The State of Karnataka vs Pandurang

Ram Mohan Reddy, J.—The State of Karnataka through Assistant Commissioner and Land Acquisition Officer has preferred this appeal aggrieved by the judgment and award dated 22.04.2009 in LAC No. 116/2003 on the file of the III Additional Civil Judge (Sr. Dn.), Gulbarga in so far as it relates to determining Rs. 90,000/- per acre as the market value of land measuring 15 acres 6 guntas in Sy. No. 127 and 4 acres 25 guntas in Sy. No. 128, both situated at Taj Sultanpur village, taluk and district Gulbarga acquired for the construction of KSRP quarters, under preliminary notification dated 13.08.1981, as against the market value fixed by the Land Acquisition Officer at Rs. 19,500/- per acre. I.A. No. 1/2013 u/s 5 of the Limitation-Act is to condone the delay of 1321 days in filing the appeal. In the affidavit accompanying the application, one Harsha S. Shetty, said to be Assistant Commissioner and Land Acquisition Officer, Gulbarga states that the delay in filing the appeal on 06.04.2013 is explained by the law department by sending a delay note to the office of the Advocate General which reads thus:

The District Government Pleader, Gulbarga has forwarded the certified copy of the Order/Judgment and Awards in LAC Nos. 95/2003, 116/2003 and 203/2003 on the file of the III Addl. Civil Judge (Sr. Dn.), Gulbarga on 30.09.2010 and 22.4.2009 and same was received by the Government on 03.12.2010. The receipt marked to the case worker on 04.12.2010. The file submitted to the section officer on 27.12.2010. The Section officer submitted to the file to the Law officer - III on 27.12.2010. The Law Officer - III has gone through the file has opined to prefer an appeal. The file returned to Section Officer on 4.1.2011. The file marked to the case worker on 4.1.2011. The draft appeal, Government Order and Delay Note put for approval on 27.1.2011. Accordingly, the Government order came to be issued on 9.2.2011.

In addition, it is stated that the proceedings of the Government for sanction to prefer an appeal was received by the office of the Advocate General on 26.03.2011 and on 31.03.2011 records were furnished to the Government Advocate. At paragraph-6 it is stated that the delay in filing the appeal is on account of "pressure of work in the Law Department and submission of records to the Government Advocate and the said delay is not intentional".

An additional affidavit dated 12.12.2013 of the very same deponent is filed whereunder it is stated that the deponent assumed charge on 26.03.2012 while holding additional charge of SLAO, National Highway Authority, Administrator of Ghattarga temple, Administrator of TMC Chittapur, Sedam, Shahabad, Wadi and Aland and also Administrator of Sannati Development Board, in addition to incharge Additional Deputy Commissioner, Gulbarga. In paragraph-5 of that affidavit the averments made in the earlier affidavit are reiterated. At paragraph-6 an uncharitable remark is made on the District Government Pleader alleging that he had caused the delay in obtaining the certified copies and forwarding the same to the Government. According to the deponent the Government accorded sanction and even without the certified copies of the judgment and award, documents, depositions and relevant records forwarded the same to the Advocate General''s office for filing an appeal. The Government Advocate, it is stated, at paragraph-8 of the affidavit, addressed letters dated 20.06.2011, 20.08.2011, 23.06.2012 and final reminder on 09.02.2013 with a fax message on 20.02.2013 where afterwards the deponent is said to have applied for certified copies of the depositions, exhibits before the Reference Court on 19.02.2013 on obtaining the same on 28.02.2013 forwarded them to the office of the Advocate General on 06.03.2013 where afterwards the appeal was presented on 06.04.2013. At paragraph-9 of the affidavit it is stated that the delay was on the part of the District Government Pleader and thereafter there was a "communication gap" between the District Government Pleader and the "concerned officials" in obtaining necessary records for preferring the appeal and "on account of pressure of holding additional charges and also pressure in Law Department" submission of records to Government Advocate was delayed. According to the deponent Section 5 of the Limitation Act, 1963 is to enable substantial justice to parties by disposing of the matter on merits and that the Legislature made the provision elastic to enable Courts to apply the law in a meaningful manner, which sub-serves the ends of justice. The deponent pleads for a liberal approach to condone the delay.

Heard the learned Government Advocate, perused the pleadings. The award dated 22.04.2009 of the III Additional Civil Judge (Sr. Dn.) Gulbarga was pronounced in open Court, where afterwards, certified copy was applied on 27.10.2010 and the certified copy delivered on 29.10.2010 as can be noticed from the endorsement of the Civil Court. There is not a titter of evidence, much less sufficient cause shown, for the inordinate delay from 22.04.2009 to 27.10.2010 and there afterwards from 29.10.2011 until allegedly the Order copy was received by the Government on 03.12.2010. The only cause shown is that on 04.12.2010 a case worker marked the receipt of the certified copy, submitted it to the Section Officer on 27.12.2010 who in turn submitted the file to the Law Officer on 27.12.2010 and after going through the file an opinion was recorded and returned to Section Officer on 04.01.2011 whereafter a draft appeal, government order and delay note was put up for approval on 27.01.2011, following which sanction was accorded on 09.02.2011. There afterwards the Advocate General''s office is said to have received the papers on 26.03.2011 and letters addressed to the Government on 20.06.2011, 20.08.2011, 23.06.2012 and 09.02.2013.

In Maniben Devraj Shah Vs. Municipal Corporation of Brihan Mumbai, the Apex Court observed that in an application to condone the delay, the affidavit must contain certain important points, namely:

(a) The name of the person who was having custody of the record to be disclosed.

(b) The date, month and year when the papers required for filing the first appeals are said to have been misplaced have to be disclosed.

(c) The date on which the papers were traced out or recovered and name of the person who found the same have to be disclosed.

(d) Why the applications for certified copies of the judgments of the trial Court were not applied despite the judgment and award of the Trial Court.

(e) If large number of officers are engaged to conduct the cases of the Government then what was the impediment in making the application for issue of certified copy of the judgment appealed against.

Applying the very same yardstick to the facts noticed supra, it is needless to state that the deponent failed to show sufficient cause for the inordinate delay of 1321 days in preferring the appeal. The uncharitable remark made against the District Government Pleader who appeared for the Government before the Reference Court is a clear indicator of the fact that the officials manning the Land Acquisition Department are only trying to pass on the buck on to the learned counsel. It is for the Land Acquisition Officer to have approached the Court by filing an application immediately after the judgment and award was pronounced in open Court and the counsel engaged by the Government is not obliged to make such an application in the absence of instructions. More so, since large number of land acquisition matters are pending before the Reference Court, it was for the Land Acquisition Officer, the deponent, or his predecessors in office, to have ensured the filing of the application for issue of certified copy well within time. We are of the considered opinion that the cause shown falls short of satisfactory explanation and is one devoid of acceptable merit.

An opportunity was extended to the appellant to file an affidavit of the Principal Secretary, Revenue Department, which is not made use of, since no such affidavit is forthcoming.

We find no cause shown to our satisfaction to condone the inordinate delay while we notice negligence, inaction and lack of bonafides attributable to the applicant.

It is no doubt true that the State, in almost all matters relating to land acquisition, occasion delay in filing the appeal, but the delay of 1321 days in filing this appeal is appalling, without a plausible explanation attracting satisfactory cause. It is high-time that the State and its functionaries as also its officers are reminded of the law of limitation and that they must exercise circumspection and caution while dealing with matters of filing appeals within limitation. Discharge of duties contrary to statutory obligations must entail in removing the dead wood. We are compelled to say so because the deponent Mr. Shetty took charge during the year 2012 but as to what happened between 2009 and 2012 and the officer manning that post is not known. The deponent seeks empathy of this Court on the premise that he was holding additional charge of several posts, which is not a convincing explanation for the delay prior to the deponent taking charge. Appeal is hopelessly barred by limitation and I.A. No. 1/2013 is rejected. Consequently appeal is dismissed. This does not mean to say that any appeal filed by the Government in respect of lands acquired under the very same notification should not be considered on its merits. We hold that this will not be a precedent for consideration of any other appeal on merits arising out of the very same preliminary and final notification.