C/CA/240/2023 ORDER DATED: 27/03/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL APPLICATION NO. 240 of 2023
In F/FIRST APPEAL NO. 43558 of 2019
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LEGAL HEIRS OF LATE VELJIBHAI RAMBHAI ASODARIYA
Versus
DEPUTY COLLECTOR
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Appearance:
DECEASED LITIGANT for the Applicant(s) No. 1
UTSAV P PARIKH(8223) for the Applicant(s) No. 1.1,1.2,1.3,1.4
for the Respondent(s) No. 2
MS SURBHI BHATI, ASSISTANT GOVERNMENT PLEADER for the
Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
Date : 27/03/2023
ORAL ORDER
1. Heard learned Advocate Mr. Utsav P. Parikh on behalf of the applicants and learned Assistant Government Pleader Ms. Surbhi Bhati on behalf of the respondent - State.
2. Rule. Learned AGP waives service of rule on behalf of the respondent- State.
3. By way of this application, the applicant prays for condoning delay of 653 days which has occurred in preferring First Appeal against judgment and award passed by learned Principal Senior Civil Judge, Amreli, dated Page 1 of 6 Downloaded on : Tue Mar 28 20:44:00 IST 2023 C/CA/240/2023 ORDER DATED: 27/03/2023 12.12.2017 in Land Acquisition Reference Case No. 27 of 2006.
4. Learned Advocate Mr. Parikh on behalf of the applicants has relied upon a decision of this Court dated 05.01.2023 in Civil Application (For Condonation of Delay) No. 1 of 2022 in F/First Appeal No. 36932 of 2022 and allied matters whereby this Court relying upon decisions of the Hon'ble Supreme Court had condoned the delay of 967 days which had occurred in preferring First Appeals. Learned Advocate Mr. Parikh would further rely upon paragraphs no. 6, 7 and 8 of his application and submit that the applicants had initially approached the learned Reference Court for amending the award so as to incorporate name of the applicants and thereafter had approached this Court, leading to some delay.
5. Learned Advocate Mr. Patel would also emphasize on the decision of the Hon'ble Supreme Court in case of K. Subbarayadu & Ors vs. The Special Deputy Collector, (Land Acquisition) reported in 2017 (12) SCC 840 and would submit that considering the law laid down by the Hon'ble Supreme Court, the applicant-appellant would also waive his right to claim for interest upon enhanced compensation, if any, during the period of delay.
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C/CA/240/2023 ORDER DATED: 27/03/2023
6. This application has been vehemently opposed by the learned AGP Ms. Bhati who would submit that delay of 653 days has not been sufficiently explained and whereas under such circumstances, the application may not be considered by this Court.
7. Having heard the learned Advocates for the respective parties and having perused the documents on record and also having perused the decisions of the Hon'ble Apex Court in case of Collector, Land Acquisition, Anantnag and Anr. Vs. Msr. Katji and Ors. reported in AIR 1987 SC 1353 and Dhiraj Singh ( Dead) Through Legal Heirs Vs. State of Haryana and Ors. reported in 2014 (14) SCC 127 relied upon by the learned Advocate for the applicant, this Court is of the opinion that the application deserves consideration.
8. The Hon'ble Apex Court in case of Collector, Land Acquisition, Anantnag (supra) has observed as thus :
"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.Page 3 of 6 Downloaded on : Tue Mar 28 20:44:00 IST 2023
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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 malafides. 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 legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so."
9. The Hon'ble Apex Court in case of Dhiraj Singh (supra) has observed as thus :
"we can take judicial notice of the fact that villagers in our country are by and large illiterate and are not conversant with the intricacies of law. They are usually guided by their covillagers, who are familiar with the proceedings in the Courts or the advocates with whom they get in touch for redressal of their grievance. Affidavits filed in support of the applications for condonation of delay are usually drafted by the advocates on the basis of half-baked information made available by the affected persons. Therefore, in the acquisition matters involving claim for award of just compensation, the Court should adopt a liberal approach and either grant time to the party to file better affidavit to explain delay or suo motu take cognizance of the fact that large number of other similarly situated persons who were affected by the determination of compensation by the Land Acquisition Officer, or the Reference Court have been granted relief." In Samiyathal v. Tahsildar deciced on 5-7-2013, this Court took cognizance of the fact that many landowners may not have been able to seek intervention of this Court for grant of enhanced compensation due to illiteracy, poverty and ignorance and issued direction that those who have not filed special leave petition should be given enhanced compensation."
10. Furthermore, this Court also relies upon the decision of the Hon'ble Apex Court in case of K. Subbarayudu and Ors. (supra), whereby the Hon'ble Apex Court has inter alia condoned delay considering the Page 4 of 6 Downloaded on : Tue Mar 28 20:44:00 IST 2023 C/CA/240/2023 ORDER DATED: 27/03/2023 submission on part of the claimant therein that he would not claim interest on the enhanced amount for the delay period.
11. Having regard to the law laid down by the Hon'ble Supreme Court, more particularly whereby an application for condonation of delay is required to be considered liberally and further having regard to the statement made by learned Advocate Mr. Patel upon instructions as per the decision of the Hon'ble Supreme Court in case of K. Subbaryadu & Ors (supra) in the considered opinion of this Court the applications deserve consideration.
12. Delay of 653 days which has occurred in preferring First Appeal challenging judgment and award passed by learned Principal Senior Civil Judge, Amreli, dated 12.12.2017 in Land Acquisition Reference Case No. 27 of 2006 is condoned subject to the condition that the claimant shall not claim interest upon enhanced compensation, if any, for the period of delay.
With these observations and direction, The present Civil Application stands allowed. Rule is made absolute to the aforesaid extent. Page 5 of 6 Downloaded on : Tue Mar 28 20:44:00 IST 2023
C/CA/240/2023 ORDER DATED: 27/03/2023 Registry to list the first appeal on the 03.04.2023.
(NIKHIL S. KARIEL,J) Mrs. J. J. Kedia Page 6 of 6 Downloaded on : Tue Mar 28 20:44:00 IST 2023