1 Civil Appln.No.6001.06+1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CIVIL APPLICATION NO. 6001 OF 2006 IN FIRST APPEAL STAMP NO. 11580 OF 2006 (IN L.A.R.NO. 355 OF 1990) The State of Maharashtra ...APPLICANT. VERSUS 1. Chanbas S/o Fakirappa Kumbhar Dead. Throuhg His L.Rs. And others. ...RESPONDENTS. WITH CIVIL APPLICATION NO. 6000 OF 2006 IN FIRST APPEAL STAMP NO. 11576 OF 2006 (IN L.A.R.NO. 354 OF 1990) The State of Maharashtra ...APPLICANT. VERSUS 1. Ireshappa S/o Ganpati Kumbhar And another. ...RESPONDENTS. 2 Civil Appln.No.6001.06+1 ... Shri.S.D.Kaldate,A.G.P. for Applicants. Shri.S.R.Barlinge,Advocate for Respondent No.1. in C.A.No.6000/06 and for Resp.No.1,2 and 7 in C.A.No.6001/06 Shri. V.C.Solshe,Advocate for Respondent No.2in C.A.No.6000/06 & for Resp. No.10in C.A.No.6001/06. ... CORAM: NARESH H. PATIL AND K.K. TATED, JJ. DATE : 2ND SEPTEMBER, 2010. PER COURT : 1. Both these above mentioned appeals have been preferred by the State against the Judgment and Award passed by the Reference Court and are barred by time. The State has filed an application for condonation of delay on some what similar explanation in both the applications. There is delay of 696 days. FEW FACTS OF THE MATTER ARE AS UNDER : 2. The Special Land Acquisition Officer issued 3 Civil Appln.No.6001.06+1 Notification under section 126 of Maharashtra Regional Town Planning Act, on 1st September, 1988 for acquiring respondents-Original claimants’ land to the extent of 70 Ares from land Survey No. 203 situated at Umarga, District Osmanabad for the public purpose i.e. construction of houses in land Acquisition Reference No. 354 of 1990. The land Acquisition Reference bearing No. 355 of 1990 is in respect of 2/3rd shares of the respondents- original claimants, in acquired portion of land from Survey No. 203. The Land Acquisition Reference No. 355 of 1990 is in respect of acquired portion of the claimants in respect of their share to the extent of 16.66%. 3. After following due process of law, the Special Land Acquisition Officer passed Award dated 30th June 1989 and awarded compensation in respect of the acquired land. 4. Being aggrieved by the said Award, respondents preferred References under Section 18 of the Land 4 Civil Appln.No.6001.06+1 Acquisition Act and claimed compensation @ Rs.1000/-(Rupees One Thousand) Per Square Meter. 5. The Special Land Acquisition Officer for the land in Land Acquisition Reference No. 354 of 1990 awarded compensation in the sum of Rs.12,652/- (Rupees Twelve Thousand Six Hundred and Fifty Two) and in Land Acquisition Reference No. 355 of 1990 Rs. 50,628/-(Rupees Fifty Thousand Six Hundred and Twenty Eight), while the Reference Court by its Judgment and Award granted compensation @ Rs.68.86 per sq. meter. At this rate the compensation in Land Acquisition Reference No. 354 of 1990 worked out to Rs. 80,305/-(Rupees Eighty Thousand Three Hundred Five) and Land Acquisition Reference No. 355 of 1990 Rs.3,21,346/-(Rupees Three Lakhs Twenty One Thousand Three Hundred Forty Six). 6. The Certified copies and Judgment and Award passed by the Reference Court on 29th April, 2004, reveal that the applicants applied for 5 Civil Appln.No.6001.06+1 certified copies of Judgment and Award on 18/05/2006 and the same were ready for delivery on the same day. Thereafter, present First Appeals were filed in this Court on 23rd June, 2006 i.e. beyond 696 days. 7. Mr. Kaldate, learned A.G.P. appearing on behalf of applicants submits that there is delay in preferring above mentioned First appeals, because of administrative procedure required to be followed for preferring the First Appeals on behalf of the Government. He further submits that they have good chance of success in the present Appeals. 8. The learned A.G.P. further submits that though Judgment and Award passed by the Reference Court on 29th April, 2004, Office of the Government Pleader at Aurangabad received all papers on 19th May, 2006. He further submits that since they have received communication from Law and Judiciary Department, Aurangabad, they sent fax message to 6 Civil Appln.No.6001.06+1 the concerned Officer on 13th July, 2004, 29th July, 2004, 13th August, 2004, 7th June, 2005 and 29th June,2005 for certified copies of Judgment and Award and typed copies of the Judgment and Award in four sets. In spite of several communications concerned officer failed to provide the same immediately. They received these documents on 19th May, 2006 and thereafter immediately, they preferred above mentioned First Appeals in this Court on 23rd June, 2006. 9. He submits that in the interest of justice, the delay in preferring the First Appeals be condoned. He further submits that if the delay is not condoned, irreparable loss and injury will be caused to the applicants, as public money is involved in the present matter. 10. In support of his contention, he relied on the Judgment in the matter of Collector, Land Acquisition, Anantnag and another Vs. Mst. Katiji and others reported in AIR 1987 Supreme Court 7 Civil Appln.No.6001.06+1 1353; it is held: "3.The legislature has conferred the power to condone delay by enacting Section 5 of the Indian Limitation Act of 1963in order to enable the Courts to do substantial justice to parties by disposing of matters on 'merits'. The expression "sufficient cause" employed by the legislature is adequately elastic to enable the courts to apply the law in a meaning-ful manner which subserves the ends of justice--that being the life-purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:- "Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908. may be admitted after the prescribed period if the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period." 1. Ordinarily a litigant does not stand to benefit by lodging an appeal late. 2. Refusing to condone delay can 8 Civil Appln.No.6001.06+1 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 malafides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk. 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. Making a justice-oriented approach 9 Civil Appln.No.6001.06+1 from this perspective,there was sufficient cause for condoning the delay in the institution of the appeal. The fact that it was the 'State' which was seeking condonation and not a private party was altogether irrelevant. The doctrine of equality before law demands that all litigants, including the State as a litigant, are accorded the same treatment and the law is administered in an even handed manner. There is no warrant for according a stepmotherly treatment when the 'State' is the applicant praying for condonation of delay. In fact experience shows that on account of an impersonal machinery (no one in charge of the matter is directly hit or hurt by the judgment sought to be subjected to appeal) and the inherited bureaucratic methodology imbued with the note- making, file pushing, and passing- on-the-buck ethos, delay on its part is less difficult to understand though more difficult to approve. In any event, the State which represents the collective cause of the community, does not deserve a litigant-non-grata status. The Courts therefore have to be informed with the spirit and philosophy of the provision in the course of the interpretation of the expression "sufficient cause". So also the same approach has to be evidenced in its application to matters at hand with the end in view to do even handed justice on mertis in preference to the 10 Civil Appln.No.6001.06+1 approach which scuttles a decision on merits. Turning to the facts of the matter giving rise to the present appeal, we are satisfied that sufficient cause exists for the delay. The order of the High Court dismissing the appeal before it as time barred, is therefore. set aside. Delay is condoned. And the matter is remitted to the High Court. The High Court will now dispose of the appeal on merits after affording reasonable opportunity of hearing to both the sides.” 11. He also relied on the Judgment in the matter of State of U.P. and others V. Harish Chandra and others, reported in AIR 1996 Supreme Court 2173, Particularly Head Note “A”. "(A) Constitution of India, Art.136- Appeal-Delay and laches—Condonation of -Delay of 480 days in preferring Special leave petition-Delay in processing matter through official channel-can be condoned.” 12. Per Contra, Mr. Barlinge, learned Counsel appearing on behalf of respondents-original claimants vehemently opposed the applications filed by the applicants for condonation of 696 days delay in preferring the present appeals 11 Civil Appln.No.6001.06+1 against the Judgment and Award of Reference Court dated 29th April, 2004. The original claimants filed their affidavit in reply dated 10th September, 2007. 13. The learned counsel appearing on behalf of respondents-claimants submits that there is no sufficient cause shown in the entire applications for condonation of delay. He submits that the applicants alleged that because of administrative procedure in filing appeals beyond limitation period is also misleading and false. He further submits that though Reference Court passed common Judgment and Award dated 29th April, 2004, the applicants failed and neglected to make payment of enhanced compensation to the respondents, therefore, they filed Special Darkhast No.87 of 2005 in Land Acquisition Reference No. 355 of 1990 on 17th March 2005, and Special Darkhast No. 88 of 2005 in Land Acquisition Reference No. 354 of 1990. In the said Darkhasts, the Civil Judge, Senior Division, Osmanabad after following due 12 Civil Appln.No.6001.06+1 process of law issued recovery warrant under Order 21 Rule 43 of the Code of Civil Procedure, against the Collector, Osmanabad. In spite of recovery Warrant, the applicants failed to deposit any amount in both Darkhasts till today. 14. He further submits that Law and Judiciary Department by its letter dated 09th July, 2004 forwarded proposal to file the present Appeals. It is specifically stated in the letter of the Law and Judiciary Department that the appeals be filed within time and obtain appropriate order for stay. The copy of the said letter was forwarded to the District Government Pleader, Osmanabad, Collector, Osmanabad, Special Land Acquisition Officer and Sub-Divisional officer, Osmanabad for taking appropriate steps. 15. He further pointed out that the said letter dated 08-09th July, 2004 received in the office of Govt. Pleader High Court well in time and in spite of that, the applicants failed to 13 Civil Appln.No.6001.06+1 file the present Appeals within time. He further submits that despite receiving communication from the Office of Law and Judiciary Department, it is not explained by the applicants in the present applications as to why the appeals are not filed till 23rd June, 2006. He further submits that the applications for condonation of delay were ready in the month of August, 2005, however, they took almost ten months time for actual filing, which appears to be mistake on the part of Government Pleader. Therefore, the reasons mentioned in the applications are not true and when applications are based on false averments, such applications should not be entertained by this Court. 16. The learned counsel appearing on behalf of respondents-Original claimants submits that the applicants failed to disclose the sufficient cause for condonation of inordinate delay of 696 days in preferring the present appeals, except stating in para No. 3 of their Civil Applications that: 14 Civil Appln.No.6001.06+1 “3.The applicant say and submit that the above referred documents received in the office of the Government Pleader on 19.05.2006 and thereafter immediately is filed in this Hon’ble High Court. It is humbly submitted that the delay caused in filing of appeal is neither intentional nor deliberate, however, the same is caused due to administrative procedure required to be followed. The appeal is based on so many legal and sound grounds and applicant expects every success in it and therefore in the interest of justice the delay caused in filing of appeal requires to be condoned" Nothing is stated in support of the inordinate delay caused in preferring the First Appeals in this Court. 17. He further submits that our High Court in the matter of State of Maharashtra and others Vs. Vithu Kalya Govari and others, reported in 2008(6) Mh.L.J.239 held that the Court would exercise its discretion in condoning or declining to condone delay judiciously and ensure that no serious prejudice is caused to either of the parties to the proceedings. When an appeal becomes barred by 15 Civil Appln.No.6001.06+1 time because of negligence or default of one of the parties, valuable right accrues to the others are normally not being taken away in routine manner and too liberalized exercise of discretionary power. The Head Note “A, B and C” of this citation read thus: “(a) Limitation Act (36 of 1963),S. 5- Application for condonation of delay-Governing principles.” (b) Land Acquisition Act, S.54 and Limitation Act (36 of 1963),S.5- Appeals by State against enhancement of compensation in L.A. References-Condonation of delay in filing appeals-merely because the delay has occurred because of “official hassle” and “approval at different levels”, it can hardly justify condonation of delay.” (c) Land Acquisition Act, S.54- Land Acquisition appeals against enhancement of compensation -Filing of appeals in a mechanical manner beyond the period of limitation has become a rule- The doctrine of public accountability is attracted- Directions issued to the State.” 18. On the basis of these submissions, the learned Counsel appearing on behalf of the respondents submits that there is no merit in the present Civil applications and same be dismissed 16 Civil Appln.No.6001.06+1 with Costs. 19. We have heard both the sides at length. It is an admitted fact that in the Civil Applications for condonation of delay the applicants failed to disclose any cogent reason and / or sufficient cause for condonation of inordinate delay of 696 days. It is stated in the Civil Applications that the delay was caused in filing appeals due to administrative procedure required to be followed. It is further stated in the Civil Applications that they called upon the Special Land Acquisition Officer-concerned authority by their Fax message dated 13th July, 2004, 29th July, 2004, 13th August, 2004, 7th June, 2005 and 29th June, 2005 for certified copies of judgment and award and typed copies of judgment and award in four sets. In spite of these fax messages, the Special Land Acquisition Officer-Concerned authority failed to provide the same to them immediately. 20. The applicants state that they received these documents on 29th May, 2006 and thereafter, 17 Civil Appln.No.6001.06+1 they filed present appeals on 23rd June, 2006 in this Court. This itself shows that the applicants failed to disclose any cogent reason for condoning delay. It is true that party is entitled to wait but only till the last date of limitation for filing appeal, but when it allows limitation to expire and pleads sufficient cause for not filing appeal earlier the sufficient cause must be established by disclosing some events and circumstances which arose before limitation expired and therefore the appeals could not be filed within time. 21. From the present Civil Applications, it is crystal clear that no events or circumstances arose after expiry of limitation to constitute sufficient cause. Though, it is stated in the applications that they called upon Authorities to provide certified copies of the Judgment and Award alongwith four typed copies of the same by various fax messages, there is no affidavit in support of the present Civil Applications from the said 18 Civil Appln.No.6001.06+1 Authorities why they failed to provide the same to the office of Government Pleader of High Court, Bench at Aurangabad, in time. 22. In the entire Civil Applications there is no explanation for delay in preferring the present appeals for such a long delay. It is to be noted that expiration of period of limitation prescribed for making an appeal gives rise to right in favour of the Decree Holder to treat the decree as binding between the parties and this legal right which has accrued to the Decree Holder by lapse of time should not be light heartedly interpreted with. The Apex Court in the matter of Pundlik Jalan Patil Vs. The Executive Engineer Jalgaon Medium Project reported in 2008(6) ALL M.R. 954 held that dragging the land loosers to Courts of law years after the termination of legal proceedings would not serve any public interest. Para Nos. 23 and 24 read as follows : 19 Civil Appln.No.6001.06+1 "23.Statutes of limitation are sometimes described as "statutes of peace.' An unlimited and perpetual threat of limitation creates insecurity and uncertainty; some kind of limitation is essential for public order. This Court in (Rajender Singh and others V 23. Statutes of limitation are sometimes described as `statutes of peace'. An unlimited and perpetual threat of limitation creates insecurity and uncertainty; some kind of limitation is essential for public order. This court in Rajender Singh and others vs. Santa Singh and others [(1973) 2 SCC 705] has observed : "the object of law of Limitation is to prevent disturbance and deprivation of what may have been acquired in equity and justice by long enjoyment or what may have been lost by a party's own inaction, negligence or laches". In Motichand vs. Munshi [(1969) 2 SCR 824], this court observed that this principle is based on the maxim "interest republicae ut sit finis litum, that is, the interest of the State requires that there should be end to litigation but at the same time law of Limitation are a means to ensuring private justice suppressing fraud and perjury, quickening diligence and preventing oppression. It needs no restatement at our hands that the object for fixing time limit for litigation is based on public policy fixing a life span 20 Civil Appln.No.6001.06+1 for legal remedy for the purpose of general welfare. They are meant to see that the parties do not resort to dilatory tactics but avail their legal remedies promptly. Salmond in his jurisprudence states that the laws come to the assistance of the vigilant and not of the sleepy." "24. Public interest undoubtedly is a paramount consideration in exercising the courts discretion wherever conferred upon it by the relevant statutes. Pursuing stale claims and multiplicity of proceedings in no manner sub-serves public interest. Prompt and timely payment of compensation to the land loosers facilitating their rehabilitation/resettlement is equally an integral part of public policy. Public interest demands that the State or the beneficiary of acquisition, as the case may be, should not be allowed to indulge in any act to unsettle the settled legal rights accrued in law by resorting to avoidable litigation unless the claimants are guilty of deriving benefit which otherwise not entitled in law in any fraudulent manner. One should not forget the basic fact that what is acquired is not the land but the livelihood of the land loosers. These public interest parameters ought to be kept in mind by the courts while exercising the discretion dealing with the application filed under Section 5 of the Limitation Act. Dragging the 21 Civil Appln.No.6001.06+1 land loosers to courts of law years after the termination of legal proceedings would not serve any public interest. Settled rights cannot be lightly interfered with by condoning inordinate delay without there being any proper explanation of such delay on the ground of involvement of public revenue. It serves no public interest.” 23. Section 5 of the Limitation Act 1963 enables the Appellate Court to admit the appeal after prescribed period on the appellant- applicants’ satisfying the Court that he had sufficient cause for not preferring the appeal in time. It is satisfaction about sufficiency of the cause in not preferring the appeal in time, that confers jurisdiction to the Appellate Court for condoning delay in filing the appeal. If appellant-applicant does not show sufficient cause in preferring the appeal in time, the Court does not gave the power to arbitrarily condone the delay in the matter advancing substantial justice merely because the applicant-litigant happens to be the Government. In the present case, the 22 Civil Appln.No.6001.06+1 applicants failed to disclose sufficient cause for condoning the delay of 696 days in preferring the First Appeals in this Court. 24. We have perused the authorities cited by the learned A.G.P. appearing on behalf of the applicants in the matter State of U.P. and others V. Harish Chandra and others(supra), the Apex Court held that, the delay in processing matter through official channels is sufficient cause to condone the delay. There is no dispute about this. In the present matters, bare reading of the Civil Applications for condonation of delay shows that the applicants failed to justify and or disclose a single reason for inordinate delay for preferring the appealS. In similar way, in the matter of Collector, Land Acquisition, Anantnag and another Vs. Mst. Katiji and others(Supra), the Hon’ble Apex Court held that Court should adopt liberal approach in condoning the delay. If applicants show some sufficient cause, then only same can be applicable. In the present case, the applicants 23 Civil Appln.No.6001.06+1 have not disclosed any reason for delay except stating that same is caused due to administrative procedure required to be followed without explaining the delay. Therefore, both the authorities are distinguishable on facts. 25. On the other hand, on similar facts and circumstances of the case, our High Court in the matter of State of Maharashtra and others Vs. Vithu Kalya Govari and others cited supra held that merely because delay has occurred because of “Official hassle” “and approval of different levels”, it can hardly justify condonation of delay. 26. Though, the Executing Court passed Recovery Warrant under Order 21 Rule 43 of the Code of Civil Procedure against the Collector, Osmanabad, the applicants failed to deposit decretal amount either in executing Court and/or in this Court. Bare reading of the Civil Applications shows that the applicants failed to disclose true facts in 24 Civil Appln.No.6001.06+1 support of their applications. We see no reasons to discard the contentions raised by the respondents-Original claimants in their affidavit in reply that the applicants have made misleading and false statement in the present Civil Applications. 27. In the above mentioned facts and circumstances, we do not find any substantial cause disclosed by the applicants for condonation of 696 days delay in preferring the present appeals. Therefore, the applications are devoid of merits and same are dismissed. No order as to costs. Sd/- Sd/- [K.K. TATED, J.] [NARESH H. PATIL, J.] MTK