State Of J&K And Others vs Madan Mohan And Others

Vinod Chatterji Koul, J

Judgement and decree passed by learned District Judge, Udhampur, on 09.10.2013 on a Reference made under Section 18 of the Land Acquisition Act is sought to be set-aside by appellants. Since the aforesaid judgement and decree has not been challenged by appellants within the period of limitation provided for challenging the same and as there is delay of 410 days, appellants seek condonation of delay in filing this appeal on the grounds that:

i) Sh. Vishal Bharti who was the Standing Counsel for the Excise Department representing before the District Judge, Udhampur and they were under the bona fide belief that they are being represented by him. The Department of Law, Justice and Parliamentary Affairs, replaced various standing counsels including Sh. Vishal Bharti.

ii) The reference was decided on 09.10.2013, but appellant no.3 came to know about the same only on 21.10.2014, when he received letter no. 87/DECEJ/Adm/5582-83 dated 20.10.2014.

iii) The matter was referred to the Administrative Department vide letter no. EC/Trade/92/679 dated 30.10.2014 for approval to file appeal.

iv) For filing appeal, sanction/approval was required from Department of Law, Justice and PA, thus, issue had to be examined at various levels and at various departments. They were authorized to file appeal by the Law Department vide letter dated 12.01.2015.

v) The matter was discussed by the Deputy Excise Commissioner and Senior Law Officer of Excise Department with the Ld. Advocate General on 02.02.2015, and the appeal and application for condonation of delay got vetted by the Ld. Advocate General.

vi) The delay occasioned in filing the present appeal is neither willful nor deliberate, and same deserves to be condoned in the interest of justice.

These are the grounds on which appellants seek condonation of 410 days' delay in filing the appeal challenging the order passed in the Reference by learned District Judge Udhampur.

Before adverting to the grounds taken up for condoning the delay, it would be appropriate for deciding the application to give brief facts of the case.

A Notification under Section 4 of the J&K Land Acquisition Act, 1990, was issued on 27.02.2004 for acquisition of land measuring 07 Kanals 19 Marlas & 7 Sarsai at Villages Charry, Swail and Omala, Tehsil and District Udhampur, on the indent of Excise Commissioner Jammu. The acquisition was sought on the ground of urgency and accordingly process of acquisition was started. The interested parties were asked to file objections. However, they did not file objections. Instead they preferred to file writ petitions, being OWP no.71/2004 and OWP 88/2004 and CMP No:438/04. This Court, while passing the interim direction, permitted them to file objections, which were accordingly filed by them and disposed of by the Collector. The Collector prepared revised Tentative Award on 06.08.2005, in which the market value of acquired land at Charry and Swail was assessed as Rs.4.00 Lacs per Kanal and that of Village Omala as Rs.2.80 Lacs per Kanal. He prepared apportionment statement for disbursement of compensation and Final Award was passed on 17.12.2005, in which Tentative Award was considered and compensation was assessed as under:

i. For the land situated in villages Charry and Swai at Rs.3.50 lacs per kanal.

ii. For land in village Omala at Rs. 2.80 Lacs per Kanal.

iii. For shops situated on the acquired land Rs.1,49,935.00

iv. Jabrana on total cost of land Rs. 4,16,383.34.

Respondents herein, dissatisfied with the Award, moved an application under Section 18 of the Land Acquisition Act, claiming therein that market value of acquired land was around Rs.5.00 Lacs per kanal. The following issue was framed in the case:

i. What was the market value of the acquired property as at the time of notification under section 6 of Land Acquisition Act? OPP

ii. Relief.

Respondents examined one witness in support of their case and also deposed, but appellant did not lead any evidence in rebuttal. There was, thus, only the evidence produced by the respondents and learned District Judge was to decide the issue, so framed in the Reference on the basis of evidence produced by respondents. The learned District Judge, after considering the evidence, came to the conclusion that the compensation for the land situated in village Charry and Swail was assessed at Rs.4.00 lac per kanal and so far the compensation which was awarded by the Collector in respect of the land in Omala, the same was found to be correct and there was no change in so far as the compensation was awarded by the Collector. It is also not out of place to mention that even Collector, Land Acquisition, Udhampur, assessed the market value of the land at Charry, Swail village as Rs.4.00 lacs per kanal and that of village Omala at Rs.2.80 per kanal. However, while passing the final award, the compensation for the land situated in Charry and Swail was assessed at Rs.3.50 Lacs without there being any reason for not awarding the compensation at the rate, which was assessed as market value by the Collector in interim Award at Rs.4.00 Lacs.

Learned District Judge has awarded the compensation on the basis of the evidence produced by respondents and the compensation has been awarded in conformity with the market value assessed by the Collector himself in tentative award.

The above facts have been given, so as to take the same into account while considering the application for condonation of delay, because it has been observed in a number of judgments that substantial justice being paramount and pivotal and the technical considerations should not be given undue and uncalled for emphasis. There should be a liberal, pragmatic, justice oriented, non-pedantic approach while dealing with an application for condonation of delay, for the courts are not supposed to legalize injustice but are obliged to remove injustice.

It is true that courts should always take liberal approach in the matter of condonation of delay, particularly when the appellant is the State, but while considering the application, the court should also find out whether there is any merit in the appeal filed by the State.

In Pundlik Jalam Patil (dead) by LRs v. Executive Engineer, Jalgaon Medium Project and another, (2008) 17 SCC 448, it has been held by the Supreme Court that:

"29. It needs no restatement at our hands that the object for fixing time-limit for litigation is based on public policy fixing a lifespan 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.

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 subserves public interest. Prompt and timely payment of compensation to the land losers 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 to which they are otherwise not entitled, 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 losers. 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 land losers 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."

In Office of The Chief Post Master General v. Living Media India Ltd., AIR 2012 SC 1506, it has been held by the Supreme Court that:

"12. It is not in dispute that the person(s) concerned were well aware or conversant with the issues involved including the prescribed period of limitation for taking up the matter by way of filing a special leave petition in this Court. They cannot claim that they have a separate period of limitation when the Department was possessed with competent persons familiar with court proceedings. In the absence of plausible and acceptable explanation, we are posing a question why the delay is to be condoned mechanically merely because the Government or a wing of the Government is a party before us. Though we are conscious of the fact that in a matter of condonation of delay when there was no gross negligence or deliberate inaction or lack of bonafide, a liberal concession has to be adopted to advance substantial justice, we are of the view that in the facts and circumstances, the Department cannot take advantage of various earlier decisions. The claim on account of impersonal machinery and inherited bureaucratic methodology of making several notes cannot be accepted in view of the modern technologies being used and available. The law of limitation undoubtedly binds everybody including the Government.

In our view, it is the right time to inform all the government bodies, their agencies and instrumentalities that unless they have reasonable and acceptable explanation for the delay and there was bonafide effort, there is no need to accept the usual explanation that the file was kept pending for several months/years due to considerable degree of procedural red-tape in the process. The government departments are under a special obligation to ensure that they perform their duties with diligence and commitment. Condonation of delay is an exception and should not be used as an anticipated benefit for government departments. The law shelters everyone under the same light and should not be swirled for the benefit of a few."

In Amalendu Kumar Bera v. State of West Bengal, (2013) 4 SCC 52, it has been held by the Supreme Court that:

"Merely because the Respondent is the State, delay in filing the appeal or revision cannot and shall not be mechanically considered and in absence of 'sufficient cause' delay shall not be condoned."

In Tukaram Kana Joshi v. M.I.D.C., AIR 2013 SC 565, the Supreme Court has observed that:

"The question of condonation of delay is one of discretion and has to be decided on the basis of the facts of the case at hand, as the same vary from case to case."

In the case of Esha Bhattacharjee v. Raghunathpur Nafar Academy, (2013) 12 SCC 649, the Supreme Court made an observation as follows:

"15. From the aforesaid authorities the principles that can broadly be culled out are:

i) There should be a liberal, pragmatic, justice-oriented, non-pedantic approach while dealing with an application for condonation of delay, for the courts are not supposed to legalise injustice but are obliged to remove injustice.

ii) The terms "sufficient cause" should be understood in their proper spirit, philosophy and purpose regard being had to the fact that these terms are basically elastic and are to be applied in proper perspective to the obtaining fact- situation.

iii) Substantial justice being paramount and pivotal the technical considerations should not be given undue and uncalled for emphasis.

iv) No presumption can be attached to deliberate causation of delay but, gross negligence on the part of the counsel or litigant is to be taken note of.

v) Lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact.

vi) It is to be kept in mind that adherence to strict proof should not affect public justice and cause public mischief because the courts are required to be vigilant so that in the ultimate eventuate there is no real failure of justice.

vii) The concept of liberal approach has to encapsule the conception of reasonableness and it cannot be allowed a totally unfettered free play.

viii) There is a distinction between inordinate delay and a delay of short duration or few days, for to the former doctrine of prejudice is attracted whereas to the latter it may not be attracted. That apart, the first one warrants strict approach whereas the second calls for a liberal delineation.

ix) The conduct, behaviour and attitude of a party relating to its inaction or negligence are relevant factors to be taken into consideration. It is so as the fundamental principle is that the courts are required to weigh the scale of balance of justice in respect of both parties and the said principle cannot be given a total go by in the name of liberal approach.

x) If the explanation offered is concocted or the grounds urged in the application are fanciful, the courts should be vigilant not to expose the other side unnecessarily to face such a litigation.

xi) It is to be borne in mind that no one gets away with fraud, misrepresentation or interpolation by taking recourse to the technicalities of law of limitation.

xii) The entire gamut of facts are to be carefully scrutinized and the approach should be based on the paradigm of judicial discretion which is founded on objective reasoning and not on individual perception.

xiii) The State or a public body or an entity representing a collective cause should be given some acceptable latitude.

To the aforesaid principles we may add some more guidelines taking note of the present-day scenario. They are:

a) An application for condonation of delay should be drafted with careful concern and not in a half hazard manner harbouring the notion that the courts are required to condone delay on the bedrock of the principle that adjudication of a lis on merits is seminal to justice dispensation system.

b) An application for condonation of delay should not be dealt with in a routine manner on the base of individual philosophy which is basically subjective.

c) Though no precise formula can be laid down regard being had to the concept of judicial discretion, yet a conscious effort for achieving consistency and collegiality of the adjudicatory system should be made as that is the ultimate institutional motto.

d) The increasing tendency to perceive delay as a non- serious matter and, hence, lackadaisical propensity can be exhibited in a non-challant manner requires to be curbed, of course, within legal parameters."

Appellant is seeking condonation of delay in filing the Appeal to challenge the order passed in Reference under Section 18 of the Land Acquisition Act, whereby he has awarded compensation at the market rate determined by the Collector himself, while passing tentative Award in which the market value of the land situated at Charry and Swail was given as Rs.4.00 Lacs per Kanal and that of land situated in village Omala @ Rs. 2.80 Lacs per Kanal and in the final award compensation was awarded for the land situated in Charry and Swail @ 3.50 lacs per Kanal instead of market value @ Rs.4.00 Lacs determined by the Collector and so far as the land situated in Omala was concerned the compensation was granted at the same rate, i.e. Rs.2.80 lacs per Kanal, which was determined by the Collector in its tentative award. Learned District Judge has, while deciding the reference, awarded the compensation at the rate, which was determined by the Collector as the market value in its tentative award and also after considering the evidence. The appellants herein have not produced any evidence to rebut the same.

There is a delay of 410 days in filing the Appeal. For condoning this delay, the appellant is required to explain it by showing sufficient and reasonable grounds which prevented it from filing the appeal within the time provided. It is clear from the record attached with the application that copy of the judgment was obtained on 11.11.2013. That even if letter of Deputy Excise Commissioner (Executive), Jammu, dated 18.09.2014 (Annexure R-1) is taken into consideration to show that respondents were not aware about the date, on which the judgment was passed/ announced and/or they were also not aware about the date when application for issuance of certified copy of judgement was made and/or they were not also aware about the date when certified copy was received, yet they have had, at least, the knowledge about the judgement on 18.09.2014. That apart, letter no.928/DUR dated 05.09.2014, addressed to Deputy Excise Commissioner (Executive) Jammu by Excise and Taxation Officer, Doda-Udhampur, Range Headquarter Udhampur, would also unveil that certified copy of the judgment was already submitted to him vide letter no.913/DUR dated 01.09.2014. These communications divulge and disclose that appellants had knowledge of passing of the judgment, if not on the date when the judgment was passed, but had full information and knowledge thereabout prior to 01.09.2014, which is evident from the contents of the letter Excise and Taxation Officer, Doda-Udhampur Range Headquarter Udhampur, in which it has been stated that they had approached the office of Assistant Commissioner, (Revenue), Udhampur, vide letter No.911-12/DUR dated 01.09.2014 to intimate the enhanced amount along with interest payable to respondent in view of the judgment of learned District Judge, Udhampur. This per se falsifies and belies the ground taken by the appellants that they came to know about passing of the judgment only on 21.10.2014. There is no satisfactory explanation or reasonable and sufficient cause/grounds, disclosed by appellants to explicitly show what prevented them from filing the appeal within the stipulated time. The grounds taken are without any basis and there is no sufficient cause warranting condonation of delay. Even otherwise, had there been merit in the grounds challenging the order impugned and had it been the case where merit would have become the casualty of delay, this Court may have, in order to prevent miscarriage of justice, taken a view otherwise which is warranted in the circumstances of the case. If this application for condonation of delay, which does not disclose any sufficient and reasonable ground or cause, is allowed and appeal is permitted to be filed after unexplained and inordinate delay of 410 days, it would be respondents herein who will be at the receiving end.

For the reasons discussed above, I do not find any reason or ground to allow this application and accordingly application is dismissed. Resultantly the appeal stands dismissed being barred by limitation.