Nizamudin and Others vs Special Land Acquisition Officer

K.N. Phaneendra, J.—In all the above said appeals, the point that arise for consideration is:

"Whether the First Appellate Court has committed any error in the above said land acquisition appeals in dismissing the applications filed under section 5 of the Limitation Act seeking to condone the delay of several days in filing the appeals".

As could be seen from the Memorandum of Appeals and also the orders passed by the First Appellate Court which are impugned in these appeals, there is delay of more than 5000 days in all the above said cases before the First Appellate Court. The application filed under Section 5 of the Limitation Act before the First Appellate Court was opposed by specifically filing statement of objections by the State.

The order of the First Appellate Court disclose that the Court has insisted the counsel for the appellants to advance his arguments not only on the delay in filing the appeals but also on the merits of the case. In fact, the counsel for the appellants have filed an application under section 151 of CPC seeking indulgence of the Court to hear the appeals on limitation. Therefore inevitably the Court has heard the application under section 5 of the Limitation Act and ultimately by giving reasons dismissed the appeals. Consequent dismissal of limitation application the appeals were also dismissed as barred by time.

Sri Ameet Kumar Deshpande, learned counsel for the appellants strenuously contends before this Court that there is a mistake committed by me counsel appearing for the appellants before the First Appellate Court. Though there is in detail affidavits are filed in support of the limitation applications, the evidence has not been lead on the applications in order to prove such facts before the Court. Not only the appellants have preferred appeals in delayed manner on the ground that in other similar set of cases the compensation has been enhanced, but also they have taken up several contentions as to why they could not able to prefer the appeals. That is to say, they are poor farmers, lost their lands and compensation has not been paid within time. They were penniless after the lands being acquired. Therefore, they were unable to pay court fee. Therefore there is long delay in preferring the appeals. These are the factors that ought to have been satisfied before the Court by leading evidence by the parties by providing sufficient materials before the Court. Due to the mistake of the counsel, that opportunity has been lost to the appellants. Therefore, he contends that for the mistake of the advocate the party should not suffer therefore an opportunity may be provided to the appellants to lead their evidence in support of limitation application and also file necessary documents to show that they have sufficient reasons to prefer appeals in delayed manner and they were prevented by genuine and sufficient cause.

Smt. Archana P. Tiwari learned High Court Government Pleader appearing for the State strenuously contends that the main ground that has been relied upon by the First Appellate Court for dismissal of the application filed under section 5 of the Limitation Act is that the appellants have slept over their rights for more than 5000 days and they only woke up only when the enhancement order was passed by this Court in some other similar matters pertaining to the same acquisition proceedings. Therefore such a ground is not available to them So far as other grounds are concerned, there is no evidence placed before the Court for consideration.

The learned counsel for the State strenuously contends in view of the latest decision of the Supreme Court in the case of Brijesh Kumar and Others Vs. State of Haryana and Others, AIR 2014 SC 1612 : (2014) AIRSCW 1831 : (2014) 4 SCALE 50 wherein the Apex Court has observed that the relief granted by the Court in similar case as the same cannot furnish a proper explanation for delay and laches on that ground unjustified delay cannot be condoned. On that ground the Apex Court has also considered several decisions and came to such conclusion the inordinate delay of 10 years 2 months 29 days was considered to be very huge and inordinate delay and not condoned by the Apex Court. The learned counsel for the appellants has also relied upon a decision reported in Collector, Land Acquisition, Anantnag and Another Vs. Mst. Katiji and Others, AIR 1987 SC 1353 : (1987) 13 ECC 27 : (1988) 19 ECR 565 : (1987) 28 ELT 185 : (1987) 167 ITR 471 : (1987) 1 JT 537 : (1987) 1 LLJ 500 : (1987) 1 SCALE 413 : (1987) 2 SCC 107 : (1987) 2 SCR 387 : (1987) 66 STC 228 : (1987) 2 UJ 29 wherein the Apex Court has laid down certain principles that how the condonation of delay application has to be considered, the Courts should normally adopt lenient view regarding delay.

I do not venture upon go into details because of the simple reason this Court is of the opinion that the opportunity which was provided to the parties has not been utilized due to the insistence of the learned counsel to the Court to hear the application under section 5 of the Limitation Act and to dispose of the appeals. This Court is of the opinion that an opportunity should be provided to the parties to lead evidence before the First Appellate Court in order to establish their genuine cause for condonation of delay. Therefore, whatever materials available to the appellants and to the State they are at liberty to place it before the First Appellate Court while arguing the matter on merits and as well as on limitation application.

I have carefully perused the orders of the First Appellate Court. There is no dispute that the appellants are the sufferers having lost their lands and they are farmers and they have taken some compensation amount. It is specifically alleged in the affidavits filed in support of the limitation applications that the major portion of their lands have been acquired by the Government for the purpose of construction of Khaji Kotnur tank and awarded only meager amount and the amount has not been deposited in spite of their several requests and filing execution petitions before the Court and only in the year 2011 in the month of January the compensation amount has been deposited before the Court. Immediately after that in the year 2011 they preferred appeals and they have explained that they were unable to pay court fee. Therefore they could not able to prefer appeals and consequently they have taken up contention that in the year 2010 they came to know that the lands which are acquired under the same notification were awarded Rs. 1,10,400/- by the High Court of Karnataka and the Government has not chosen to challenge the said order before the Apex Court. Therefore on that ground they have preferred the appeals in a delayed manner. The First Appellate Court has only considered this particular aspect that the appellants have preferred the appeals before the Court only on the ground that in the other similar cases compensation has been enhanced. The Court also relied upon the conduct and diligence with regard to getting matters referred to the reference Court and negligent act in preferring the appeals before the First Appellate Court against the orders passed by the reference Court. But in my opinion when there are other several grounds are also urged before the First Appellate Court that is with regard to their loosing of lands, non deposit of amount in time, incapable for payment of Court fee. All those things ought to have been considered by the First Appellate Court.

Of course there are laches on the part of the counsel appearing for the appellants before the First Appellate Court. The parties would have been lead evidence to prove their sufficient ground to condone the delay, as pleaded in the affidavits, that opportunity had been lost and moreover the First Appellate Court has also not made any whisper about other grounds urged by the appellants in their affidavits.

Looking to the above facts and circumstances of the case, the First Appellate Court has not given any findings on the merits of case. Even if the First Appellate Court is of the opinion that the delay has to be condoned on other factors and grounds, the Court has to decide whether the parties are entitled for enhanced compensation if so, to what extent etc. Therefore it is just and necessary to remit the matters.

Of course there is delay of 306 days in filing these miscellaneous second appeals before this Court. The learned counsel for the appellants submitted that inadvertently on the advise of the counsel the appellants have preferred writ petitions in writ petition Nos. 82082/2012 and 86650-86659/2012 on the file of this Court instead of filing miscellaneous second appeals before this Court. The learned counsel for the appellants produced the orders of this Court in the above said writ petitions dated 22.02.2013 wherein this Court has observed that

"the learned counsel appearing for the petitioners seeks leave of the Court to withdraw the petition and prefer Miscellaneous Second Appeal against the impugned order. The said submission was placed on record. The petitioners are directed to withdraw this writ petition with liberty to prefer Miscellaneous Second Appeal The time spent in prosecuting the matter before this Court by filing writ petition shall be excluded for the purpose of limitation".

The said writ petitions were filed in the year 2012 itself. Therefore, in view of the orders passed by this Court the said period has to be excluded. The writ petitions were filed on 13.06.2012 challenging the order of First Appellate Court dated 20.03.2012. Therefore the writ petitions were within 90 days. Hence, there is no delay in preferring the writ petitions and if the time spent in the writ proceedings is excluded then the appeals before this Court are also in time. Hence, the formal delay application filed for condonation of delay in preferring the appeals are hereby allowed and delay is hereby condoned.

Therefore, under the above said circumstances, an opportunity should be given to the appellants to lead evidence on the application filed under section5 of the Limitation Act before the First Appellate Court. The Court has to hear the matter both on merits of the case and as well as limitation application. The appellants are at liberty to show the sufficient cause for condonation of delay. The Court has to give finding not only on the application filed under section 5 of the Limitation Act but also on the merits of the case, if it were to condone the delay, but in spite of providing an opportunity if the Court is of the opinion that the limitation application cannot be allowed and delay cannot be condoned, then it should not venture upon to give any finding on merits of the case. With these observations, I proceed to pass the following:

ORDER

All the above said appeals are hereby allowed. Consequently, the orders passed by the First Appellate Court in LAC Nos. 86/2011, 99/2011, 97/2011, 125/2011, 98/2011, 87/2011, 89/2011, 88/2011, 101/2011, 103/2011 and 100/2011 on I.A.I. filed under section 5 of the Limitation Act dated 20.04.2013 are hereby set aside. Consequently, all LAC appeals are restored to the file of IV Addl. District Judge, Gulbarga with a direction to provide opportunity to the parties to lead their evidence on the limitation application filed by them. The First Appellate Court has to hear the matters as directed by this Court and dispose of the applications filed under section 5 of the Limitation Act in accordance with law.

The appellants are entitled for refund of court fee paid before this Court as per law.