State Of J&K Th. Collector Land ... vs Poonam Jamwal And Others
2021 Latest Caselaw 708 j&K

                                                          Sr. No. J2

            HIGH COURT OF JAMMU AND KASHMIR
                        AT JAMMU

                                        Reserved on : 08.07.2021.
                                        Pronounced on :13 .07.2021

                                            Conc No. 155/2018
                                            CM No. 2703/2019 [1/2019]

State of J&K Th. Collector Land Acquisition, Samba

                                                           ....Applicant(s)


                           Through: - Mr. S. S. Nanda, Sr. AAG
            v/s


Poonam Jamwal and others
                                            .... Non-applicant/Respondent(s)

                           Through: - Mr. Anuj Dewan Raina, Advocate
.

Coram: HON'BLE MR. JUSTICE JAVED IQBAL WANI, JUDGE
                             ORDER

1. In the instant application, applicant seeks condonation of delay

under Section 5 of the Limitation Act, 1995 (Sav. 1938 AD) in filing Civil 1st

Appeal against the judgment/order dated 31.12.2015 (for brevity „impugned

order‟) passed by the learned Principal District Judge, Samba ( for brevity

„Reference court‟) in File No. 09/Civil Reference titled as „Parladh Singh

and another vs. Collector Land Acquisition, Samba read with order dated

25.09.2017, in terms whereof application under Order 9 Rule 13 CPC has

been rejected.

2. The facts those emerge from the perusal of the case are that an

award came to be passed by the Reference court on 31.12.2015, against an 2 Cond 155/2018

award passed by the Collector land Acquisition, Samba-applicant herein in an

application filed by the respondents herein under Section 18 of Land

Acquisition Act.

3. It is contended in the application that the land of the respondents

situated at village Nandani, Tehsil Samba came to be acquired for

construction of District Complex and after completing the formalities under

Land Acquisition Act a final award came to be passed by the Collector Land

Acquisition/Deputy Commissioner, Samba dated 17.07.2008 to the tune of

₹ 37,13,925/- adequacy of which came to be disputed by the land

owners/respondents resulting into consequent making of an application

before the Collector on 28.10.2008 for making a reference to the Court of

learned Principal District, Judge Samba in terms of Section 18 of the Land

Acquisition Act for enhancement of the compensation.

4. It is being next contended that Reference court passed an ex-parte

award in terms of order dated 31.12.2015, where after an application under

Order 9 Rule 13 CPC came to be filed by the applicant for setting aside the

said award accompanied with an application for condonation of delay. The

said application primarily came to be maintained on the ground that the parties

to the suit cannot be penalized for the poor conduct of the counsel appointed

by them who failed to defend their interest in the court of law in the case. The

said application instituted on 02.05.2017 as well came to be dismissed by the

Reference court in terms of order dated 25.09.2017 on the premise that the

application is found to be without any merit inasmuch as, no sufficient cause

is shown for condoning the delay.

5. In the instant application accompanied with the appeal filed on

20.08.2018, 236 days delay has been worked out while calculating the period 3 Cond 155/2018

of limitation in filing the appeal with effect from the date of order dated

25.09.2017, whereunder the application under Order 9 Rule 13 CPC filed for

setting aside the ex-parte award filed by the applicant herein came to be

dismissed by the Reference court.

6. In the instant application delay is sought to be condoned on the

premises that the period w.e.f 02.05.2017 i.e., the date of filing of the

application under Order 9 Rule 13 CPC before the Reference court for setting

aside the award till its decision on 25.09.2017 be excluded, in that the

applicant has been pursuing the said remedy. The delay is also being sought to

be condoned on the ground that ex-parte award on merits is not sustainable

and that the Reference court committed glaring illegality in appreciating both

the questions of law and fact and that great public interest is involved in the

appeal as the reference court while answering the reference has enhanced the

compensation manifold ignoring the mandate of Section 23 of the Land

Acquisition Act. Reference and reliance in the instant application is being

made and placed on the judgment of the Supreme Court reported in AIR 1987

SC 187 by the applicant. A liberal approach is prayed to be adopted in the

application and inasmuch as, it is being contended that the delay occasioned in

filing the appeal is neither deliberate nor intentional, but occurred due to

administrative formalities.

7. Per contra, respondents have filed objections in opposition to the

instant application, wherein dismissal of the application is being sought

fundamentally on the ground that the applicant has not shown any cogent and

sufficient reason for condoning the delay. Reliance in the objections is placed

on the judgment of the Apex Court passed in case titled as "Office of the 4 Cond 155/2018

Chief Post Master General and others vs. Living Media India Ltd. and

another 2012 (3) SCC 563".

8. Heard learned counsel for the parties and perused the record.

9. The learned counsel for the parties while making their

submissions reiterated the contentions raised and grounds urged in their

respective pleadings.

10. Perusal of the record tends to show that the Reference court upon

being approached by the non-applicants herein summoned the applicant herein

who entered its appearance through public prosecutor on 14.03.2009 and

sought time for filing objections to the reference. Perusal of the record further

reveals that 23 opportunities had been sought by the said public prosecutor for

filing objections and ultimately, did not file the same, but choose to remain

absent on 07.04.2011, on which date the Reference court proceeded ex-parte

against the respondent-applicant herein and the petitioners-non-applicants

herein were directed to adduce ex-parte evidence.

11. Perusal of the record further reveals that during the course of

leading evidence by the petitioners/non-applicants herein, the applicant herein

moved an applicant for setting aside the ex-parte proceedings which too came

to be dismissed by the Reference court on 12.01.2012. The Reference court

after adjudicating upon the reference w.e.f 08.11.2008 finally decided the

same after almost 07 years on 31.12.2015. Perusal of the record further tends

to show that the applicant herein after almost one and a half year moved an

application on 02.05.2017 under Order 9 Rule 13 CPC for setting aside the ex-

parte award, wherein the main ground pleaded had been alleged negligence of

the public prosecutor engaged for contesting the reference by the applicant

herein. Record further tends to show that the reference court dismissed the 5 Cond 155/2018

said application after being convinced and satisfied that the applicant herein

has been negligent and in order to evade liability has shifted the blame upon

the public prosecutor. No plausible ground was found by the Reference court

warranting setting aside of the award.

12. Since in the instant application, delay is sought to be condoned

before this Court as such, contents thereof in general and the explanation

offered in particular are significant and relevant and the same as such are

extracted and reproduced in extenso hereunder:-

"1. That the order dated 31.12.2015 being ex-parte was sought to be challenged by invoking order 9 Rule 13 of CPC

2. That the said remedy was availed, however, the Hon‟ble Court has dismissed the same in terms of order dated 31.12.2015.

3. That the remedy under Order 9 Rule 13 of CPC is independent remedy which can be availed notwithstanding right of appeal against the initial order. The rejection on application under Order 9 Rule 13 does not bar the right of appeal which still can be availed by the appellant to assail the order passed by the learned Trial Court both on question of law and question of facts.

4. That the period w.e.f. 2.5.2017 to 25.9.2017 may be excluded so far as period of appeal is concerned in view of applicant having prosecuted the remedy under Order 9 Rule 13 of CPC.

5. That ex-parte judgment on merit is not sustainable and the trial court has committed glaring illegality in appreciating the both question of law and question of facts. The great public interest is involved in accompanying appeal inasmuch as, the reference Court answered reference by enhancing the compensation 6 Cond 155/2018

amount in many folds ignoring the mandate of Section 23 of the land Acquisition Act.

6. That the Hon‟ble Court in AIR 1987 SC page 187 has categorically held where technical consideration are pitted against the cause of substantial justice later must prevail.

7. That even the Government machinery being in personal nature the Hon‟ble Court has adopted the liberal approach in condoning the delay.

8. That the delay in filing the appeal is not deliberate nor intentional but for the reasons stated hereinabove. It is submitted that the delay has occurred due to the administrative formalities.

Affidavit in support of application is enclosed herewith It is, therefore, prayed that your Lordships may kindly be pleased to allow this application for condonation of delay, the delay of 236 days may kindly be condoned in the public interest."

13. As is manifest from the perusal and examination of the above, no

explanation worth the name has been offered in the application by the

applicant as to why the appeal could not be filed after passing of order dated

25.09.2017 and what had been the circumstances and reasons which prevented

the applicant from filing the appeal well within time when the applicant was

in know of order dated 25.09.2017. As has been observed and noticed above

in computing the delay in filing the appeal the period w.e.f 02.05.2017 to

25.09.2017 has not been taken into account. The period has been counted

w.e.f. 25.09.2017 till the date of filing of the appeal i.e., 20.08.2018 and that

the delay of 236 days has not anywhere been explained by the applicant in the

application.

7 Cond 155/2018

14. The law on the subject of Section 5 of the Limitation Act is no

more res integra and there is a long line of decisions rendered and delivered

by the Ho‟ble Apex Court on the subject.

15. It is established that the law of limitation has to be applied with

all its rigor prescribed by a statute. Although Section 5 of J&K Limitation Act

Samvat , 1995 provides for extension of the period of limitation in certain

cases, and appellant/applicant seeking such extension is required to satisfy the

court that there has been a sufficient cause for not preferring the appeal or

making the application within the prescribed period.

16. The Apex Court in State of Madhya Pradesh and others and

Bherulal, 2020 (10) SSC 654, at paras 3 and 5 has observed as under: -

"3. No doubt, some leeway is given for the Government inefficiencies but the sad part is that the authorities keep on relying on judicial pronouncements for a period of time when technology had not advanced and a greater leeway was given to the Government [LAOv.Katiji]. This position is more than elucidated by the judgment of this Court in Post Master General v. Living Media India Ltd. (2012) 3 SCC 563 where the Court observed as under:-

"27) It is not in dispute that the person(s) concerned were well aware or conversant with the issues involved including the prescribed period of limitation for taking up the matter by way of filing a special leave petition in this Court. They cannot claim that they have a separate period of limitation when the Department was possessed with competent persons familiar with court proceedings. In the absence of plausible and acceptable explanation, we are posing a question why the delay is to be condoned mechanically 8 Cond 155/2018

merely because the Government or a wing of the Government is a party before us.

28) Though we are conscious of the fact that in a matter of condonation of delay when there was no gross negligence or deliberate inaction or lack of bonafide, a liberal concession has to be adopted to advance substantial justice, we are of the view that in the facts and circumstances, the Department cannot take advantage of various earlier decisions. The claim on account of impersonal machinery and inherited bureaucratic methodology of making several notes cannot be accepted in view of the modern technologies being used and available. The law of limitation undoubtedly binds everybody including the Government.

29) In our view, it is the right time to inform all the government bodies, their agencies and instrumentalities that unless they have reasonable and acceptable explanation for the delay and there was bonafide effort, there is no need to accept the usual explanation that the file was kept pending for several months/years due to considerable degree of procedural red- tape in the process. The government departments are under a special obligation to ensure that they perform their duties with diligence and commitment. Condonation of delay is an exception and should not be used as an anticipated benefit for government departments. The law shelters everyone under the same light and should not be swirled for the benefit of a few.

30) Considering the fact that there was no proper explanation offered by the Department for the delay except mentioning of various dates, according to us, the Department has miserably failed to give any acceptable and cogent reasons sufficient to condone such a huge delay." Eight years hence the judgment is still unheeded.

9 Cond 155/2018

5. A preposterous proposition is sought to be propounded that if there is some merit in the case, the period of delay is to be given a go-by. If a case is good on merits, it will succeed in any case. It is really a bar of limitation which can even shut out good cases. This does not, of course, take away the jurisdiction of the Court in an appropriate case to condone the delay."

17. Further the Hon‟ble Apex Court in Perumon Bhagvathy

Devaswam vs. Bhargavi Amma, 2008 (8) SCC 321, at para 13 (iii) enunciated

besides others the following principle qua an application under Section 5 of

the Limitation Act:-

"(iii) The decisive factor in condonation of delay, is not the length of delay, but sufficiency of a satisfactory explanation."

18. A Reference to the judgment of the Hon‟ble Apex Court reported

in AIR 1998 SC 2276, titled as P. K. Ramachadran v. State of Kerala would

also be appropriate and advantageous, wherein at para 6 following is noticed.

"Law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribe and the Courts have no power to extend the period of limitation on equitable grounds. The discretion exercised by the High Court was thus, neither proper nor judicious. The order condoning the delay cannot be sustained. This appeal, therefore, succeeds and the impugned order is set aside. Consequently, the application for condonation of delay filed in the High Court would stand rejected and the Miscellaneous First Appeal shall stand dismissed as barred by time. No costs."

10 Cond 155/2018

19. Further the Apex Court in case titled Office of the Chief Post

Master General and others vs. Living Media India Ltd. and another, 2012

(3) SCC 563 has observed as under:-

" ........... 29. It needs no restatement at our hands that the object for fixing time-limit for litigation is based on public policy fixing a lifespan for legal remedy for the purpose of general welfare. They are meant to see that the parties do not resort to dilatory tactics but avail their legal remedies promptly. Salmond in his Jurisprudence states that the laws come to the assistance of the vigilant and not of the sleepy.

30. Public interest undoubtedly is a paramount consideration in exercising the courts' discretion wherever conferred upon it by the relevant statutes. Pursuing stale claims and multiplicity of proceedings in no manner sub serves public interest. Prompt and timely payment of compensation to the land losers facilitating their rehabilitation/resettlement is equally an integral part of public policy. Public interest demands that the State or the beneficiary of acquisition, as the case may be, should not be allowed to indulge in any act to unsettle the settled legal rights accrued in law by resorting to avoidable litigation unless the claimants are guilty of deriving benefit to which they are otherwise not entitled, in any fraudulent manner. One should not forget the basic fact that what is acquired is not the land but the livelihood of the land losers. These public interest parameters ought to be kept in mind by the courts while exercising the discretion dealing with the application filed under Section 5 of the Limitation Act. Dragging the land losers to courts of law years after the termination of legal proceedings would not serve any public interest. Settled rights cannot be lightly interfered with by condoning inordinate delay without there being any proper explanation of such delay on the ground of involvement of public revenue. It serves no public interest."

11 Cond 155/2018

11) We have already extracted the reasons as mentioned in the "better affidavit" sworn by Mr. Aparajeet Pattanayak, SSRM, Air Mail Sorting Division, New Delhi. It is relevant to note that in the said affidavit, the Department has itself mentioned and is aware of the date of the judgment of the Division Bench of the High Court in LPA Nos. 418 and 1006 of 2007 as 11.09.2009.

Even according to the deponent, their counsel had applied for the certified copy of the said judgment only on 08.01.2010 and the same was received by the Department on the very same day.

There is no explanation for not applying for certified copy of the impugned judgment on 11.09.2009 or at least within a reasonable time. The fact remains that the certified copy was applied only on 08.01.2010, i.e. after a period of nearly four months. In spite of affording another opportunity to file better affidavit by placing adequate material, neither the Department nor the person in-charge has filed any explanation for not applying the certified copy within the prescribed period. The other dates mentioned in the affidavit which we have already extracted, clearly show that there was delay at every stage and except mentioning the dates of receipt of the file and the decision taken, there is no explanation as to why such delay had occasioned. Though it was stated by the Department that the delay was due to unavoidable circumstances and genuine difficulties, the fact remains that from day one the Department or the person/persons concerned have not evinced diligence in prosecuting the matter to this Court by taking appropriate steps.

12) It is not in dispute that the person(s) concerned were well aware or conversant with the issues involved including the prescribed period of limitation for taking up the matter by way of filing a special leave petition in this Court. They cannot claim that they have a separate period of limitation when the Department was possessed with competent persons familiar with court proceedings. In the absence of plausible and 12 Cond 155/2018

acceptable explanation, we are posing a question why the delay is to be condoned mechanically merely because the Government or a wing of the Government is a party before us. Though we are conscious of the fact that in a matter of condonation of delay when there was no gross negligence or deliberate inaction or lack of bonafide, a liberal concession has to be adopted to advance substantial justice, we are of the view that in the facts and circumstances, the Department cannot take advantage of various earlier decisions. The claim on account of impersonal machinery and inherited bureaucratic methodology of making several notes cannot be accepted in view of the modern technologies being used and available. The law of limitation undoubtedly binds everybody including the Government.

13) In our view, it is the right time to inform all the government bodies, their agencies and instrumentalities that unless they have reasonable and acceptable explanation for the delay and there was bonafide effort, there is no need to accept the usual explanation that the file was kept pending for several months/years due to considerable degree of procedural red-tape in the process. The government departments are under a special obligation to ensure that they perform their duties with diligence and commitment. Condonation of delay is an exception and should not be used as an anticipated benefit for government departments. The law shelters everyone under the same light and should not be swirled for the benefit of a few. Considering the fact that there was no proper explanation offered by the Department for the delay except mentioning of various dates, according to us, the Department has miserably failed to give any acceptable and cogent reasons sufficient to condone such a huge delay."

13 Cond 155/2018

20. Viewed in the context what has been observed, considered

and analyzed hereinabove, the application in hand thus, entails

dismissal and is, accordingly, dismissed.

21. The judgment referred to in the application filed by the

applicant reported in AIR1987 SC page 187 is mis-placed and mis

directed.

(Javed Iqbal Wani) Judge Jammu 13 .07.2021 Bir Whether the order is speaking: Yes/No Whether the order is reportable: Yes/No.

BIR BAHADUR SINGH 2021.07.14 11:18 I am the author of this document