State of Karnataka vs Muni Reddy Alias Abbaiah

Ashok B. Hinchigeri, J.—The Government and the Tahsildar are in appeal aggrieved by the judgment and decree dated 9-6-2009 passed by the Court of the XXVII Additional City Civil Judge, Bengaluru in O.S. No. 956 of 2003. The Trial Court has granted compensation of `62,836/- in respect of the acquired kharab lands. There is a delay of 1583 days in filing this appeal. Smt. B.P. Radha, the learned Government Pleader appearing for the appellants submits that the file was misplaced for a period of two years, that is, between 2009 and 2011. On the retrieval of the file in 2011, the matter was referred to many sections including the legal section for examining the viability of filing the appeal. Thereafter, because of the elections to Bruhat Bengaluru Mahanagara Palike, Panchayat Raj Institutions and to the Assembly in 2013 and because of the preoccupations of the officers with the said elections, the file could not be attended to immediately. She submits that the concerned Tahsildars were also being transferred. Because of all these factors and circumstances, there is a delay of 4 years 3 months in filing this appeal.

The learned Government Pleader relies on the Apex Court''s judgment in the case of Maniben Devraj Shah Vs. Municipal Corporation of Brihan Mumbai, She read out first part of paragraph 17 from the reported decision. The same is extracted hereinbelow:

In Collector, Land Acquisition, Anantnag and Another Vs. Mst. Katiji and Others, , this Court made a significant departure from the earlier judgments and observed: (SCC pp. 108 and 109, para 3)

The Legislature has conferred the power to condone delay by enacting Section 5 of the Limitation Act, 1963 in 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 meaningful 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 realised that;

(1) Ordinarily a litigant does not stand to benefit by lodging an appeal late.

(2) Refusing to condone delay can 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 mala fides. 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 legalise injustice on technical grounds but because it is capable of removing injustice and is expected to do so.

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The learned Government Pleader complains of the non-joinder of necessary parties to the suit. As the beneficiary of the acquisition, namely, Bangalore Development Authority (''BDA'' for short), is not made a party, the suit ought to have been rejected on the ground of non-joinder of necessary parties. She submits that the land in question is the land reserved for a public purpose. That it is a ''B'' phot kharab land is evident from the award passed in L.A.C. No. 656/1986-87 (Ex. P.1). She submits that an erroneous judgment cannot be permitted to govern the field, only because the Government has not filed the appeal within the prescribed period of limitation. She also complains of the non-compliance with the requirement of Section 80 of the Code of Civil Procedure, 1908. She submits that the Government has not received Section 80 notice. She also submits that the respondent''s suit itself was hopelessly barred by limitation. The respondent never raised the issue of non-awarding of compensation for the kharab land at the earliest point of time and in the appropriate proceedings.

Sri K.G. Sadashivaiah, the learned Counsel appearing for the respondent files objections to I.A. No. 1 of 2014. The same are taken on record.

Sri Sadashivaiah submits that the long delay of 4 years 3 months is not explained satisfactorily. He submits that the respondent filed the execution petition in the year 2010. In April 2011, the appellants were put on notice in the execution proceedings. The appellant 2-Tahsildar sought three months'' time in the said proceedings. The appellants were represented by the Government Pleader in the execution proceedings. It is only on the issuance of warrant for the attachment of movables that this appeal is filed.

What matters while considering the application for the condonation of delay is not merely the period, duration or the length of time. What matters is whether there is sufficiency of cause for the condonation of delay. If the delay is not cogently and satisfactorily explained, the delay condonation application is bound to be dismissed.

In this case, it is not in dispute that the appellants were served with the notice in the suit proceedings. They have also filed the written statement. But they did not enter the witness-box.

The affidavit filed in support of the application for the condonation of delay is silent as to whether the learned Government Pleader has communicated the passing of the judgment and decree by the Trial Court. Even if the appellants'' version that the file was retrieved on 26-11-2011 is correct, no cogent explanation is forthcoming as to why the appellants took two years two months thereafter to file this appeal. The conducting of the elections and the transfer of Tahsildars may be good grounds for condoning the delay of few months, but they do not constitute valid grounds for the condonation of delay of two years two months.

The judgment in the case of Maniben Devraj Shah would not come to the rescue of the appellants in any way. In the said case, the Apex Court has this to say in paragraphs 23, 24 and 25:

What needs to be emphasised is that even though a liberal and justice-oriented approach is required to be adopted in the exercise of power u/s 5 of the Limitation Act and other similar statutes, the Courts can neither become oblivious of the fact that the successful litigant has acquired certain rights on the basis of the judgment under challenge and a lot of time is consumed at various stages of litigation apart from the cost.

What colour the expression "sufficient cause" would get in the factual matrix of a given case would largely depend on bona fide nature of the explanation. If the Court finds that there has been no negligence on the part of the applicant and the cause shown for the delay does not lack bona fides, then it may condone the delay. If, on the other hand, the explanation given by the applicant is found to be concocted or he is thoroughly negligent in prosecuting his cause, then it would be a legitimate exercise of discretion not to condone the delay.

In cases involving the State and its agencies/instrumentalities, the Court can take note of the fact that sufficient time is taken in the decision making process but no premium can be given for total lethargy or utter negligence on the part of the officers of the State and/or its agencies/instrumentalities and the applications filed by them for condonation of delay cannot be allowed as a matter of course by accepting the plea that dismissal of the matter on the ground of bar of limitation will cause injury to the public interest.

In the result, I dismiss I.A. No. 1 of 2014 for the condonation of delay, as the delay of 4 years 3 months is not properly and satisfactorily explained. Consequently, the appeal also stands dismissed. Further, it is made clear that no opinion whatsoever is expressed on the merits of the case.

The questions as to whether the suit suffers from the non-joinder of necessary parties, whether the suit was maintainable for agitating the compensation in respect of the acquired land de hors Section 18 of the Land Acquisition Act, 1894, whether the land in question is ''A'' kharab land or ''B'' kharab land, whether the Trial Court is justified in giving compensation for ''B'' kharab land, if at all it is ''B'' kharab land, whether there was non-compliance with the requirement of Section 80 of CPC, etc., are not answered. Admittedly, BDA is the beneficiary of acquisition. If the beneficiary comes before the Court in appropriate proceedings, the issues raised in this appeal could be answered considering the judgment of the Apex Court in the case of M/s. Neyvely Lignite Corporation Limited v. Special Tahsildar (Land Acquisition), Neyvely and Others1 and of this Court in the case of Konkan Railway Corporation Limited, Karwar, Uttar Kannada District v. Special Land Acquisition Officer-II, Mangalore Super Thermal Power Project, Mulki, Dakshina Kannada District and Another2. No order as to costs.