1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CIVIL APPLICATION NO. 5977 OF 2007 IN FIRST APPEAL ST. NO.12404 OF 2007 IN M.A.R.J.I. NO.808 OF 2005 Smt. Gulabben Bhagwandas Shah, Age: 79 years, Occ: Household, R/o. Opp. Gulzar Talkies, Aurangabad & Anr. ...APPLICANTS VERSUS The State of Maharashtra, Through the Collector, Aurangabad & Ors. ...RESPONDENTS WITH CIVIL APPLICATION NO. 5975 OF 2007 IN FIRST APPEAL ST. NO.12413 OF 2007 IN L.A.R. NO. 704 OF 1997 Smt. Gulabben Bhagwandas Shah, Age: 79 years, Occ: Household, R/o. Opp. Gulzar Talkies, Aurangabad & Anr. ...APPLICANTS VERSUS 2 The State of Maharashtra, Through the Collector, Aurangabad & Ors. ...RESPONDENTS ... Shri. S.V. Advant, Advocate for applicants. Shri. Pradeep Deshmukh, Advocate holding for Shri. Sudhir Bhalerao, Advocate for respondent No.5. Shri. R.R. Mantri, Advocate for respondent Nos.6A to 6C. Shri. S.D. Kaldate, A.G.P. for respondent State. ... CORAM: NARESH H. PATIL AND K.K. TATED, JJ. RESERVED ON : 06-09-2010 PRONOUNCED ON: 14-09-2010 ORDER : [ PER K.K. TATED, J.] 1. Heard learned counsel for the parties. 2. Both these appeals have been preferred by the original respondent Nos.3 and 4 against the judgment and award passed by the Reference Court and barred by time. 3. The applicants - original respondent Nos. 3 3 and 4 have filed applications for condonation of delay on some what similar explanation in both the applications. 4. In Civil Application No. 5977/2007, the applicants are seeking condonation of delay of 262 days and in Civil Application No.5975/2007 delay of 567 days. 5. Few facts of the matter are as under: Civil Application No.5977/2077 is preferred by the applicants for condonation of 262 days delay in filing First Appeal against the judgment and order dated 29-07-2006 passed by the Joint Civil Judge, Senior Division, Aurangabad in M.A.R.J.I. No.808/2005. 6. Civil Application No.5975/2007 preferred by the applicants for condonation of 567 days delay in preferring First Appeal against the judgment and award dated 30-09-2005 passed by the Reference 4 Court in L.A.R. No. 704/1997. 7. It is the case of the applicants that the State of Maharashtra issued notification under Section 126 of the Maharashtra Regional and Town Planning Act read with Section 6 of the Land Acquisition Act dated 25-01-1993 for acquisition of land for the construction of 24.39 meters i.e. 80 feet wide road from Jalna road to Shahanoormiya Dargah at Aurangabad, as per the development plan. The applicants being the owners of part of land C.T.S. No.14814/A, which was also affected by the said acquisition proceedings, have filed an objection before the Special Land Acquisition Officer, Aurangabad. 8. After following due process of law, the S.L.A.O. passed award dated 21-02-1995 and referred the question of apportionment of compensation of C.T.S. No.14814/A to the Civil Court under Section 30 of the Land Acquisition Act, 1894. 5 9. The learned Joint Civil Judge, Senior Division, Aurangabad by judgment and award dated 30-09-2005 was pleased to decide the Reference and held that respondent No.5 alongwith 14 plot owners are entitled to receive the compensation amount equally. 10. Thereafter, respondent No. 5 had filed application under Section 114 and Order 47 of the Code of the Civil Procedure for review of the judgment and award dated 30-09-2005, contending that 14 plot owners are not entitled for compensation. 11. The said Review Application has been decided by the Joint Civil Judge, Senior Division, Aurangabad on 29-07-2006 and modified the order dated 30-09-2005 in L.A.R. No.704/1997 holding that the compensation amount deposited in the Court amounting to Rs.21,63,701/- (Rs. Twenty one lac sixty three thousand seven hundred one only) 6 be paid to respondent No.5 Ramanlal Thakurdas Parikh only alongwith interest thereon. 12. The applicants state that thereafter respondent Bhagwandas Alidas Kalda preferred First Appeal No.880/2006 in this Court challenging the judgment and order dated 29-07-2006 passed by the Joint Civil Judge, Senior Division, Aurangabad in M.A.R.J.I. No.808/2005. It is the case of the applicants that the said First Appeal No.880/2006 was fixed for final disposal at the stage of admission itself. On 06-06-2007 the legal heirs of respondent No.6 withdrew the said appeal by filing compromise pursis dated 06-06-2007. It is stated in the said pursis that " in view of out of Court settlement between the appellants and respondent No.8, the appellants do not want to proceed with the appeal. Hence the appellants are withdrawing the appeal." In view of compromise pursis, this Court (Coram : N.V. Dabholkar, and M.G. Gaikwad, JJ.) passed order dated 06-06-2007 and disposed of the First Appeal as withdrawn. 7 13. It is the case of applicants that without intimating them, the legal heirs of respondent No.6 withdrew the said appeal. These facts were not known to them. As soon as they learnt about the same, they immediately contacted their Advocate and preferred the present appeals. 14. Applicant No.1 is 79 years old and is bed ridden for last two years due to several ailments and resides with the Applicant No.2. It is the case of applicant No.2 that she is suffering from diabetes and blood pressure since last 8 years and was busy in the treatment of her husband as well, who was operated for Bye-pass at Hyderabad in the year 1996 and for Angioplasty at Hyderabad in the year 2003 later for Prostate and Harnia at Asian Institute, Hyderabad in the year 2004 and again for a second time for Prostate gland at Asian Institute, Hyderabad in the year 2006. Due to illness, they could not take immediate steps to prefer the present appeals within time. In support 8 of her contention about illness, the applicants produced Doctor's prescriptions and other material on record. Applicant No. 1 expired on 10-02-2008. To that effect applicant No.2 filed pursis dated 03-10-2009 and same is on record. 15. The applicants state that because of old age and illness, they could not take immediate steps for preferring appeal against the judgment and award dated 29-07-2006 passed by the Joint Civil Judge, Senior Division, Aurangabad in M.A.R.J.I. No. 808/2005 and judgment and award dated 30-09-2005 in L.A.R. No.704 of 1997. In support of their contentions, the applicants relied on the following authorities. (1) Collector,Land Acquisition, Anantnag and another vs. Mst. Katiji and others [(1987) 2 S.C.C.107]. (2) N. Balakrishnan vs. M. Krishnamurthy [(1998) 7 S.C.C. 9 123]. (3) M.K. Prasad vs. P. Arumugam [(2001) S.C.C. 176]. (4) Commissioner, Nagar Parishad, Bhilwara vs. Labour Court, Bhilwara and another [(2009) S.C.C. 525]. 16. Shri. Pradeep Deshmukh, learned Counsel appearing on behalf of respondent No.5 vehemently opposed the present Civil Applications. He submits that the applicants failed to adduce cogent evidence for condonation delay in preferring the First Appeals. He submits that the applicants never participed in L.A.R. proceedings before the Reference Court. Not only since 1994, the applicants never actively participated in Land Acquisition proceeding before the Land Acquisition Officer. He submits that the applicants themselves were not vigilant in protecting their own interest since beginning and therefore, they are not entitled to any sympathy from this Court for 10 condonation of delay on the ground of illness and old age. 17. He submits that the applicants actively did not participate in acquisition proceedings in respect of the same land. That shows that they were negligent in taking appropriate steps in the Land Acquisition proceedings since beginning. 18. He submits that their affidavit in reply filed in C.A. No.5976/2007 be treated as affidavit in reply in the present matter. In their reply dated 14-10-2007 filed in C.A. No. 5976/2007, respondent No.5 stated that though the applicants had filed application before the Land Acquisition Officer, they could not substantiate their claim and could not show the interest in the property and therefore, their application was rejected and in the Award, the applicants did not get any share in the compensation. However, alongwith other claimants, in routine course, the application under Section 30 of the Land Acquisition Act was 11 forwarded to the Reference Court. 19. In the said Reference Application also, the applicants did not prosecute and produce any evidence and the matter went uncontested throughout. Even though the applicants had appeared through Advocate in those proceedings 20. He further submits that in First Appeal No.880/2006, the applicants were parties and represented through Advocate but did not file any Say nor they cared to file appeal, even though they knew that the matter was decided in favour of the present respondent and one of the parties have filed appeal before this Court. He submits that only when the said appeal was withdrawn and this respondent was about to get the amount of compensation from the Executing Court, the applicants filed present appeal and preferred Civil Applications to create hurdle in the way of their right to take compensation and the sole object is to extract some amount of compensation 12 from them. 21. The learned Counsel appearing on behalf of respondent No.5 further submits that the applicants may have any right or interest in the present case but those who sleep over their right, the Court will not help them. In the instant case, right from 1994 till date of filing of the present appeal for more than 13 years, the applicants have slept over their so called right and lost remedies which were available to them and now at this stage, they cannot set up their claim for the first time in this proceeding. 22. He further submits that there is no satisfactory explanation in the present Civil Applications for condonation of delay and therefore, present Civil Applications are liable to be dismissed with costs. He relied on the judgment in the matter of P.K. Ramchandran vs. State of Kerala and another reported in (1997) 7 S.C.C. 556. 13 23. Shri. R.R. Mantri, learned Counsel appearing on behalf of respondent Nos. 6A to 6C also vehemently opposed the present Civil Applications for condonation of delay. He submits that when the period of limitation expires, rights are created in favour of other persons and those rights cannot be interfered with lightly. According to him, the applicants failed to disclose sufficient cause for condonation of delay. 24. He further submits that since beginning the applicants never appeared either before the S.L.A.O. and/or in Reference Court and therefore, now, they cannot make applications for condonation of delay to establish their rights. This amount to gross misuse of legal procedure. 25. He submits that in First Appeal No.880/2006, though the applicants filed their appearance, they remained absent at the relevant time. He submits 14 that the said First Appeal No. 880/2006 was withdrawn by the appellant in that First Appeal after giving notice to the respondents, who were present in the Court. Therefore, there is no question of playing any fraud either on applicants and/or other respondents. He submits that in view of these facts and circumstances, there is no substance in the present Civil Applications and they are liable to be dismissed with compensatory costs. 26. We heard both the sides at length. We perused the documents and record produced before us. Prima facie, it is clear that there is delay of more than 250 days in both the matters. Though the learned Counsel appearing on behalf of the respondents argued the matter on merits, it is not necessary to consider the merits at the time of deciding the applications for condonation of delay. The Apex Court in the matter of Commissioner, Nagar Parishad, Bhilwara (supra) held that while deciding an application for 15 condonation of delay, Court could not go into merits of the case. Para-5 of the said judgment reads thus : "5. While deciding an application for condonation of delay, it is well settled that the High Court ought not to have gone into the merits of the case and would have only seen whether sufficient cause had been shown by the appellant for condoning the delay in filing the appeal before it. We ourselves have also examined the application filed under Section 5 of the Limitation Act before the High Court and, in our opinion, the delay of 178 days has been properly explained by the appellant. That being the position, we set aside the impugned order of the High Court. Consequently, the appeal filed before the High Court is restored to its original file. The High Court is requested to decided the appeal on merit in accordance with law after giving hearing to the parties and after 16 passing a reasoned order." 27. Shri. Pradeep Deshmukh, learned Counsel appearing on behalf of respondent No.5 relied on the judgment in the matter of P.K. Ramchandran (supra) to oppose the present Civil Applications. We have gone through the said judgment of the Apex Court. In that case, Apex Court allowed appeal because at the time of allowing the application for condonation of delay, though seriously opposed, the High Court merely observed that "taking into consideration the averments contained in the affidavit filed in support of the petition to condone the delay, we are inclined to allow the petition." 28. In the present case, besides the averments in the applications, the applicants produced the documents to support them. They have fully explained the delay in their Civil Applications. The Apex Court in the matter of N. Balkrishnan (supra) held that the object of fixing time limit 17 is not meant to destroy the rights. It is founded on public policy fixing a life span for the legal remedy for the general welfare. The Apex Court further held that Rules of limitation are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Para-11 of the said judgment reads thus : "11. Rules of limitation are not meant to destroy the rights of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. The law of limitation fixes a lifespan for such legal remedy for the redress of the legal injury so suffered. Time is precious and wasted time would never revisit. During the efflux of time, newer causes would sprout up necessitating 18 newer persons to seek legal remedy by approaching the courts. So a lifespan must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. The law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up 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. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time." 29. Considering the above mentioned facts and circumstances and authorities cited by both the parties, we are of the opinion that the applicants have disclosed sufficient cause for condonation of delay. 19 30. The applicants placed on record documentary evidence about the medical treatment taken by them. It is clear from those documents that both the applicants were suffering from illness for a long period. Considering the old age and the continuous illness fully supported by the medical treatment papers, we are satisfied that there is sufficient cause for the delay in preferring the appeals and in the interest of justice, the delay needs to be condoned. 31. Both the Civil Applications are allowed. The delay in preferring the appeals is condoned. We further direct the applicants to deposit costs of Rs.10,000/- (Rs. Ten thousand only) each, in both the Civil Applications, in this Court, within two weeks from today. Costs to be paid to the contesting respondents i.e. respondent No.5 and respondent Nos.6A to 6C. 20 32. Both the Civil Applications are disposed of accordingly. [K.K. TATED, J.] [NARESH H. PATIL, J.] sut/SEP10/ca5977.07