Special Land Acquisition Officer vs Vishwamurti Farm Pvt Ltd Director ...
2021 Latest Caselaw 15493 Guj

      C/CA/1624/2019                                 ORDER DATED: 04/10/2021




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                       R/CIVIL APPLICATION NO. 1624 of 2019
                        In F/FIRST APPEAL NO. 9442 of 2019
                                       With
                          F/FIRST APPEAL NO. 9442 of 2019
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              SPECIAL LAND ACQUISITION OFFICER
                            Versus
      VISHWAMURTI FARM PVT LTD DIRECTOR VIRENDRAKUMAR
                       AMRUTLAL PATEL
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Appearance:
MR KM ANTANI AGP(1) for the Applicant(s) No. 1,2
MR N R DESAI(6504) for the Respondent(s) No. 1
MR SP MAJMUDAR(3456) for the Respondent(s) No. 1
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    CORAM:HONOURABLE MR. JUSTICE J.B.PARDIWALA
          and
          HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI

                                 Date : 04/10/2021
                                  ORAL ORDER

(PER : HONOURABLE MR. JUSTICE J.B.PARDIWALA)

1 This Civil Application is at the instance of the original appellants seeking condonation of delay of 507 days in filing the First Appeal against the judgement and award passed by the Special Judge, (LAQ) Narmada Yojna, Ahmedabad (Rural) Mirzapur, dated 30 th June 2017 in the Land Reference Case No.35 of 2010 (Land Acquisition Award Cases Nos.3191 of 2009 and 906 of 2009 respectively).

2 The cause for delay as explained in the application reads as under:

"2 The applicants respectfully submit that the learned Principal Senior Civil Judge, Ahmedabad (Rural) has pronounced the judgment and award on 30.06/2017 and the certified copy was applied on 11.08.2019 and the same was ready on 06.09.2017 and received by the concerned Dist. Government Pleader on 15.09.2017.

       3       It is most respectfully submitted that thereafter on 27.04.2018





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the report from the concerned Land Acquisition Officer was received by the concerned department, and on 02.06.2018 the opinion of the Sardar Sarovar Narmada Nigam was received by the concerned department of the State Government and thereafter the Deputy Section Officer had prepared a note which was Sign and scrutinized by the Section a officer and Under Secretary on 05.06.2018 and on 11.06.2018 signed by the Deputy Secretary, and on 14.06.2018 the Additional Chief Secretary had granted approval for preferring appeal, and thereafter on 18.06.2018 the file was submitted before the Legal Department, whereby on 22.06.2018 initially the Legal Department had instructed to accept the Judgment and award passed by the Ld.

Reference Court and returned the file to the concerned department. On 36.07.2018 the Deputy Secretary of Narmada Water Resources, Water Supply and Kalpsar Department had given approval to submit the file for approval of the Highest Authority of the State Government because of the fact that in a case when there is two different opinion of the two Government Departments, than in such cases the file is require to be submitted before the Highest Authority of the State Government for final approval, and therefore on 30.07.2018 the noting was made on file and on 08.08.2018 the Hon'ble Deputy Chief Minister of the State of Gujarat had approved and on 09.08.2018 the Hon'ble Chief Minister had given final approval for preferring appeal before this Hon'ble Court. And the file was returned on 20.08.2018, pursuant to which the Deputy Section Officer on 23.08.2018 had prepared a note which signed and scrutinized by the Section Officer, Under Secretary and Deputy Secretary of the concerned department and submitted before the Legal Department for further permission on 24.08.2018 whereby on 27.08.2018 the Legal Department had granted permission to prefer First Appeal before this Hon'ble Court.

4 It is most respectfully submitted that in the office of Government Pleader received file on 24.08.2018 to prefer appeal without Certified Copy of the Judgment and Award and therefore the Office of the Government Pleader had sent a fax to the present applicants to call for the record of the case and after receipt of the certified copy of the Judgment and Award by the office of the Government Pleader, Hon'ble High Court of Gujarat. the papers were given to the concerned Assistant Government Pleader for drafting in the month of December 2018, and thereafter the concerned Assistant Government Pleader had called the officer for necessary instructions alongwith the specific instructions for filing Appeal because of the fact that the Ld. Reference Court had enhance compensation by considering the Judgment passed by this Hon'ble Court, whereby it was brought to the notice, that Ld. Reference Court had granted compensation by considering N.A Land, and some survey numbers in the present group of cases are either not N.A land or obtained N.A. order after the date of S.4 Notification and in fact one survey number was wrongly included in the Decree for which no reference was ever made by the concerned claimant and after perusing

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the necessary documentary evidence, the draft was prepared and sent for approval and after approval and in receipt of relevant type copies the appeal was filed on 15/3/19 in the Hon'ble High Court of Gujarat. Thus, there is a delay of 507 days in filing the appeal."

3 We have heard Mr. Antani, the learned A.G.P. appearing for the applicants and Mr. Majmudar, the learned counsel appearing for the claimant.

4 We take notice of the fact that the judgement and award came to be pronounced on 30th June 2017. We may ignore the other dates which have been stated in the Civil Application, but, we should not ignore the fact that the Legal Department in its opinion in writing in clear terms said that the State should not go for appeal having regard to the merit of the matter. However, ultimately, the matter reached the Secretariat of the Chief Minister of the State and the final nod was given by the Office of the Chief Minister of the State to file the appeal. That how the appeal came to be filed after a delay of about 507 days.

5 A Coordinate Bench of this Court to which one of us (J. B. Pardiwala, J.) was a party had the occasion to consider an identical issue relating to condonation of delay as arisen in the present matter. We may refer to the order passed by the Coordinate Bench dated 17 th December 2020 in the Civil Application No.3051 of 2020 in F/Letters Patent Appeal No.17464 of 2020. We quote the relevant observations:

"5. We take notice of the fact that the impugned judgment of the learned Single Judge is dated 25.03.2019. The legal opinion was sought by the Commissioner of Health (Medical Services) from the office of the Government Pleader vide its communication dated 29.03.2019. Mr. Pandya, informs this Court that the office of the Government Pleader opined vide communication dated 09.04.2019 that having regard to the merits of the matter, the impugned judgment and order passed by the learned Single Judge should not be challenged. We also take notice of the fact that even the Legal Department of the State Government declined to grant approval to prefer an appeal. Despite two opinions,

C/CA/1624/2019 ORDER DATED: 04/10/2021

one expressed by the office of the Government Pleader and the other by the Legal Department that it is not a fit case to prefer an appeal, the other departments of the State Government like the Heath and Family Welfare, Education Department, intervened and ultimately, saw to it that the appeal is filed after a delay of 320 days. We also take notice of the fact that after the office of the Government Pleader and the Legal Department of the State, opined that no case is made out to prefer an appeal, the office of the Chief Minister also intervened and saw to it that an appeal is preferred.

6. We are not convinced worth the name with the sufficient cause assigned by the State in its application seeking condonation of delay.

7. We called upon Mr. Pandya, the learned AGP to explain as to how the office of the Chief Minister came into picture for the purpose of taking the decision that the State should file an appeal against the order passed by a learned Single Judge, more particularly when the office of the Government Pleader as well as the Legal Department of the State opined that having regard to the merits of the case, no appeal should be preferred.

8. In response to our query, Mr. Pandya, the learned AGP brought to our notice a Circular dated 27.09.2005 issued by the Chief Secretary as regards the filing of the appeals. Mr. Pandya made the Circular available for our perusal. We take notice of Clause 7 of the Circular. Clause 7 reads thus:

"(7) Where LD has not agreed with the view of the department for challenging the order, the Department is generally required to agree with the advice of LD and comply with the order of the Court in rare cases where the Department strongly feels that, it is necessary to challenge the order in public interest, it will move a proposal to file an appeal or appropriate proceedings through Chief Secretary to the Chief Minister, as required under the existing rules, and obtain their orders. It will be responsibility of the concerned Secretary to follow up the matter, so that necessary orders are obtained within the time available for filing the appropriate proceedings."

9. Thus, plain reading of clause 7 referred to above, would indicate that, if the Legal Department is of the view that the order is not worth challenging in appeal, then the concerned department should generally agree with the opinion of the Legal Department and proceed to comply with the order of the Court, however, in rare cases only, where the department strongly feels that it is necessary to challenge the order in public interest, it will move a proposal to file an appeal through the Chief Secretary to the Chief Minister under the existing rules and obtain appropriate orders. There is not a whisper in the application as regards

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the concerned department being strongly convinced that it is necessary to challenge the order passed by a learned Single Judge in public interest, despite the negative opinion rendered by the office of the Government Pleader, State of Gujarat as well as the Legal Department of the State.

10. As we are considering whether the delay of 320 days should be condoned or not, we must look into a very recent order passed by the Supreme Court in the case of State of Madhya Pradesh and Others Vs. Bherulal, (Special Leave Petition (C) Diary No. 9217 of 2020. The same reads thus:

"1. The Special Leave Petition has been filed with a delay of 663 days! The explanation given in the application for condonation of delay is set out in paragraphs 3 and 4.

2. We are constrained to pen down a detailed order as it appears that all our counseling to Government and Government authorities have fallen on deaf ears i.e., the Supreme Court of India cannot be a place for the Governments to walk in when they choose ignoring the period of limitation prescribed. We have raised the issue that if the Government machinery is so inefficient and incapable of filing appeals/petitions in time, the solution may lie in requesting the Legislature to expand the time period for filing limitation for Government authorities because of their gross incompetence. That is not so. Till the Statute subsists, the appeals/petitions have to be filed as per the Statues prescribed.

3. No doubt, some leeway is given for the Government inefficiencies but the sad part is that the authorities keep on relying on judicial pronouncements for a period of time when technology had not advanced and a greater leeway was given to the Government (Collector, Land Acquisition, Anantnag & Anr vs. Mst. Katiji & Ors. (1987) 2 SCC 107). This position is more than elucidated by the judgment of this Court in Office of the Chief Post Master General & Ors. v. Living Media India Ltd. & Anr. (2012) 3 SCC 563 where the Court observed as under:

"12) 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

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mechanically merely because the Government or a wing of the Government is a party before us.

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 bonafide, 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.

13) 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 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 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. Considering the fact that there was no proper explanation offered by the Department for the delay except mentioning of various dates, according to us, the Department has miserably failed to give any acceptable and cogent reasons sufficient to condone such a huge delay." Eight years hence the judgment is still unheeded!

4. A reading of the aforesaid application shows that the reason for such an inordinate delay is stated to be only "due to unavailability of the documents and the process of arranging the documents". In paragraph 4 a reference has been made to "bureaucratic process works, it is inadvertent that delay occurs".

5. A preposterous proposition is sought to be propounded that if there is some merit in the case, the period of delay is to be given a go-by. If a case is good on merits, it will succeed in any case. It is really a bar of limitation which can even shut out good cases.

This does not, of course, take away the jurisdiction of the Court

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in an appropriate case to condone the delay.

6. We are also of the view that the aforesaid approach is being adopted in what we have categorized earlier as "certificate cases". The object appears to be to obtain a certificate of dismissal from the Supreme Court to put a quietus to the issue and thus, say that nothing could be done because the highest Court has dismissed the appeal. It is to complete this formality and save the skin of officers who may be at default that such a process is followed. We have on earlier occasions also strongly deprecated such a practice and process. There seems to be no improvement. The purpose of coming to this Court is not to obtain such certificates and if the Government suffers losses, it is time when the concerned officer responsible for the same bears the consequences. The irony is that in none of the cases any action is taken against the officers, who sit on the files and do nothing. It is presumed that this Court will condone the delay and even in making submissions, straight away counsels appear to address on merits without referring even to the aspect of limitation as happened in this case till we pointed out to the counsel that he must first address us on the question of limitation.

7. We are thus, constrained to send a signal and we propose to do in all matters today, where there are such inordinate delays that the Government or State authorities coming before us must pay for wastage of judicial time which has its own value. Such costs can be recovered from the officers responsible.

8. Looking to the period of delay and the casual manner in which the application has been worded, we consider appropriate to impose costs on the petitioner- State of Rs.25,000/- (Rupees twenty five thousand) to be deposited with the Mediation and Conciliation Project Committee. The amount be deposited in four weeks. The amount be recovered from the officers responsible for the delay in filing the special leave petition and a certificate of recovery of the said amount be also filed in this Court within the said period of time.

9. The special leave petition is dismissed as time barred in terms aforesaid.

10. We make it clear that if the aforesaid order is not complied within time, we will be constrained to initiate contempt proceedings against the Chief Secretary.

11. A copy of the order be placed before the Chief Secretary, State of Madhya Pradesh."

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11. Thus, the Supreme Court has frowned upon the Government in casually filing the applications seeking condonation of long and inordinate delay and that too, by not assigning any sufficient cause. According to the Supreme Court, the Court should not condone inordinate delay on mere asking.

12. We once again go back to the Circular of the State Government dated 27.09.2005 referred to above. The Circular makes it very clear that once the Legal Department is of the view that no case is made out for preferring an appeal, then, such opinion should ordinarily be accepted, unless the office of the Chief Minister of the State is of the view that it is necessary to challenge the order in public interest, the State should prefer an appeal. We fail to understand that what is the public interest involved in this particular litigation. In this litigation, the Government servant requested to sanction the medical bills to the tune of Rs.1,53,462/- . The daughter of the writ applicant aged 4 and 1/2 years was not developing physically as well as mentally compared to the other children of her age and in such circumstances, the writ applicant was advised by the doctors to go for treatment for the disease called the ''Russel Silver Syndrome''. The medical reimbursement was declined and that is the reasons the writ applicant had to come before this Court. The High Court allowed the writ application after taking into consideration all the relevant aspects of the matter."

6 Following the very same order referred to above, we are not inclined to condone the delay in the present case. In our opinion, no sufficient cause could be said to have been made out for condonation of delay of 507 days in filing the appeal. In such circumstances, the Civil Application stands rejected. Rule is discharged.

7 As a result, the First Appeal would also not survive and the same is disposed of.

(J. B. PARDIWALA, J)

(VAIBHAVI D. NANAVATI,J) CHANDRESH