Gujarat High Court

Manjulaben Govindbhai vs State Of Gujarat on 13 March, 2023

Bench: Nikhil S. Kariel

      C/CA/294/2023                                ORDER DATED: 13/03/2023




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                      R/CIVIL APPLICATION NO. 294 of 2023

                      In F/FIRST APPEAL NO. 5725 of 2022

                                     With
                      R/CIVIL APPLICATION NO. 295 of 2023
                                     With
                      R/CIVIL APPLICATION NO. 296 of 2023
                                     With
                      R/CIVIL APPLICATION NO. 297 of 2023
                                     With
                      R/CIVIL APPLICATION NO. 298 of 2023
                                     With
                      R/CIVIL APPLICATION NO. 299 of 2023
                                     With
                      R/CIVIL APPLICATION NO. 300 of 2023
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                           MANJULABEN GOVINDBHAI
                                   Versus
                             STATE OF GUJARAT
==========================================================
Appearance:
MR NITIN M AMIN(126) for the Applicant(s) No. 1,2,3,4,5
MR SANJAY M AMIN(130) for the Applicant(s) No. 1,2,3,4,5
for the Respondent(s) No. 2,3
MR NIKUNJ KANARA, ASSISTANT GOVERNMENT PLEADER for the
Respondent(s) No. 1
==========================================================

 CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL

                               Date : 13/03/2023

                            COMMON ORAL ORDER

1. Heard learned Advocate Mr. Nitin Amin on behalf of the applicants

and learned Assistant Government Pleader Mr. Nikunj Kanara on behalf

of the respondent - State.

C/CA/294/2023 ORDER DATED: 13/03/2023

2. Rule. Learned AGP waives service of rule on behalf of the respondent-

State.

3. By way of these applications, the applicants have prayed for

condonation of delay of 2458 days which has occurred in preferring First

Appeals against judgement and order passed by learned Civil Court

( Reference Court) dated 21.05.2013, Junagadh in Land Reference Case

No. 143 of 2004 in Civil Application No. 294 of 2023, LRC No. 148 of

2004 in CA No. 295 of 2023, LRC No. 149 of 2004 in CA No. 296 of

2023, LRC No. 150 of 2004 in CA No. 297 of 2023, LRC No. 154 of

2004 in CA No. 298 of 2023, LRC No. 156 of 2004 in CA No. 299 of

2023 and delay of 2454 days which has occurred in preferring First

Appeal against judgment and order passed by learned Civil Court

(Reference Court) dated 21.02.2013, Junagadh in LRC No. 161 of 2004.

4. At the outset, learned Advocate Mr. Amin would submit that other

claimants had also preferred First Appeals against the judgement and

order dated 11.06.2013 with delay of the same number of days and

whereas vide a common order dated 25.11.2022, learned Coordinate

Bench of this Court ( Coram: Sangeeta K. Vishen, J) had been pleased to

condone the said delay. Learned Advocate would submit that considering

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the said decision the present delay which has occurred may also be

condoned by this Court.

5. The aforesaid position could not be controverted by the learned AGP

Mr. Kanara.

6. This Court has also perused the order passed by learned Co-ordinate

Bench and having regard to the reasons stated in the said decision, more

particularly for reasons stated at paragraphs no. 6 to 8, which are

reproduced hereinbelow, in the considered opinion of this Court, the

delay is required to be condoned.

"6. Apt would be, the judgment in the case of Collector, Land Acquisition, Anantnag and another vs. Mst. Katiji and others reported in AIR (1987) SC 135 wherein the Apex Court has held and observed that while condoning the delay, liberal approach be adopted. In yet another decision of the Apex Court in the case of S. Ganesharaju (D) Thr. L. Rs. & another vs. Narasamma (D) Thr. L. Rs. & Others reported in (2012) 4 SCALE 152, it has been held and observed that the expression "sufficient cause" has to be given a liberal construction so as to advance substantial justice. It is held that unless the respondents are able to show any malafide on the part of the applicants in not approaching the Court within limitation, generally as a normal rule delay should be condoned.

7. Similarly in the judgment of the Apex Court in the case of Dhiraj

Singh (Dead) Through Legal Representative and Others v. State of

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Haryana and Others reported in (2014) 14 SCC 127, the Apex Court, in

paragraph 11, has held and observed that in the matter of land

acquisition where land of peasants is acquired, a different approach has

to be taken. The person should not be deprived of the reasonable

compensation for their lands. Further more, in paragraph 15, it has

been held and observed that equities can be balanced by denying the

appellants' interest for the period for which they did not approach the

Court. The substantive rights of the appellants should not be allowed to

be defeated on technical grounds by taking hyper technical view of

self-imposed limitations. The Apex Court, has also held and observed

that in the matter of compensation for land acquisition, we are of the

view that approach of the Court has to be pragmatic and not pedantic.

Paragraphs 11, 15 and 16, read thus:

"11. In the matter of land acquisition where land of peasants is acquired, a different approach has to be taken. These persons should not be deprived of the reasonable compensation for their lands. If other similarly situated landowners are given the compensation @ Rs.200 square yeard, there is no reason to pay the compensation to the appellants at much lesser rate. In this context, we would like to quote the following observation from the judgment dated 29-11-2013 in Imrat Lal v. Collector (LA):

"While we agree with Shri Narender Hooda that the averments contained in the application for condonation of delay were extremely vague and did not provide satisfactory explanation for the long delay of 1110 days, but it cannot be

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ignored that in identical matters another learned Single Judge had granted relief to the landowners by enhancing the compensation and this factor should not have been overlooked by the learned Single Judge while deciding the application for condonation of delay.

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 co-villagers, 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 halfbaked 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 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. The relevant portion of the judgment passed in that case is extracted below:

'We further direct the respondents and the State of Tamil Nadu to pay the same amount of compensation to other landowners whose land was acquired by the Notification dated 22- 5- 1991, but who may have on account of ignorance, poverty and other similar handicaps, not been able to approach the Reference Court or may not have been able to contest the matter

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before the High Court and this Court. The needful be done in respect of other landowners within a period of six months. This direction has been given in exercise of the power vested in this Court under Article 142 of the Constitution.'

In view of the above discussion, the appeal is allowed, the impugned order is set aside and the delay in filing RFA No.5477 of 2011 by the appellants is condoned."

15. Equities can be balanced by denying the appellants' interest for the period for which they did not approach the Court. The substantive rights of the appellants should not be allowed to be defeated on technical grounds by taking hyper technical view of self-imposed limitations. In the matter of compensation for land acquisition, we are of the view that approach of the Court has to be pragmatic and not pedantic.

16. The principles regarding condonation of delay particularly in land acquisition matters, have been enunciated in Collector (LA) v. Katiji, wherein it is stated in para 3 as under:

"3. The legislature has conferred the power to condone the delay by enacting Section 5 of the Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on 'merits'. The expression 'sufficient cause' employed by the legislature is adequately elastic to enable the courts to apply the law in a meaningful manner which subserves the ends of justice--- that being the life-purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:

(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

C/CA/294/2023 ORDER DATED: 13/03/2023

defeated. As against this when delay is condoned 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 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."

8. Similarly, in the case of K. Subbarayudu and Others v. Special Deputy

Collector (Land Acquisition) reported in (2017) 12 SCC 840, the Apex

Court, has held and observed that with the acquisition of lands, the

lifeline of the agriculturist is lost. There may be omission on the part of

the claimants to adopt extra vigilance; but the same need not be used as a

ground to depict them with negligence or want of bona fides. In the case

of acquisition of lands of agriculturists, the courts ought to adopt a

pragmatic approach to award just and reasonable compensation and not

C/CA/294/2023 ORDER DATED: 13/03/2023

be pedantic in their approach. Paragraphs 11, 12 and 13 read thus:

"11. The term "sufficient cause" is to receive liberal construction so as to advance substantial justice, when no negligence, inaction or want of bona fide is attributable to the appellants, the Court should adopt a justiceoriented approach in condoning the delay. In State of Nagaland v. Lipok Ao, it was held as under:-

"8. .....Section 5 is to be construed liberally so as to do substantial justice to the parties. The provision contemplates that the court has to go into the position of the person concerned and to find out if the delay can be said to have been resulted from the cause which he had adduced and whether the cause recorded in the peculiar circumstances of the case is sufficient".

12. With the acquisition of lands, the lifeline of the agriculturist is lost. There may be omission on the part of the claimants to adopt extra vigilance; but same need not be used as a ground to depict them with negligence or want of bona fides. In case of acquisition of lands of agriculturists, the courts ought to adopt a pragmatic approach to award just and reasonable compensation and not pedantic in their approach. In Dhiraj Singh v. State of Haryana, it was held as under:-

"15. Equities can be balanced by denying the appellants' interest for the period for which they did not approach the Court. The substantive rights of the appellants should not be allowed to be defeated on technical grounds by taking hyper technical view of self-imposed limitations. In the matter of compensation for land acquisition, we are of the view that approach of the Court has to be pragmatic and not pedantic."

13. When the concerned court has exercised its discretion either condoning or declining to condone the delay, normally the superior court will not interfere in exercise of such discretion. The true guide is whether the litigant has acted with due diligence. Since the appellants/ claimants are the agriculturists whose lands were acquired and when similar situated agriculturists were given a higher rate of compensation, there is no reason to decline the same to the appellants. Merely on the ground of delay such benefit cannot be denied to the appellants. The interest of justice would be served by declining the

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interest on the enhanced compensation and also on the solatium and other statutory benefits for the period of delay."

9. In view of the reasons set out by the learned Co-ordinate Bench as

above, more particularly relying upon the decision of the Hon'ble

Supreme Court, delay of 2458 days which has occurred in preferring First