Parsottambhai Narsibhai ... vs State Of Gujarat
2023 Latest Caselaw 2108 Guj

     C/CA/244/2023                                 ORDER DATED: 06/03/2023




          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                     R/CIVIL APPLICATION NO. 244 of 2023

                      In F/FIRST APPEAL NO. 24319 of 2022

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                     PARSOTTAMBHAI NARSIBHAI VAGHASIA
                                  Versus
                            STATE OF GUJARAT
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Appearance:
MR NITIN M AMIN(126) for the Applicant(s) No. 1,2
MR SANJAY M AMIN(130) for the Applicant(s) No. 1,2
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 Mr. Nitin M. Amin for the applicant and

learned AGP Mr. Nikunj Kanara 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

C/CA/244/2023 ORDER DATED: 06/03/2023

Judge, Junagadh in Land Reference Case Nos. 505 of 2006.

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:

C/CA/244/2023 ORDER DATED: 06/03/2023

"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

C/CA/244/2023 ORDER DATED: 06/03/2023

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 Coordinate Bench

of this Court, the delay of 583 days in preferring the first appeal is hereby

condoned. The present application stands disposed of as allowed. Rule is

made absolute.

7. Registry to list the first appeal on 13.03.2023.

(NIKHIL S. KARIEL,J) Mrs. J. J. Kedia