The State Of Maharashtra And Ors. ... vs Shri Vithu Kalya Govari And Ors. ...
2008 Latest Caselaw 28 Bom

JUDGMENT

Swatanter Kumar, C.J.

1. All the above mentioned appeals have been preferred by the State of Maharashtra against the judgment and award of the reference court and are barred by time. The State has filed applications for condonation of delay on somewhat similar explanation in all these cases. Thus, it would be appropriate to dispose of all these applications and the appeals by by a common judgment. The relevant facts giving rise to the present appeals are (reference is made to the facts of First Appeal Stamp No. 11231 of 2008 and First Appeal Stamp No. 22703 of 2008 an under. The State Government issued a notification under Section 4 of the Land Acquisition Act, hereinafter referred to as the Act, on 3rd February, 1970. In furtherance to this notification, declaration under Section 6 was published in the official gazette on 11.1.1973. The State Government took possession of the lands in the year 1984. In accordance with the provisions of the Act, the Special Land Acquisition Officer made his award under Section 11 of the Act on 10.8.1984. The lands in all these cases were acquired from the revenue estate of village Panvel. The SLAO awarded compensation to the claimants for acquisition of all their lands between Rs. 1.50 to Rs. 5.00 per sq. meter. The claimants being dissatisfied with the compensation awarded to them, preferred reference under Section 18 of the Act in LAR No. 8 of 2004 out of which First Appeal Stamp No. 22703 of 2007 has arisen, while the other claimants in other land references viz. 23 of 2002, 38 of 2002, 39 of 2002, 43 of 2002 and 25 of 2003 did not prefer references under Section 18 of the Act but after making of the awards under Section 11 of the Act, moved petitions under Section 28A of the Act before the SLAO (Collector) who made an award on 6.3.2001. Being dissatisfied with the award made by the SLAO, the claimants made the above five references to the reference court which passed an award and judgment dated 4.11.2004, giving rise to the appeals being First Appeal stamp Nos.11231 of 2007, 11234 of 2007, 11238 of 2007, 11227 of 2007 and 11222 of 2007.

2. Before the learned reference court in all the land references, the case of the claimants was that Panvel-Diva Railway line has started and resultantly, Panvel city was developing. The potential of their land, thus, had gone up at the time of acquisition. They further contended that they had also placed sale instances before the Special Land Acquisition Officer showing that the land was sold even in the year 1967 at the rate of Rs. 23.92 (4.5) per sq. meter which fact was recorded by the reference court. Evidence was also led on record to show that CIDCO let out the lands at the rate of Rs. 60/-per sq.mtr. by laying the plots. On these, the claimants under Section 18, claimed compensation at the rate of Rs. 40/-per sq. mtr. They had also examained Smt. Joshi, valuer as PW 3 and her statement Exhibit 17 supported the case of the claimants. They also examined the valuer Anil Wandre who supported the market value claimed by the claimants. In petitions under Section 28A, the claimants prayed that their lands were situated within the limits of Panvel and/or Mumbai-Pune Highway and Panvel-Matheran road are near to the lands in question and there was tremendous growth of industrial activity and the potential of the land of the petitioners was immense. Amenities like school, college, market, hospital were available nearby the acquired lands. The references under Section 28A were filed within time and they had relied upon the statement of PW1 Ambaji Gopal Mali, Power of Attorney holder of the claimant and were decided by the Civil Judge, Senior Division, Panvel fixing the value of the land ranging between Rs. 32/-to Rs. 38/-per sq.mtr. of various lands in the vicinity and on this basis, the claimants claimed compensation at the rate of Rs. 60/-per sq. mtr. The learned reference court decided all the petitions filed before the court under Section 28A by a common judgment and award dated 4.11.2004 granting enhanced compensation to the claimants at the rate of Rs. 29/-per sq. mtr. in all the five references. While the concerned court dealing with the petition under Section 18 of the Act viz. Land Reference No. 8 of 2004 also enhanced the compensation and directed the State of Maharashtra to pay compensation at the rate of Rs. 30/-per sq. mtr. The State felt aggrieved from both these judgments and, thus, preferred the above appeals which are patently barred by time.

3. For seeking condonation of delay in filing the present appeals, the State of Maharashtra filed different applications viz. Civil Application No. 3200 of 2007 in First Appeal Stamp No. 11231 of 2007 and Civil Application No. 5442 of 2007 in First Appeal Stamp No. 22703 of 2007. Applications in other appeals have also been filed on similar facts and circumstances. All the appeals in question are barred by two years 45 days to 2 years 63 days. In other words, all the appeals are barred by time by more than two years. In the applications for condonation of delay and even during the course of arguments, it is argued that there are various steps in the Government hierarchy that have to be taken before an appeal is filed against the judgment and award of the reference court. Various officials hassles and steps, thus, resulted in consuming the time and resulting in delay of more than two years in filing the present appeals. In Civil Application No. 3200 of 2007, it is stated in para 3 that delay in filing first appeal is caused because the office of the SLAO, Panvel took time in sending the necessary documents to the office of the District Government Pleader, Alibag. The delay is caused due to procedural hassles and approval at different levels in the Government departments. We may notice that in para 2 of the application, some dates have been given. It is stated that the Award was made on 4.11.2004. The certified copy was applied on 22.11.2004 which was ready on 29.1.2005. The appeal proposal was moved by the District Govrnment Pleader to the concerned department on 15.2.2005 and the appeal ought to have been filed by 11th March, 2005. The matter was kept pending for a period of three months without any action when the Law & Judiciary Department, on 22nd June, 2005 issued resolution for filing the first appeal. On 24th June, 2005, copy of the resolution was received in the office of the Government Pleader, High Court (A.S.), Bombay alongwith the requisite documents. It is claimed that the certified copy and the documents were received on 5rd March, 2007 after the lapse of one year and nine months. Thereafter again, time was taken for different formalities and finally, the appeals were filed on 26th April, 2007.

4. It must be noticed that in these applications, even if the court is to overlook all other intervening delays at different stages, not even iota of explanation has been rendered for a very prolonged and serious delay occurring between 15th February, 2005 to 22nd June, 2005 and thereafter, from 29th June, 2005 to 3rd March, 2007. The list of dates given and the explanation rendered in the application which in any case, is without any substantial or sufficient cause. There is not even a whisper as to what steps were taken by any authority or department during this period. The public authority or a department is not expected to be in negligent or to take no action for years and let the matters become barred by time surely because of its negligence and inaction.

5. In Civil application No. 5442 of 2007 again a table of dates has been stated in para 2 and there is no explanation whatsoever and not even an averment has been made in the entire application as to what steps have been taken by any department or authority between the period 24th June, 2005 to 15th May, 2007. In other words, certainly for a period of 2 years, there was complete inaction and negligence on the part of the concerned Government offices. Even there is considerable delay in taking other actions, but in view of the fact that some explanation has been rendered, we must notice the same with great emphasis that fact of the matter is that even after causing two years of delay and resolution having been passed on 22nd May, 2007, the appeal was filed in this court on 5th October, 2007. These are inordinate and unexplained delays in these application.

6. We may now proceed to discuss the principles governing applications for condonation of delay. The court would exercise its discretion in condoning or declining to condone delay judiciously and ensure that no serious prejudice is caused to either of the parties to the proceedings. When an appeal becomes barred by time because of negligence or default of one of the parties, valuable rights accrues to the others which normally not being taken away in a routine manner and too liberalised exercise of discretionary power. In the case of Union of India and Ors. v. C.L. Jain Woolen Mills Pvt. Ltd. 2006(131) Delhi Law Times, 360, the Division Bench of that court discussed the law in some detail in relation to condonation of delay and while declining to condone the delay, held as under:

... At this stage, it will be useful to refer to the view taken by a Division Bench of this court in the case of Delhi Wakf Board v. Sh. Balbir Singh RFA No. 80/82 decided on 20th March, 2006 where the court after discussing the various judgments, held as under-

We may also notice that even the present appeal is barred by time and application being CM No. 165/82 was filed for condonation of delay and the reason given is that the appellant came to know of the order of the Court only on 17.2.82 whereafter he filed this appeal in March, 1982. Though the provisions of Section 5 have received a liberal construction in recent past, still the Court cannot ignore that the fact where an appeal gets barred by time, a definite right accrues to the opposite party and such right should not be taken away in a routine manner and without disclosure of good and a sufficient cause for condonation of delay.

The application filed for condonation of delay in the present case hardly gives any reason or cause much less a reasonable explanation for condoning the delay. Merely because there was no communication between the client and counsel could hardly be a reason for condoning the delay of 2 years as the order was pronounced on 5th November, 1980 in the presence of the counsel and the appeal was filed in the year 1982.

At this stage, we may refer to the judgment of the Supreme Court in the case of Ramlal and Ors. v. Rewa Coalfields Ltd. wherein the Court held as under:

In construing Section 5 it is relevant to bear in mind two important considerations. The first consideration is that the expiration of the period of limitation prescribed for making an appeal gives rise to a right in favour of the decree holder to treat the decree as binding between the parties and this legal right which has accrued to the decree holder by lapse of time should not be light heartedly disturbed. The other consideration which cannot be ignored is that if sufficient cause for excusing delay is shown discretion is given to the Court to condone delay and admit the appeal. ILR 13 Mad 13 Mad 269, Approved.

It is however, necessary to emphasis that even after sufficient cause has been shown a party is not entitled to the condonation of delay in question as a matter of right. The proof of a sufficient cause is a condition precedent for the exercise of the discretionary jurisdiction vested in the court by Section 5. This aspect of the matter naturally introduces the consideration of all relevant facts and it is at this stage that diligence of the party or its bona fides may fall for consideration.;..

Reference can also be made to a judgment of the Division Bench of the Punjab and Haryana High Court in the case of Sanjeev Babbar and Ors. v. Dev Papers Pvt. Ltd. Vol. CXVII(1998-1) The Punjab Law Reporter 814 wherein the court held as under:

5. As is clear from the above facts that the present petitioner has been most negligent and irresponsible in pursuing his remedy. The revision petition as originally filed was barred by time as is clear from the afore-stated dates. In fact no revision was filed. It was only some papers with the impugned order which were filed without any grounds of revision as required under law. Even the requisite Court-fees was not levied. When a petition becomes barred by time, a right accrues to the other party and such a right cannot be taken away by the Court merely on an application which lacks bonafides and does not disclose any sufficient cause for condonation of delay. In the present case, the revision itself may be barred not only by 67 days, but even more, because after its return on 3.7.1996 it was refiled on 3.4.1997 with grounds of revision. The delay in filing as well as in re-filing has not been explained in any of the applications. It is unfortunate, but is true, that present case discloses the extent to which a petitioner can be irresponsible and negligent of his own rights. The provisions of Limitation Act cannot be so liberally construed so as to frustrate the very purpose of the provisions of the Limitation Act. In this regard reference can be made to a judgment of the Hon'ble Supreme Court of India in the case of P.K. Ramachandran v. State of Kerala and Anr. JT. 1997 (8) S.C. 189, where the Hon'ble Court held as under:

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. The discretion exercised by the High Court was, thus, neither proper nor judicious. The order condoning the delay cannot be sustained. This appeal, therefore, succeeds and the impugned order is set aside. Consequently, the application for condonation of delay filed in the High Court would stand rejected and the Miscellaneous First Appeal shall stand dismissed as barred by time. No costs,

In the application for condonation of delay hardly any reason has been stated. All that has been stated is that no authorised person had appeared on behalf of the appellant when the decree was passed on 5th November, 1980. Thereafter, application was filed under Order 9 Rule 9 CPC. Both these applications were dismissed by the trial Court on 16th February, 1980 as not maintainable and the appellant came to know about the said orders on 17th February, 1982. Thereafter, an appeal was filed in this Court on 3rd March, 1982. Except giving these dates, the application gives no explanation, much less a sufficient cause for justifying the prayer for condonation of delay. The vague averments in the application cannot be the basis for denying a substantial benefit in law to the respondent. The right of the other party cannot be taken away on such averments, which would constitute no sufficient cause on the true and correct interpretation of the sufficient cause contemplated under the provisions of the Limitation Act.

We find no merit in this application and would decline to condone the delay.

9. Even in the case of UOI v. Tata YodogawaLtd. 1988 (38) Excise Law Times 739 (SC), the Supreme Court took the view that the Government being impersonal takes longer time in filing the Appeals/Petitions than the private bodies or the individuals. Even giving that latitude, there must be some way or attempt to explain the cause for such delay and as there was no whisper to explain what legal problems occurred in filing the special leave petition, the application for condonation of delay was dismissed by the Supreme Court. Still in another case reported as Collector of C. Ex., Madras v. A.M.D. Bilal & Co. , the Supreme Court declined to condone the delay of 502 days in filing the appeal while observing that the application disclosed no satisfactory or reasonable explanation. Still in a more recent case titled as P.K. Ramachandran v. State of Kerala and Anr. , the Supreme Court reiterated the above principles and declined to condone the delay and held as under:

10. The judgments of the Supreme Court in the cases of TataYodogawa Ltd. (supra) and A.MD. Bilal&Co.(supra)are squarely applicable to the facts and circumstances of the present case. The application for condonation is without any content, reasonable or satisfactory explanation. It was obligatory upon the part of the applicant-UOI to reasonably explains the delay, may be, by not giving explanation for each day of delay but to explain the delay in a composite manner. In the entire application, no reference of any date, officers and the need for sending the file to any particular section has been stated. This was a case simplicitor for recovery of money of Rs. 3,35,000/-which had been decreed against the authorities and it was held that they were liable to pay interest. It does not appear to be such a complicated issue for determination by the court which would require the UOI or its officers to take years and years to decide whether the appeal should or should not be filed. Then when it is filed after an year, it is incomplete in all respects for which action there is no even a whisper much less an explanation as to why the appeal was kept back for another one year and even the court fee for the appeal was purchased after the lapse of two years from the date of the judgment. This conduct of the applicants is nothing but a negligent attitude and they are taking it to be for granted that the UOI is entitled to claim condonation of delay dehorsits averments in the application. For these reasons, we find no merit in these applications and decline to condone the delay and dismiss both these applications.

7. In the case of Collector, Land Acquisition, Anantnagand Anr. v. Mst. Katiji and Ors. , the Supreme Court spelt out the percepts which will govern the approach of the Court while entertaining the applications for condonation of delay stating that `every day's delay must be explained' does not mean that a pedantic approach should be made. This doctrine must be applied with common sense and in a rational and pragmatic manner. The approach should be justice oriented and the courts, therefore, have to confirm with the spirit and philosophy of the provisions in the course of the interpretation of the expression "sufficient cause". In other words, a reasonable and sufficient cause must be shown for generally condoning the delay, particularly, when delay runs into years. The State may not be expected to explain each day's delay as a private party may be called upon to do. Even if it is taken that State may not be equated with a private individual litigant for which, in our opinion, there is no logical cause but looking at it from a practical point of view, the State is expected to render reasonable grounds to show sufficient cause for such inordinate delay. If years of delay remained unexplained and there is not even whisper in the application for condonation of delay as to what steps were taken for years together to ensure that the matter is filed within the period of limitation and/or at least utmost expeditiously, then the State cannot claim benefit of condonation of delay as a matter of right. There is no legitimate right vested in the State that it must not file its appeals within the prescribed period of limitation. To file appeals within a period of limitation is the rule while condonation of delay in filing the appeal is an exception. To take benefit of the exception at least basic minimum requirements of showing a sufficient cause, thus, must be satisfied in the application filed for condonation of delay. Because some delay may occur as a result of functioning of the Government and its hierarchy but still it has to remain within the framework and reasonableness and sufficiency of cause. In the case of State of Punjab v.Tarsem Chand RFA 739 of 1999, the court has deliberated upon this issue and held as under:

Learned Counsel appearing for the State heavily placed reliance of the judgment of Hon'ble the Supreme Court of India in the case of State of Haryana v. Chandra Mani and Ors. and The Special Tehsildar, Land Acquisition, Kerala v. K.V. Syisumma to contend that the State cannot be equated to an individual litigant and the provisions of the Limitation Act have to be construed liberally in favour of the State. No doubt the observations of Hon'ble the Supreme Court have indicated that Certain amount of latitude is not impermissible. The expression "sufficient cause" should, therefore, be considered with pragmatism in justice oriented approach rather than the technical detection of sufficient cause for explaining every day's delay. Even applying the above principles to the facts of the present case, the liberal construction of the expression "sufficient cause" would not come to the rescue of the applicant. It is true that the State may not be able to explain each day's delay in filing the appeal but certainly obligation continuous upon the State to explain details of every month's or year's delay by giving some plausible and proper reason. The applicant- State has miserably failed to give any reasonable or sufficient cause which could justify the condonation of delay of more than four years in filing the appeal. A definite right accrues to the non-applicant, whose land has been acquired, merely because the State opts to act with such callous, cannot constitute a sufficient cause in law. The State may not despatch the burden of showing the sufficient cause like a private litigant but it must cumulatively and collectively by stating the correct facts show to the court that there is reasonable and bonafide excuse on the part of the State and, therefore, delay in filing the appeal could be condoned. The present application is not only fall short of sufficient cause or a reasonable cause but is vague, indefinite and is not substantiated by any documentary evidence.

8. At the cost of repetition, we may also notice that in the case of State of Haryana v. Jit Ram RFA No. 2129 of 1997 decided on 19.11.1999 while following the principle enunciated by the supreme Court in P.K. Ramachandran's case, the court also stated that a right accrues to the non-applicant which cannot be taken away in a routine manner. There has to be definite and complete averments so as to constitute sufficient cause for condonation of delay. The Supreme Court has also settled the law that law of limitation may harshly affect the particular party but it has to be applied with its rigours when the statute so prescribe.

9. It is equally true that the period of limitation and object of prescribing periods is not intended to destroy rights but is founded on public policy fixing a life span for legal remedy for general welfare. This rule enunciated by the Supreme Court in N. Balkrishnan v. M. Krishnamurthy , further stated that condonation of delay is a discretion of the Court. Length of delay per se may not be a ground for rejecting an application but if a satisfactory explanation has been furnished by the parties which can be accepted by the Court in consonance with the settled norms for exercise of such jurisdiction. But if the explanation rendered is so fanciful, then in such circumstances it will also be equally unfair to deprive the other party of a valuable right which has accrued to them from the default of the other party. The Court has to protect right of both the parties and right of onus should not be permitted to be destroyed unjustly and contrary to law. The Applicants in their application have stated that delay has occurred because of "official hassle" and approval at different levels. This is a case which can hardly justify condonation of delay. The hassles which in any case are unspecified in the application can always be set right by the applicants and the approval can be granted expeditiously. However, as already noticed, in the present case, there is no explanation even for a period of two years. The other point raised on behalf of the applicant is that if delay is condoned, it would cause no prejudice to the claimants. This argument is equally without any merit. In law advantage has accrued to the non-applicants claimants and the same ought not to be withdrawn in a mechanical manner and that too without any sufficient cause being shown to the applicants. This itself is the prejudice to the claimants. Before the delay can be condoned and claimants can be subjected to a prolonged litigation, the onus to show sufficient cause lies is upon the applicant State. The lands have been acquired by the State in exercise of its statutory power and eminent domain. The claimants are owners of small parcel/parts of lands varying between 2000 and 4000 sq. mtrs. and deprivation of their legitimate dues on account of compensation would not be in the interest of justice. Secondly, the claimants have not been paid their enhanced compensation for a considerable time and/or they have not received the same. If the appeals are admitted and interim orders are passed, it obviously will result in affecting the rights of the claimants to receive the enhanced compensation, adversely. More so when the claims have been enhanced by the Court of competent jurisdiction in exercise of its powers under Sections 28-A and 18 of the Act primarily based upon the awards which have been made by the Courts from time to time in relation to the same land or adjacent lands and for the same Notification. Despite, awards/judgments of the Courts, which have even attained finality, the Claimants are not permitted to receive compensation that itself would be a sufficient prejudice to their rights. It is not in dispute that the compensation has been enhanced to Rs. 29/-and/or Rs. 30/-by the awards under appeal, while under the earlier awards which were relied upon by the parties, even compensation at the rate of Rs. 32/-to Rs. 38/-has been determined.

10. For the reason that the applicants have failed to show sufficient or reasonable cause (in fact they have shown no cause) and for the condonation of delay and for the circumstances noticed above, we decline to condone the delay of more than two years in these cases and dismiss Civil Application Nos. 3200 of 2007, 5442 of 2007, 3202 of 2007, 3204 of 2007, 3206 of 2007 and 3208 of 2007. As a result, the Appeals itself will not survive for consideration and are accordingly disposed of.

11. In view of this order, Civil Application filed in all these appeals for grant of stay also do not survive for consideration and are accordingly dismissed.

12. Before these files are consigned to record room, the Courts cannot help but notice that most of the appeals filed on behalf of the State are barred by time and the delay normally is inordinate. They suffer from defect of inordinate delay. Normally, it is expected of the State, in the modern times and with modern amenities and infrastructure, to govern its affairs to the much expected standards. It hardly stands to reason that most of the appeals filed by the State, particularly in land acquisition matters, should be barred by time. They are filed after much delay and normally after considerable delay which remains unexplained and is ex facie unjustified. Filing of appeal within limitation is an exception but filing appeals barred by time is the rule. Filing appeal in a mechanical manner beyond the period of limitation has become a rule. This needs to be checked by the concerned authorities at the earliest. Unreasonable delay on the part of the concerned authority in completion of execution proceedings, disbursement of compensation, determination of compensation and then in filing legal proceedings include the appeals invites twin disadvantages that are opposed to public policy and even good governance. Firstly, even in good cases because of inordinate and unexplained delay, the Court may decline to entertain the appeals. Secondly, the liability of statutory interest increases every passing day which burdens the public exchequer. Both these adverse rigors could be avoided by timely and co-ordinate actions. The authorities are required to have a more practical and pragmatic approach to provide solution to this problem. The inordinate delays occurring from inaction or non-co-operation of the departments, as is demonstrated by the facts of the present cases, needs to be corrected and it will be desirable to fix the responsibility of the erring officer/official. The concept of public accountability for default of performance of statutory and public duties relatable to the powers vested in the authorities under the Act or other administrative authorities, is squarely applicable. In the case of Mahender Kumar v. Land Acquisition Collector (2006) 5 AD 420, the Court after discussing various judgments of the Supreme Court in great detail held that actions of administrative authorities are accountable and doctrine of full pay and credit is applicable in discharge of their duties. Their actions, besides being open to judicial review, would attract judicial chasticism if there is complete negligence and non-cooperation in functioning of the authority merely in furtherance to statutory powers. The doctrine of public accountability would require authorities to act timely and be responsible for their acts. Development of law which has even extended to which the State is liable to compensate for loss or injury suffered by a citizen due to arbitrary action of employees of the State. Reference can be made to the case of Lucknow Development Authority v. M. K. Gupta . In the case in hand, we have already noticed that there is not even an iota of explanation rendered for complete non-cooperation and inordinate delay of more than two years. In fact, in one case, there is not even an indication as to what steps were taken with effect from 29th June 2005 to 3rd March 2007 i.e. for nearly two years in C.A. No. 3200 of 2007 while with effect from 24th June 2005 to 15th May 2007 in C.A. No. 5422 of 2008, there is not even an averment in that action or step was taken by any concerned authority during this long period which ultimately resulted in delay of more than 2 years and 45 days in filing of these appeals. Somebody has to own this responsibility. It is expected of the competent authority to fix responsibility of the erring officer/officials and to provide proper guidelines. Thus, while dismissing these Civil Applications/ Appeals, we feel duty bound to issue certain directions to the Respondent State. Thus, the following directions are issued:

(a) The State Government shall constitute a Committee presided over by the Chief Secretary of the State, which shall issue guidelines to ensure that appeals on behalf of the State in land acquisition matters are filed within the prescribed period of limitation.

(b) Under the directions/guidelines issued through appropriate Government Resolution, complete time frame should be provided for applying and/or receiving certified copies, preparation of appeals, sanctioning of requisite funds, drawing up and filing of appeals.

(c) These guidelines should also provide for due co-operation and co-ordination between different Departments of the State Government.

(d) Concerned authorities may also examine constituting a `centralised nodal office' to ensure timely filing of appeals in the High Court so as to avoid any consequences adverse to the interest of the State including burdening the public exchequer.

(e) The guidelines so framed shall also introduce the principle of public accountability and answerability for inaction/action of various authorities in the State hierarchy in such cases and for inordinate delay in filing the present cases, the State Government shall fix responsibility and take action in accordance with law.

13. The Civil Applications and the Appeals are dismissed with the above directions. However, we leave the parties to bear their own costs.