Yamuna Expressway Industrial ... vs Vinod Sahni And 3 Others
2021 Latest Caselaw 215 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved on:17.12.2020
 
Delivered on:06.01.2021
 
Court No. - 89
 
Case :- FIRST APPEAL DEFECTIVE No. - 12 of 2020
 
Appellant :- Yamuna Expressway Industrial Development Authority
 
Respondent :- Vinod Sahni And 3 Others
 
Counsel for Appellant :- Aditya Bhushan Singhal,Pramod Jain(Senior Adv.),Rohan Gupta
 
Counsel for Respondent :- Ashok Kumar Tripathi
 

 
Hon'ble Rajeev Misra,J.

Ref: Civil Misc. Delay Condonation Application No. 2 of 2019

1. This first appeal under section 54 of Land Acquisition Act 1894 read with section 96 of Code of Civil Procedure, 1908 has been filed challenging judgement dated 28.5.2018 and decree dated 1.6.2018, passed by Reference Court/Additional District Judge, Agra in Land Acquisition Reference Case No. 457 of 2012 (Vinod Sahni and Another Vs. State of U.P and 2 Others)

2. Present appeal has been filed in the year 2020 and therefore, beyond the period of limitation. Accordingly, an application under Section 5 of limitation Act duly supported by an affidavit has also been filed, seeking condonation of delay, in filing the appeal.

3. The stamp reporter vide his report dated 17.12.2019 has reported that the appeal was in time upto 26.8.2018 and is therefore beyond time by 478 days i.e. 1 year 3 months and 23 days on 17.12.2019.

4. Instant appeal came up for orders on 10.1.2020 and this Court vide order dated 10.1.2020 issued notices on the delay condonation application. Consequently, a counter affidavit to the delay condonation application has been filed by claimant respondents 1 and 2 to which a rejoinder affidavit has been filed by appellants.

5. Record shows that Special Land Acquisition Officer declared the award in terms of Section 11 of Land Acquisition Act 1894 (hereinafter reffered to as "Act 1894") on 25.10.2011. Feeling dissatisfied with the award rendered by Special Land Acquisition Officer, claimant respondents 1 and 2 herein sought a referece in terms of section 18 of Act 1894. Consequently, L.A. Reference Case No. 457 of 2012 (Vinod Sahni another Vs. State of U.P. and two others) came to be registered. Reference Court allowed above noted reference vide judgement dated 28.5.2018. The decree pursuant to aforesaid judgement was prepared on 1.6.2018.

6. Calculating the limitation from the date of judgement the appeal was in time upto 26.8.2018. However, if the limitation is calculated from the date of decree, the appeal shall be in time upto 30.8.2018.

7. Appellants allege to have acquired knowledge of judgement dated 28.5.2018 passed by reference Court on 3.12.2018. Accordingly, certified copy of the judgement rendered by reference Court was applied on 11.2.2019. Same was ready on 11.2.2019, and also received on same date i.e. 11.2.2019.

8. Affidavit filed in support of delay condonation application further reveals that after certified copy of judgement dated 28.5.2018 had been obtained, it was however received in the office of appellant authority only on 30.7.2019. Thereafter, matter was placed before Chief Executive Officer of Yamuna Expressway Industrial Development Authority i.e. appellant herein on 5.8.2019.

9. Subsequently, Chief Executive Officer of appellant authority vide his noting dated 10.8.2019 directed that the matter be placed before law department of the authority for its opinion. In turn the law department of appellant-authority submitted its note of consent on 28.8.2019 recommending filing of an appeal before High Court only on 25.8.2019. Thereafter the matter was again placed before the Chief Executive Officer of appellant authority for approval on 26.11.2019.

10. According to appellant Chief Executive Officer of appellant authority was awfully busy in preparation of report pertaining to Jewar International Airport, District Gautam Budh Nagar. On account of aforesaid unavoidable circumstance, the decision to file an appeal against judgement and decree of reference court could not be taken by Chief Executive Officer of appellant authority promptly.

11. Subsequent to above, proceedings for preparation of the appeal challenging judgement and decree passed by Reference Court were initiated by counsel for appellant authority namely Mr. A.B. Singhal in consultation with Mr. Pramod Jain, Senior Advocate.

12. Ultimately, present appeal was prepared on 15.12.2019 and presented before the Stamp Reporter of this Court on 17.12.2019. As a caveat on behalf of claimant respondents 1 and 2 was reported by stamp reporter vide his report dated 17.12.2019, copy of memo of appeal along with stay application and delay condonation application were served upon Mr. Ashok Kumar Tripathi, learned counsel for claimant-respondents 1 and 2 on 8.1.2020. Ultimately, the appeal was filed on 8.1.2020.

13. On the aforesaid factual premise, Mr. Pramod Jain, learned Senior Counsel assisted by Mr. A.B. Singhal and Mr. Rohan Gupta learned counsel for appellant, submits that there is no deliberate negligence or laches on the part of appellant in filing this appeal with delay.

14. Referring to the affidavit filed in support of delay condonation application, learned Senior Counsel for appellant contends that delay in filing present appeal has been sufficiently explained. There exists sufficient and truthful cause in not filing the appeal within time. Delay in filing appeal is neither wilful or intentional nor same is on account of deliberate negligence or laches on part of appellant. He, further contends that appellant is a public authority and therefore, appellant cannot be equated with private litigant. Delay in filing appeal is bonafide as information regarding the judgement of reference Court dated 28.5.2018 was itself acquired on 3.12.2018. Thereafter, steps were taken for obtaining certified copy of judgement and necessary approval as required from law department as well as Chief Executive Officer of appellant authority. Consequently, some time has expired in aforesaid process which cannot be clasified as wilful or intentional or delebrate negligence or laches on part of appellant. It is thus urged that delay in filing appeal has occurred on account of sufficient and truthful cause which has been duly explained. Consequently, delay in filing appeal is liable to be condoned by this Court. To lend legal support to his submissions he has relied upon following case law:

(I) Criminal Revisioin No. 1794 of 2017 (Balpreet Singh Vs. State of U.P and another).

(ii) Rameshwar and Others Vs. State of U.P. Thru Collector and Another, 2020 (3) All LJ 715.

(iii) Pralhad Shankarrao Tajale and Ors. Vs. State of Maharashtra through its Secretary and another, 2018 (4) SCC 615.

(iv) Imrat Lal and Ors Vs. Land Acquisition Collector and Ors, 2014 (14) SCC 133.

(v) Dhiraj Singh (D) Th. Lrs. V/s Haryana State and Ors., 2014 (14) SCC 127.

(vi) Delhi Development Authority V/s Bhola Nath Sharma (D) by Lrs. And Others, State of Nagaland Vs. Lipok Ao and Ors., 2005 (3) SCC 752.

(vii) State of U.P. through labour Vs. Om Prakash Sharma and Ors., 1999 (2) A.R.C. 346.

(viii) State of Haryana Vs. Chandra Mani, 1996 (3) SCC 132.

(ix) Special Tehsildar, Land Acquisition Kerala vs. K.V. Ayisumma 1996 (10) SCC 634.

(x) Collector, land Auquisition, Aantnag and Ors, V/s Mst. Katiji and Ors, 1987 (2) SCC 107.

(xi) The State of W.B. V/s The Administrator, Howrah municipality, 1972 (1) SCC 366.

(xii) Shakuntala Devei Jain and Ors Vs. Kuntal Kumari and ors., 1969 AIR (SC) 575.

(xiii) Sangram Singh Vs. Election Tribunal Kotah and Another, 1955 AIR (SC 425).

15. Countering the submissions urged by Mr. Promod Jain, learned Senior Counsel for appellants Mr. Anil Kumar Sharma, learned Senior Counsel assisted by Mr. Ashok Kumar Tripathi, learned counsel for claimant-respondents 1 and 2 submits that present appeal has been filed with a delay of 478 days i.e. 1 year 3 months and 23 days. Affidavit filed in support of delay condonation application, seeking condonation of delay in filing the appeal offers neither a sufficient nor a truthful cause for explaining the delay in filing appeal. According to learned Senior Counsel, Mr. Anil Kumar Sharma, there is deliberate negligence/laches in filing present appeal. Affidavit filed in support of delay condonation application does not speak of bonafide on the part of appellants but to the contrary reflects malafide. There is deliberate negligence in not filing the appeal within time which remains unexplained.

16. It is then contended that there is no explanation in the affidavit filed in support of delay condonation application as to how or from whom knowledge of judgement of reference court was acquired only on 3.12.2018 i.e. after 6 months and two days. Furthermore certified copy of judgement passed by reference Court was applied on 11.2.2019 i.e. after more than two months which fact also remains unexplained i.e. why the certified copy of judgement of reference court was applied after more than two months and why it could not be applied immediately. Apart from above, no explanation has been offered as to why and how certified copy of judgement dated 28.5.2018 which was obtained on 11.2.2019 came to be received by the office of appellant authority on 3.7.2019. It is thus contended that since no cause has been shown for the aforesaid periods while seeking condonation of delay in filing the appeal, as such the issue as to whether cause shown for seeking condonation of delay is sufficient or truthful will not arise for consideration in present case. The explanation offered for explaining the delay in filing appeal is for the period subsequent to the receipt of the certified copy of judgement dated 28.5.2018 which was received in the office of appellant authority on 3.7.2019 i.e. after expirty of a period of more than one year and one month. Therefore, it is urged that application for condonation of delay filed by appellant for condoning the delay in filing present appeal is liable to be rejected. To buttress his submission, he has referred to following decisions:

(i) 2013 (5) ADJ 126, State of U.P. and Another Vs. Hampur Sugar Mills Ltd.

(ii) 2013 (5) ADJ 130 (DB), Union of India and Others Vs. Ram Adhar Prasad

(iii)2012 (3) SCC 563, Postmaster General and Others Vs. Living Media India Ltd. and Another

(iv)2012 (3) SCC 574 Vismay Digambar Thakare Vs. Ramchandra Samaj Sewa Samiti and Others

(v)First Appeal No. 710, 711. 712 and 713 of 1989, State of U.P. through Collector Muzaffar Nagar

(vi)Writ Petition No. 968 of 1990, Ghanshyam and Others Vs. Sub Divisional Officer and Others

17. On the rival submissions as noted above, the factual position which emerges from record is as under:

25.10.2011- Award rendered by S.L.A.O.

28.5.2018-Judgement rendered by reference Court.

1.6.2018-Decree passed by reference Court.

3.12.2018- Appellant alleges to have acquired knowledge of judgement dated 1.6.2018 delivered by reference Court on 3.12.2018 i.e. after six months and two days. However, there is nothing on record to show how knowledge was acquired or from whom it was acquired.

11.2.2019- Application for obtaining certified copy of judgement of reference Court dated 28.5.2018 was submitted on 11.2.2019. The same was ready on 11.2.2019 itself and also received on 11.2.2019. There is no explanation as to why the application for obtaining certified copy of judgement dated 28.5.2018 was filed after more than two months from the date of knowledge of judgement passed by reference court of why it would not be filed immediately.

3.7.2019- Certified copy of judgement of reference Court dated 28.5.2018 is alleged to have been received in the office of appellant authority on 3.7.2019 i.e. after four months 20 days. Again no explanation has come forward from appellants explaining aforesaid circumstance as to how and why the certified copy of judgement dated 28.5.2018 came to be received in the office of appellant authority on 3.7.2019 i.e. after four months twenty days.

5.8.2019- Matter was placed before the Chief Executive Officer of appellant-authority.

10.8.2019- Chief Executive Officer of appellant authority directed that matter be placed before the law department of appellant authority for its opinion.

25.8.2019- Law department gave its opinion on 25.8.2019

29.8.2019- Matter was again placed before Chief Executive Officer of appellant-authority for final decision in the matter. It is alleged that since Chief Executive Officer of appellant-authority was busy in preparing his report regarding Jewar International Airport Gautam Budh Nagar, therefore, final decision in the matter could not be taken promptly. However, the date of decision taken by Chief Executive Officer of appellant-authority to file appeal in High Court has not been disclosed.

26.11.2019-Certified copy of the decree passed by reference court was applied on 26.11.2019. The same was ready on the same day and also delivered on 26.11.2019.

27.11.2019- Certified copy of the decree passed by reference court was received on 27.12.2019.

15.12.2019- Affidavit in support of delay condonation application as well as stay application was sworn on 15.12.2019.

17.12.2019- Present appeal was presented before Stamp reporter of this Court on 17.12.2019. who has submitted his report dated 17.12.2019 on the memo of appeal, to the effect that the appeal is beyond time by 478 days on 17.11.2019. Stamp reporter further reported that a caveat has been lodged by claimant-respondents 1 and 2 through Mr. Ahok Kumar Tripathi, Advocate.

8.1.2020- Notice of present appeal was served upon Mr. Ashok Kumar Tripathi, representing caveator respondents on 8.1.2020 and the appeal was also filed in the registry on 8.1.2020 itself.

18. It is apparent from the facts as noted above, that no explanation has been offered for the period 1.6.2018 to 3.12.2018 i.e. six months and two days. Nothing has been averred in the affidavit filed in support of delay condonation application explaining the manner by which or the person from whom information regarding judgement dated 28.5.2018 delivered by reference Court was acquired by appellant-authority only on 3.12.2018. Apart from above, there is no explanation for the fact as to under what circumstances the certified copy of judgement dated 28.5.2018, passed by reference court was applied on 11.2.2019 i.e. after more than two months from the date of knowledge of judgement of reference court alleged by appellant, or why the certified copy of judgement of reference Court could not be applied immediately after 3.12.2018 i.e. the date on which appellant alleges to have acquired knowledge of judgement of reference court. It has also not been explained as to how the certified copy of judgement dated 28.5.2018 delivered by reference court came to be received in the office of appellant-authority only on 3.7.2019 i.e. after four months and 20 days, when admittedly, it was obtained on 11.2.2019. The affidavit filed in support of delay condonation application further does not disclose the date on which decision was taken by Chief Executive Officer of appellant-authority to file an appeal against judgement and decree passed by reference Court.

19. On the other hand the affidavit filed in support of delay condonation application simply explains the steps taken from 3.7.2019 upto 15.12.2019 i.e. after receipt of certified copy of judgement of reference Court. when the appeal came to be prepared. The diligence on the part of appellant is completely absent for the period 28.5.2018 to 3.7.2019.

20. In the light of above, two issues arise for determination by this Court.

(i) Whether the delay in filing the appeal has been sufficiently explained

(ii) Whether the Court should obtain a liberal approach for condoning the delay in filing the appeal as appellant is an instrumentality of State and public money is involved.

21. A three Judges Bench of Apex Court in State of Haryana Vs. Chandramani and others, 1996 (3) SCC 132, considered the issue regarding condonation of delay when State or its instrumentality is the appellant. Following has been observed in paragraph 8 of the judgement :

"Experience shows that on account of an impersonal machinery ( no one in charge of the matter is directly hit or hurt by the judgment sought to be subjected to appeal) and the inherited bureaucratic methodology imbued with the note-making, file-pushing, and passing-on-the-buck ethos, delay on its part is less difficult to understand though more difficult to approve. The State which represent collective cause of the community, does not deserve a litigant-non-grata status. The courts, therefore, have to be informed with the spirit and philosophy of the provision in the course of the interpretation of the expression of sufficient cause. Merit is preferred to scuttle a decision on merits in turning down the case on technicalities of delay in presenting the appeal. Delay was accordingly condoned, the order was set aside and the matter was remitted to the High Court for disposal on merits after affording opportunity of hearing to the parties. In Smt. Prabha v. Ram Parkash Kalra [(1987) Supp. SCC 338], this Court had held that the court should not adopt an injustice- oriented approach in rejecting the application for condonation of delay. The appeal was allowed, the delay was condoned and the matter was remitted for expeditious disposal in accordance with law."

22. In the light of above, the judgements of Apex Court namely 2012 (3) SCC 563, Postmaster General and Others Vs. Living Media India Ltd. and Another and 2012 (3) SCC 574 Vismay Digambar Thakare Vs. Ramchandra Samaj Sewa Samiti and Others relied upon by learned Senior Counsel for respondents need not be referred to as they have been rendered by two Judges Bench of Apex Court.

23. When issue no.1 is examined in the light of law as settled by Apex Court in State of Haryana (Supra), the Court finds that the factum pleaded by appellant that information regarding the judgement dated 28.5.2018 was acquired only on 3.12.2018 has not been contradicted by respondent by giving another prior date of knowledge of judgement dated 28.5.2018. Similarly, nothing has come forward from respondent 1 and 2 in rebuttal of the fact that the copy of judgement rendered by reference Court was received by appellant-authority on 3.7.2019. Apart from above, the filing of application for certified copy of judgement dated 28.5.2018, passed by reference Court after expiry of a period of more than two months from the date of knowledge, which is alleged to be 28.5.2018 has also not been contradicted.

24 Be that as it may. Appellant has to stand on his own legs and burden to explain that delay in filing appeal is on account of sufficient and truthful cause shall always remain upon appellant himself and unlike onus of proof will not shift.

25. It is true that details regarding above are conspicuous by their absence, inasmuch as, the affidavit filed in support of delay condonation application is completely silent as to how and from whom the knowledge of judgement of reference Court dated 28.5.2018 was acquired only on 3.12.2018, Secondly, no explanation has come forward explaining as to under what circumstances the certified copy of judgement dated 28.5.2018 came to be applied after more than two months from the date of knowledge of judgement dated 28.5.2018 or what prevented the appellant from immediately submitting the application for certified copy of judgement dated 28.5.2018. Furthermore, it also remains unexplained as to how and why the certified copy of judgement dated 28.5.2018 came to be received by the office of appellant only on 3.7.2019, when admittedly the certified copy was obtained on 11.2.2019.

25. If the Court takes into consideration aforesaid aspects, the delay of 1 year 1 month and 1 day i.e. (28.5.2018-3.12.2018 i.e. six months and two days), (3.12.2018-11.2.2019 i.e. two months and eight days) and (11.2.2019-3.7.2019 i.e. four months and 20 days) out of the total period of 1 year 3 months and 22 days remains unexplained.

26. It is also sought to be urged that aforesaid delay cannot be directly attributable to appellants. The Court fails to comprehend this submission of learned counsel for appellant. If appellant cannot be attributed for the delay as noted above, then who else can be held responsible for the delay in filing present appeal.

27. A liberal approach for construing the phrase "sufficient and truthful cause" in the given set of facts and circumstances of a particular case shall arise only when an explanation has been offered. In the absence of any explanation having been offered, there is no material before the Court to examine the issue in the manner noted above. In such a situation no occasion would arise before Court to condone the delay by adopting a liberal approach in consonance with the observations made by Apex Court in Chandrmani's case (Supra), as ot is by now well settled that delay cannot be condoned as a matter of course.

28. In view of the discussion made above, inescapable conclusion is that appellant has failed to explain the delay for the period 28.5.2018 to 3.7.2019 i.e. one year one month and one day in filing present appeal. Consequently, the court has no material before it on the basis of which a finding regarding sufficiency or truthfulness of cause for condoning delay could be examined in the light of Chandramani's case (Supra). Consequently, delay condonation application is liable to be rejected. It is accordingly, rejected.

Order Date :- 06.01.2021

Arshad/YK

Case :- FIRST APPEAL DEFECTIVE No. - 12 of 2020

Appellant :- Yamuna Expressway Industrial Development Authority

Respondent :- Vinod Sahni And 3 Others

Counsel for Appellant :- Aditya Bhushan Singhal,Pramod Jain(Senior Adv.),Rohan Gupta

Counsel for Respondent :- Ashok Kumar Tripathi

Hon'ble Rajeev Misra,J.

1. Since the delay condonation application has been rejected vide separate order of date, passed on delay condonation application, the appeal is also dismissed as barred by limitation.

Order Date :- 06.01.2021

Arshad