State of U.P. and Others vs Aaftab Ahmad

Devi Prasad Singh, J.—Heard Sri Pramod Kumar, learned Standing Counsel on behalf of the appellants and Sri A.K. Jaiswal, learned Counsel for the respondent.

This is an application filed u/s 5 of Limitation Act for condonation of delay in preferring the appeal against the award rendered by the learned Tribunal, Lucknow dated 14.02.2007.

The controversy relates to acquisition of land under the Land Acquisition Act in the year 1985. Notification under Sections 4 and 6 of Land Acquisition Act was issued on 19.12.1987 and 07.11.2988. The respondent- tenure holder was dispossessed from the land on 22.07.1985 and 22.08.1985. The award was passed on 06.11.1990 by the Competent Authority. The Competent Authority had given compensation at the rate of Rs. 2.09 per sq. ft.. The compensation Tribunal had enhanced the compensation providing the cost of land at the rate of Rs. 8.45 per sq. ft.

It has been stated by the learned Counsel for the respondent that the respondent had purchased the land in question from the Cooperative Housing Society on payment of Rs. 6.50 per sq. ft. However, the appellants'' counsel disputed the same and submits that for land situated in the vicinity, the High Court has awarded the maximum compensation at the rate of Rs. 6.50 per sq. ft.

While pressing for condonation of delay learned Standing Counsel submits that though the award was rendered on 14.02.2007 but on account of slackness on the part of official machinery, the appeal could not be filed within the prescribed time. The learned Counsel for the appellants relied upon the judgment of Hon''ble Supreme Court reported in State of Bihar and Others Vs. Kameshwar Prasad Singh and Another, and State of Nagaland Vs. Lipok AO and Others, . and submits that while dealing with the application for condonation of delay the State stands on different criteria and application would be considered liberally and delay should be condoned keeping in view the law laid down in the aforesaid judgments. Learned Counsel further submits that to do substantial justice also the Court should condone the delay and decide the matter on merit.

On the other hand, learned Counsel for the respondent submits that the delay should not be condoned mechanically and there must be some material facts on record, making out a case for condonation of delay. Attention has been invited to the fact that the land acquisition case was decided on 14.02.2007 and the State Government has granted approval to prefer the present appeal on 08.07.2008 even then the appeal was filed almost after seven months i.e. 13.04.2009.

The submission of counsel for the respondent is that no much liberty should be given to the State, since before the Court parties should stand on equal footing and justice should be imparted without being impressed as to who are the litigant before the Court.

Coming to submission of counsel for the appellants that some relaxation should be given to the State while considering the application for condonation of delay in view of the judgment of Hon''ble Supreme Court, it has been stated by respondent''s counsel that when the order was pronounced on 14.02.2007, the learned Counsel for the parties were present before the compensation Tribunal, whose names have been mentioned in the formal order. It has also been stated that the counsel for the State has informed with regard to pronouncement of the order dated 14.02.2007 but even then in para-2 of the affidavit, it has been stated that information was communicated sometimes in February, 2008. No specific date has been mentioned with regard to communication of judgment in February, 2008.

So far as submission of the counsel for the appellant that some relaxation should be given to the State in view of the judgment of Hon''ble Supreme Court seems to be carry weight. Of course, some relaxation should be given to the State while considering the application for condonation of delay but does not mean that relaxation should be mechanical one and merely because the State has filed application for condonation of delay, the delay should be condoned without application of mind to the facts and circumstances of the case. There must be some material to consider State''s prayer liberally.

The submission of counsel for the respondent that while imparting the justice this Court or any Court of law must impart equal treatment seems to correct. The State should be given certain relaxation under the prevailing system but that too should be based on some material facts placed on record.

In the present case, undisputedly the order was pronounced on 14.02.2007 and it appears that counsel for the parties were present there but even then while filing an application it has been stated that the appellant came to know regarding judgment in the month of February, 2008. No specific date has been given as to when according to official record the State was communicated with regard to the pronouncement of judgment. The other aspect of the matter is that admittedly the approval was granted by the State to file an appeal on 08.09.2008 but appeal was filed in the month of April, 2009 almost after laps of seven months. No explanation has been given as to why in spite of approval granted by the State in the month of September, 2009, the appeal has been filed after laps of almost seven months. The explanation given by the appellants with regard to condonation of delay does not seem sufficient to make out the case to condone the delay.

Of course, for the ends of justice or for substantial justice as settled by Hon''ble Supreme Court, this Court is not precluded to condone the delay but in the present case though the submission of counsel for the appellants is that according to High Court judgment in some other case the maximum compensation has been awarded at the rate of Rs. 6.50 per sq. ft. but in view fact that the respondent has purchased the land from the Cooperative Society for residential purposes at the rate of Rs. 6.50 per sq. ft. on 06.03.1984, the principles of substantial justice does not seem to be applicable to condone the delay. The compensation awarded to the claimant does not seem to be excessive or unreasonable keeping in view the cost of land which he paid to the Cooperative Housing Society at time when it was purchased.

Section 5 of the Limitation Act empowers the courts to condone the delay on sufficient cause to provide substantial justice to the parties and while considering the sufficient cause it is settled law that courts should be liberal. In a case reported in Sitaram Ramcharan etc. Vs. M.N. Nagarshana and Others, Authority Hon''ble Supreme Court held that sufficient cause must cover the whole period of delay. It shall be incumbent upon the party to satisfy the court that he had sufficient cause for not preferring the appeal or making application within prescribed time. Relevant portion from the case of Sitaram Ramcharan (supra) is reproduced as under:

It cannot be disputed that in dealing with the question of condoning delay u/s 5 of the Limitation Act the party has to satisfy the Court that he had sufficient cause for not preferring the appeal or making the application within the prescribed time, and this was always been understood to mean that the explanation has to cover the whole of the period of delay.

In one another case reported in Shakuntala Devi Jain Vs. Kuntal Kumari and Others, Hon''ble Supreme Court held that the word sufficient cause should receive liberal construction so as to advance substantial justice when no negligence nor inaction nor want of bonafides is imputable to the appellant. If the appellant makes out sufficient cause for the delay, the court may in its discretion condone the delay. For convenience relevant portion from the case of Shakuntala Devi Jain (supra) is reproduced as under:

The next question is whether the delay in filing the certified copy or, to put it differently, the delay in re-filing the appeal with the certified copy should be condoned u/s 5 of the Limitation Act. If the appellant makes out sufficient cause for the delay the Court may in its discretion condone the delay. As laid down in Krishna v. Chathappan ILR (1890) Mad 269, 271 Section 5 gives the Courts a discretion which in respect of jurisdiction is to be exercised in the way in which judicial power and discretion ought to be exercised upon principles which are well understood; the words sufficient cause receiving a liberal construction so as to advance substantial justice when no negligence nor inaction nor want of bonafides is imputable to the appellant.

In the case reported in Balbir Singh Vs. Bogh Singh, where the prosecution filed appeal in wrong court Supreme Court held that delay should be condoned in preferring the appeal before the appropriate forum. In the case reported in AIR 1972 SC 749 State of W.B. v. The Administrator, Howrah Municipality and Ors. etc. the Hon''ble Supreme Court held that sufficient cause should receive liberal construction so as to advance substantial justice when no negligence or inaction or want of bonafide is imputable to a party.

In a case relied upon by the petitioners counsel reported in Collector, Land Acquisition, Anantnag and Another Vs. Mst. Katiji and Others, their Lordships of Apex Court held that court should adopt liberal and justice oriented approach for the purposes of condonation of delay. Relevant portion from the case of Mst. Katiji (supra) is reproduced as under:

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:

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

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.

Every days delay must be explained does not mean that a pedantic approach should be made. Why not every hours delay, every seconds delay? The doctrine must be applied in a rational common sense pragmatic manner.

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.

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.

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.

In another case reported in TMA Pai Foundation and Others Vs. State of Karnataka and Another, where the controversy was relating to entertainment of a petition filed under Article 226 of the Constitution of India the Hon''ble Supreme Court held that parties should pursue right promptly and not sit over their rights. The party could not be permitted to sleep over their rights and choose to avail the remedy after inordinate delay. Relevant portion from the case of Ex. Capt. Harish Uppal (supra) is reproduced as under:

It is a well settled policy of law that the parties should pursue their rights and remedies promptly and not sleep over their rights. That is the whole policy behind the Limitation Act and other rules of limitation. If they choose to sleep over their rights and remedies for an inordinately long time, the court may well choose to decline to interfere in its discretionary jurisdiction under Article 226 of the Constitution of India and that is what precisely the Delhi High Court has done. We cannot say that the High Court was not entitled to say so in its discretion.

However, in one another judgment reported in P.K. Ramachandran Vs. State of Kerala and Another, their Lordships has cautioned the High Court not to condone the delay in a mechanical manner while deciding the issue relating to application filed u/s 5 of the Limitation Act. Relevant portion from the case of P.K. Ramachandran (supra) is reproduced as under:

It would be noticed from a perusal of the impugned order that the court has not recorded any satisfaction that the explanation for the delay was either reasonable or satisfactory, which is an essential prerequisite to condonation of delay....

Law of Limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribes and the courts have no power to extent the period of limitation on equitable grounds. The discretion exercised by the High Court was, thus, neither proper nor judicious. The order condoning the delay cannot be sustained. This appeal, therefore, succeeds and the impugned order is set aside....

In the case of P.K. Ramachandran(supra) their Lordships of Apex Court had declined to condone the delay of 565 days on the ground that appellant had failed to explain the day to day delay in filing the appeal.

In a judgment reported in State of Karnataka Vs. Laxuman, Lordships of Hon''ble Supreme Court had declined to extend the benefit of Section 5 of the Limitation Act where rights of party have been extinguished by a fiction of law in a land acquisition matter. In one another case reported in 2006 LCD 373 P. Mani Moopanar v. K. Rajammal and Ors. Hon''ble Supreme Court held that sufficiency of cause must be shown before condoning the delay more so when it is inordinate delay of 2598 days.

In a case reported in M.K. Prasad Vs. P. Arumogam, the Hon''ble Supreme Court held that while construing the provisions of Section 5 of the Limitation Act we should keep in mind that after expiration of the period of limitation prescribed for filing an appeal, a right is created in favour of decree holder to treat the decree as binding and that is why discretion to condone the delay has been given to the Courts. Relevant portion from the judgment of M.K. Prasad (supra) is reproduced as under:

In construing Section 5 it is relevant to bear in mind two important considerations. The first consideration is that the expiration of the period of limitation prescribed for making an appeal gives rise to a right in favour of the decree-holder to treat the decree as binding between the parties. In other words, when the period of limitation prescribed has expired the decree-holder has obtained a benefit under the law of limitation to treat the decree as beyond challenge, and this legal right which has accrued to the decree-holder by lapse of time should not be light-heartedly disturbed. The other consideration which cannot be ignored is that if sufficient cause for excusing delay is shown discretion is given to the court to condone delay and admit the appeal. This discretion has been deliberately conferred on the court in order that judicial power and discretion in that behalf should be exercised to advance substantial justice.

Again their Lordships in the case of M.K. Prasad (supra) proceeded to held as under:

Again in State of W.B. v. Administrator, Howrah Municipality and G. Ramegowda, Major v. Special Land Acquisition Officer this Court observed that the expression sufficient cause in Section 5 of the Limitation Act must receive a liberal construction so as to advance substantial justice and generally delays be condoned in the interest of justice where gross negligence or deliberate inaction or lack of bona fides is not imputable to the party seeking condonation of delay. Law of limitation has been enacted to serve the interests of justice and not to defeat it. Again in N. Balakrishnan v. M. Krishnamurthy this Court held that acceptability of explanation for the delay is the sole criterion and length of delay is not relevant. In the absence of anything showing mala fide or deliberate delay as a dilatory tactic, the court should normally condone the delay.

However, retreating the same principle in a case reported in 2003 (11) SCC 728; Bhagmal v. M.P. Cooperative Marketing & Consumer Fedration Ltd. and Ors., the Hon''ble Supreme Court proceeded to held as under:

Normally the High Courts would be wary in interfering with an order passed in the exercise of a discretion conferred by law particularly when such discretion was exercised to enable a party to pursue his statutory remedy or appeal. No doubt the discretion has to be exercised judicially. There is again no doubt that the delay in filing the appeal was apparently very long. Nonetheless the High Court in exercising writ jurisdiction should have been slow to upset a benefit granted to a party in having his statutory remedy to be pursued by condoning the delay albeit its length.

In a judgment reported in State of Nagaland Vs. Lipok AO and Others, Hon''ble Supreme Court while retreating the aforementioned principle held that proof of sufficient cause is condition precedent for the exercise of extraordinary restriction vested in the court. Length of delay in filing the appeal or revision is not material but the sufficiency of cause and shortness of delay is one of the circumstances which will be taken into account. Relevant portion from the judgment of Lipok AO (supra) is reproduced as under:

The proof of sufficient cause is a condition precedent for exercise of the extraordinary restriction (sic discretion) vested in the court. What counts is not the length of the delay but the sufficiency of the cause and shortness of the delay is one of the circumstances to be taken into account in using the discretion. In N. Balakrishnan v. M. Krishnamurthy it was held by this Court that Section 5 is to be construed liberally so as to do substantial justice to the parties. The provision contemplates that the court has to go in the position of the person concerned and to find out if the delay can be said to have resulted from the cause which he had adduced and whether the cause can be recorded in the peculiar circumstances of the case as sufficient....

In the case of Lipok AO (supra) the Hon''ble Supreme Court after considering its earlier pronouncements relating to the determination of the sufficient cause held that the sufficient cause must be bonafide and filing of time barred appeal, revision or application is not merely a device to cover an ulterior purpose. Relevant portion from the judgment of Lipok AO (supra) is reproduced as under:

What constitutes sufficient cause cannot be laid down by hard-and-fast rules. In New India Insurance Co. Ltd. v. Shanti Misra this Court held that discretion given by Section 5 should not be defined or crystallized so as to convert a discretionary matter into a rigid rule of law. The expression sufficient cause should receive a liberal construction. In Brij Indar Singh v. Kanshi Ram it was observed that true guide for a court to exercise the discretion u/s 5 is whether the appellant acted with reasonable diligence in prosecuting the appeal. In Shakuntala Devi Jain v. Kuntal Kumari a Bench of three Judges had held that unless want of bona fides of such inaction or negligence as would deprive a party of the protection of Section 5 is proved, the application must not be thrown out or any delay cannot be refused to be condoned.

In Concord of India Insurance Co. Ltd. v. Nirmala Devi which is a case of negligence of the counsel which, misled a litigant into delayed pursuit of his remedy, the default in delay was condoned. In Lala Mata Din v. A. Narayanan this Court had held that there is no general proposition that mistake of counsel by itself is always sufficient cause for condonation of delay. It is always a question whether the mistake was bona fide or was merely a device to cover an ulterior purpose. In that case it was held that the mistake committed by the counsel was bona fide and it was not tainted by any mala fide motive.

It is settled law that Court can iron out the fabric but it cannot change the texture of fabric. It cannot enlarge the scope of the legislation or the intention when the language of the provision is plain and unambiguous. It cannot add or subtract words to a statute or read something into it which is not there. It is well settled that the real intention of the legislature must be gathered from the language used.(vide Nasiruddin and Others Vs. Sita Ram Agarwal, Accordingly Section 5 of Limitation Act should be considered in its letter and spirit and not be made redundant.

In a case reported in 2007 (11) SCC 402, State of Rajasthan v. Chanda @ Chandkori and Ors., Hon''ble Supreme Court had held that in case delay causes grave injustice to parties ordinarily it should not be condoned.

In a case reported in 2008 (17) SCC 448, Pundlik Zalam Patil v. Executive Engineer Jalgaon Medium Project, their Lordship of Hon''ble Supreme Court held that limitation may be extended with regard to public authorities only in case of proved acts of fraud or collusion on the part of its officers or agents. Otherwise the law of limitation is same for citizen and for government authorities. Their Lordship further held that limitation should not be extended where a false and incorrect fact is placed on record. The incorrect statement made in an application seeking condonation of delay itself is sufficient to reject an application without further enquiry.

In the present case, while moving the application for condonation of delay the applicant State had concealed material facts with regard to date of communication of order by the Advocate and also not disclosed that why appeal has not been filed for about seven months and what happen during the the course of one year before the State granted approval to file the appeal.

In Noharlal Verma Vs. District Co-Operative Central Bank Limited, Jagdalpur, Central Bank Ltd Hon''ble Supreme Court held that in case suit, appeal or application is beyond limitation, court or adjudicating authority has no jurisdiction to entertain the same, even if question with regard to limitation is not raised. Court has an independent duty to look into except of limitation.

In view of the above, we do not find any reason to condone the delay though some relaxation may be given to the State Government for the purpose of condonation of delay but so far as the present case is concerned, the State has failed to produce sufficient material to explain the delay caused in preferring the present appeal. No explanation has been given by the State of the period of almost one year i.e. from 14.02.2007 to February, 2008, more so when the order was pronounced by the Tribunal in the presence of the counsel. Name of the counsel has also not been given who conducted the case and misconducted and the date of communication has also not been mentioned. The name of employee has also not been figured for not communicating the decision with respect to approval of the State Government to prefer an appeal before this Court within the reasonable period though sufficient time was granted on 08.09.2008. In case some delay on the part of the employee has been made then it was the duty of the State to take appropriate action against such employee, who has not communicated the decision promptly and make it part of pleading.

People''s confidence in the administration of justice is because the judiciary discharges its obligation without being influenced by the parties before it. Some relaxation may be given to State but that too only in case some material is placed before the Court pointing out the irregularity or dereliction of duty committed by the authority or difficulty suffered by State in approaching Court within prescribed time. Sufficient cause must be shown to avail the benefit of Section 5 of Limitation Act.

We are of the view that the respondent had purchased the land in question at least 26 years back to construct his own house but the land was acquired by the State and the matter is lingering since 1984. There must be finality in a controversy and it shall be too harsh to admit the appeal after almost 25 years to prolong to mental pain and agony of the respondent. Substantial justice requires that the controversy should be settled at an early date to maintain the peoples faith in the administration of justice. Liberal approach should not be adopted after inordinate delay keeping in view the longevity of ligation and in the absence of substantial harm to State or public exchequer.

In view of the above, the cause shown by the appellants in the application for condonation of delay does not seem sufficient.

Accordingly, the application for condonation of delay is rejected. In consequence thereof appeal also dismissed.