Karnataka High Court

The Executive Engineer vs Zaheeroddin And Ors on 25 July, 2024

                                               -1-
                                                           NC: 2024:KHC-K:5369
                                                      MSA No. 200492 of 2023




                              IN THE HIGH COURT OF KARNATAKA,
                                      KALABURAGI BENCH
                            DATED THIS THE 25TH DAY OF JULY, 2024
                                            BEFORE
                           THE HON'BLE Mrs JUSTICE K S HEMALEKHA
                        MISCL SECOND APPEAL NO.200492 OF 2023 (LAC)
                   BETWEEN:

                   THE EXECUTIVE ENGINEER, KNNL,
                   KARANJA PROJECT, D.NO.2,
                   TQ. BHALKI, DIST. BIDAR-585 101.

                                                                  ...APPELLANT
                   (BY SRI KRUPA SAGAR PATIL, ADVOCATE)

                   AND:

                        ZAHEERODDIN S/O MOHAMMED SAB,
                        DIED THROUGH L.R.,

                   1    SHARIFABEE W/O ZAHIRUDDIN,
                        AGE. MAJOR, OCC. AGRICULTURE.

                   2.   BAKSUDDIN S/O MOHAMMED SAB,
Digitally signed        AGE. MAJOR, OCC. AGRICULTURE.
by SWETA
KULKARNI
Location: HIGH          BOTH R/O. WALASANG VILLAGE,
COURT OF
KARNATAKA               TQ. BHALKI, DIST. BIDAR-585 101.

                   3.   THE SPECIAL LAND ACQUISITION OFFICER,
                        KARANJA PROJECT, BIDAR-585 101.

                                                                ...RESPONDENTS
                          (BY SMT. ARCHANA P. TIWARI, AAG AND
                              SRI. F.M. INAMDAR HCGP FOR R3)


                       THIS MSA IS FILED UNDER SEC. 54(2) OF LAND
                   ACQUISITION ACT, PRAYING TO CALL FOR THE RECORDS
                             -2-
                                          NC: 2024:KHC-K:5369
                                      MSA No. 200492 of 2023




FROM THE REFERENCE COURT AS WELL AS THE APPELLATE
COURT IN LAC NO.50/2005 AND MA NO.268/2014, AND SET
ASIDE THE JUDGMENT AND AWARD IN MA NO.268/2014,
DATED 29.11.2014 ON THE FILE OF THE ADDL. DISTRICT AND
SESSIONS JUDGE, BIDAR, SITTING AT BHALKI.

    THIS APPEAL, COMING ON FOR ORDERS, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:



CORAM:    HON'BLE Mrs JUSTICE K S HEMALEKHA

                     ORAL JUDGMENT

(PER: HON'BLE Mrs JUSTICE K S HEMALEKHA)

The beneficiary is before this Court assailing the

legality and correctness of the order in MA No.268/2014,

wherein, the First Appellate Court modified the award

passed by the reference Court by enhancing the

compensation amount to Rs.99,000/- per acre for wet land

as against Rs.66,000/- per acre with all statutory benefits,

along with the appeal an application is preferred to

condone the delay of 2264 days in filing the appeal, the

reasons indicated in the application to condone the

inordinate delay of 2264 days is culled out at paragraph

Nos.4 and 5, which reads as under:

NC: 2024:KHC-K:5369

"4. I state that, the Appellate Court had disposed the Appeal in MA No.268/2014, dated 29-11-2014.

The Counsel before the trial court upon receiving the certified copy of the Final Order has sent the same to the Central Office. The Central Office after securing the papers from KNNL Division Kalaburagi has handed over the entire case docket to the counsel on panel to opine feasibility in preferring any/Appeal in the matter. The said counsel after through verification of papers provided by the KNNL Central Office, the said counsel had sought for some more papers from the court below to arrive at conclusion and also having two rounds of meeting with the KNNL Legal Cell, have finally decided to the 2nd Appeal before the Hon'lde High Court questioning Judgment and Award passed by the Appellate Court.

5. I state that, alter receiving the considerable opinion, our legal cell has entrusted the entire case docket to one of the panel Advocate for preferring appeal. But due to some unavoidable circumstances, the appeal was not filed be the said counsel. That finally when he said counsel resigned from the penal in the year 2023, upon verification of the files allotted to the said counsel it was known that the present appeal was not filed. That after receiving the entire case papers from the earlier counsel, the same was handed over to the present counsel for preferring 2nd Appeal to this Hon'ble Court. I state that, securing required papers and also transit of papers from Kalaburagi to Dharwad, and thereafter from Dharwad to Kalaburagi KNNL Office and thereafter the passing of papers to the previous counsel and then to the present counsel to do the needful, it has consumed time which is unintentional, but in a bonafide nature."

NC: 2024:KHC-K:5369

2. Reasons indicated in the above paragraphs is

that after receiving the certified copy of the final order had

sent the same to the Central office, the Central office after

securing the papers from KNNL division Kalaburagi has

handed over the entire case docket to the counsel on

panel.

3. It is stated that the said counsel after a

thorough verification of the papers provided by the KNNL

Central office, the said counsel has sought for some more

papers from the Court below, who arrived at a conclusion

and after two rounds of meeting with the legal cell of

KNNL, they finally decided to file second appeal before this

Court, questioning the judgment and award of the First

Appellate Court, it is further stated that after receiving the

considerable opinion, the legal cell has entrusted the case

docket to one of the panel advocate for preferring the

appeal but due to unavoidable circumstances the appeal

was not filed and finally when the counsel resigned from

the panel in the year 2023, upon of verification of the files

NC: 2024:KHC-K:5369

allotted to the said counsel, it was known that the present

appeal was not right and after receiving entire papers from

the previous counsel, the second appeal is filed before this

Court.

4. It is stated that securing the required papers

and also the transit of papers from Kalaburagi to Dharwad

and thereafter from Dharwad to Kalaburagi KNNL office

and passing of the papers to the previous counsel and

then to the present counsel. It consumed so much of time

and the delay in preferring the appeal is unintentional and

it is due to bonafide reasons.

5. The question that falls for consideration before

this Court is that "whether in the facts and circumstances

of the reasons indicated above, the appellant has made

out sufficient ground to condone the inordinate delay?"

6. The law of limitation finds its routes in the legal

maxim "Interest reipublicae ut sit fanis litum" which

means that in the interest of the state as whole there

should be a limit to litigation and "vigilantibus non

NC: 2024:KHC-K:5369

dormeientibus jura subveniunt" which means the law will

assist only those who are vigilant to their rights and not

those who sleep upon it. The law of limitation specifies

the statutory time frame within which a person may

initiate a legal proceedings or a legal action can be

brought. If the suit is filed after the expiry of the time

prescribed, it will be barred by limitation, it means that the

suit brought before the Court after the expiry of the time

within which a legal proceedings to be initiated will be

restricted.

7. Section 3 of the Limitation Act 1963 lays down

the general rule that if any suit, appeal and application

made after the prescribed period shall be dismissed

although limitation has not been setup as a defence, the

exceptions are culled out under Section 4 to 24 of the

Limitation Act, and this Court is concerned about Section 5

of the Limitation Act, which empowers the Court to admit

an appeal even if it is preferred after the prescribed period

provided the proposed appellants gives "sufficient cause"

NC: 2024:KHC-K:5369

for not preferring the appeal within the prescribed period,

in other words the Courts have conferred with

discretionary powers to admit an appeal even after the

expiry of the prescribed period provided the proposed

appellant is able to establish "sufficient cause" for not

filing within time.

8. The said power to condone the delay and admit

the appeal preferred after the expiry of the time is

discretionary in nature and may not be exercised even if

"sufficient cause" is shown based upon post of other

factors such as negligence, failure to exercise due

diligence etc., the Apex Court in the case of Collector,

Land Acquisition, Anantnag and Other Vs. Katiji and

Others1 has held in advocating the liberal approach in

condoning the delay for sufficient cause held that

ordinarily a litigant does not stand to benefit by lodging an

appeal late: it is not necessary to explain every days delay

in filing the appeal: and since some time refusal to

(1987) 2 SCC 107

NC: 2024:KHC-K:5369

condone the delay may result in throwing out the

meritorious matter, it is necessary in the interest of justice

that cause of substantial justice should be allowed to

prevail upon the technical consideration and if the delay is

not deliberate, it not be condoned. Notwithstanding the

above, howsoever liberal approach is adopted in condoning

the delay, existence of "sufficient cause" for not filing the

appeal in time is a condition precedent for exercising the

discretionary power to condone the delay.

9. The phrases "liberal approach, justice oriented

approach" and cause for the advancement of "substantial

justice" cannot be employed to defeat the law of limitation

so as to allow the stale matters or as a matter of fact dead

matters to be revived and reopened by taking aid of

Section 5 of the Limitation Act. In the instant case, the

delay is of not few days but inordinate delay of 2264 days,

Section 5 of the Limitation Act, prescribes certain period

for filing an appeal, substantial right is already been

created in favour of the decree holder/claimants herein

NC: 2024:KHC-K:5369

and this right ought not to be lightly disturbed, the

claimants have already created a decree in their favour by

lapse of time. The Apex Court in the case of Ramlal,

Motilal and Chhotelal Vs. Rewa Coalfields ltd.,2 has

emphasized that even after sufficient cause has been

shown by a party for not filing an appeal within time, the

said party is not entitled to the condonation of delay as

excusing the delay is the discretionary jurisdiction vested

with the Court. The Court, despite establishment of

"sufficient cause" for various reasons may refuse to

condone the delay depending upon the bonafide of the

party.

10. The Apex Court in the case of Lanka

Venkateswarlu (Dead) By LRs Vs. State of Andhra

Pradesh and Others3 has observed that despite

unsatisfactory explanation for the delay of 3703 days, the

High Court had allowed application for condonation of

delay, the Apex Court held that the High Court failed to

AIR 1962 SC 361

(2011) 4 SCC 363

- 10 -

NC: 2024:KHC-K:5369

exercise its discretion in a reasonable and objective

manner. The High Court should have exercised the

discretion in a systematic and in informed manner. The

liberal approach in considering the sufficiency of the cause

for delay should not allowed to over ride the substantial

law of limitation. The Court further observed that the

concepts such as "liberal approach" "justice oriented

approach" and "substantial justice" cannot be employed to

jettison the substantial law of limitation. The Apex Court in

the later judgment of Basawaraj and Anr. vs. Special

Land Acquisition Officer (Basawaraj) has observed

that the discretion to condone the delay has to be

exercised judiciously based upon the facts and

circumstances of each case. "Sufficient cause", as

occurring in Section 5 of the Limitation Act, cannot be

liberally interpreted if negligence, inaction or lack of

bonafide is writ large. It has also observed even though

limitation may harshly affect the rights of the parties but it

(2013) 14 SCC 81

- 11 -

NC: 2024:KHC-K:5369

has to be applied with all its rigour as prescribed under the

statute and the Courts have no choice but to apply the law

as it stands and they have no power to condone the delay

on equitable grounds and at paragraph No.12 and 15 has

held as under:

"12. It is a settled legal proposition that law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribes. The court has no power to extend the period of limitation on equitable grounds. "A result flowing from a statutory provision is never an evil. A court has no power to ignore that provision to relieve what it considers a distress resulting from its operation." The statutory provision may cause hardship or inconvenience to a particular party but the court has no choice but to enforce it giving full effect to the same. The legal maxim dura lex sed lex which means "the law is hard but it is the law", stands attracted in such a situation. It has consistently been held that, "inconvenience is not" a decisive factor to be considered while interpreting a statute.

15. The law on the issue can be summarised to the effect that where a case has been presented in the court beyond limitation, the applicant has to explain the court as to what was the "sufficient cause" which means an adequate and enough reason which prevented him to approach the court within limitation. In case a party is found to be negligent, or for want of bonafide on his part in the facts and circumstances of the case, or found to have not acted diligently or remained inactive, there cannot be a justified ground to condone the delay. No court could be justified in condoning such an inordinate

- 12 -

NC: 2024:KHC-K:5369

delay by imposing any condition whatsoever. The application is to be decided only within the parameters laid down by this court in regard to the condonation of delay. In case there was no sufficient cause to prevent a litigant to approach the court on time condoning the delay without any justification, putting any condition whatsoever, amounts to passing an order in violation of the statutory provisions and it tantamounts to showing utter disregard to the legislature."

11. In the recent decision the Apex Court in the

case of Pathapati Subba Reddy (Died) by L.Rs. and

Ors. v. The Special Deputy Collector (LA)5 has given a

consideration to the provisions of law as aforesaid and has

held at paragraph No.26 as under:

"26. On a harmonious consideration of the provisions of the law, as aforesaid, and the law laid down by this Court, it is evident that:

(i) Law of limitation is based upon public policy that there should be an end to litigation by forfeiting the right to remedy rather than the right itself;

(ii) A right or the remedy that has not been exercised or availed of for a long time must come to an end or cease to exist after a fixed period of time;

2024 SCC Online SC 513

- 13 -

NC: 2024:KHC-K:5369

(iii) The provisions of the Limitation Act have to be construed differently, such as Section 3 has to be construed in a strict sense whereas Section 5 has to be construed liberally;

(iv) In order to advance substantial justice, though liberal approach, justice-oriented approach or cause of substantial justice may be kept in mind but the same cannot be used to defeat the substantial law of limitation contained in Section 3 of the Limitation Act;

(v) Courts are empowered to exercise discretion to condone the delay if sufficient cause had been explained, but that exercise of power is discretionary in nature and may not be exercised even if sufficient cause is established for various factors such as, where there is inordinate delay, negligence and want of due diligence;

(vi) Merely some persons obtained relief in similar matter, it does not mean that others are also entitled to the same benefit if the court is not satisfied with the cause shown for the delay in filing the appeal;

(vii) Merits of the case are not required to be considered in condoning the delay; and

(viii) Delay condonation application has to be decided on the parameters laid down for condoning the delay and condoning the delay for the reason that the conditions have been imposed, tantamounts to disregarding the statutory provision."

- 14 -

NC: 2024:KHC-K:5369

12. The Apex Court in another judgment in the case

of Ajay Dabra Vs. Pyare Ram and Ors6 has observed

that an appeal has to be filed within a stipulated period

prescribed under the law belated appeals can only be

condoned, when "sufficient reasons" are shown before the

Court for the delay and the Courts should not be pedantic

in their approach while condoning the delay and the

explanation of each day's delay should not be taken

literally but the fact remains there must be a reasonable

explanation for the delay and at paragraph No.5 has held

as under:

"5. What we have here is a pure civil matter. An appeal has to be filed within the stipulated period, prescribed under the law. Belated appeals can only be condoned, when sufficient reason is shown before the court for the delay. The appellant who seeks condonation of delay therefore must explain the delay of each day. It is true that the courts should not be pedantic in their approach while condoning the delay, and explanation of each day's delay should not be taken literally, but the fact remains that there must be a reasonable explanation for the delay. In the present case, this delay has not been explained to the satisfaction of the court. The only reason assigned by the appellant for the delay of 254 days in filing the First Appeal was that he was not having

2023 live law (SC) 69

- 15 -

NC: 2024:KHC-K:5369

sufficient funds to pay the court fee! This was not found to be a sufficient reason for the condonation of delay as the appellant was an affluent businessman and a hotelier. In any case, even it is presumed for the sake of argument that the appellant was short of funds, at the relevant point of time and was not able to pay court fee, nothing barred him from filing the appeal as there is provision under the law for filing a defective appeal, i.e., an appeal which is deficient as far as court fee is concerned, provided the court fee is paid within the time given by the Court. We would refer to Section 149 of Civil Procedure Code, 1908 which reads as under :-

"Section 149: Power to make up deficiency of Court Fees.- Where the whole or any part of any fee prescribed for any document by the law for the time being in force relating to court fees has not been paid, the Court may, in its discretion, at any stage, allow the person, by whom such fee is payable, to pay the whole or part, as the case may be, of such court-fee, and upon such payment the document, in respect of which such fee is payable, shall have the same force and effect as if such fee had been paid in the first instance."

It also needs to be emphasized that this Court as well as various High Courts, have held that Section 149 CPC acts as an exception, or even a proviso to Section 4 of Court Fees Act 1870. In terms of Section 4, an appeal cannot be filed before a High Court without court fee, if the same is prescribed. But this provision has to be read along with Section 149 of CPC which we have referred above. A short background to the incorporation of Section 149 in CPC would explain this aspect."

13. The reasons indicated in the affidavit at

paragraph No.4 and 5 by a responsible officer of the KNNL,

a statutory body, is not just enough for this Court to

- 16 -

NC: 2024:KHC-K:5369

condone an inordinate delay of 2264 days in filing the

appeal. The reasons at paragraph No.2 indicates that the

authority was aware about the disposal of the appeal in

MA No.268/2014 itself, the inordinate delay in seeking the

appeal and challenging the order passed by the Appellate

Court cannot be entertained by way of this appeal and

needs to dismissed on the ground of delay. Accordingly,