HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 34 Civil Misc. Delay Condonation Application No.200869 of 2015 IN Case :- FIRST APPEAL DEFECTIVE No. - 175 of 2015 Appellant :- Fundan & 2 Others Respondent :- State Of U.P. Counsel for Appellant :- S.K. Tyagi Hon'ble Sudhir Agarwal,J.
Hon'ble Brijesh Kumar Srivastava-II,J.
1. Heard learned counsel for the appellants and perused the record.
2. This appeal has been filed under Section 54 of Land Acquisition Act 1894 (hereinafter referred to Act, 1894) It is reported to have been barred by limitation by 21 years and 239 days.
3. The land in question was said to be acquired by notification issued under Section 4(1) of the Act, 1894 in 1982. The possession thereof was taken over by the State Government on 29.4.1982. The Special Land Acquisition Officer (S.L.A.O.) made an award on 27.12.1983. The claimant made an application for making reference under Section 18 of Act, 1894 and Land Acquisition Reference No. 41 of 1985 was made. Sri K.P.S. Mallik, Additional District Judge, Ghaziabad, while awarding compensation determined market value at Rs.16.617 per sq. yard. The then claimant-Fundan (in the award mentioned as Kundan), died in 1992, and his legal heirs did not prefer any appeal before this Court. Even his wife died in the mean time. Now after more than 21 years, this appeal has been preferred on behalf of daughter of the deceased-Fundan.
4. In the affidavit accompanying to delay condonation application the ground taken is that the applicant had no requisite fees to file the appeal. Para Nos. 5 to 11 of the affidavit reads as under:
"5. That the appellant Sri Fundan was very poor and illiterate farmer and he was not given proper advice, thus the appellant Sri Fundan could not prefer the appeal against the award dated 28.5.1993.
6. That the appellant had no other source of income and therefore, he could not file the appeal and was notable to spend huge amount in filing the appeal in the Hon'ble High Court.
7. That the appellant Sri Fundan had no son and he had only one daughter Smt. Ramwati who was married in the village Milakh Lakkshi, Ghaziabad now Gautam Budh Nagar.
8. That the appellant no.1 Sri Fundan died in the year 1992 and daughter of Sri Fundan thereafter had no connection and link with the village Gejha Tilpatabad.
9. That daughter of Sri Fundan is now 72 years old and her entire family is living out of village Gejha Tilpatabad, therefore. he did not get any knowledge about the litigation for compensation on behalf of other farmers of the village.
10. That the deponent recently met to one of the farmer of village Ge3jha Tilpatabad Sri Ram Kumar Tyagi and during discussion Sri Ram Kumar Tyagi informed the deponent about the judgment of Hon'ble High Court regarding enhancement of compensation of the farmers of village Gejha Tilpatabad and adjoining villages.
11. That Sri Ram Kumar Tyagi also informed that their maternal grandfather Sri Fundan was also having agricultural land in village Gejha Tilpatabad which was acquired by the State Government for construction of canal along with land of other farmers."
5. Para-5 stating about financial scarcity of Fundan, who has already died in 1992. The appeal in 1993 could have been filed by his legal representatives. They have received compensation of the acquired land, but on query, learned counsel appearing for appellants could not inform as to what was the actual amount received as compensation to show whether the appellants had adequate financial capacity or not. Sri S.K.Tyagi, learned counsel for the appellants placed reliance on Apex Court's decision in Dhiraj Singh(D) Tr. Vs. Haryana State, 2015 (2) RCR (civil) 507 stating that in the matter of acquisition, special attention would be given to the claimants on account of their financial condition. In the aforesaid matter, the Apex Court condoned delay of about 3240 days.
6. The expression "sufficient cause" in Section 5 of Act, 1963 has been held to receive a liberal construction so as to advance substantial justice and generally a delay in preferring appeal may be condoned in interest of justice where no gross negligence or deliberate inaction or lack of bona fide is imputable to parties, seeking condonation of delay. In Collector, Land Acquisition Vs. Katiji, 1987(2) SCC 107, the Court said, that, when substantial justice and technical considerations are taken 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. The Court further said 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.
7. In P.K. Ramachandran Vs. State of Kerala, AIR 1998 SC 2276 the Court said:
"Law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribe and the Courts have no power to extend the period of limitation on equitable grounds."
8. The Rules of limitation are not meant to destroy rights of parties. They virtually take away the remedy. They are meant with the objective that parties should not resort to dilatory tactics and sleep over their rights. They must seek remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. The statute relating to limitation determines a life span for such legal remedy for redress of the legal injury, one has suffered. Time is precious and the wasted time would never revisit. During efflux of time, newer causes would come up, necessitating newer persons to seek legal remedy by approaching the courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. The statute providing limitation is founded on public policy. It is enshrined in the maxim Interest reipublicae up sit finis litium (it is for the general welfare that a period be put to litigation). It is for this reason that when an action becomes barred by time, the Court should be slow to ignore delay for the reason that once limitation expires, other party matures his rights on the subject with attainment of finality. Though it cannot be doubted that refusal to condone delay would result in foreclosing the suiter from putting forth his cause but simultaneously the party on the other hand is also entitled to sit and feel carefree after a particular length of time, getting relieved from persistent and continued litigation.
9. There is no presumption that delay in approaching the court is always deliberate. No person gains from deliberate delaying a matter by not resorting to take appropriate legal remedy within time but then the words "sufficient cause" show that delay, if any, occurred, should not be deliberate, negligent and due to casual approach of concerned litigant, but, it should be bona fide, and, for the reasons beyond his control, and, in any case should not lack bona fide. If the explanation does not smack of lack of bona fide, the Court should show due consideration to the suiter, but, when there is apparent casual approach on the part of suiter, the approach of Court is also bound to change. Lapse on the part of litigant in approaching Court within time is understandable but a total inaction for long period of delay without any explanation whatsoever and that too in absence of showing any sincere attempt on the part of suiter, would add to his negligence, and would be relevant factor going against him.
10. We need not to burden this judgment with a catena of decisions explaining and laying down as to what should be the approach of Court on construing "sufficient cause" under Section 5 of Act, 1963 and it would be suffice to refer a very few of them besides those already referred.
11. In Shakuntala Devi Jain Vs. Kuntal Kumari, AIR 1969 SC 575 a three Judge Bench of the Court said, that, unless want of bona fide 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.
12. The Privy Council in Brij Indar Singh Vs. Kanshi Ram ILR (1918) 45 Cal 94 observed that true guide for a court to exercise the discretion under Section 5 is whether the appellant acted with reasonable diligence in prosecuting the appeal. This principle still holds good inasmuch as the aforesaid decision of Privy Council as repeatedly been referred to, and, recently in State of Nagaland Vs. Lipok AO and others, AIR 2005 SC 2191.
13. In Vedabai @ Vaijayanatabai Baburao Vs. Shantaram Baburao Patil and others, JT 2001(5) SC 608 the Court said that under Section 5 of Act, 1963 it should adopt a pragmatic approach. A distinction must be made between a case where the delay is inordinate and a case where the delay is of a few days. In the former case consideration of prejudice to the other side will be a relevant factor so the case calls for a more cautious approach but in the latter case no such consideration may arise and such a case deserves a liberal approach. No hard and fast rule can be laid down in this regard and the basic guiding factor is advancement of substantial justice.
14. In Pundlik Jalam Patil (dead) by LRS. Vs. Executive Engineer, Jalgaon Medium Project and Anr. (2008) 17 SCC 448, in para 17 of the judgment, the Court said :
"...The evidence on record suggests neglect of its own right for long time in preferring appeals. The court cannot enquire into belated and state claims on the ground of equity. Delay defeats equity. The court helps those who are vigilant and "do not slumber over their rights."
15. In Maniben Devraj Shah Vs. Municipal Corporation of Brihan Mumbai, 2012 (5) SCC 157, in para 18 of the judgment, the Court said as under:
"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 under Section 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."
16. In our view, the kind of explanation rendered herein does not satisfy the observations of Apex Court that if delay has occurred for reasons which does not smack of mala fide, the Court should be reluctant to refuse condonation. On the contrary, we find that here is a case which shows a complete careless and reckless long delay on the part of applicant which has remain virtually unexplained at all. Therefore, we do not find any reason to exercise our judicial discretion exercising judiciously so as to justify condonation of delay in the present case.
17. In the result, the application deserves to be rejected.
18. I order accordingly.
Order Date :- 8.7.2015 Ashish Pd.
Court No. - 34Case :- FIRST APPEAL DEFECTIVE No. - 175 of 2015 Appellant :- Fundan & 2 Others Respondent :- State Of U.P.
Counsel for Appellant :- S.K. Tyagi Hon'ble Sudhir Agarwal,J.
Hon'ble Brijesh Kumar Srivastava-II,J.
Since this appeal has been filed beyond time and application seeking condonation of delay has been rejected vide order of date, this appeal stands dismissed being barred by limitation.
Order Date :- 8.7.2015 Ashish Prasad