Himachal Pradesh High Court
Rupa Devi W vs Unknown on 2 November, 2022
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 2ND DAY OF NOVEMBER, 2022
BEFORE
HON'BLE MR. JUSTICE SANDEEP SHARMA
.
CIVIL REVISION NO. 178 OF 2022
Between:-
1. RUPA DEVI WD/O LATE SH. AMAR CHAND
SONI, RESIDENT OF V.P.O & TEHSIL
PADHAR, DISTT. MANDI, H.P.
2. OM PRAKASH SONI S/O LATE SH. AMAR
CHAND SONI, RESIDENT OF V.P.O &
TEHSIL PADHAR, DISTT. MANDI, H.P.
PETITIONERS
(BY MR. RAJESH KUMAR, ADVOCATE)
AND
1. THE LAND
ACQUISITION OFFICER,
H.P.P.W.D MANDI DISTT. MANDI,
2. THE EXECUTIVE ENGINEER, H.P. PWD N.H-
20, DIVISION JOGINDER NAGAR, DISTT.
MANDI, H.P.
.. RESPONDENTS
(MR. NARINDER GULERIA,
ADDITIONAL ADVOCATE GENERAL
WITH MR. SUNNY DHATWALIA,
ASSISTANT ADVOCATE GENERAL
FOR R-1)
Whether approved for reporting: Yes.
This petition coming on for orders this day, the court passed the following:
O R D E R
CMP(M) No. 659 of 2020
By way of instant application filed under S. 5 of Limitation
Act, prayer has been made on behalf of the petitioners for condonation of
delay in filing the civil revision petition.
2. Reply to the application stands filed by the respondents, wherein
prayer made in the instant application has been opposed on the ground of
inordinate delay. It has been averred in the reply that there is no plausible
explanation rendered on record for the delay in filing the accompanying
.
petition. Though it has been averred in the application that delay in filing
the petition is neither willful nor intentional rather on account of
circumstances, which were completely beyond the control of the
petitioners, but having carefully perused the averments contained in the
application as well as supplementary affidavits filed from time to time
pursuant to the orders passed in the matter, this court finds that no
plausible explanation has been rendered on record qua the delay.
Though repeatedly this court granted opportunity to the petitioners to
explain the delay by way of filing supplementary affidavit but every time,
nothing came to be placed on record, save and except medical certificate,
whereby attempt has been made to show that on account of illness,
petitioners were unable to approach this court within time.
3. In the case at hand, order sought to be laid challenge by way of
petition was passed on 15.6.2007, and application for copy was filed on
17.10.2020. Though certified copy was attested on 28.10.2020 and
thereafter, same was supplied on 13.3.2020. There is no explanation with
regard to delay occurred between 15.6.2007 to 17.10.2020.
4. Learned counsel for the petitioners invited attention of this court to
judgment passed by Hon'ble Apex Court in Dhiraj Singh (dead) through
legal representatives and others v. State of Haryana and others,
(2014) 14 SCC 127, to contend that in land acquisition matters, while
considering prayer for condonation of delay in filing appeal, approach of
the court should be pragmatic and not pedantic. Hon'ble Apex Court has
further held that the substantive rights of the appellants should not be
allowed to be defeated on technical grounds by taking hyper-technical
.
view of self-imposed limitation. Hon'ble Apex Court has held in the
judgment (supra) 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."
5. 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
6. Though, in the case at hand, as has been observed herein above,
there is no plausible explanation rendered on record qua delay but since
great prejudice would be caused to the petitioners in the event of
dismissal of application, because in that event they would be denied
enhancement in compensation, which has been done in the case of
similarly situate persons, whose land was also acquired with land of the
petitioner for public purpose. Besides above, this court finds that the order
sought to be laid challenge by way of accompanying petition is totally
unsustainable on account of the fact that authority below dismissed
application of the petitioners, on account of delay but at no point of time, it
afforded opportunity of hearing to the petitioners rather, it completely
ignored the application under S. 5 of Limitation Act preferred alongwith
the application for making reference.
7. Consequently, in view of the peculiar facts of case and law taken
note above, this court is convinced and satisfied that the delay in
maintaining the accompanying revision petition deserves to be condoned
and same is hereby condoned. Application stands disposed of.
.
Civil Revision No. 178 of 2022
8. Be registered.
9. By way of instant revision petition filed under S. 115 CPC, prayer
has been made on behalf of the petitioners to set aside order 15.6.2007
passed by Land Acquisition Collector, Himachal Pradesh Public Works
Department, Mandi, Himachal Pradesh in Om Prakash v. Land Acquisition
Collector HPPWD Mandi, whereby reference petition preferred by
petitioners was dismissed on the ground of delay.
10. After having heard learned counsel for the parties vis-à-vis
reasoning assigned in the impugned order dated 15.6.2007 (Annexure P-
6) passed by Land Acquisition Collector Himachal Pradesh Public Works
Department Mandi, this court finds that after three years of passing of
supplementary award No. 28 dated 1.11.2003, petitioner made a
reference petition before Land Acquisition Collector HPPWD Mandi,
praying therein to refer the matter to reference court, however, such
prayer of the petitioners came to be dismissed on the ground of limitation.
Land Acquisition Collector having taken note of fact that prayer to refer
the matter to the reference court was made after 6 months, dismissed the
prayer made on behalf of the petitioners for making reference under S. 18
of the Land Acquisition Act, 1894, however, he completely failed to take
note of fact that alongwith said application, petitioners had also filed an
application under S. 5 of Limitation for condonation of delay. No doubt, as
per Ss. 18(2) and S. 12(2), six months time is provided for making
reference to the reference court enabling him to pass order under S.18 of
.
the Land Acquisition Act, 1894 but aforesaid question was not within the
competence of the Land Acquisition Collector to be decided, rather he
was bound to make reference to the reference court, which could have
framed issue in this regard and decided the same, but definitely, this
could not be done by the Land Acquisition Collector.
11. Otherwise also this court finds that at the time of passing order
dated 15.6.2007, no opportunity of hearing was afforded to the
petitioners, rather, learned court below simply taking note of provision
contained under Ss. 18(2) and 12(2) of the Land Acquisition Act, 1894
proceeded to dismiss application for making reference.
12. In Gokul Ram and others v. The Land Acquisition Collector
and another, CWP No. 2363/2018-G, decided on 8.10.2018, wherein,
Land Acquisition Collector concerned had refused to make reference
under S. 18 of the Land Acquisition Act to the reference court, Division
Bench of this Court, while allowing the petition observed that reference
under S. 18 of the Act should be entertained on merit as it is
adjudicateable only by the reference court and such power cannot be
acquired by Land Acquisition Collector who is merely required to make
reference to the reference court. Division Bench held in the aforesaid
judgment as under:
"2. We have heard learned counsel for the parties and are of the
considered view that the question as to whether or not, a reference under
Section 18 of the Act, should be entertained on merit or should it be
turned down on the ground of limitation, is adjudicateable by the
Reference Court only, namely, the Court of District Judge/Additional
.
District Judge and such power cannot be assumed by the Land
Acquisition Collector, who is merely required to refer the application to
the Court of competent jurisdiction. Such a view in detail has been taken
by the learned Single Judge of this Court vide judgment dated
06.07.2018 passed in CMPMO No.237 of 2017 titled as Jalmi Ram and
Others vs. The Land Acquisition Collector and another."
13. Consequently, in view of the above, impugned order dated
15.6.2007 passed by Land Acquisition Collector, Himachal Pradesh
Public Works Department, Mandi, Himachal Pradesh is quashed and set
aside and it is directed to make reference to the competent court of
jurisdiction, forthwith, enabling said court to adjudicate the reference.
Question of limitation in approaching the reference court under S. 18 of
the Land Acquisition Act is left open to be decided by the reference Court.
Learned counsel for the petitioners undertakes to make available a copy
of this order to Land Acquisition Collector HPPWD Mandi, enabling it to
pass appropriate orders, within two weeks.
Petition stands disposed of in the afore terms, alongwith all
pending applications.
(Sandeep Sharma)
Judge
November 2, 2022
(Vikrant)
