Vikrambhai Visabhai vs Special Land Acquisition Officer
2024 Latest Caselaw 1500 Guj

Gujarat High Court

Vikrambhai Visabhai vs Special Land Acquisition Officer on 19 February, 2024

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     C/CA/2297/2023                                ORDER DATED: 19/02/2024

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           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

 R/CIVIL APPLICATION (FOR CONDONATION OF DELAY) NO. 2297 of
                            2023

                      In F/FIRST APPEAL NO. 35265 of 2023

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                         VIKRAMBHAI VISABHAI
                               Versus
               SPECIAL LAND ACQUISITION OFFICER & ANR.
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Appearance:
MS NIKITA C GANDHI(11570) for the Applicant(s) No. 1
MS FORAM U TRIVEDI, AGP ADVANCE COPY SERVED TO
GOVERNMENT PLEADER/PP for the Respondent(s) No. 1
MR MB GOHIL(2702) for the Respondent(s) No. 2
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 CORAM:HONOURABLE MR. JUSTICE DEVAN M. DESAI

                               Date : 19/02/2024

                                 ORAL ORDER

1. Rule. Learned Assistant Government Pleader Ms. Foram U.

Trivedi appears on advance copy waives the service of notice of

Rule for respondent-State.

2. This application is filed under Section 5 of the Limitation Act,

1963 for condonation of delay of 276 days in filing the First Appeal.

3. The submission of learned advocate for applicant is that the

judgment and order dated 21.10.2022 passed by the learned Principal

Senior Civil Judge, Ahmedabad (Rural), Mirzapur, Ahmedabad in

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LAR Case No.127 of 2014 and other allied matters. However, the

First Appeal could not be filed within the prescribed period of

limitation of 60 days. The certified copies of the impugned judgment

and award was applied on 02.11.2022 and the same was ready on

14.11.2022 and were received on 18.11.2022 by the applicant.

4. It is further submitted that applicant is a poor agriculturist and

because of the arranging the funds for engaging the advocate and

arranging the funds for expenses for filing the appeal, he could not

file the present First Appeal within the prescribed period of

limitation. It is further submitted that the applicant was advised that

the Appeal could be filed after receiving the payment under

judgment and award. Thus, the applicant waited for the amount to be

deposited by the opponents. However, the appellant did not receive

any amount towards the compensation. Thereafter, the applicant

borrowed some amount from his relatives and friends and filed the

present First Appeal with the application for Condonation of Delay.

It is further submitted that there is no such intention on the part of

the application to forego his right of challenge. It is further

submitted that the delay is not intentional and there was no lethargy

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on the part of the applicant and hence, in the interest of justice, the

delay may be condoned.

5. Per contra, learned advocate Mr. K. Mehta for learned

advocate Mr. M. B. Gohil for respondent No.2 has submitted that he

has no objection, if the delay is condoned. But he has submitted that

so far as the interest is concerned, he has serious objections since the

delay has been occurred on the part of the applicant and therefore,

the applicant is not entitled for interest for that period .

6. Learned AGP has also contended that the same aforesaid

submission and has relied upon the decision of K. Subbarayudu and

Ors. Vs. The Special Deputy Collector (Land Acquisition) reported

in MANU/SC/0884/2017, wherein he has placed reliance paragraph

Nos.14 and 19 and has also submitted that the aspect of interest can

be taken care of by directing the applicant that the applicant shall not

be entitled to any interest, during the period of delay.

7. Against this submission, learned Advocate Mr. C. M. Gandhi

has relied upon the decision of Coordinate Bench of this Court

passed in Civil Application No.242 of 2023 in F/First Appeal

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No.24317 of 2022 dated 06.03.2023, wherein similar set of facts, the

Coordinate Bench has condoned the delay without any rider on the

interest portion. Learned advocate Mr. C. M. Gandhi has placed

reliance upon the paragraph No.7 of the decision K. Subbarayudu

and Ors. (Supra) and has pointed out that in the said decision, the

contention of appellant/claimant was that the delay can be condoned

subject to the condition that in the event, the claimant succeed in the

appeal, they shall not be entitled to any interest in respect of the

period of delay. Thus, it was submitted by learned advocate Mr. C.

M. Gandhi that upon such contention and upon such submission of

the original claimant, the Hon'ble Apex Court directed the applicant

not be entitled to any interest, during the period of delay. Thus, the

submission of the leaned advocate Mr. C. M. Gandhi is that the

decision of the K. Subbarayudu and Ors. (Supra) is not applicable

in the present set of facts and the delay may be condoned without

imposing any condition.

8. Having considered the submissions and the averments made in

the application and the controversy placed before this Court is

regarding any condition to be imposed on claiming of interest,

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during the delayed period. In the present case, there is no much

resistance for condoning the delay. However, the grievance is

canvassed for the waiver of interest for the delayed period. The

learned Coordinate Bench had no occasion to deal with the decision

of K. Subbarayudu and Ors. (Supra) and hence, the said decision is

not discussed in the decision dated 06.03.2023.

9. In the case of Gogan Daya Savalia Vs. State of Gujarat, the

Coordinate Bench has considered the decision in Civil Application

No.3223 of 2022 in F/First Appeal No.24316 of 2022 dated

07.12.2022 and has also considered paragraph No.5 of the said

decision as follows:

"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

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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 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

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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."

10. In the decision of the Civil Application No.3223 of 2022, the

admitted facts which were considered by the Coordinate Bench

while deciding Civil Application No.242 of 2023 are that there was

no dispute regarding the fact that the disbursement was allowed and

thereafter, the applicant could manage the funds to file the First

Appeal. It was nobody's case that the applicant has not taken any

steps and after long period, has woken up from the slumber, that the

appeals were filed.

11. In the present case, only the case is made out for the delay is

pleaded in paragraph No.3 of the application, which is as under.

"It is respectfully submitted that the applicants are poor agriculturists and therefore, they could not immediately make arrangement for approaching the Hon'ble High Court

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for challenging the impugned judgment and order passed in LAR Case. In fact, it was advised that they can file the appeal after receiving the payment. Therefore, the applicants were, in fact, waiting for the payment from the government so that they can engage an advocate practicing before the Hon'ble High Court for preferring the appeal. However, even after waiting for a long period, they did not receive any payment and therefore, somehow or other, they could manage some amount from their relatives and other well wishers and thereafter approached the advocate practicing before the Hon'ble High Court with a request to prefer an appeal."

12. Thus, the reason for delay is attributed to not having sufficient

funds and the applicant waited for receiving the payment of

compensation. Except in sufficient funds, there are no other grounds

made out for condonation of delay. In the present case, since there is

no controversy about the condonation of delay, but grievance is

raised for the computation of interest portion for the delayed period.

13. Considering the nature of First Appeal, the amount under the

compensation has to be paid by the acquiring body i.e. respondent

No.2. In the application for condonation of delay, the applicant could

not point out that during the period of delay, he has taken any steps

for arranging the funds. The averments are that after waiting for a

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long period, applicant arranged for the funds through relatives and

other well wishers. The applicant could have arranged for the funds

without waiting for the payment to be received. Even the applicant

could have gone to the free Legal Aid Service Center of this Court,

wherein the poor and needy litigants are provided free legal help.

This conduct does not inspire any confidence to condone the delay

without imposing any condition regarding the waiver of interest for

the delayed period.

14. In the case of K. Subbarayudu and Ors. (Supra), in paragraph

No.7, the Hon'ble Apex Court has observed as under.

"The learned Counsel for the Appellants submitted that the High Court failed to appreciate that the claimants have given satisfactory explanation for the delay of 3671 days in filing the appeal before the High Court and while so the High Court has erred in declining to condone the delay. It was further submitted that in L.A.S.S. No. 46/2015, the High Court was pleased to condone the delay of 3386 days in filing the land acquisition appeal suit subject to the condition that in the event, the Appellants/claimants succeed in the appeal, she is not entitled to any interest in respect of the period of delay and the same approach ought to have been given in case of Appellants also. In so far as the quantum of compensation, learned Counsel for the Appellant has relied upon the decision of this Court in Civil

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Appeal Nos. 11404-405 of 2016 dated 29.11.2016 whereby this Court has awarded compensation of Rs. 3,000/- per pomegranate tree in connection with lands acquired for Somashila Project submergence. The learned Counsel for the Appellant prayed that the same amount of compensation of Rs. 3,000/- per pomegranate tree be awarded to the Appellant."

15. This case before the Hon'ble Supreme Court was that the

claimants relied upon the decision of L.A.S.S. No.46 of 2015,

wherein the High Court condoned the delay subject to the condition

that in the event, the claimants succeed in the appeal, the claimants

would not be entitled to any interest in respect of the delayed period.

Even if, in absence of such attention of this Court while exercising a

power of discretionary remedy of condoning the delay and certainly

imposing any condition to meet with the justice. Striking the balance

between the parties, I am of the view that the delay is required to be

condoned on a condition that eventually, if the applicant succeeds in

getting enhanced compensation, the applicant shall not be entitled to

any interest for the delayed period.

16. With these observations, present application is allowed

accordingly. Rule is made absolute.

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       C/CA/2297/2023                            ORDER DATED: 19/02/2024

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17. Registry is directed to list all similar group of matters along

with the captioned First Appeal for admission.

(D. M. DESAI,J) Vikramsinh Amarsinh