Gujarat High Court
Mukeshkumar Mahendrasinh vs State Of Gujarat on 6 March, 2023
Bench: Nikhil S. Kariel
C/CA/262/2023 ORDER DATED: 06/03/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL APPLICATION NO. 262 of 2023
In F/FIRST APPEAL NO. 22231 of 2021
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MUKESHKUMAR MAHENDRASINH
Versus
STATE OF GUJARAT
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Appearance:
MR KRUSHNAKANT D PATEL(10632) for the Applicant(s) No. 1
MS KIRAN UDASI for MR TEJAS P SATTA(3149) for the Applicant(s) No. 1
for the Respondent(s) No. 2
MR NIKUNJ KANARA, ASSISTANT GOVERNMENT PLEADER for the
Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
Date : 06/03/2023
ORAL ORDER
1. Heard learned Advocate Ms. Kiran Udasi for learned Advocate Mr.
Tejas P. Satta on behalf of the applicant and learned Assistant
Government Pleader Mr. Nikunj Kanara on behalf of the respondent -
State.
2. Rule. Learned AGP waives service of rule on behalf of the
respondent-State.
3. By way of this application, the applicant prays for condoning delay
of 654 days which has occurred in preferring First Appeal against
C/CA/262/2023 ORDER DATED: 06/03/2023
judgment and award passed by learned 3rd Additional Senior Civil Judge,
Jamnagar dated 01.03.2018 in Land Acquisition Reference Case No. 345
of 1996
4. Learned Advocate Ms. Udasi on behalf of the applicant has relied
upon a decision of this Court dated 05.01.2023 in Civil Application ( For
Condonation of Delay) No. 1 of 2022 in F/First Appeal No. 36932 of
2022 and allied matters whereby this Court relying upon decisions of the
Hon'ble Supreme Court had condoned the delay of 967 days which had
occurred in preferring First Appeals.
5. Learned Advocate Ms. Udasi 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 and would submit that considering the law laid down
by the Hon'ble Supreme Court, the applicant-appellant would also waive
his right to claim for interest upon enhanced compensation, if any, during
the period of delay.
6. This application has been vehemently opposed by the learned AGP
Mr. Kanara who would submit that delay of 654 days has not been
C/CA/262/2023 ORDER DATED: 06/03/2023
sufficiently explained and whereas under such circumstances, the
application may not be considered by this Court.
7. Having heard the learned Advocates for the respective parties and
having perused the documents on record and also having perused the
decisions of the Hon'ble Apex Court in case of Collector, Land
Acquisition, Anantnag and Anr. Vs. Msr. Katji and Ors. reported in
AIR 1987 SC 1353 and Dhiraj Singh ( Dead) Through Legal Heirs Vs.
State of Haryana and Ors. reported in 2014 (14) SCC 127 relied upon
by the learned Advocate for the applicants, this Court is of the opinion
that the application deserves consideration.
8. The Hon'ble Apex Court in case of Collector, Land Acquisition,
Anantnag (supra) has observed as thus :
"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 con- doned the highest that can happen is that
a 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
C/CA/262/2023 ORDER DATED: 06/03/2023
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."
9. The Hon'ble Apex Court in case of Dhiraj Singh (supra) has observed
as thus :
"we can take judicial notice of the fact that villagers in our country are
by and large illiterate and are not conversant with the intricacies of law.
They are usually guided by their covillagers, who are familiar with the
proceedings in the Courts or the advocates with whom they get in touch
for redressal of their grievance. Affidavits filed in support of the
applications for condonation of delay are usually drafted by the
advocates on the basis of half-baked information made available by the
affected persons. Therefore, in the acquisition matters involving claim
for award of just compensation, the Court should adopt a liberal
approach and either grant time to the party to file better affidavit to
explain delay or suo motu take cognizance of the fact that large number
of other similarly situated persons who were affected by the
determination of compensation by the Land Acquisition Officer, or the
C/CA/262/2023 ORDER DATED: 06/03/2023
Reference Court have been granted relief." In Samiyathal v. Tahsildar
decided on 5-7-2013, this Court took cognizance of the fact that many
landowners may not have been able to seek intervention of this Court
for grant of enhanced compensation due to illiteracy, poverty and
ignorance and issued direction that those who have not filed special
leave petition should be given enhanced compensation."
10. Furthermore, this Court also relies upon the decision of the Hon'ble
Apex Court in case of K. Subbarayudu and Ors. (supra), whereby the
Hon'ble Apex Court has inter alia condoned delay considering the
submission on part of the claimant therein that he would not claim
interest on the enhanced amount for the delay period.
11. 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 Ms. Udasi upon instructions 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.
12. Delay of 654 days which has occurred in preferring First Appeal
C/CA/262/2023 ORDER DATED: 06/03/2023
challenging judgment and award passed by learned 3 rd Additional Senior
Civil Judge, Jamnagar dated 01.03.2018 in Land Acquisition Reference
Case No. 345 of 1996 is condoned subject to the condition that the
claimant 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.
Registry to list First Appeal on 14.03.2023
(NIKHIL S. KARIEL,J)
Mrs. J. J. Kedia
