Late Vali Mohammad Noor Mohammad ... vs State Of Gujarat
2023 Latest Caselaw 347 Guj

       C/CA/3387/2022                                 ORDER DATED: 12/01/2023




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                        R/CIVIL APPLICATION NO. 3387 of 2022

                         In F/FIRST APPEAL NO. 24530 of 2021
                                        With
                        R/CIVIL APPLICATION NO. 3389 of 2022
                                        With
                        R/CIVIL APPLICATION NO. 3390 of 2022
                                        With
                        R/CIVIL APPLICATION NO. 3391 of 2022
                                        With
                        R/CIVIL APPLICATION NO. 3392 of 2022
                                        With
                        R/CIVIL APPLICATION NO. 3393 of 2022
========================================================
LATE VALI MOHAMMAD NOOR MOHAMMAD SINCE DIED THROUGH LH
              SULEMAN JAMALUDDIN MACHALIYA
                          Versus
                    STATE OF GUJARAT
========================================================
Appearance
MR ANURAG RATHOD For the Applicant
A S TIMBALIA(7372) for the Applicant(s) No. 1
MR NIRAV C SANGHAVI(5950) for the Applicant(s) No. 1
MR PRANAV DHAGAT ASSISTANT GOVERNMENT PLEADER for the
Respondent(s) No. 1,2
========================================================
     CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
                        Date : 12/01/2023

                                   ORAL ORDER

1. Heard learned Advocate Mr.Anurag Rathod on behalf of the

applicants and learned Assistant Government Pleader Mr.Pranav Dhagat on

behalf of the respondent- State in all the applications.

2. By way of these applications preferred under Section 5 of the

Limitation Act, 1963 the applicants pray for condoning the delay of 2078

C/CA/3387/2022 ORDER DATED: 12/01/2023

days occurred in preferring appeals, challenging the common judgement and

award dated 17.04.2014 passed by the learned Principal Senior Civil Judge,

Palanpur in Land Reference Cases No. 1 of 2001, 6 of 2001, 4 of 2001, 5 of

2001, 7 of 2001, 8 of 2001, and 14 of 2001 respectively.

3. Learned Advocate Mr. Rathod on behalf of the applicants has relied

upon a decision of this Court dated 03.01.2023 in Civil Application ( For

Condonation of Delay) No. 3437 of 2022 in F/First Appeal No. 13238 of

2022 and allied matters whereby this Court relying upon decisions of the

Hon'ble Supreme Court had condoned the delay of 496 days which had

occurred in preferring First Appeals. Learned Advocate would further

submit that the applicants could prefer the appeals after making

arrangement for the payment of necessary Court fees for preferring the

appeals.

4. Having regard to such submissions, learned Advocate Mr. Rathod

would request this Court to condone the delay of 2078 days in preferring

the appeals. Learned Advocate Mr. Rathod, in support of his submissions,

would rely upon the observations of a learned Coordinate Bench of this

Court in case of Mansurbhai Mulubhai Vs. (State of Gujarat) Deputy

Collector, Land Acquisition and Rehabilitation (Irrigation) Officer in Civil

C/CA/3387/2022 ORDER DATED: 12/01/2023

Application No.1239 of 2021 in F/First Appeal No.15299 of 2021. Learned

Advocate Mr. Rathod would further rely upon the observations of the

Hon'ble Apex Court in case of Collector, Land Acquisition , Anantnag and

Anr. Vs. Mst. Katji and Ors., reported in AIR 1987 SC 1353 as well as the

decision of the Hon'ble Apex Court in case of S. Ganeshraju (D) Through

LRs and Anr. Vs. Narasamma (D) Through LRs and Ors., reported in 2012

(4) Scale 152. Learned Advocate would submit that in the decision of this

Court, relied upon i.e. in Civil Application No.1239 of 2021, a learned

Coordinate Bench had inter alia taken the view that the delay caused in

preferring appeal, more particularly since the land owner could not gather

funds for preferring appeal on account of late payment of compensation,

was a good ground for condoning the delay.

5. Learned Advocate Mr.Rathod would also rely upon the decision of a

learned Coordinate Bench of this Court in case of Girishkumar Bhikhubhai

Hirpara Vs. State of Gujarat in Civil Application No.3223 of 2022 in F/First

Appeal No.24316 of 2022 dated 7.12.2022. Since it appears that the learned

Coordinate Bench in decision of Girishkumar, was dealing with a similar

issue, this Court deems it appropriate to refer to and rely upon the

observations of the learned Coordinate Bench. Paragraphs No.6, 7, and 8 of

the said decision being relevant for the present purpose are quoted herein

C/CA/3387/2022 ORDER DATED: 12/01/2023

below for benefit:-

"6. Pertinently, it is not in dispute that the possession of the land of the applicants was taken before 10 years and thereafter, the applicants have been without land and also the compensation. It is also not in dispute that reference case came to be decided by the judgment dated 03.10.2018; followed by deposit of the amount of compensation; further followed by the applications by the applicants seeking disbursement. It is not in dispute that the application for disbursement has been allowed recently and it is only after the applicant could manage the funds that the appeal has been filed. It is nobody's case that applicant has not taken any steps and after long years has woken up from the slumber, that the appeals have been filed.

7. From the averments made in the application, it is clear that the applicant, has been vigilant enough to pursue the remedy and therefore the present appeal. This Court, in the case of Mansurbhai Mulubhai v. (State of Gujarat) Deputy Collector, Land Acquisition and Rehabilitation (Irrigation) Officer (supra) has noted that the person, who has lost the land and did not have the money, in absence of the payment of the compensation is a good reason and makes out a bonafide ground which prevented the applicants from preferring the appeals. It has also been held that poor farmers who have lost the land cannot be expected to be able to immediately arrange the funds for incurring the expenses towards the litigation. It also cannot be said that the person, who has lost the land would not take steps for the purpose of the compensation more particularly, the land, which have been acquired is the source of livelihood.

8. The Apex Court, in the case of Collector, Land Acquisition, Anantnag and another v. Mst. Katiji and others (supra) has held and observed that liberal approach be adopted while condoning the delay. Yet in another decision in the case of S. Ganeshraju (D) Thr. L.Rs. and another v. Narasamma (D) Thr. L.Rs. and others (supra) the said principle has been reiterated. It has been held and observed that the expression "sufficient cause" is to be given a liberal interpretation so as to advance substantial justice. Exception is that unless the respondents are able to show malafide in not approaching the Court within limitation, generally, as a normal rule, the delay should be condoned."

6. Learned Advocate Mr. Rahod would also emphasize on the decision

of the Hon'ble Supreme Court in case of K. Subbarayadu & Ors vs. The

Special Deputy Collector, ( Land Acquisition) reported in 2017 ( 12) SCC

840, wherein the Hon'ble Supreme Court had condoned substantial delay

more particularly while observing that the appellant would not be entitled to

claim interest over enhanced amount if any, for the delayed period and

C/CA/3387/2022 ORDER DATED: 12/01/2023

whereas learned Advocate would submit that the applicants-appellants

would also waive their right to claim for any interest upon enhanced

compensation, if any, during the period of delay and whereas learned

Advocate would submit that even on such consideration this Court may

condone the delay.

7. These applications have been vehemently opposed by the learned

AGP Mr. Dhagat who would submit that delay fo 2078 days has not been

sufficiently explained and whereas under such circumstances, the

applications may not be considered by this Court.

8. Having regard to the law laid down by the Hon'ble Supreme Court,

more particularly whereby an application for condonation of delay is

required to be considered liberally and further having regard to the

statement made by learned Advocate Mr. Rathod as per the decision of the

Hon'ble Supreme Court in case of K. Subbaryadu & Ors (supra) in the

considered opinion of this Court the applications deserve consideration.

9. Delay of 2078 days which has occurred in preferring First Appeals

challenging judgement and award dated 17.04.2014 passed by the learned

Principal Senior Civil Judge, Palanpur in Land Reference Cases No. 1 of

C/CA/3387/2022 ORDER DATED: 12/01/2023

2001, 6 of 2001, 4 of 2001, 5 of 2001, 7 of 2001, 8 of 2001, and 14 of 2001

respectively is condoned subject to the condition that the claimants shall not

claim interest upon enhanced compensation, if any, for the period of delay.

With these observations and direction, the present Civil Applications

stand allowed. Rule is made absolute to the aforesaid extent.

(NIKHIL S. KARIEL,J) NIRU