Krishnachand vs The State Of Madhya Pradesh
2022 Latest Caselaw 13483 MP

IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR
                         BEFORE
           HON'BLE SHRI JUSTICE SHEEL NAGU
                   W.P. NO.19521 OF 2017

       Between:-

  1.   KRISHNACHAND S/O LATE SHRI DALCHAND,
       AGED ABOUT 70 YEARS, OCCUPATION:
       AGRICULTURIST R/O. PADRIGANJ TEH. AND
       DISTT. BALAGHAT PRESENTLY RESIDING AT
       J-509, TELECOM OFFICER QTR. IN FRONT OF
       MAIN GATE IIT PAWAI MUMBAI (M.H.)

  2.   RAMESH CHAND S/O LATE DALCHAND,
       AGED ABOUT 67 YEARS, OCCUPATION:
       AGRICULTURE PADRIGANJ TEHSIL AND
       DISTRICT    BALAGHAT     PRESENT
       THEKEDARI MOHALLA GOMTIBHAWAN
       NAINPUR (MADHYA PRADESH)

                                             .....PETITIONERS

       (BY SHRI DEVDATT BHAVE, ADVOCATE)

                           AND

  1.   THE STATE OF MADHYA PRADESH THR.
       COMMISSIONER        JABALPUR     DISTT.
       JABALPUR (M.P.) (MADHYA PRADESH)

  2.   THE COLLECTOR LAND ACQUISITION THE
       STATE OF MADHYA PRADESH BALAGHAT
       (MADHYA PRADESH)

  3.   SUB CHIEF ENGINEER CONSTRUCTION
       SOUTH EAST CENTRAL RAILWAY NAGPUR
       NAGPUR (MAHARASHTRA)

  4.   SDO CUM LAND ACQUITION OFFICER
       BALAGHAT BALAGHAT (MADHYA PRADESH)
                                          -   2 -

                                                                .....RESPONDENTS

               (RESPONDENTS NO.1 AND 2 BY MS. AISHWARYA SINGH,
               PANEL LAWYER
               RESPONDENT NO.3 BY SHRI N.S. RUPRAH, ADVOCATE)

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       Reserved on                   :       09.07.2022

       Passed on                     :       13.10.2022

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       This petition coming on for order this day, the court passed
the following:

                                      ORDER

This petition filed under Article 226 of the Constitution assails Annexure P/2 dated 09.05.2017 by which Additional Collector, Balaghat had declined to refer application of petitioners to the Authority, made against the land acquisition award dated 12.08.2016, for the reason of application having been filed after eight months of passing of award, thereby being barred by limitation clause u/S.64 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (for brevity "Act of 2013"). Further challenge is laid to the order of Commissioner (Revenue), Jabalpur Division dated 31.08.2017 vide Annexure P/1 by which petitioners' challenge to Annexure P/2 was

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declined by Commissioner (Revenue), Jabalpur Division on ground of want of jurisdiction.

2. Learned counsel for the rival parties are heard on the question of admission so also on final disposal.

3. The attending facts in short are that by an award passed on 12.08.2016 for acquisition of 6.885 hectares land of petitioners was for the purpose of converting narrow gauge railway line into broad gauge railway line between Balaghat and Jabalpur for which amount of compensation was arrived at and paid to the petitioners. Aggrieved by quantum of compensation, petitioners invoked Section 64 of the Act of 2013 by preferring an application to the Collector for referring their case to the Authority constituted u/S.51 of Act of 2013. The said application was rejected by the Additional Collector vide Annexure P/2 on 09.05.2017 being time barred by holding that the same was filed after eight months of passing of the award.

4. Learned counsel for petitioner, Shri Devdatt Bhave, submits that petitioners had preferred application seeking condonation of delay in approaching the Collector for making reference in terms of proviso to Sec.64(2) but no heed was paid by the Collector.

5. Per contra, learned counsel for the Revenue, Shri N.S. Ruprah by filing a reply refuted the contention of petitioner in toto by submitting that maximum extendable period for preferring an application before the Collector for making reference to the

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Authority is six months as per Sec.64(2)(d) of the Act of 2013. It is submitted that since application was preferred after the said maximum extendable period of six months of passing the award, the application was rightly rejected as being time barred vide Annexure P/2.

6. After having heard learned counsel for the rival parties, it appears that in the absence of material placed by petitioners as to whether any application for condonation of delay was filed alongwith application made u/S.64(1) of Act of 2013, it is not possible to assess whether delay in preferring the application u/S.64(1) was for bonafide reason or not.

7. Undoubtedly, the Act of 2013 is a beneficial piece of legislation which ought to be construed and interpreted in a liberal manner and in cases of doubt, the land oustee deserves to be benefited.

7.1 In the instant case, petitioners have not brought on record the application filed u/S.64(1) nor there is any material before this Court to gather as to whether any express prayer for condonation of delay was preferred before the Collector or not. In absence of any such material, the question of condonation of delay cannot be decided, thus, is left for the Collector to deal with.

8. Before parting, it would be appropriate to mention that whenever an application is moved by a land oustee beyond the

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period of limitation on raising any of the grounds available u/S.64(1), the Collector is duty bound to grant opportunity to the land oustee who has made an application u/S.64(1) of Act of 2013 to file appropriate application seeking condonation of delay. This is essential since object of the Act of 2013 which is beneficial in nature cannot be fully served if the land oustee is left high and dry merely on technical ground of delay despite the claim being justified on merits.

8.1 However, if the land oustee even after affording reasonable opportunity by the Collector fails to prefer application for condonation of delay, then the Collector would be well within her/his power to dismiss the application for being time barred. This view of this Court is bolstered by the decision of Apex Court in the case of Collector, Land Acquisition, Anantnag and another Vs. Mst. Katiji and others, AIR 1987 SCC 1353 and Balwant Singh (Dead) Vs. Jagdish Singh and others, (2010) 8 SCC 685, relevant extract of which are reproduced below for ready reference and convenience:-

Collector, Land Acquisition, Anantnag (supra)

"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

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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.

Making a justice-oriented approach from this perspective, there was sufficient cause for condoning the delay in the institution of the appeal. The fact that it was the "State" which was seeking condonation and not a private party was altogether irrelevant. The doctrine of equality before law demands that all litigants, including the State as a litigant, are accorded the same treatment and the law is administered in an even-handed manner. There is no warrant for according a step-motherly treatment when the "State" is the applicant praying for condonation of delay. In fact experience shows

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that on account of an impersonal machinery (no one in charge of the matter is directly hit or hurt by the judgment sought to be subjected to appeal) and the inherited bureaucratic methodology imbued with the note-making, file-pushing and passing-on-the-buck ethos, delay on its part is less difficult to understand though more difficult to approve. In any event, the State which represents the collective cause of the community, does not deserve a litigant-non-grata status. The courts therefore have to be informed with the spirit and philosophy of the provision in the course of the interpretation of the expression "sufficient cause". So also the same approach has to be evidenced in its application to matters at hand with the end in view to do even-handed justice on merits in preference to the approach which scuttles a decision on merits. Turning to the facts of the matter giving rise to the present appeal, we are satisfied that sufficient cause exists for the delay. The order of the High Court dismissing the appeal before it as time-barred, is therefore, set aside. Delay is condoned. And the matter is remitted to the High Court. The High Court will now dispose of the appeal on merits after affording reasonable opportunity of hearing to both the sides."

Balwant Singh (Dead) (supra)

"37. We feel that it would be useful to make a reference to the judgment of this Court in Perumon Bhagvathy Devaswom [(2008) 8 SCC 321] . In this case, the Court, after discussing a number of judgments of this Court as well as that of the High Courts, enunciated the principles which need to be kept in mind while dealing with applications filed under the provisions of Order 22 CPC along with an application under Section 5 of the Limitation Act for condonation of delay in filing the application for bringing the legal representatives on record. In SCC para 13 of the judgment, the Court held as under : (SCC pp. 329-30) "(i) The words 'sufficient cause for not making the application within the period of limitation' should be understood and applied in a reasonable, pragmatic, practical and liberal manner, depending upon the facts and circumstances of the case, and the type of case. The words 'sufficient cause' in Section 5 of the Limitation Act should

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receive a liberal construction so as to advance substantial justice, when the delay is not on account of any dilatory tactics, want of bona fides, deliberate inaction or negligence on the part of the appellant.

(ii) In considering the reasons for condonation of delay, the courts are more liberal with reference to applications for setting aside abatement, than other cases. While the court will have to keep in view that a valuable right accrues to the legal representatives of the deceased respondent when the appeal abates, it will not punish an appellant with foreclosure of the appeal, for unintended lapses. The courts tend to set aside abatement and decide the matter on merits, rather than terminate the appeal on the ground of abatement.

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

(iv) The extent or degree of leniency to be shown by a court depends on the nature of application and facts and circumstances of the case. For example, courts view delays in making applications in a pending appeal more leniently than delays in the institution of an appeal. The courts view applications relating to lawyer's lapses more leniently than applications relating to litigant's lapses. The classic example is the difference in approach of courts to applications for condonation of delay in filing an appeal and applications for condonation of delay in refiling the appeal after rectification of defects.

(v) Want of 'diligence' or 'inaction' can be attributed to an appellant only when something required to be done by him, is not done. When nothing is required to be done, courts do not expect the appellant to be diligent. Where an appeal is admitted by the High Court and is not expected to be listed for final hearing for a few years, an appellant is not expected to visit the court or his lawyer every few weeks to ascertain the position nor keep checking whether the contesting respondent is alive. He merely awaits the call or information from his counsel about the listing of the appeal."

(emphasis in original)

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We may also notice here that this judgment had been followed with approval by an equi-Bench of this Court in Katari Suryanarayana [(2009) 11 SCC 183.

38. Above are the principles which should control the exercise of judicial discretion vested in the court under these provisions. The explained delay should be clearly understood in contradistinction to inordinate unexplained delay. Delay is just one of the ingredients which has to be considered by the court. In addition to this, the court must also take into account the conduct of the parties, bona fide reasons for condonation of delay and whether such delay could easily be avoided by the applicant acting with normal care and caution. The statutory provisions mandate that applications for condonation of delay and applications belatedly filed beyond the prescribed period of limitation for bringing the legal representatives on record, should be rejected unless sufficient cause is shown for condonation of delay. The larger Benches as well as equi-Benches of this Court have consistently followed these principles and have either allowed or declined to condone the delay in filing such applications. Thus, it is the requirement of law that these applications cannot be allowed as a matter of right and even in a routine manner. An applicant must essentially satisfy the abovestated ingredients; then alone the court would be inclined to condone the delay in the filing of such applications."

9. On the basis of aforesaid analysis, what comes out loud and clear is that the matter deserves to be remanded to Collector, Balaghat to afford an opportunity to petitioners to file an appropriate application seeking condonation of delay and thereafter pass appropriate order in accordance with law.

10. Accordingly, this petition deserves to be and is therefore, disposed of with following directions:-

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             (i)       Impugned order dated 09.05.2017 passed by Additional
             Collector, Balaghat is set aside.

             (ii)      Collector,   Balaghat   is   directed   to    afford   reasonable

opportunities of at least two hearings to the petitioners to file an application seeking condonation of delay in support of application already filed u/S.64(1) of Act of 2013.

(iii) If petitioners fail to file application seeking condonation of delay despite grant of two opportunities, the Collector shall be free to proceed and pass orders in accordance with law.

(iv) In case petitioners avail opportunity afforded by filing application seeking condonation of delay in support of application u/S.64(1) of the Act of 2013, and if the reasons shown for delay are found to be bonafide and justified on the anvil of the law laid down by Apex Court, the Collector then shall proceed to refer the matter to the Authority as expeditiously as possible.

(v) The aforesaid exercise be completed within a period of three months from the date of receipt of copy of this order. No cost.

(SHEEL NAGU) JUDGE Sateesh Digitally signed by SATEESH KUMAR SEN Date: 2022.10.14 11:05:26 +05'30'