Between vs Collector Land Acquisition And ...
2021 Latest Caselaw 5722 HP

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          IN   THE   HIGH COURT OF HIMACHAL              PRADESH, SHIMLA

                     ON THE 14TH DAY OF DECEMBER, 2021




                                                               .
                                   BEFORE





                     HON'BLE MR. JUSTICE SANDEEP SHARMA

                     REGULAR FIRST APPEAL NO.350 OF 2017





    Between:
    BISHAN DASS SON OF SH. BHOLA RAM SON OF DAITU,
    R/O VILLAGE MODEL TOWN MANALI, TEHSIL MANALI,
    DISTRICT KULLU, H.P.





                                                                       ....APPELLANT
    (BY SH. SUNIL MOHAN GOEL, ADVOCATE)
    AND

    1. COLLECTOR LAND ACQUISITION, NHPC,
       PHEP AT LARJI SUB TEHSIL SAINJ, DISTRICT

       KULLU, H.P.

    2. COLLECTOR DISTRICT KULLU, H.P.


                                                                  ....RESPONDENTS
    ( BY MS. SHREYA CHAUHAN, ADVOCATE
    FOR R-1).




    (BY    MR.   SUDHIR   BHATNAGAR,





    ADDITIONAL ADVOCATE GENERAL WITH
    MR. NARENDER THAKUR, MR. KAMAL
    KISHORE SHARMA AND MR. GAURAV
    SHARMA, DEPUTY ADVOCATE GENERALS,





    FOR R-2)

    Whether approved for reporting?yes.


    This appeal coming on for orders this day, the Court passed the following:

                       JUDGMENT

Instant appeal filed under Section 54 of the Land Acquisition

Act, 1894 (hereinafter referred to as the Act), lays challenge to award

dated 5.6.2010, passed by learned Additional District Judge, Fast Track,

Kullu, District Kullu, H.P., in Reference Petition No.139 of 2007, titled as

Bhola Ram son of Daitu, since deceased, now through LRs versus

.

Collector Land Acquisition and another, whereby Court below enhanced

the amount of compensation awarded by Land Acquisition Collector.

2. Precisely, the facts of the case as emerge from the record

are that land of the appellant came to be acquired for the purpose of

construction of NHPC, Parvati Hydro Electric Project, Larji, District Kullu,

HP and for that purpose, Notification under Section 4 of the Act was

issued vide notification No.Vidyut Chh(5)19/2002, dated 22.3.2003. After

completion of necessary codal formalities, Land Acquisition Collector

vide award No.20, dated 6.1.2005 awarded the compensation amount.

3. Being aggrieved and dissatisfied with the quantum of

compensation awarded by Land Acquisition Collector, appellant herein

preferred reference petition under Section 18 of the Act in the Court of

learned Additional District Judge, Fast Track, Kullu, Himachal Pradesh,

who vide award dated 5.6.2010 enhanced the amount awarded by Land

Acquisition Collector. Since, award amount awarded by reference court

in the cases of other similar situate persons came to be further

enhanced by this Court in the Regular First Appeals having been filed by

the claimants in those cases, appellant herein has approached this

Court in the instant proceedings for enhancement of compensation

amount.

4. During the proceedings of the case, learned counsel

representing the appellant while inviting attention of this Court to the

judgment dated 22nd October, 2016, passed by Co-ordinate Bench of this

Court in RFA No.282 of 2010 alongwith other connected matters,

.

claimed that case at hand is squarely covered with the aforesaid

judgment.

5. Vide order dated 4.10.2021, this Court directed respondent

No.1 to verify aforesaid fact. Ms. Shreya Chauhan, learned counsel

representing respondent No.1, while fairly admitting that the case at

hand is squarely covered by the aforesaid judgment rendered by Co-

ordinate Bench of this Court, contends that since appellant herein has

approached this Court after inordinate delay of 5 years 10 months,

prayer made in the instant appeal for enhancement deserves to be

rejected outrightly.

6. Having heard learned counsel representing the parties and

perused the material available on record, this Court finds that vide order

dated 1.12.2017 delay in filing the appeal at hand was condoned, but in

the said order, it was specifically observed that in case the appeal is

preferred beyond the period of limitation, equities can be balanced by

denying the claimants interest for the period when they did not

approach this Court. Since, it is not in dispute interse parties that

similarly situate persons, whose land was also acquired for the purpose

of construction of Parvati Hydro Electric Project, Larji, District Kullu, H.P.,

by same notification and vide same award No.20, dated 6.1.2005 have

been given enhanced amount of compensation in terms of the judgment

dated 22nd October, 2010 passed by Co-ordinate Bench of this Court,

prayer made in the instant appeal also deserves to be considered and

decided in the light of aforesaid judgment. However, having taken note

.

of the fact that appellant herein has approached this Court after

inordinate delay of five years 10 months, he cannot be held entitled to

interest for the period of five years 10 months.

7. In similar facts and circumstances, this Court vide judgment

dated 7.8.2019, passed in RFA No.248 of 2019, titled Shri Dine Ram

versus The Collector Land Acquisition and another, has condoned the

delay, but denied the interest qua the period of delay. At this stage, it

would be profitable to reproduce paras No.2 to 7 of the aforesaid

judgment hereinbelow:-

"2. Hon'ble Apex Court in Dhiraj Singh (Dead) through Legal Representatives and Others vs. State of Haryana and Others,

(2014)14 SCC 127, while dealing with the land acquisition matters, has categorically held that approach of the Court, while condoning the delay in filing the appeal, should be pragmatic and not

pedantic. Court has further held that the equities can be balanced

by denying the interest to the appellants for the period for which they did not approach the Court. The substantive rights of the

appellant should not be allowed to be defeated on technical grounds by taking hyper technical view of self-imposed limitation. The Hon'ble Apex Court has held as under:-

"16. The principles regarding condonation of delay particularly in land acquisition matters, have been enunciated in Collector (LA) v. Katiji, (1987)2 SCC 107, wherein it is stated in para 3 as under: (SCC p.108)

"(3). The legislature has conferred the power to condone delay by enacting Section 5 of the Indian 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 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."

(emphasis in original)

17. The aforesaid judgment was followed by this Court in DDA vs. Bhola Nath Sharma, (2011)2 SCC 54, which was also a matter concerning land acquisition.

18. We, accordingly, allow these appeals. Impugned orders of the High Court are set aside. Delay in filing the LPAs is condoned. It is held that the appellants shall be entitled to enhanced compensation @ Rs.200 per square yard. However, for the period of delay in approaching the High Court by way of LPAs, in all these cases, no interest should be paid to them. Compensation shall be worked out accordingly and paid to the appellants within a period of three months from today."

3. In the aforesaid judgment Hon'ble Apex Court has reiterated that 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.

4. The aforesaid view has further been reiterated by the

Hon'ble Apex Court in K. Subbaraydu and Others vs. Special Deputy Collector (Land Acquisition), (2017)12 SCC 840.

5. In the case at hand, applicant-appellant has fairly stated that he was unable to file the appeal well within time on account

of his old age, ill-health, forgetfulness, not aware of the legal intricacies and non-availability of funds for engaging counsel etc., but subsequently, factum with regard to enhancement of

compensation to the similar situate persons came to his

knowledge and, as such, he arranged money and filed appeal without any further delay.

6. In the case at hand, if delay is not condoned, great prejudice

would be caused to the applicant. Applicant has certainly not gained anything by not filing the appeal within prescribed period

of limitation, rather, in the event of dismissal of his appeal on the ground of delay, he would loose opportunity to get the

compensation enhanced by approaching this Court in the appropriate proceedings, laying therein challenge to the award

passed by the reference Court.

7. Consequently, in view of aforesaid law laid down by the Hon'ble Apex Court as well as explanation rendered in the application, this Court is convinced and satisfied that delay in maintaining the accompanying appeal deserves to be condoned. This application is accordingly allowed. The delay of 2 years 9 months and 27 days in maintaining the appeal, which has sufficiently been explained, is condoned in the interest of justice. The application is disposed of. "

8. Consequently, in view of the detailed discussion made

hereinabove, the present appeal is allowed and it is ordered that

.

directions contained in judgment dated 22nd October, 2016, passed by

Co-ordinate Bench of this Court in Suresh Kumar and others versus

Collector Land Acquisition, NHPC and another alongwith other connection

matters, shall mutatis mutandis apply in the present appeal also.

However, appellant shall not be entitled to interest for the period of five

years 10 months.

Pending application(s), if any, also stand disposed of.

    14th December, 2021                                         (Sandeep Sharma),
         (shankar)                                                  Judge