Lava Gova vs State Of Gujarat
2023 Latest Caselaw 730 Guj

        C/CA/90/2023                                ORDER DATED: 30/01/2023




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                       R/CIVIL APPLICATION NO. 90 of 2023

                       In F/FIRST APPEAL NO. 33532 of 2022
                                      With
                       R/CIVIL APPLICATION NO. 91 of 2023
                                      With
                       R/CIVIL APPLICATION NO. 92 of 2023
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                                 LAVA GOVA
                                    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
MR ASHUTOSH DAVE ASSISTANT GOVERNMENT PLEADER/PP for the
Respondent(s) No. 1
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     CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL

                                Date : 30/01/2023

                            COMMON ORAL ORDER

1. Heard learned Advocate Mr.Nitin Amin on behalf of the applicants and learned Assistant Government Pleader Mr. Ashutosh Dave on behalf of the respondent State in all the applications.

2. Issue Rule returnable forthwith. Learned AGP waives service of notice of Rule for the respondent State.

3. By way of these applications preferred under Section 5 of the Limitation Act, 1963 the applicants pray for condoning delay of 932 days which has occurred in preferring appeals, challenging the judgement and award dated 01.01.2018 passed by the learned 3 rd Additional Senior Civil

C/CA/90/2023 ORDER DATED: 30/01/2023

Judge (Reference Court), Junagadh in Land Acquisition Reference Cases No. 103 of 2006, 104 of 2006 and 105 of 2006.

4. Learned Advocate Mr.Amin appearing on behalf of the applicants would submit that the possession of the land had been taken over by the respondents in the year 2003 and whereas order in reference had been passed in the year 2018, since compensation had been deposited only in the year 2019-2020 which had been withdrawn by the applicants in the year 2021. Therefore, in the interregnum since the applicants were bereft of their land and not having received adequate compensation, they could not gather funds to file the present appeals. Learned Advocate would under such circumstances request this Court to condone the delay which has occurred in preferring the appeals.

5. Additionally, learned Advocate would also draw the attention of this Court toe the observations made by 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 Application No.1239 of 2021 in F/First Appeal No.15299 of 2021. Learned Advocate Mr. Amin 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

C/CA/90/2023 ORDER DATED: 30/01/2023

funds for preferring appeal on account of late payment of compensation, was a good ground for condoning the delay.

6. Learned Advocate Mr. Amin 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 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

C/CA/90/2023 ORDER DATED: 30/01/2023

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."

7. Learned Advocate Mr. Amin 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, whereby the Hon'ble Supreme Court had condoned substantial delay, and to balance the equities, the Hon'ble Supreme Court had inter alia directed that the claimant would not be entitled to claim interest over enhanced amount if any, for the delayed period. Learned Advocate under instructions would submit that the claimants waive their right for grant of interest upon enhanced amount if any and whereas for such reason also learned Advocate would request this Court to condone the delay which has occurred in preferring the appeals.

8. This application has been vehemently opposed by the learned AGP Mr. Dave who would submit that there is gross of delay of 932 days which has not been sufficiently explained and whereas under such circumstances, the applications may not be considered by this Court.

9. 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. Amin 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.

C/CA/90/2023 ORDER DATED: 30/01/2023

10. Delay of 932 days which has occurred in preferring First Appeal challenging judgement and award dated 01.01.2018 passed by the learned 3rd Additional Senior Civil Judge (Reference Court), Junagadh in Land Acquisition Reference Cases No. 103 of 2006, 104 of 2006 and 105 of 2006 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 Application stands allowed. Rule is made absolute to the aforesaid extent.

(NIKHIL S. KARIEL,J) NIRU