Shadiram Sharma and Another Vs State of U.P. and Another

Court No. - 53

Case :- FIRST APPEAL DEFECTIVE No. - 337 of 2015

Appellant :- Shadiram Sharma And Another Respondent :- State of U.P. and Another Counsel for Appellant :- Sanjeev Kumar Tyagi Counsel for Respondent :- Ambrish Shukla,Shivam Yadav

¶4

Hon'ble Vivek Agarwal,J.

¶5

C.M. Delay Condonation Application NO.373344 of 2015.

¶6

Heard Sri Sanjeev Kumar Tyagi, learned counsel for the appellants and Sri Ambrish Shukla, learned counsel for the respondents.

¶7

There is a delay of about 13 years and 79 days in filing this first appeal.

¶8

Before adverting to the facts of the delay condonation application certain bare facts of the case are necessary to be reproduced namely, Notification under Section 4 was issued on 22.06.1988. Notification under Section 6 of the Land Acquisition Act was published in the State Gazette on 07.08.1988. Objections were filed under Section 9 on 11.05.1990 and Award was passed by the S.L.A.O on 07.11.1990 @ Rs.35.07 per sq. yard along with 30% solatium but no interest was awarded. Award was challenged in reference, before the Court of 9th Additional District Judge, Ghaziabad which was decided on 13.05.2002 directing the authorities to pay compensation @ Rs.93.75 per sq. yard along with 30% solatium and interest from the date of notification under Section 4 till the date of possession @ 12% and, thereafter @ 9% for a period of one year w.e.f. 17.10.1989 and, thereafter, simple interest @15% from expiry of one that year period till the date of actual payment.

¶9

It is an admitted fact that this appeal has been filed in the year 2015 i.e. after more than 13 years of passing of the judgment by the reference court on the ground that High Court in similar cases has awarded compensation @297 per sq. yard in terms of the order passed in first Appeal No.564 of 1997 delivered on 11.10.2012 by a Division Bench of this Court in Case of Khazan and others Vs. State of U.P. so also another judgment of Division Bench of this Court dated 17.09.2014 passed in first Appeal No.461 of 2000 and other connected appeals.

¶10

Reliance is placed on the judgment of Supreme Court in case of K. Subbarayudu and others Vs. The special Deputy Collector (Land Acquisition) passed in Civil Appeal No.9288 of 2017 arising out of SLP (C) No.30562 of 2016 wherein, delay of 3671 days' in filing the appeal has been condoned by the Hon'ble Supreme Court placing reliance on its earlier judgment in case of State of Nagaland Vs . Lipok AO and others as reported in (2005) 3 SCC 752 wherein, it has been held as under:-

¶11

"Section 5 is to be construed liberally so as to do substantial justice to the parties. The provision contemplates that the Court has to go into the position of the person concerned and to find out if the delay can be said to have been resulted from the cause which he had adduced and whether the cause recorded in the peculiar circumstances of the case is sufficient." and has further held that the true guidance whether the litigant has acted with due diligence "since the appellants/claimants are the agriculturists whose lands were acquired and when similar situated agriculturists were given a higher rate of compensation, there is no reason to decline the same to the appellants. Merely on the ground of delay such benefit cannot be denied to the appellants. The interest of justice would be served by declining the interest on the enhanced compensation and also on the solatium and other statutory benefits for the period of delay".

¶12

Similarly, on the other hand, Sri Ambrish Shukla, learned

¶13

counsel for the respondents has placed reliance on the judgment of a co-ordinate Bench of this Court dated 26.08.2019 passed in First Appeal Defective No.1040 of 2004 (Raghuveer and another Vs. State of U.P. and others) whereby placing reliance on several judgment of Supreme Court delay condonation application has been rejected.

¶14

Similarly, reliance is placed on the judgment of another coordinate Bench of this Court passed in First Appeal Defective No.126 of 2016 (Hari Singh (deceased) and 11 others Vs. State of U.P. Thr. Collector) and other connected appeals decided on 09.12.2016 whereby delay condonation applications have been rejected and appeals have been dismissed.

¶15

Reliance is also placed on the judgment of Hon'ble Supreme Court in case of University of Delhi Vs. Union of India and others as reported in 2019 (0) SC 1372 wherein, in para-28, it has been held that while considering condonation of inordinate delay, accrued right of the opposite party, cannot be lightly dealt with and, therefore, the Supreme Court finding, the cause of inordinate delay of about decade and 916 days in filing the L.P.A. being not sufficient refused to condone the delay and dismissed the appeal.

¶16

However, fact of the matter is that none of the case be it Fundan and 2 others Vs. State of U.P. First Appeal Defective No.126 of 2016 (Hari Singh (deceased) and 11 others Vs. State of U.P. Through Collector) or in case of First Appeal Defective No.1040 of 2004 (Raghuveer and another Vs. State of U.P. and others), Court had no occasion to consider the ratio of law laid down in case of K. Subbarayudu and others Vs. The special Deputy Collector (Land Acquisition) decided on 19th July, 2017, though order passed in case of Raghuveer and another Vs. State of U.P. and others is dated 26.08.2019.

¶17

Law laid down in case of K. Subbarayudu and others (supra) is on the aspect of land acquisition whereas, law laid down in case of University of Delhi Vs. Union of India and others (supra) is in regard to permission granted by the Delhi Development Authority in favour of the respondent no.13builder to construct a high-rise multistory group housing society in the control zone of Zone-C in the university campus, without any height restriction. The construction permission was allowed on the plot leased out to the Delhi Metro Rail Corporation.

¶18

As far as facts of the case or University of Delhi (supra) are concerned, they are not in the domain of execution of or implementation of any beneficial legislation whereas, those which has been subject matter of the law laid down in case of K. Subbarayudu and others (supra) are directly dealing with the provisions contained in the Land Acquisition Act which is beneficial in nature and also on the ground that judgment in case of University of Delhi (supra) has not taken into consideration, the law laid down in case of K. Subbarayudu and others (supra) , this Court is of the opinion that since the controversy involved in the present appeal is pertaining to a beneficial legislation and a party whose land has been acquired cannot be denied just compensation as has been extended to similarly situated claimants, and moreover, a devise of denying interest for a period of delay has already been devised so to do justice to the rival parties, I am of the opinion that there is no reason to take a view different, then the one which has been taken by me in similar matters placing reliance on the judgment of Supreme Court in case of K. Subbarayudu and others (supra) , therefore, the delay is condoned.

¶19

Accordingly, application is allowed.

¶20

Order on appeal.

¶21

On merits, the ratio of the law laid down in case of Khazan and others (supra) squarely covers the facts and circumstances of the present case so also the judgment in case of Harkesh and another Vs. State of U.P., it is directed that the compensation admissible to the appellants will be @ Rs.297 per square yard. In addition to it, appellants will also be entitled to 30% solatium required under Section 23(2) but will not be entitled to interest @ 12% per annum from 13.05.2002 till 29.10.2015. However, they will be entitled to interest after 29.10.2015 till the date of actual payment @ 12% per annum.

¶22

As far as aspect of the defective appeal is concerned, the only defect is deficiency of Court Fees, therefore, it is directed that same be recovered/adjusted in accordance with rules, while preparing final decree by the Department.

¶23

There is no order as to costs.

¶24

In the above terms, appeal stands disposed off.

¶25

Order Date :- 5.3.2020 Ashutosh

Shadiram Sharma and Another v. State of U.P. and Another

Case brief

What is this about?

What did the court decide?

Shadiram Sharma and Another v. State of U.P. and Another

Case brief

What is this about?

What did the court decide?

Why is it important?

What the court decided

Issues for consideration

Cases cited

Statutes considered

Procedural history

Parties & counsel

Coram

Case details

Similar cases

Power Grid Corporation of India Ltd. Vs Lakhiram and Others

Hari Singh Vs State of U.P. Thru Collector and Another

Hari Singh Vs State of U.P. Thru Collector and Another

Mohd. Shahin Vs Smt. Munibe Khatoon and Another

United India Insurance Co. Ltd. Vs Smt. Nilam and 4 Others

Keshav and 4 Others Vs Sarvesh Kumar