UOI vs Moti Lal Jain and Another

Sunil Gaur, J.

CM No. 13818/2009 (under Order 41 R 3A & Section 151 CPC r/w Section 5 of Limitation Act)

There is delay of nearly six years i.e. 2180 days in filing the accompanying appeal against impugned order in which compensation assessed is @ 2000 per sq. yard in respect of acquired land of village Bahapur in Delhi vide Notification of 30th June, 1978 u/s 4 of the Land Acquisition Act. Aforesaid impugned order relies upon a Division Bench decision of this Court in RFA No. 65/1981 Bhola Nath & Others Vs. Union of India rendered on 21st August, 1998, to grant the compensation, of which appellant is aggrieved. Impugned order of 3rd December, 2001 stood modified by the order of 25th February, 2003 and the period of limitation is computed from the year 2003 whereas respondent''s counsel asserts that on computation of the period of limitation from the year 2001, the period of delay would be of more than seven years.

Needless to say that computation of period of limitation is to commence from the year 2003 when the impugned order stood modified. The explanation offered for the inordinate delay, by learned senior counsel for the applicant/appellant is that the appellant came to know about the impugned order only when notice of the execution petition was received i.e. in the year 2005 and the Panel Advocate was requested to apply certified copy of the impugned order. According to learned senior counsel for the applicant/appellant, certified copy of the impugned order was not received from the panel Advocate and on the basis of the copy of the impugned order received from the counsel opposite before the Executing Court, accompanying Appeal was drafted in May, 2009 and thereafter, necessary formalities for obtaining Court fee of 9,82,700/- etc. was completed and the instant appeal was filed in September, 2009. Thus, it is contended on behalf of the applicant/ appellant that the delay was bona fide and sufficient cause is shown to condone it. On merits, it is asserted by learned senior counsel for applicant/appellant that in view of the decision of the Apex Court in ''Delhi Development Authority Vs. Bhola Nath Sharma (Dead) and Others by Legal Heirs 2010 XII AD (S.C.) 691 = (2011) 2 SCC 54''; the instant matter ought to be remanded back to the reference Court for being decided along with Bhola Nath (Supra), as similar appeals already stands remanded to Reference Court.

To the contrary is the assertion of learned counsel for the first respondent, of the delay occasioned being inexplicable as it is pointed out that the appellant was represented in the year 2006 before the Executing Court and so the delay from the year 2006 till the year 2009 remains unexplained and thus, inordinate delay does not deserve to be condoned in view of the decision in Union of India Vs. Manqat, holding that cryptic and routine explanation do not constitute sufficient cause for condoning the delay. Reliance is also placed upon Apex Court decision in Pundlik Jalam Patil (Dead) By legal heirs. Vs. Executive Engineer, Jalgaon Medium Project and Another 2008 XI AD (S.C.) 377 = (2008) 17 SCC 448 wherein tendency to drag land losers to courts of law, years after termination legal proceedings was deprecated as it serves no public interest.

As regards, appellant being represented before the Executing Court in the year 2006 is concerned, the explanation furnished in the rejoinder filed in the applicant/appellant is speaks for itself and it reads as under:-

It is submitted that Sh. S.K. Singh assumed charge of ADM-cum-Land Acquisition Collector (South) w.e.f. 26.07.2006. On 21.08.2006, when the matter was listed alongwith other about 42 cases of various villages falling within the South District before the Id. ADJ, Sh. S.K. Singh appeared in those cases, which were taken up together. It is submitted that in some of the case, the Id. Executing Court had summoned Sh. S.K. Singh. However, he was not summoned in respect of the present case. Since he was appearing in other cases relating to his District, his presence was marked in the present case also. However, on the said date, he did not have the record of this case as he was never summoned by the Court. Other case of village Bahapur, i.e., the village in question, were also listed, namely, the case of Shri Tipar Chand [Execution Petition Nos. 58/2006 and 1353/2006], R.S. Sohan Lal [Execution Petition 1259/ 2006], Ladli Mohan [Execution Petition 590/2006] and Mahender Kumar v. Union of India [Execution Petition 878/ 2006]. It is submitted that two cases out of the said cases of village Bahapur, namely, Ladli Mohan and Tipal Chand were decided on the basis of the decision in Bhola Nath''s case. Shri S.K. Singh thereafter put up the file relating to these two cases along with the other four cases of the same village, which were decided on the basis of Bhola Nath''s case. The appeals in those cases have already been filed and this Hon''ble Court has already granted interim orders following the directions of the Hon''ble Supreme Court in the case of Bhola Nath. However, as far as the present case is concerned, as submitted in the application, the appellant did not have the file of the present case and thus, it appears that only six cases were put up for appeal and the appeals were filed and in the present the appeal was not filed due to this bona fide error.

Not only this, applicant/appellant has placed on record an enquiry report conducted by the concerned Deputy Commissioner which details the reasons for the inordinate delay in filing the accompanying appeal, which is as under:-

From the perusal and examination of record, the following reasons can be attributed for delay in filing of appeal:

A. Since the opinion of Deputy Legal Advisor (Land & Building Department was not placed in the file as the same was not tractable, the predecessor LACs were unaware of it being an appealable case till 08.09.2008, when the predecessor LAC got notice by the execution Court to ascertain whether any appeal has been filed in the instant matter. It also transpired from the record that the predecessor Land Acquisition Collector had been already filed appeals in six more other cases of the same award and village. However, this particular case appeal could not be file because of non availability of judgment and the legal opinion from the Deputy Legal Advisor. Finally in this case the appeal was filed on 14.05.2009.

B. The main reason for the delay in fling of appeal in the present case could the facts that in the year 2001 all SDMs used work as LACs for their respective sub-divisions. The present case was decided in the year 2001 and there is possibility that record of this case was not handed over after the reorganization of the administrative structure in the year 2003, when all ADMs were made LACs for their respective districts.

Learned senior counsel for applicant/ appellant drew the attention of this Court to order of 3rd March, 2011 of a Division Bench of this Court in RFA No. 481/2000, Tej Pratap & Others Vs. Union of India wherein delay of almost 23 years was condoned as it was found to be highly improbable that appeals in several other cases were filed by the appellants whereas in the instant case it was left out and taking the same to be a bona fide mistake, inordinate delay was condoned subject to costs.

Upon hearing learned counsel for the parties and on perusal of the decisions cited and the record of this case, pedantic approach in dealing with applications for condonation of delay ought not to be adopted in view of the pertinent observations of the Apex Court in Improvement Trust, Ludhiana Vs. Ujagar Singh and Others, , which are as under:-

While considering the application for condonation of delay no straight jacket formula is prescribed to come to the conclusion if sufficient and good grounds have been made out or not. Each case has to be weighed from its'' facts and the circumstances in which the party acts and behaves. From the conduct behaviour and attitude of the appellant it cannot be said that it has been absolutely callous and negligent in prosecuting the matter.

What is to be seen in the instant matter is whether applicant/appellant had been absolutely callous or grossly negligent in prosecuting this matter. Considering the explanation offered for the delay occasioned and the reasons put forth for the delay as noted herein above, I find that no doubt applicant/appellant and its counsel before the Reference Court had been negligent but the negligence is not of such a magnitude which would persuade this Court to tilt in favour of technicalities and to ignore the substantial justice as the fate of the accompanying appeal already stands determined in view of the Apex Court decision in Bhola Nath (Supra).

Law of limitation is founded in public policy. The expression ''sufficient cause'' is adequately elastic to enable the Courts to do substantial justice and when substantial justice and technical considerations are pitted against each other, the cause of substantial justice deserves to be preferred, for the other side cannot have vested right in injustice being done because of non-deliberate delay.

In the instant matter, refusal to condone delay would certainly result in miscarriage of justice as I do find that discretion in such matter is to be exercised in a rational and pragmatic manner. Applying the principles which should control the exercise of discretion vested in the Courts in condoning the delay, as reiterated by the Apex Court in Balwant Singh (Dead) Vs. Jagdish Singh and Others, I am of the considered opinion that inordinate delay in the instant matter stands sufficiently explained and for the negligence which has occasioned the inordinate delay, applicant/ appellant needs to be put to terms.

Accordingly, this application is allowed and the delay in condoned subject to costs of 15,000/- to be deposited Delhi Legal Service Committee within four weeks with direction to recover the same from the salary of the defaulting concerned official.

LA. APP. No. 549/2009 and CM No. 13816/2009 (under Order 41 R 5 r/w Section. 151 CPC)

Learned Senior counsel for the appellant relies upon orders passed in L.A.App No. 5/ 2007 and L.A.App No. 53/2007 as well as RFAs No. 48/2007, 55/2007 and 251/2007 vide which connected matters have being remanded back to the Reference Court in view of decision of Apex Court in Bhola Nath (Supra).

Upon hearing learned counsel for the parties, I am of the considered opinion that in view of the decision of the Apex Court in Bhola Nath (Supra), impugned order deserves to be set aside as it is based upon the Division Bench decision in Bhola Nath''s case which has been upset by the Apex Court and the matter has been remanded to the Reference Court. It is ordered accordingly, subject to deposit of costs imposed vide aforesaid order passed in CM No. 13818/ 2009.

Once the basis of the impugned order goes, then necessarily impugned order has to be set aside while remanding this matter to the Reference Court for being decided along with case of Bhola Nath (Supra) as it was disclosed at the hearing that upon remand by Apex Court, the Reference Court is hearing Bhola Nath''s case afresh. Parties through their counsel to appear before the Reference Court on 1st March, 2012. Appeal as well as pending application stand disposed of in aforesaid terms.