Digamber Gunderao Kulkarni Died ... vs The State Of Maharashtra And ...
2018 Latest Caselaw 422 Bom

                                    (1)                   31 CA 15013 of 2015



       IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                  BENCH AT AURANGABAD

         31 CIVIL APPLICATION NO. 15013 OF 2015
IN FAST/29820/2015 WITH CA/15206/2015 IN FAST/29820/2015

1.    The State of Maharashtra
      Through The Collector, 
      District - Osmanabad.

2.    The Executive Engineer,
      Minor Irrigation Office,
      Osmanabad.

3.    The Executive Engineer,
      Osmanabad Minor Irrigation Division,
      Osmanabad.                           ..Applicants

                       VERSUS

      Digamber Gunderao Kulkarni (Died)
      Through his L.Rs...
      Venubai Digamber Kulkarni (Died)
      Through her L.Rs..
      1.   Murlidhar Digambar Kulkarni
           Age: 65 years, Occu.: Pensioners,
           R/o.Naichakur, Tq.Omerga, 
           Dist.Osmanabad.

      2.       Govind Digambar Kulkarni
               Age: 57 years, Occu.: Service,
               R/o.Naichakur, Tq.Omerga,
               Dist.Osmanabad.

      3.       Shripad Digamber Kulkarni
               Age: 50 years, Occu.: Advocate,
               R/o.Naichakur, Tq.Omerga, 
               Dist.Osmanabad.



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                                      (2)                     31 CA 15013 of 2015




4.     Raghavendra Digamber Kulkarni (Died)
       Ushabai Raghavendra Kulkarni
       Age: 60 years, Occu.: Household,
       R/o.Naichakur, Tq.Omerga,
       Dist.Osmanabad.

5.     Gunderao Raghavendra Naichakurkar
       (Kulkarni)
       Age: 25 years, Occu.: Service,
       R/o.Naichakur, Tq.Omerga,
       Dist.Osmanabad.                                ..Respondents

                               ...
           AGP for Applicants/State : Mr.K.N.Lokhande
     Advocate for Respondent Nos.1 to 5 : Mr.R.P.Adgaonkar
                              ... 

                                     CORAM :  M.S.SONAK, J.

DATE : 15th JANUARY, 2018

ORAL JUDGMENT:-

1) By this Civil Application, condonation of delay of

1654 days in instituting First Appeal against the

Judgment and Award dated 27.12.2010 is applied for.

2) In Paragraph No.2 of the Civil Application, it is

stated that after the impugned Award dated 27.12.2010,

the learned AGP intimated to the office of the applicants

and even gave a legal opinion recommending the

(3) 31 CA 15013 of 2015

institution of the appeal. Though no date or particulars

have been set out, it is presumed that this was done

within some reasonable period from the date of the

impugned Award dated 27.12.2010. It is to be noted that

the appeal in this case has been instituted on 6.10.2013.

3) In Paragraph No.3, it is stated that proposal to

institute the appeal was forwarded on 1.4.2011 to the

office of the Government Pleader. It is stated that the

appeal memo was immediately drafted. This means that

appeal memo was drafted in the month of April, 2011.

Thereafter, there is no valid explanation as to why

appeal was not instituted till 6.10.2013 i.e. for a

period of two and half years.

4) All that is said in paragraph No.4 of the Civil

Application is that certified copy of the Judgment and

Award, Difference Chart, typed copies and Court fees had

not been forwarded alongwith proposal to file appeal.

(4) 31 CA 15013 of 2015

Therefore, the Government Pleader by letter letter dated

11.4.2011 i.e. within a period of five days from the

receipt of the proposal requested the Government to

forward all such documents. It is stated that Difference

Chart was received on 6.6.2014 and Court fees were

received 11.9.2015. All this does not constitute

sufficient cause. It is not the law that the Government

can take its own time to furnish typed copies of Judgment

and Award or Court fees and on that basis delay of almost

four years or about 1654 days is required to be condoned.

5) No doubt as contended by the learned AGP, some

latitude is required to be shown to the impersonal

agencies like Government as they act through their

Officers. However, on the basis of unverifiable

statements, such inordinate delay cannot be condoned.

Similar contentions have been rejected not only by this

Court, but also by the Hon'ble Apex Court.

                                     (5)                     31 CA 15013 of 2015



6)    In  Pundlik Jalam Patil (Dead) By Lrs. vs. Executive

 

Engineer, Jalgaon, Medium Project and anr ., reported in

[(2008) 17 SCC 448], the Hon'ble Supreme Court has held

that pursing stale claims and multiplicity of proceedings

in no manner subserves public interest. These public

interest parameters ought to be kept in mind by the

courts while exercising the discretion dealing with the

application filed under section 5 of the Limitation Act.

Dragging the land-losers to courts of law years after the

termination of legal proceedings would not serve any

public interest. Settled rights cannot be lightly

interfered with by condoning inordinate delay without

there being any proper explanation of such delay on the

ground of involvement of public revenue. This serves no

public interest. Though, the State or its

instrumentalities seeking condonation of delay may be

entitled to certain amount of latitude but the law of

limitation is same for citizens and for governmental

authorities. It would be a different matter where the

(6) 31 CA 15013 of 2015

Government makes out a case where public interest was

shown to have suffered owing to acts of fraud or

collusion on the part of its officers or agents and where

the officers were clearly at cross purposes with it. In

a given case, if any, such facts are pleaded and proved

they cannot be excluded from consideration. In cases

with which we are concerned, no such facts have been

either pleaded or proved.

7)    In  Registrar   of   Companies   vs.   Rajshree   Sugar   &

 
Chemicals Ltd. and ors   reported in 
                      .,             [
                                      2(2000) 6 SCC 133],

the Hon'ble Supreme Court held that though some latitude

has to be shown to the Government in deciding the

question of delay, that does not give a licence to the

officers of the Government to shirk their responsibility

to act with reasonable expedition.

8) In Esha Bhattacharjee vs. Managing Committee of

Raghunathpur afar Academy & ors ., reported in 3(2013) 12 [

(7) 31 CA 15013 of 2015

SCC 649], the Hon'ble Supreme Court has held that an

application for condonation of delay should be drafted

with careful concern and not in a haphazard manner

harbouring the notion that the courts are required to

condone delay on the bedrock of the principle that

adjudication of a lis on merits is seminal to justice

dispensation system. Further, the Hon'ble Supreme Court

has held that an application for condonation of delay

should not be dealt with in a routine manner on the basis

of individual philosophy which is basically subjective.

The increasing tendency to perceive delay as a non-

serious matter and, hence, lackadaisical propensity can

be exhibited in a nonchalant manner requires to be

curbed, of course, within legal parameters.

9)    In  Postmaster   General   and   Ors.   vs.   Living   Media

 
India Limited and anr.   reported in 
                      ,              [
                                      4(2012) 3 SCC 563],

the Hon'ble Supreme Court declined to condone the delay

of 427 days in filing the special leave petition by

(8) 31 CA 15013 of 2015

observing that department cannot take advantage of

various earlier decisions where a very liberal approach

was adopted when it came to condone delay on the part of

Government agencies. The Hon'ble Supreme Court observed

that the claim on account of impersonal machinery and

inherited bureaucratic methodology of making several

notes cannot be accepted in view of the modern

technologies being used and available. The law of

limitation undoubtedly binds everybody including the

Government. It is the right time to inform all the

government bodies, their agencies and instrumentalities

that unless they have reasonable and acceptable

explanation for the delay and there was bonafide effort,

there is no need to accept the usual explanation that the

file was kept pending for several months/years due to

considerable degree of procedural red-tape in the

process. The government departments are under a special

obligation to ensure that they perform their duties with

diligence and commitment. Condonation of delay is an

(9) 31 CA 15013 of 2015

exception and should not be used as an anticipated

benefit for government department. The law shelters

everyone under the same light and should not be swirled

for the benefit of a few. Considering the fact that

there was no proper explanation offered by the Department

for the delay except mentioning of various dates, the

Hon'ble Supreme Court held that, the Department has

miserably failed to give any acceptable and cogent

reasons sufficient to condone such a huge delay.

10) In Basawaraj and anr. vs. Special Land Acquisition

(2013) 14 SCC 81] the Hon'ble Officer, reported in [

Supreme Court went on to observe that the law on the

issue can be summarised to the effect that where a case

has been presented in the court beyond limitation, the

applicant has to explain the court as to what was the

"sufficient cause" which means an adequate and enough

reason which prevented him to approach the court within

limitation. In case a party is found to be negligent, or

( 10 ) 31 CA 15013 of 2015

for want of bona fide on his part in the facts and

circumstances of the case, or found to have not acted

diligently or remained inactive, there cannot be a

justified ground to condone the delay. No court could be

justified in condoning such an inordinate delay by

imposing any condition whatsoever. The application is to

be decided only within the parameters laid down by this

Court in regard to the condonation of delay. In case

there was no sufficient cause to prevent a litigant to

approach the court on time condoning the delay without

any justification, putting any condition whatsoever,

amounts to passing an order in violation of the statutory

provisions and it tantamounts to showing utter disregard

to the legislature.

11) The Division Bench of this Court in State of

Maharashtra and ors. vs. Vithu Kalya Govari and ors.,

reported in [ 2008(6) Mh.L.J.239] has observed that the

State is not expected to be negligent or to take no

( 11 ) 31 CA 15013 of 2015

action for years and let the matters become time barred

on account of its negligence and inaction. The usual

reason of "official hassle" or "approval at different

levels" is hardly sufficient to justify condonation of

delay of about two years. In law, advantage has accrued

to the non-applicants claimants and the same cannot be

withdrawn in a mechanical manner and that too without any

sufficient cause being shown by the applicants. Despite,

awards/judgments of the Courts, which have attained

finality, the claimants are not permitted to receive

compensation in respect of their lands, which came to be

compulsorily acquired, is itself, sufficient prejudice to

them. Therefore, before any delay can be condoned and

the claimants subjected to further prolonged litigation,

the onus to show sufficient cause lies upon the

applicant-State.

12) Applying the aforesaid principles to the facts of

the present case, it will not be proper to indulge the

( 12 ) 31 CA 15013 of 2015

applicants and condone delay of 1654 days in instituting

this appeal, particularly, when no sufficient cause has

been shown.

13) For the aforesaid reasons, the Civil Application is

dismissed. There shall be no order as to costs. As a

consequence of dismissal of Civil Application, the

appeals also stand disposed of.

14) Civil Application No.15206 of 2017 in First Appeal

Stamp No.29820 of 2015 is allowed and the

respondents/claimants, who are the applicants in the said

Civil Application are permitted to withdraw the amount

deposited by the original appellants in this Court

together with interest that may have accrued thereon.

Such withdrawal is permitted unconditionallly.

Accordingly, the Civil Application No.15206 of 2017 is

also disposed of.

[M.S.SONAK, J.] SPT/31 CA 15013 of 2015