IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH LPA No.64 of 2011(O&M) Date of decision: 20.1.2011 The General Manager, Haryana Roadways. Chandigarh …..Appellant versus Prem Singh and others ……Respondents CORAM: Hon’ble Mr.Justice Jasbir Singh Hon’ble Mr.Justice Rakesh Kumar Garg Present: Ms.Palika Monga, DAG Haryana Advocate for the appellant Jasbir Singh, J. (Oral) The State has filed LPA No.64 of 2011, to impugne a judgment passed by the learned Single Judge on 5.3.2009, disposing of 23 writ petitions, vide a common judgment passed in CWP No.15807 of 2008, titled as The General Manager Haryana Roadways v. Azad Singh and others. This appeal is barred by limitation to the extent of 505 days. Application to condone the same has been filed. In the affidavit annexed with that application, following grounds have been given to condone the delay:- “4. That the Hon’ble High Court had dismissed 23 similar writ petitions vide order dated 5.3.2009. The LPA No.858 of 2009 was filed by the applicants/appellants against the order LPA No.64 of 2011(O&M) dated 5.3.2009 passed by the Hon’ble High Court in one of the similar writ petitions titled General Manager Haryana Roadways, Chandigarh vs. Azad Singh by mentioning in the grounds of LPA all the writ petitions and the stay has been granted on 30.11.2009. Therefore, the separate LPA in each writ petitions were not filed. However, on the advise of the Legal Remembrancer Haryana and the Advocate General Haryana separate LPA in each writ petition including the present one against the order dated 5.3.2009 is being filed. Hence, there is no intentional delay in filing the present LPA but due to the administrative reasons. 5. That the accompanied appeal is being filed after the expiry of appeal period due to the administrative reasons. It is pertinent to mention here that the applicants/ appellants have already filed the similar / connected LPA No.858 of 2009 containing therein similar matter against the similar date of order dated 5.3.2009 passed by the Hon’ble High Court in CWP No.15807/2008 titled General Manager, Haryana Roadways, Chandigarh vs. Azad Singh (main case) and the said LPA stands admitted and stay has been granted vide order dated 30.11.2009 by the Hon’ble Bench.” At the time of arguments, we have seen the record of LPA No.858 of 2009. The respondents in this appeal were not made party in that appeal. Furthermore, one of the private respondents in other 22 writ petitions was not arrayed as respondent in that appeal also. To condone delay, reliance has been placed upon following passage in the grounds of LPA No.858 of 2009:- 2 LPA No.64 of 2011(O&M) “That the impugned judgment dated 5.3.09 disposing of CWP Nos.2285 of 2006, 2313 of 2006, 12666 of 2008, 12716 of 2008, 12727 of 2008, 12729 of 2008, 12730 of 2008, 15805 of 2008, 15806 of 2008, 15807 of 2008, 15811 of 2008, 15814 of 2008, 15815 of 2008, 15834 of 2008, 15836 of 2008, 15843 of 2008, 15844 of 2008 and 16783 of 2008, 12717 of 2008, 15831 of 2008, 15835 of 2008, 15837 of 2008, 15841 of 2008 and 15848 of 2008 passed by the Ld. Single Judge is against facts and law and the same is liable to be set aside.” We have heard counsel for the applicant-appellant and also perused the record of the appeal earlier filed and the present LPA. The ground to condone delay is absurd and shows non-application of mind. It is apparent from the record that against a common award passed by the Labour Court, the State authorities have filed 23 separate writ petitions. If that was so, it is not believable that those very officers were satisfied by filing only one LPA against judgment passed by the Single Judge 5.3.2009 disposing of all the cases with one judgment. The explanation given in this application is not justified and lacks bonafide. The certified copy of the order in CWP No.15807 of 2008 and certified copy of the order passed in CWP No.2285 of 2006, which is under challenge in this appeal were received by the applicant on 9.7.2009. Despite having obtained short orders in all the 22 writ petitions, besides the order passed in the main writ petition, the respondents remained contended by filing only one appeal laying challenge to the order passed in the main writ petition. Counsel for the applicant states that LPA No.858 of 2009 was admitted and stay has been granted. 3 LPA No.64 of 2011(O&M) Be that as it may that appeal was filed well within the period of limitation, whereas in a very cursory manner, appeals were not filed in other 22 writ petitions. There is nothing on record to show as to who formed an opinion and remained satisfied by filing only one appeal. As per law and otherwise also, it was known to the applicant that 23 separate appeals are required to be filed. There is also nothing on record to show that which officer has taken decision not to file the separate appeals. No case is made out to condone the delay. A Full Bench of this Court in the case of Smt.Tara Wanti v. State of Haryana, 1994 P.L.J. 495, was also dealing with a similar situation, where prayer was made to condone the delay on account of pendency of appeals filed by other right holders, arising out of the same acquisition. As we have discussed earlier, the applicant has failed to put forth any reason which was beyond its control, which prevented it from filing the appeal, in this Court, in time. After dealing with the case law and facts of that case, the Full Bench in the case of Smt.Tara Wanti (supra), finally opined as under:- “12. We are, therefore, of the opinion that the land owners whose land had been acquired by a particular notification cannot seek condonation of undue and unexplained delay on the sole ground that another appeal out of the same acquisition is pending in this court. Similarly application for condonation of delay can also not be dismissed merely on the ground that another appeal out of the same notification had been decided by the higher Court on merits. The application for condonation of delay has to be independently decided though the dismissal of another appeal with respect to the 4 LPA No.64 of 2011(O&M) same notification may be a circumstance to be taken note of while deciding such application. The judgment of the Division Bench in Raghbir Singh’s case (supra) in so far as it observes that the delay is required to be condoned when other appeals arising out of the same notification were pending for adjudication in this Court cannot be held to be a good law. The said judgment to that extent shall be deemed to have been overruled. 13. In the instant case, the appellant-applicant had sought condonation of delay on the strength of the judgment of Raghbir Singh's case (supra) and non availability of funds. However, at the time of initial hearing in 9-11-1993 the learned counsel for the appellant submitted and the Court noted that, "the other ground of insufficiency of funds is not pressed into service during the course of arguments." Otherwise also the plea regarding non availability of sufficient funds for court-fee and other expenses was without any basis inasmuch as it had been established that after the judgment of the Additional District Judge, Kurukshetra, deciding the reference under Section 18 of the Act on 3-10-1981 the enhanced compensation with interest etc. was deposited in the Court of the Additional District Judge, Kurukshetra on 24-10- 1983. Had the appellant been vigilant she could have filed the appeal after the receipts of the compensation deposited in the Court. It is not the case of the appellant that she had not received the compensation deposited by the respondents despite the fact that a duty was cast upon her to prove that she 5 LPA No.64 of 2011(O&M) was not possessed of sufficient funds required for the purpose of filing the appeal. No useful purpose would be served in sending this matter back to the learned single Judge for decision on merits. The appellant-applicant is proved to have not sufficient cause for condoning the delay in filing the appeal. Consequently, Civil Misc. No. 207C of 1993 along with R.F.A. No. 148 of 1993 shall be deemed to have been dismissed.” In the present case also, no sufficient ground, worth the name, has been shown by the applicant for condoning the delay. A similar matter came up for consideration before the Supreme Court in the case of Mewa Ram (deceased) by his LRs and others v. State of Haryana through the Land Acquisition Collector, Gurgaon, (1986) 4 Supreme Court Cases 151. There was delay of about three years in filing a case before the competent Court. Their Lordships of the Supreme Court opined as under:- “3. The learned counsel contends on the strength of the provisions contained in ss. 25 and 28A that the Court should not be unduly technical and deprive the citizens of their legitimate claims. In support of his submission he relies on certain observations made by this Court in Madras Port Trust v. Hymanshu International by its Proprietor V. Venkatadri (dead) by Lrs., [1979] 4 SCC 176 to the effect that plea of limitation by the Government to defeat just claims of citizens should not be countenanced. We are afraid, the contention cannot prevail. 6 LPA No.64 of 2011(O&M) 4. Shri Kacker, learned counsel for the petitioners, with his usual fairness, accepts that s. 28A in terms does not apply to the case of the petitioners for more than one reason. In the first place, they do not belong to that class of society for whose benefit the provision is intended and meant i.e. inarticulate and poor people who by reason of their poverty and ignorance have failed to take advantage of the right of reference to the civil court under s.18 of the Land Acquisition Act, 1894. On the contrary, the petitioners belong to an affluent class, and they are not persons who have been deprived of property without payment of compensation. The petitioners had all applied for reference under s.18 of the Act and the civil court by adopting a different basis for computation, namely. treating the land to be potential building site, substantially enhanced the amount of compensation. On appeal there was further enhancement by the High Court. The petitioners have withdrawn large sums of money at each stage. For instance, the petitioner Mewa Ram withdrew on February 6,1976 consequent upon the award of the Land Acquisition Collector Rs.1,19,000, an additional sum of Rs.28,938.20p. On March 23, 1978 after the judgment of the learned Additional District Judge, and Rs.2,75, l05.42p. after the judgment of the High Court between December 11, 1981 and February 13, 1982. The judgment of the High Court not having been appealed from has admittedly become final. Evidently, the petitioners felt satisfied with the enhanced amount of 7 LPA No.64 of 2011(O&M) compensation as awarded by the High Court @ Rs.12.25 per square yard because they did not apply for grant of special leave under Art. 136 of the Constitution for more than three years. Merely because this Court in the two cases of Paltu Singh and Nand Kishore enhanced the rate of compensation to Rs.17.50 per square yard, could not furnish a ground for condonation of delay under s. 5 of the Limitation Act. 5. Furthermore, there is no provision in the Act apart from s. 28A for reopening of an award which has become final and conclusive. No doubt s 28A now provides for the re- determination of the amount of compensation provided the conditions laid down therein are fulfilled. For such redetermination, the forum is the Collector and the application has to be made before him within thirty days from the date of the award, and the right is restricted to persons who had not applied for reference under s. 18 of the Act. If these conditions were satisfied, the petitioners could have availed of the remedy provided under s. 28A of the Act. In that event, s. 25 would ensure to their benefit. Any other view would lead to disasterous consequences not intended by the Legislature. 6. The decision in Madras Port Trust's case is clearly distinguishable. The question involved there was as to the right of refund of the amount of wharfage, demurrage and transit charges which admittedly became exigible. The Court granted special leave on the condition that the Madras Port Trust would refund the amount irrespective of the result of the 8 LPA No.64 of 2011(O&M) appeal. At the hearing the Court declined to go into the question whether the claim of the trader for such refund was barred by s. 1 l() of the Madras Port Trust Act. 1905. and added: "The plea of limitation based on this section is one which the court always looks upon with disfavour and it is unfortunate that a public authority like the Port Trust should, in all morality and justice, take up such a plea to defeat a just claim of the citizen." The Court then said: "It is high time that governments and public authorities adopt the practice of not relying upon technical pleas for the purpose of defeating legitimate claims of citizens and do what is fair and just to the citizens. " This is mere expression of a hope and does not lay down any universal rule of application that the Government is prevented from pleading limitation as a bar. On the other hand, the Court itself observed in the Madras Port Trust's case that 'if a government or a public authority takes up a technical plea, the Court has to decide it and if the plea is well-founded it has to be upheld by the Court'. Obviously, the petitioners cannot plead their own laches as a ground sufficient for condonation of delay.” A Division Bench of this Court in CM No.1044 of 2010 in/and LPA No.378 of 2010 titled as Puran versus State of Haryana and others, 9 LPA No.64 of 2011(O&M) vide judgment dated 11.11.2010, has also held that pendency of appeal, filed by other land owners, is no ground to condone delay when sufficient ground is not shown for the same. Situation is the same in the present case. In the application, virtually no reason has been shown to condone the delay. Averments made are very vague. In view of facts mentioned above, this application is dismissed. Consequently the appeal also failed and is dismissed. (Jasbir Singh) Judge 20.01.2011 (Rakesh Kumar Garg) gk Judge 10