Bombay High Court
The Chief Officer, Municipal ... vs Baban Anna Namde And Others on 19 August, 2023
Bench: V. V. Kankanwadi, Abhay S. Waghwase
2023:BHC-AUG:17727
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CIVIL APPLICATION NO.3767 OF 2021
IN
FIRST APPEAL (STAMP) NO.21030 OF 2020
THE CHIEF OFFICER, MUNICIPAL, AMBAD, THROUGH VIDYACHARAN
JAGANNATH KADAVKAR
VERSUS
BABAN ANNA NAMDE AND OTHERS
...
Mr. Swapnil Patunkar, Advocate h/f J.P. Legal Associates for applicant
Mr. A.S. Kale, Advocate h/f Talekar and Associates for respondent Nos.1 to 5
Mr. A.M. Phule, AGP for respondent Nos.6 and 7
...
CORAM : SMT. VIBHA KANKANWADI
ABHAY S. WAGHWASE, JJ.
RESERVED ON : 22nd JUNE, 2023
PRONOUNCED ON : 19th AUGUST, 2023
ORDER : (PER : SMT. VIBHA KANKANWADI, J.)
1 Present application has been filed for condonation of delay of
406 days in filing the First Appeal. The application is by the acquiring body.
It is raising an exception to the Judgment and Award dated 25.10.2018
passed by learned Civil Judge Senior Division, Jalna i.e. the reference Court
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in Land Acquisition Reference No.794/2008.
2 Heard learned Advocate Mr. Swapnil Patunkar holding for J.P.
Legal Associates for applicant, learned Advocate Mr. A.S. Kale holding for
Talekar and Associates for respondent Nos.1 to 5 and learned AGP Mr. A.M.
Phule for respondent Nos.6 and 7.
3 It has been vehemently submitted on behalf of the applicant that
the delay that has been caused is due to the lapse of period in seeking and
obtaining the sanctions from the General Body of the Municipal Council to
prefer an appeal. It has been contended that the proposal to prefer an appeal
was submitted before the State Government, then legal opinion has been
given on 26.11.2019. The said opinion was then again put before the
General Body of the Council, who had thereafter decided to accord the
approval. Further, there is weak financial position of the council and,
therefore, all the factors were required to be considered. The applicant has
deposited amount of Rs.75,00,000/- before this Court, which has been
withdrawn by the claimants. Thereafter the applicant has also paid amount
of Rs.18,00,000/- to the claimants and Rs.10,00,000/- were also deposited
before this Court in Writ Petition No.7123 of 2011. No deduction has been
given in respect of said amount of Rs.10,00,000/- by the reference Court as
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the said fact has been suppressed by them from the reference Court. That
amount is also in respect of the same acquisition of the land. If the said
amount is deducted, then all statutory benefits granted to the claimants
would change. In all, the applicant has paid amount of Rs.1,03,00,000/- to
the claimants. The acquired land was in fact agricultural land, but the
reference Court has treated it as non agricultural. Therefore, the applicant -
acquiring body has good case on merits. Due to the weak economic
condition of the council the applicant is ready to give TDR to the claimants in
respect of remaining amount. The First Appeal No.1040 of 2019 filed by the
claimants is already admitted by this Court by order dated 06.11.2019. Both
the appeals can be heard together and no prejudice is going to cause to the
claimants. Learned Advocate for the applicant, therefore, prayed for
condonation of delay.
4 Per contra, the application has been strongly opposed by the
original claimants - present respondent Nos.1 to 5. It has been stated that
the delay is huge and the reason that has been stated is not reasonable.
Weak economic condition of the Municipal Council cannot be a ground, so
also, the delay in taking decision by the General Body is also not a good
ground to condone the delay. For the administrative lapses on the part of the
acquiring body, the claimants shall not be asked to suffer. Reliance has been
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placed on Postmaster General and others vs. Living Media India Limited and
another [(2012) 3 SCC 563], wherein it has been held that a condonation of
delay is an exception and should not be used as an anticipated benefit for
government departments and offering usual explanation that file was kept
pending due to procedural red tape. It has been further observed that -
"27) It is not in dispute that the person(s) concerned were well
aware or conversant with the issues involved including the prescribed
period of limitation for taking up the matter by way of filing a special
leave petition in this Court. They cannot claim that they have a
separate period of limitation when the Department was possessed
with competent persons familiar with court proceedings. In the
absence of plausible and acceptable explanation, we are posing a
question why the delay is to be condoned mechanically merely
because the Government or a wing of the Government is a party
before us.
28) Though we are conscious of the fact that in a matter of
condonation of delay when there was no gross negligence or
deliberate inaction or lack of bona fides, a liberal concession has to be
adopted to advance substantial justice, we are of the view that in the
facts and circumstances, the Department cannot take advantage of
various earlier decisions. 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.
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29) In our view, 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
bona fide 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 exception and should not be used as an
anticipated benefit for government departments. The law shelters
everyone under the same light and should not be swirled for the
benefit of a few."
5 Learned AGP appears for respondent Nos.6 and 7.
6 Here, the reasons those have been given in the application have
already been stated. It has been contended that the acquiring body i.e.
Municipal Council, Ambad, Tq. Ambad, Dist. Jalna was suffering from
financial crisis at that time. No doubt, there is a procedure, that is, laid down
in any Government institution or semi Government institution when it comes
to preferring an appeal or taking any concrete action in respect of Court
procedures. The applicant is coming with a clear reason that the General
Body of the applicant - council had taken much more time in taking the
decision. Obtaining legal opinion cannot be objected because every litigant
has right to approach Advocate of his/her/its choice. When again that
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opinion was required to be tabled before the General Body of the council,
then, definitely, that procedure cannot be objected. Of Course, the swift
action was contemplated. There cannot be second opinion in respect of the
observation by the Hon'ble Supreme Court in Postmaster General (supra).
However, in the same case itself the decision in Pundlik Jalam Patil vs.
Jalgaon Medium Project [(2008) 17 SCC 448] was referred. In Pundlik
Jalam Patil's case there was delay of 1724 days in filing appeals before this
Court. After referring to earlier decisions in respect of taking very lenient
view, the Hon'ble Supreme Court has deprecated it when it comes to public
interest, however, the main reason for that appears to be that prompt and
timely payment of compensation to the landlosers facilitating their
rehabilitation/resettlement was considered to be integral part of public
policy, and then it was observed that dragging the landlosers to Court 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. Here, we would like to observe
that condonation of delay depends on the reasons given or in other words,
reasonable ground shown. Here, it has been stated that amount of
Rs.10,00,000/- was deposited by the Municipal Council - acquiring body in
the writ petition in this Court, but the reference Court had not pointed it out.
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Of course, that could have been definitely pointed out by the present
applicant also, but the fairness on the part of the claimants is also expected.
Now, the total amount that has been paid to the claimants appears to be
Rs.1,03,00,000/-, which is a substantial amount. The due amount is stated
to be more than Rs.2,00,00,000/-. The earlier orders in respect of stay to the
execution proceedings appears to be continued and the original claimants
have been permitted to withdraw the amount, time and again, when the
applications were filed. When the claimants' appeal is also pending, which is
of course for the enhancement, no prejudice is going to be caused if this
appeal is also tagged along with the appeal filed by the claimants. Therefore,
we hold that reasonable ground has been shown for condoning the delay of
406 days in filing the appeal by the acquiring body. In fact, the acquiring
body's appeal would lie before the Single Bench, however, in view of the fact
that the claimants' appeal for enhancement is beyond the pecuniary limit of
the Single Bench, the matter would lie before the Division Bench and under
such circumstance, the delay condonation is before this Court.
7 As we hold that reasonable ground has been shown for
condonation of delay and substantial amount has been deposited, we proceed
to pass following order.
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ORDER
1 Application stands allowed and disposed of.
2 Registry to verify and register the First Appeal.
3 The said First Appeal be tagged along with First Appeal No.1040
of 2019.
4 The paper book is already ready and received in the said First
Appeal.
5 Place the applications for stay for further consideration on
30.09.2023, till then interim relief, if any, granted earlier to continue.
(ABHAY S. WAGHWASE, J.) ( SMT. VIBHA KANKANWADI, J. )
agd
