Deputy Collector, Land ... vs Patel Shivabhai Kamabhai
2022 Latest Caselaw 4400 Guj

     C/CA/1847/2020                                    ORDER DATED: 26/04/2022




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                      R/CIVIL APPLICATION NO. 1847 of 2020

                      In F/FIRST APPEAL NO. 17721 of 2020

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   DEPUTY COLLECTOR, LAND ACQUISITION AND REHABILITATION
                          Versus
                PATEL SHIVABHAI KAMABHAI
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Appearance:
MS VRUNDA C SHAH, ASSISTANT GOVERNMENT PLEADER for the
Applicant(s) No. 1,2
DECEASED LITIGANT for the Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 1.1,1.2,1.3
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 CORAM:HONOURABLE MS. JUSTICE GITA GOPI

                                Date : 26/04/2022

                                 ORAL ORDER

This is an application under Section 5 of the Limitation Act for condonation of delay of 215 days which has occurred in filing the captioned First Appeal.

It is submitted by Ms. Vrunda C. Shah, learned AGP for the applicants that the learned Principal Senior Civil judge, Deodar has pronounced the judgment and award on 19.04.2019 and thereafter on 26.04.2019 the Deputy Executive Engineer, Dantiwada Dam Works, Sub-Division No.1, Deesa had applied for certified copy and the same was received on 16.05.2019. Thereafter the Dy. Executive Engineer, Dantiwada Dam Works had prepared proposal on 10.06.2019 and submitted to the office of Executive Engineer, Deesa Irrigation Department, which, in turn, was forwarded to the Additional Engineer, Sujalam Sufalam Div.2, Kherwa on 13.06.2019. Thereafter the filed was sent to the State

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Government through Narmada Water Resources, Water Supply and Kalpsar Department on 16.07.2019 wherein the State Government had given approval to submit the file before the Committee headed by Chief Engineer (South Gujarat) and Additional Secretary of the concerned department. Thereafter the Committee had given approval to file appeal before this Hon'ble Court on 16.09.2019 and the file was returned to the concerned department with an instructions to submit the file before the Revenue and Legal Department of the State of Gujarat. Thereafter on 25.11.2019 the Revenue Department had agreed with the decision to prefer appeal before this Hon'ble Court as approved by the Committee and file was submitted before the Legal Department for further approval whereby on 31.12.2019 the Legal Department had granted approval for preferring First Appeal before this Hon'ble Court. Thereafter the said instructions was forwarded to the concerned officer on 23.01.2020 with an instructions to contact the office of Government Pleader to initiate necessary procedure for preferring First Appeal before this Hon'ble Court.

It is submitted by learned AGP that in the meantime the office of Government Pleader received file on 02.01.2020 to prefer appeal without certified copy of the judgment and award and therefore the office of Government Pleader had sent a Fax on 06.01.2020 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 office of Government Pleader, the papers were given to the concerned Assistant Government Pleader for drafting in the month of May 2020 and thereafter the draft was prepared and sent for approval, and after approval the appeal was filed. It is submitted that in view of

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the aforesaid facts and circumstances of the case, the delay of 215 days has been caused in filing the appeal.

Learned AGP for the applicants has referred to the judgment of the Hon'ble Apex Court in the case of K. Subbarayudu v. Special Deputy Collector (Land Acquisition) reported in 2017 (12) SCC 840, to submit that the Hon'ble Apex Court had condoned the delay of 3671 days.

In the case of Collector, Land Acquisition, Anantnag and Another v. Mst. Katiji and Others reported in AIR 1987 SC 1353 it has been observed as under :-

"3. The legislature has conferred the power to condone delay by enacting Section 5 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on 'merits'. The expression "sufficient cause" employed by the legislature is adequately elastic to enable the courts to apply the law in a meaningful manner which sub-serves the ends of justice--that being the life-purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:-

1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.

2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a

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cause would be decided on merits after hearing the parties.

3. "Every day's delay must be explained" does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay? The doctrine must be applied in a rational common sense pragmatic manner.

4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.

5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.

6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.

Making a justice-oriented approach from this perspective, there was sufficient cause for condoning the delay in the institution of the appeal. The fact that it was the 'State' which was seeking condonation and not a private party was altogether irrelevant. The doctrine of equality before law demands that all litigants, including the State as a litigant, are accorded the same treatment and the law is administered in an even handed manner. There is no warrant for according a step-motherly treatment when the 'State' is the applicant praying for condonation of delay. In fact 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

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though more difficult to approve. In any event, the State which represents the 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 "sufficient cause". So also the same approach has to be evidenced in its application to matters at hand with the end in view to do even handed justice on merits in preference to the approach which scuttles a decision on merits."

Having heard learned advocates for the parties and having considered the averments made in the application, more particularly, in paragraph Nos. 2, 3, 4 and 5 and also considered the aforesaid decision, I am of the opinion that delay deserves to be condoned. Hence the present application is allowed. Delay of 215 days which has occurred in preferring the appeal is condoned. Rule is made absolute with no order as to costs.

(GITA GOPI,J) A.M.A. SAIYED