. Mohmaduddin Sadruddin Faruki, Age 4 yrs., Occu. Agri, R/o. Marul, Tq. Yawal, Dist. Jalgaon. ....Respondents. Mr. S.K. Kadam, A.G.P. for applicants. Mr. A.B. Kale, Advocate for respondents. CORAM : NARESH H. PATIL & T. V. NALAWADE, JJ. DATED : 18th October, 2011. ORDER : [ PER T. V. NALAWADE, J. ] 1. The application is filed for condonation of delay Civil Apln. No. 2077/11 2 caused in filing the appeal against the judgment and order of Land Acquisition Reference No. 197/2003 which was pending on the file of Civil Judge, Senior Division, Jalgaon. Against the decision dated 6.5.2009 the appeal came to be filed with delay condonation application on 25.1.2011. Two affidavits are filed in support of the contentions made in the application. The other side has filed affidavit in reply. It is contended that sufficient cause is not shown. Both the sides are heard. 2. It is the case of the applicants that after the decision of the matter, the Assistant Government Pleader (A.G.P.), who was working in District Court prepared proposal and sent it to the Law and Judiciary Department of Aurangabad for obtaining opinion and approval. It is contended that after getting the approval of the Department, the matter was sent to the Government Pleader, working in the High Court. It is contended that the A.G.P. from High Court found that no arrangement for Court Fee was made and the certified copy of judgment was not containing the slip regarding the dates of application made and copy delivered. It is contended that the correct certified copy was delivered to the office of Government Pleader on 18.3.2010 and arrangement for Court Fee was made on 2.9.2010. It is contended that some time was taken for supplying typed copies of documents and all the Civil Apln. No. 2077/11 3 relevant documents were received on 13.1.2011 by the office of Government Pleader working in the High Court. It is contended that due to aforesaid administrative difficulties delay has been caused and the circumstances were beyond the control of the applicants. It is also contended that the delay is not caused intentionally. 3. By filing additional affidavit the particulars of the grounds are given by the applicants. It is contended that for getting proper certified copy accompanying with the slip of dates, some more time was required and the delay is caused of around 539 days. 4. The respondents cited following two cases :- (i) AIR 1981 (SC) 733 [Ajit Singh Thakur Singh Vs. State of Gujrat, (ii) 2008 (6) Mh.L.J. 239 [State of Maharashtra and others Vs. Vithu Kalya Govari and others]. The facts of the first case show that the delay was caused of few months in filing the criminal appeal against the Civil Apln. No. 2077/11 4 decision of acquittal. The Apex Court has discussed the factors which are required to be considered for admitting appeal by the High Court to ascertain as to whether the delay deserves to be condoned. In view of the facts of that case the Apex Court held that the delay ought not to have condoned by the High Court. In the second case, the Full Bench of this Court has discussed the principles governing the condonation of delay. On facts the Full Bench found that there was no whisper as to what steps were taken by authority/department during the period of 2 years and 45 days, the delay caused, and on the facts of the case the application was rejected. 5. For the applicants, the case reported in AIR 1987 SC 1353 [ Collector, Land Acquisition, Anantnag and another Vs. Mst. Katiji and others ] was cited. In this case the Apex Court has discussed the administrative difficulties of the Department of Government and authorities for taking various kinds of decisions with regard to filing of proceedings in the Court. It is observed by the Apex Court that, "the expression "sufficient cause" employed by the legislature in section 5 of the Limitation Act 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 Civil Apln. No. 2077/11 5 observed that such liberal approach needs to be taken for following reasons :- "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 day'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. Civil Apln. No. 2077/11 6 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. In the present matter, there are circumstances like :- (A) The first application for certified copy was made within limitation, but when the certified copy of judgment was forwarded to the office of the Government Pleader, working in the High Court, there was no slip bearing the dates which is necessary for calculating the period of limitation. (B) In view of the aforesaid circumstance second application for certified copy was made after the expiry of period of limitation. (C) The applicants were required to request the District Government Pleader working in the District Court to prepare proposal. The proposal was required to be forwarded to Law and Civil Apln. No. 2077/11 7 Judiciary Department for approval and then the matter was required to be forwarded to the Government Pleader working in the High Court. This process takes time. (D) The applicants are required to pay Court Fee in such matter and considering the huge amount required to be paid as Court Fee, the applicants were required to obtain sanction for necessary expenses in respect of the litigation. The aforesaid grounds and circumstances need to be considered for ascertaining, whether sufficient cause has been shown. These circumstances support the case of the applicants. 7. The submissions made for applicants and the record show that the applicants required to part with huge public money, if the award is enforced as it is. It is the case of the applicants that as against the amount of Rs. 57,590/-, awarded by the Land Acquisition Officer as the value of the trees which were standing in the land acquired, the Reference Court has awarded compensation of Rs. 40.50 lac. In view of these circumstances, it can be said that there is possibility of prejudice that can be Civil Apln. No. 2077/11 8 caused to the State, if the delay is not condoned. For this reason, this Court holds that the delay deserves to be condoned, subject to some conditions. 8. The respondents had to contest the present proceeding filed for condonation of delay, and the delay caused is of more than 500 days. In view of this circumstance, this Court holds that the applicants can be made to pay heavy cost of amount of Rs. 10,000/- to the respondents. 9. So the application is allowed. The delay caused in filing the appeal is condoned, subject to payment of cost of Rs. 10,000/- (Rupees ten thousand) by the applicant No. 2 to the respondents. The cost amount is to be deposited in this Court within four weeks from the date of order. The respondents are entitled to withdraw the amount of cost. [ T. V. NALAWADE, J.] [ NARESH H. PATIL, J.] ssc/