Gujarat High Court
Parsotam Gokal Kunadia vs State Of Gujarat on 3 March, 2023
Bench: Nikhil S. Kariel
C/CA/256/2023 ORDER DATED: 03/03/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL APPLICATION NO. 256 of 2023
In F/FIRST APPEAL NO. 24328 of 2022
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PARSOTAM GOKAL KUNADIA
Versus
STATE OF GUJARAT
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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
MR TRUPESH KATHIRIYA, AGP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
Date : 03/03/2023
ORAL ORDER
1. Heard learned Advocate Mr. Nitin M. Amin for the
applicant and learned AGP Mr. Trupesh Kathiriya for the
respondent-State.
2. Issue Rule returnable forthwith. Learned AGP waives
service of notice of Rule on behalf of the respondent-State.
3. By way of this application preferred under Section 5 of
the Limitation Act, 1963 the applicant prays for condoning the
delay of 583 days occurred in preferring appeal, challenging
the common judgement and award dated 03.10.2018 passed
by the learned Principal Senior Civil Judge, Junagadh in Land
Reference Case Nos. 515 of 2006.
C/CA/256/2023 ORDER DATED: 03/03/2023
4. At the outset, learned Advocate Mr. Amin for the
applicant would draw the attention of this Court to an order
passed by a learned Co-ordinate Bench of this Court (Coram :
Ms. Sangeeta K. Vishen, J) in Civil Application No. 3223 of 2022
in F/First Appeal No. 24316 of 2022, dated 07.12.2022,
whereby in a cognate matter, the learned Co-ordinate Bench
had condoned the delay of 581 days. Learned Advocate Mr.
Amin would submit that first appeals in which the present
applicants have been preferred, and the first appeal in which
the delay had been condoned by the learned Coordinate
Bench, challenge the very selfsame decision of the learned
Civil Court (Reference Court), Junagadh in a group of Land
Reference Cases dated 03.10.2018. Such a position could not
be disputed by learned AGP.
5. Having regard to the said position and for the reasons
stated by the learned Co-ordinate Bench in the said decision,
the delay of 583 days, which has occurred in preferring the
first appeals, is required to be condoned. Paragraphs No. 6 to 9
of the said decision of the learned Co-ordinate Bench being
relevant for the present purpose are quoted hereinbelow and
are relied upon by this Court:
"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
C/CA/256/2023 ORDER DATED: 03/03/2023
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.
9. In the present case, the applicant has been able to offer
sufficient explanation in support of the delay of 581 days occurred in
preferring the appeal inasmuch as the applicant was out of funds and
therefore, no steps could be taken. The delay which has been caused
is bonafide and not that the applicant has been buying away the time
and not taking any steps."
6. Having regard to the reasons set out by the learned Co-
ordinate Bench of this Court, the delay of 583 days in
C/CA/256/2023 ORDER DATED: 03/03/2023
preferring the first appeal are hereby condoned. The present
applications stand disposed of as allowed. Rule is made
absolute.
7. Registry to list the first appeal on 06.03.2023.
(NIKHIL S. KARIEL,J)
SALIM/5
