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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 14TH DAY OF SEPTEMBER, 2016
BEFORE
THE HON’BLE MR. JUSTICE B.VEERAPPA
MFA No.201703/2015 (LAC)
BETWEEN:
Rajashekhar S/o Shivasharanappa
Age: Major, Occ: Agriculture
R/o Harsur
Tq. & Dist. Kalaburagi – 585 102
... Appellant
(By Sri Harshavardhan R. Malipatil, Advocate)
AND:
1.
The Special Land Acquisition Officer
Minor and Medium Irrigation Projects
Kalaburagi – 585 102
2.
Deputy Commissioner
Kalaburagi – 585 102
... Respondents
(By Smt. Archana P. Tiwari, AGA)
This MFA filed under Order 43 Rule 1(T) of CPC
praying to set aside the order of Principal District and
Sessions
Court,
Miscellaneous
Misc.Case.
Kalaburagi,
No.1/2015
and
dated
20.08.2015
consequently
allow
in
the
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This appeal coming on for Admission this day, the
Court delivered the following:
JUDGMENT
This appeal is filed by the claimant land loser
against the order dated 20.08.2015 on I.A.No.1 under
Section 5 of the Limitation Act rejecting the application
consequently
dismissing
the
appeal
filed
by
the
appellant.
2.
It is an undisputed fact that the appellant is the
owner of 5 acres 38 guntas of land in Sy.No.77 of
Harsur village, Kalaburagi taluk and district and the
said land was acquired by the respondents for the
purpose of construction of Bennetora Project by issuing
preliminary
notification
on
30.08.1990
under
the
provisions of Section 4(1) of the Land Acquisition Act
followed by the final notification under Section 6 of the
Land Acquisition Act. The Land Acquisition Officer by
award dated 30.03.1993 awarded a compensation of
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Rs.5,000/- per acre.
Aggrieved by the same, the
appellant has filed an application under Section 18 (1)
of the Land Acquisition Act.
After hearing both the
parties, the Reference Court has proceeded to award
Rs.28,000/- per acre. Aggrieved by the said judgment
and award passed by the Reference Court, the appellant
filed appeal before the District Court in unregistered
LACA
No.-/2010
and
the
matter
was
called
on
04.06.2011 for compliance of office objections and the
same was not complied. Therefore, the Principal District
and Sessions Judge, Kalaburagi by an order dated
04.06.2011
dismissed
the
said
appeal
for
non-
prosecution. Therefore the appellant was constrained to
file Misc.No.50/2013 (re-numbered as Misc.No.1/2013)
to recall the order dated 04.06.2011 in unregistered
LACA No.-/2010.
There was a delay in filing the
miscellaneous petition.
Therefore, the petitioner filed
application under Section 5 of the Limitation Act to
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condone
the
delay
of
708
days
in
filing
the
miscellaneous petition.
3.
In the miscellaneous petition as well as in the
application for condonation of delay, it is stated by the
claimant that on 04.06.2011 the unregistered LACA
No.-/2010
was
posted
for
compliance
of
office
objections.
Advocate for the claimant was engaged in
the High Court Bench at Kalaburagi and has requested
his colleague to seek adjournment before the Court.
However,
due
to
some
communication
gap
and
inadvertence the Advocate for the claimant did not
represent before the Court. When the appellant came to
the Court and enquired about the case, he came to
know that
it
was dismissed
for
non-prosecution.
Therefore, he filed the miscellaneous petition. As there
was
delay
in
filing
the
miscellaneous
petition,
application was also filed seeking condonation of delay.
The delay in filing the miscellaneous petition as well as
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application for condonation of delay was not intentional
but due to the reasons stated above. The respondents
have not filed any objections to the miscellaneous
petition as well as the application for condonation of
delay.
4.
The learned Principal District and Sessions Judge
after considering the I.A. has proceeded to dismiss the
I.A. as well as miscellaneous petition mainly on the
ground that no cause has been shown by the Advocate
for the appellant to condone the inordinate delay in
filing the miscellaneous petition and sufficient reasons
are not assigned and he has not urged specific ground
which prevented the Advocate or his party for not filing
petition within time.
Accordingly, I.A. filed under
Section 5 of the Limitation Act to condone the delay in
filing
the
consequently,
miscellaneous
petition
miscellaneous
was
petition
dismissed. Hence the present appeal is filed.
rejected,
was
also
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5.
I have heard the learned counsel for the parties to
the lis.
6.
for
Shri Harshavardhan R. Malipatil, learned counsel
the
appellant
vehemently
contended
that
the
Principal District and Sessions Judge has erred in
dismissing the application for condonation of delay only
on technical grounds ignoring that the rights of the
parties are involved in respect of immovable property
and the appellant’s land has been acquired by the
respondents for the purpose of Bennetora Project and
the appellant will lose his rights in respect of the
compensation liable to be paid by the respondents for
the land acquired. Therefore he sought to set aside the
impugned order passed by the Principal District and
Sessions Judge.
7.
Per contra, Smt. Archana P. Tiwari, learned
Additional Government Advocate sought to justify the
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impugned order and contended that there was a delay of
708 days in filing the miscellaneous petition.
The
appellant was not prevented to file the miscellaneous
petition within time. He was not diligent in prosecuting
the appeal and no sufficient cause was shown to
condone the delay.
Therefore, the learned Principal
District and Sessions Judge has rightly rejected the
application as well as miscellaneous petition. Therefore,
she sought to dismiss the present appeal.
8.
I have given my anxious consideration to the
arguments advanced by the learned counsels for the
parties and perused the entire material on record. It is
admitted fact that the land of the appellant to an extent
of 5 acres 38 guntas in Sy.No.77 of Harsur village
Kalaburagi taluk and district has been acquired by the
respondents by issuing preliminary notification under
the provisions of Section 4(1) of the Land Acquisition
Act on 30.08.1990 and followed by the final notification
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under the provisions of Section 6(1) of the Land
Acquisition Act.
9.
It is an undisputed fact that the Land Acquisition
Officer has awarded compensation of Rs.5,000/- per
acre. Aggrieved by the same, the reference was made
before the Civil Judge (Senior Division) Kalaburagi
under the provisions of Section 18(1) of the Land
Acquisition Act. The Reference Court after considering
the entire material on record, proceeded to award
Rs.28,000/- per acre.
10.
Being aggrieved by the said order passed by
Reference
Court,
the
appellant
filed
appeal
in
unregistered LACA No.-/10 and the matter was posted
for compliance of office objections on 04.06.2011. The
same
came
Therefore
to be
the
miscellaneous
dismissed
appellant
petition
was
in
for
non-prosecution.
constrained
to
Misc.No.50/2013
file
(re-
numbered as Misc.No.1/2013) and there was a delay in
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filing the miscellaneous petition, therefore he filed
application under Section 5 of the Limitation Act. It is
an undisputed fact that the Principal District and
Sessions Judge, Kalaburagi by the impugned order has
dismissed the I.A. filed under Section 5 of the Limitation
Act mainly on the ground that the appellant has not
shown any grounds to condone the inordinate delay in
filing the miscellaneous petition. It is the specific case
of the appellant in miscellaneous petition that his
Advocate
was
engaged
in
High
Court
Bench
at
Kalaburagi and requested his colleague for seeking
adjournment before the Court.
But due to some
communication gap and inadvertence the Advocate for
the appellant was not present before the Court when the
case was called. The delay was not intentional but due
to the reasons stated above.
The learned Principal
District and Sessions Judge while dismissing the
application under Section 5 of the Limitation Act has
failed to notice that on account of the mistake
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committed by the counsel for the appellant the parties
should not suffer.
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.
It must be grasped that judiciary is respected not on
account of its power to legalize injustice on technical
ground but because it is capable of removing injustice
and is expected to do so.
11.
In the present case it is an undisputed fact that
the respondents have acquired lands of the claimant to
an extent of 5 acres 38 guntas in Sy.No.77 of Harsur
village, Kalaburagi taluk and district and appeal filed by
the
claimant
for
enhancement
of
compensation
producing the relevant documents and the District
Judge ought not to have dismissed the appeal for nonprosecution when the claimant has filed the appeal for
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enhancement of compensation because he has lost the
land for the acquisition made by the respondents for
Bennetora project.
When the miscellaneous petition
filed and there was a delay, the Principal District and
Sessions Judge ought to have condoned the delay
imposing some cost or denied the interest for delay of
708 days in filing the petition. The same has not been
done.
12.
The Hon’ble Supreme Court while considering the
provisions of Section 5 of the Limitation Act to condone
the delay in the land acquisition matters in the case of
Dhiraj Singh (Dead) through Legal Representatives and
others Vs. State of Haryana and others reported in
(2014) 14 Supreme Court Cases 127 held as under:
“ 16. The principles regarding condonation of delay
particularly in land acquisition matters, have been
enunciated in Collector (LA) v Katiji, 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
Limitation Act of 1963 in order to enable the
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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 lifepurpose for the existence of the institution of
courts. It is common knowledge that this Court
has been making 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 realised 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 pedantic approach
should be made. Why not every hour’s
delay, every second’s delay? The doctrine
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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 nondeliberate 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
legalise 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 v. Bhola Nath Sharma, 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
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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.”
13.
In view of the aforesaid reasons, the impugned
order passed by the Principal District and Sessions
Judge cannot be sustained. The appellant shall not be
deprived of his rights in respect of the enhanced
compensation in respect his land acquired by the
respondents.
on
merits
Ultimately the appeal has to be decided
without
prejudice
to
the
rights
and
contentions raised by the respondents - Government in
the said appeal. No injustice will be caused to the
respondents if the delay is condoned by imposing
reasonable costs on account of negligence on behalf of
the counsel for the appellant.
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14.
In view of the aforesaid reasons, the appeal is
allowed. The impugned order dated 20.08.2015 on I.A.
made
in
Misc.No.50/2013
(re-numbered
as
Misc.No.1/2013) on the file of the Principal District and
Sessions Judge is set aside and the application filed
under Section 5 of the Limitation Act is allowed.
Consequently, the Misc.No.50/2013 (re-numbered as
Misc.No.1/2013) is allowed subject to payment of cost
of Rs.5,000/- payable to the respondents represented by
learned AGA before this Court.
The learned Principal
District and Sessions Judge is directed to decide the
unregistered LACA No.-/10 on merits after giving
opportunity of hearing to both the parties in accordance
with law.
Ordered accordingly.
Sd/JUDGE
swk