Gujarat High Court

Nathabhai Khimabhai vs State Of Gujarat on 29 September, 2022

Bench: Nisha M. Thakore

     C/CA/2368/2022                                 ORDER DATED: 29/09/2022




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                      R/CIVIL APPLICATION NO. 2368 of 2022

                       In F/FIRST APPEAL NO. 5717 of 2022

                                     With
                      R/CIVIL APPLICATION NO. 2375 of 2022
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                             NATHABHAI KHIMABHAI
                                    Versus
                              STATE OF GUJARAT
==========================================================
Appearance:
MR NITIN M AMIN(126) for the Applicant(s) No. 1
MR SANJAY M AMIN(130) for the Applicant(s) No. 1
for the Respondent(s) No. 2,3
MS DHWANI TRIPATHI, ASST. GOVERNMENT PLEADER/PP for the
Respondent(s) No. 1
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 CORAM:HONOURABLE MS. JUSTICE SONIA GOKANI
       and
       HONOURABLE MS. JUSTICE NISHA M. THAKORE

                                Date : 29/09/2022

                        ORAL ORDER

(PER : HONOURABLE MS. JUSTICE SONIA GOKANI)

1. Rule. Learned Assistant Government Pleader waives

service of notice of rule for and on behalf of the respondent -

State.

2. The group of applicants, who are before this Court

seeking to condone the delay of 2488 and 2458 days

respectively, challenging the judgment and order dated

21.02.2013 passed by the learned Principal Senior Civil Judge

C/CA/2368/2022 ORDER DATED: 29/09/2022

in Land Reference Cases at Junagadh.

3. It emerges from the record that the possession of the

lands of the applicants had been taken over by the State in the

year 2000. Additional compensation had been given at the

rate of Rs.32.40 per square meters for irrigated land and

Rs.25.87 per square meters for Jirayat land and Rs.11.14 per

square meters for non-used/ uncultivated land. Additional

compensation was given at the rate of 12% per annum for the

period of 30 months and solatium at the rate of 30% on the

said amount. This has aggrieved the applicants, whose main

grievance is that the sale instances of the very village,

whereby the market value of the land had been fixed at Rs.75

has not been taken into consideration by the Reference Court.

3.1. It is further their say that they were without the land

and any compensation for the period of nearly 10 years and

therefore, could not have sufficient fund to file appeals.

Hence, the request is made to condone the delay of 2488 and

2458 days relying on the decision of the Apex Court

rendered in case of K. Subbarayadu and others vs. Special

Deputy Collector (Land Acquisition), reported in 2017 12

SCC 840. It was an appeal under the Land Acquisition Act,

C/CA/2368/2022 ORDER DATED: 29/09/2022

1894 before the Apex Court where the delay of 3671 days has

been condoned by the Apex Court by striking the balance that

for the delay which has been caused, no interest would be

chargeable.

4. This Court has heard the learned advocate, Mr.Nitin

Amin appearing for the applicants and learned Assistant

Government Pleader, Ms. Dhwani Tripathi for respondent-

State.

5. Learned advocate, Mr.Nitin Amin has relied on the

decision of the Apex Court in case of K. Subbarayadu and

others (supra) and has urged that the practical difficulty of the

appellants needs to be born in mind. He has further urged

that this Court in Civil Application No.01 of 2019 in First

Appeal No.8076 of 2019 has also condoned the huge delay in

bringing the heirs of the Land Reference Court on record. He

has further pointed out that sufficient cause as mentioned in

the provision as per the decision of the Apex Court rendered

in case of S.Ganeshraju (D) Thr. L.Rs.& Another vs.

Narasamma (D) Thr. L.Rs. & others,reported in 2012 (4)

Scale 152 shall need to be given a liberal meaning. There are

fair chances to succeed in the appeal and the plight of the

C/CA/2368/2022 ORDER DATED: 29/09/2022

agriculturist shall be considered sympathetically. He has

urged that he has already paid the price for his not having

approached this Court well within time, as per the said

decision of the Apex Court where he may not claim the

interest for the delayed period.

6. Learned Assistant Government Pleader, Ms. Dhwani

Tripathi has strongly objected to this on the ground that the

delay is huge and there is no sufficient explanation. She has

further urged that the phrases used are standard and do not

indicate anything in particulars with regard to the conditions

of the applicants, the Court may not condone the delay when

delay of each day needs to be explained by the party.

7. Having heard learned advocates on both the sides and

also having taken into consideration the explanation, this

Court noticed that the judgment and order of the Reference

Court dated 21.02.2013 where of course there is a some rise

in the amount of compensation. The applicants are before this

Court indicating that for the very village the sale instances of

Rs.75 per square meters for irrigated land. It is also matter of

record that the land has been acquired in the year 2000 and

the applicants being the agriculturist would have no other

C/CA/2368/2022 ORDER DATED: 29/09/2022

means to sustain themselves. In that circumstances, they have

pleaded their inability to pay the Court fees in each case.

8. Being alive to the decision of the Apex Court and also in

case of State of Nagaland vs. Lipok AO and others,

reported in 2005 3 SCC 752 which says that Section 5 of

the Limitation Act shall have to be liberally construed so as to

do substantial justice to the parties. The provision

contemplates that the court has to go into the position of

the person concerned and to find out if the delay can be said

to have been resulted from the cause which he had adduced

and whether the cause recorded in the peculiar circumstances

of the case is sufficient.

9. The Apex Court in case of K. Subbarayadu and others

(supra) was also dealing with Land Acquisition Cases where it

held that the acquisition of the land the lifeline of the

agriculturist is lost. There may be omissions on the part of the

claimants to adopt extra vigilance; but same need not be used

as a ground to depict them as not having bona-fide or to treat

the same as a negligent act. The Court ought to adopt a

pragmatic approach so far as the Land Acquisition matters are

concerned, for awarding just and reasonable compensation.

C/CA/2368/2022 ORDER DATED: 29/09/2022

10. Relying on the decision of the Apex Court rendered in

case of Dhiraj Singh (D) Thr. Lrs. vs. Haryana State

and Ors, reported in 2014 9 Scale 441 the Apex Court

struck the balance by denying the appellants' interest for the

period for which they did not approach the Court. Apt would

be to reproduce the findings and observations of the Apex

Court in this regard:

"12. In fact, in a matter arising out of the same notification, in Civil Appeal Nos.617-619 of 2012, this Court had rendered a judgment dated 17.1.2012 condoning the delay of 4644 days and enhancing the compensation to Rs.200/- per square yard. A perusal of the counter affidavit filed by the respondents makes it clear that the rate of Rs.200/- per sq. yard fixed in Horam's case (LPA No.920 of 1994) has been upheld by this Court by dismissing the special leave petition against the said judgment. A perusal of the said order makes it clear that it relied upon dismissal orders passed in various other special leave petitions whereby the aforesaid rate had been upheld.

13. Thus, in almost all cases, the rate of Rs.200/- per sq. yard has been applied by the High Court and this Court.

14. The appellants are identically situated and there is no reason to meet out a different trcatment to them. We also note that, while in these cases, the High Court had refused to condone the delay and dismissed the LPAs of the appellants, other LPAs were allowed by the High Court itself by condoning the delay of the same magnitude in the same circumstances."

C/CA/2368/2022 ORDER DATED: 29/09/2022

11. This Court also in Civil Application No.01 of 2019 in First

Appeal No.8076 of 2019 relying of the decision of the Apex

Court rendered in case of Banwari Lal vs. Balbir Singh,

reported in 2016 (1) SCC 607 and considering the peculiar

facts and circumstances allowed the application by condoning

the delay of 4175 days in bringing the heirs on the record.

12. As can be noted from the version given by the applicants

that they are agriculturist, who have lost their land in the year

2000 and their sale instance of the very village also has

provided them the cause to approach this Court. The delay is

also well explained of their not having the sufficient means.

It is quite understandable that the persons who have lost their

only means of bread and butter if needs to adduce the Court

fees which in an individual case of Rs.75,000/-, it is extremely

difficult for them to make an arrangement till the amount

given under the award is available to them. Delay having been

sufficiently explained, the Court is of the opinion that this is

the fit case for permitting the condonation of delay.