Dismissed

Union of India and 2 Ors. v. Sh. Rohmingliana and 105 Ors.

Gauhati HC23 Jun 2022RFA/36/2021

Case brief

AI extract

What is this about?

The Gauhati High Court dismissed an application for condonation of a 1411-day delay in filing a revision appeal. The court held that the applicants were negligent in failing to file the appeal promptly after receiving the impugned judgment, relying on subsequent legal opinions to justify the inaction.

What did the court decide?

The application for condonation of delay in filing revision appeal was dismissed as the delay was not sufficient.

Union of India and 2 Ors. Vs Sh. Rohmingliana… — Civil Procedure and Limitation | Gauhati HC (2022)

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GAHC030004122021

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : I.A.(Civil)/107/2021

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Union of India and 2 Ors New Delhi VERSUS Sh. Rohmingliana and 105 Ors Aizawl

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Advocate for the Petitioner : Mr. Sanjay Kumar Medhi

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Advocate for the Respondent : Mr. L.H. Lianhrima, Sr. Adv. for R1-R100

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Linked Case : I.A.(Civil)/10/2022

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Union of India and 2 Ors. New Delhi

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2: Defence Estate Officer Guwahati 3: Station Commander Thuampui Aizawl VERSUS Rohmingliana and 105 Ors. R/o Chaltlang Aizawl 2:Rohmingthanga Zion Street Aizawl

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3:Vanlalthuama Zemabawk Venglai Aizawl 4:L. Chhawnkima Zemabawk Aizawl 5:Lalmangpuii Zemabawk Aizawl 6:Rodingliana Sailo Zemabawk Aizawl

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Advocate for the Petitioner : Mr. Sanjay Kumar Medhi Advocate for the Respondent : Mr L H Lianhrima Sr. Adv. for R1-R100

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Linked Case : RFA/36/2021 Union of India and 2 Ors New Delhi VERSUS

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Sh. Rohmingliana and 105 Ors Aizawl

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Advocate for the Petitioner : Mr. Sanjay Kumar Medhi Advocate for the Respondent : Mr. L. H. Lianhrima Sr. Adv. for R1-R100

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BEFORE

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HONOURABLE MRS. JUSTICE MARLI VANKUNG

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JUDGMENT

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Date : 23-06-2022

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Heard Mr. Sanjay Kumar Medhi, learned counsel for the applicants alongwith Mr.

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L.H. Lianhrima, learned senior counsel representing respondent Nos. 1-100 and Mr. C.

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Zoramchhana, learned Addl. Advocate General, Mizoram appearing for respondent Nos. 102-106.

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2] This is an application under Order XLI Rule 3A of the Code of Civil Procedure read with Section 5 of the Limitation Act for condonation of 1411 days in preferring the appeal.

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3] Mr. S.K. Medhi, learned counsel for the applicants submits that the appellants/applicants have preferred an appeal against the Judgment & Order dated 06.10.2017 passed by the learned Senior Civil Judge, Aizawl in Civil Suit No. 29 of 2013, whereby the Senior Civil Judge decided all the issues in favour of the plaintiff (the respondents in the instant case) and passed the following order.

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“Assessment and payment of rental compensation to the plaintiffs by the defendants for occupation of their lands should be strictly in accordance with the Mizoram Urban Areas Rent Control Act, 1974. Accordingly, the Defendant No. 9, the Deputy Commissioner, Aizawl is hereby directed to fix the rental charge in respect of the lands of the plaintiffs and make assessment as per the relevant Act with effect from 01/01/2008 till date within a period of three months from the date of receipt of this order. The Deputy Commissioner, Aizawl is to note the fact that the Union of India and others have continuously been occupying the land of the plaintiff w.e.f. the year, 1966 and revision of the rental charge should be done after every five years as per relevantAct.

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The Defendant Nos. 1 to 3 (Union of India & Ors.) shall make payment of rental charge commencing from 01/01/2008 till date within a period of

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four months from the date of receipt of assessment of rental compensation from the Defendant No. 9, the Deputy Commissioner, Aizawl and deposit the same by way of cheque to the Deputy Commissioner, Aizawl for further disbursement to the plaintiffs.

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The Defendant No. 9, the Deputy Commissioner, Aizawl District, Aizawl shall, on perusal of the records maintained by their office, prepare arrears of rental charges in respect of plaintiff Nos. 53 to 68 or anyone else of the party herein who have not been paid rental compensation right from the beginning till date and the Defendant Nos. 1 to 3 (Union of India & Others) shall deposit the same to the Deputy Commissioner, Aizawl by way of cheque within a period of four months from today for further disbursement to the plaintiffs.

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The Defendant Nos. 1 to 3 shall either vacate or acquire the land of the plaintiff within a period of six months as it is not proper on the part of the government body to take possession of somebody'sland without following due process of law. Accordingly, the Defendant Nos. 1 to 5 are directed to take prompt action in this connection within a period of six months from today. And after a lapse of six months from today, the Defendant Nos. 1 to 3 (Union of India & Others) shall be liable to be evicted from the land of the plaintiffs and peaceful possession of the land shall be handed over to the plaintiffs.”

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4] The learned counsel for the applicant/appellant then submits that the reason for

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the delay in filling the appeal application thereafter is for the following reasons;

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i. On 12.10.2017, the CGC, Aizawl forwarded the Judgment & Order dated 06.10.2017 to the Defence Estate Officer/DEO. On 03.04.2018 the

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Deputy Commissioner fixed the date for Joint Survey and a Joint Survey Report was prepared on 03.05.2018. Thereafter on 12.06.2018 the Under Secretary to the Govt. of Mizoram forwarded the assessment of rental compensation to the Defence Estate Officer (DEO), Guwahati, which was received on 21.08.2018, on 27.06.2018 clarification was sought from the Secretary, Govt. of Mizoram, Revenue Department regarding the increase of land in the assessment submitted vide the impugned letter dated 12.06.2018.

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ii. Thereafter, on 05.11.2018, the CGC, Aizawl forwarded a copy of the Execution Case No. 44/2018, which was filed by the petitioner in the Court of Senior Civil Judge-I, Aizawl and the same was received on 13.11.2018, thereafter, on 22.11.2018, the legal opinion of the CGC, Aizawl was sought in the matter Execution Case No. 44/2018 by the DEO, Guwahati.

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iii. That on 30.11.2018, a letter was sent to the Deputy Commissioner, Aizawl regarding submission of LSCs in respect of 82 claimants and also seeking clarification of LSC No.2932/87 and LSC No.2823/87.

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iv. Thereafter, reminder letters were sent to the CGC, Aizawl on 5.12.2018, 03.01.2019 and 06.02.2019 for legal opinion. On 07.03.2019, a letter was also sent to the Secretary, Govt. of Mizoram, Land Revenue & Settlement Department regarding clarification on private land and State Govt. land involved, it was also further requested to clarify the increase of land in the assessment forwarded by them.

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v. That on 1/4/2019 vide letter No. C18021/20/2013 REV clarification was sought from the D.C., Aizawl by the Under Secretary to the Government of Mizoram. Thereafter on 10/4/2019 they again sent the reminder letter to the D.C. Aizawl by seeking the clarification.

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vi. That on 16/04/2019 the CGC, Aizawl forwarded the draft Written Objection in Execution Case No. 44/2013 arising out of C.S. No. 29 of 2013 to the DEO, Guwahati vide letter No. 85/CGC/2019 and the same was received on 25/04/2019. Thereafter on 25/04/2019 the DEO, Guwahati duly signed the Written Objection and forwarded the same to the CGC, Aizawl for filling before the Court..

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vii. That on 17/5/2019 another reminder letter sent to the D.C., Aizawl for their clarification and on 10/6/2019 the Under Secretary to the Govt. of Mizoram, Land Revenue &Settlement Department had sent their clarification of DEO, Guwahati vide letter dated 7/3/2019 which was received on 20/6/2019.

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viii. That thereafter on 2/8/2019 the PD, DE, EC, Kolkata issued D.O. Letter to the Chief Secretary, Govt. of Mizoram for providing clarification on the aspect of ownership of land and total private land along with copies of land passes to the DEO, Guwahati.

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ix. That on 27/8/2019 the Court of Senior CV Judge-II, Aizawl, Mizoram was pleased to pass an order in Execution Case No. 44/2018 with a direction to pay the rental compensation amount to Rs. 4,13,98,363/within two months from the date of receipt of order dated 27/8/2019 and the Court further directed to vacate the land or to initiate acquisition proceeding without further delay. The said order dated 27/8/2019 was forwarded to the DEO, Guwahati by the CGC, Aizawl on 13/9/2019 and the same was received by the DEO, Guwahati on 01/10/2019.

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x. That on 4/10/2019 the DEO, Guwahati requested the concerned Army Authorities to convene a Board of Officers for payment of rental compensation and on 27/10/2019 the DEO, Guwahati requested the HQ.3 Corps (QWks/Land) to 11 take the necessary action for acquisition of land

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located at Supply Area, Zemabawk.

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xi. That on 18/10/2019 a reminder letter was issued to the D.C., Aizawl for their clarification regarding the increase of area in their assessment of rental compensation. On 18/10/2019 the CGC, Aizawl was also requested to apprise the Court that there is a difference in area of Pvt. Land as shown earlier in the Board proceedings and at present assessment forwarded by the D.C., Aizawl because of which the process for due rental compensation is awaited.

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xii. That thereafter on 26/10/2019 the Station HQ, Aizawl intimated that a convening order had already issued for acquisition of land at Supply Area, Zemabawk, Aizawl and on 16/12/2019 the DEO, Guwahati had requested the D.C. Aizawl for joint survey of land occupied by Army in supply area.

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xiii. That on 18/5/2020 the Court had issued Attachment Order. Thereafter on 19/02/2021 the DG, DE Delhi Cantt. had sought certain clarification regarding the rental compensation and on 24/02/2021 the DEO, Guwahati has sought the clarification as sought by the DG, DE, Delhi Cantt.

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xiv. That on 26/02/2021 the PD, ED, EC, Kolkata requested the Special Secretary to the Govt. of Mizoram Land Revenue & Settlement Department to re-examine the matter of present rental assessment forwarded by them and on 24/03/2021 the Deputy Secretary to the Govt. of Mizoram submitted reply.

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xv. That on 22/06/2021 the DEO, Guwahati has sought the legal opinion of Assistant Solicitor General, Gauhati High Court, Guwahati in the matter of filing Appeal before the Hon'ble Gauhati High Court, Aizwal Bench against the Judgment and Order dated 6/10/2017 in C.S. No. 29/2013.

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xvi. That on 6/7/2021 the Assistant Solicitor General, Gauhati High Court, Guwahati passed the opinion for filing an appeal. On 23/7/2021 and 19/8/2021 and the CGC, Aizawl was requested by the DEO, Guwahati to prepared a draft appeal to be filed before the appropriate court.

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xvii. That on 27/8/2021 the CGC Aizawl was requested to prepare the draft condonation of delay petition vide letter dated 27/8/2021. However, the CGC, Aizawl has expressed that she is unable to prepare the draft due to her work load as CGC vide her letter dated 1/9/2021. Thereafter vide letter dated 2/9/2021 the Assistant Solicitor General (ASGI), Gauhati High Court, Guwahati was requested to prepare the Appeal against the Civil Suit No. 29 of 2013 and the ASGI recommended the name of the present CGC for smooth conducting the case to the applicants. On 27/9/2021 they requested the CGC, Aizawl to forward the certified copy of orders dated 27/8/2019, 18/5/2019 and 12/8/2021 passed in Execution Case No. 44 of 2018 and certified true copy of order dated 6/10/2017 passed in C.S. No. 29/2013. That on 18/10/2021 reminder letter was issued by the CGC, Aizawl and on 26/10/2021 the present CGC, was requested to prepare the draft appeal. Thereafter on 27/10/2021 the CGC, Gauhati High Court was requested to add certain facts in the relevant paragraphs of Appeal to be filed.That thereafter on 28/10/2021 the CGC, Aizawl has been requested to take three months time from the Hon'ble Execution Court.

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xviii. That, for preparing draft after going through the records and other related documents it took 8 days by the present Central Gov. Counsel and again the same was sent for vetting which took 3 days to finalize the same. Due to above reasons, the delay of 1411 days has occurred in filing this R.F.A.

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Documents supporting the claim of the applicant have been annexed accordingly.

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5] That learned counsel for the Applicants/appellants submit that the

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circumstances for which R.F.A. could not be filed in time constitutes sufficient cause

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within the meaning of Order XLI, Rule 3A of the Code of Civil Procedure, 1908 and Section 5 of the Limitation Act, 1963 and as such to condone the delay of 1411 days in filing the instant R.F.A. That the delay in filing the R.F.A. within the period specified by laws was caused by the circumstances beyond the control of the

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applicants/defendants and there was no negligence or laches on their part for filing the same.

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6] The learned counsel for the applicants/appellants have relied on the decisions of the Hon’ble Apex Court and decisions of the High Court in K. Subbarayudu & Others Vs. The Special Deputy Collector (Land Acquisition), reported in (2017) 12 SCC 840, [Civil Appeal No. 9288/2017(Arising out of SLP(C) No. 30562/2016)], Dhiraj Singh (Dead) through Legal representatives & Others. Vs. State of Haryana & Others, reported in (2014) 14 SCC 127, The Executive

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Engineer, Nimna Dudhna Project, Selu, District Parbhani, Maharashtra Vs.

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The State of Maharashtra & others etc. reported in Civil Appeal Nos. 246-255

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of 2020, Collector Land Acquisition, Anantnag & Another Vs. MST. Katiji &

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Others reported in 1987 AIR 1353, The State of Assam & 6 Ors Vs. Relief Families Welfare Service Society & 2 Ors, reported in IA (C) No. 1243/2017, Husheli Achumi Vs. State of Nagaland & 4 Ors, reported in IA (C) No.

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177/2019, Engineering Project (India) Ltd and 3 Ors Vs. M/s J.A. Brothers

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reported in IA (C) No. 1334/2020.

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7] Mr. L.H. Lianhrima, learned senior counsel submitted that the Judgment & Order dated 06.10.2017 was received by the applicants on 12.10.2017 and no steps was taken by them to file an appeal when the impugned Judgment & order was within their knowledge. A certified true copy was applied for only on 09.11.2021 i.e. after 4 (four) years, thus, appellant do not have sufficient caused for condonation of the delay since a copy of the impugned Judgment & Order was within their knowledge way back on 12.10.2017. The learned Sr. counsel submits that inter departmental consultation cannot be considered as justified grounds for delay and relied on the decision of this court in the case of State of Assam & Ors. Vs. Gita Rani Kalita & Anr. reported in GLT 2017 (2).

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8] The learned Sr. counsel further submits that the applicant/appellants have admitted that they are to pay a rent for the land occupied by them.The applicants/appellants wrote to the Deputy Commissioner, Aizawl seeking clarification for early processing for payment of rental compensation to the respondents vide their letter no. 87118/Q/MES dated 3rd August, 2020. The applicants/appellant again wrote

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to the Deputy Commissioner, Aizawl stating inter alia that certain documents were required and asked for the same for processing the case for acquiring the land of the

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petitioners at Zemabawk area vide letter no. 7110/27/SHQ(Zemabawk) dated 1st September, 2020. The applicants/appellants had written to their CGC to approach the court for additional time of four months till 31st March, 2021 for payment of rental compensation to the petitioners vide their letter no. 7110/27/SHQ(Zemabawk) dated 18th November, 2020. The applicants/appellants had written to the Deputy Commissioner, Aizawl for preparing a map of the land under occupation of Army at Zemabawk area showing individual plot of land for completion of acquisition proceeding and for paying rental compensation to rightful owners vide letter No. 87118/Q/MES dated 10th December, 2020. Thereafter, the applicants/appellants forwarded and recommended to the LW&E Directorate/Land (North & East), QMG's Branch, IHQ of MOD (Army) for regularization of rental compensation amounting to Rs 4,11,53,237/- for necessary action vide their letter no.

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305197/3C/44/2018/21Acres/Zalawara/Q3(Land) dated 24th December, 2020. Lastly, the applicants/appellant instructed the CGC, Ms. Zairemsangpuii to approach the executing court for additional time of three months till 31st May, 2021 for payment of rental compensation and for in principal Approval of Raksha Mantri for acquisition of the land. Supporting documents are annexed accordingly.

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9] The learned counsel also submits that the applicants/appellants have deposited

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only Rs 2,83,68,137/- against the actual amount of Rs 4,11,53,237/- without any basis whatsoever. In fact, the Deputy Commissioner, Aizawl wrote back to the applicants

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seeking clarification as to how the rate of Rs 3.123 per Sq. Ft. was reflected in their assessment as the base rate which is not in accordance with the fixed amount of the Land Revenue & Settlement Department vide letter No. F.14011/327/2019-DC(A)425426 dated 10th September, 2021. Needless to mention, the Proforma Respondent No 104 has already informed the Applicant No 2 that the rate circulated vide Govt. Letter No. C.18021/102/2016-REV dated 11-05-2016 has been superseded as clearly suggested by the applicants and agreed to by the Government of Mizoram, Land Revenue &Settlement Department with slight modification. All of the above actions indicate that the applicants are taking steps in compliance with the Judgment & Order dated 06.10.2017.

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10] The learned senior counsel for the opposite party/ respondents thus submits that the applicant has failed to prove that there was sufficient cause for the delay in filing the appeal against Judgment & Decree dated 06.10.2017 passed by the learned Senior Civil Judge, Aizawl in Civil Suit No. 29 of 2013. He has relied on the decisions of the Apex Court in the case of Basawaraj & Anrvs Spl. Laq Officer reported in (2013) 14 SCC page 81, in Balwant Singh (dead) vs. Jagdish Singh and Others reported in (2010) 8 SCC 687 and in Jogendraa Sinhji Vijay-singhji vs. State of Gujarat reported in (2015) 9 SCC page 10.

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11] I have heard the learned counsels appearing for the rival parties and I have perused the materials available on record. As may be noticed, the Judgment and

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Order was passed by the learned Senior Civil Judge, Aizawl in Civil Suit No. 29 of 2013 on 06.10.2017 and the applicant claims knowledge of the same on 12.10.2017 when the CGC, Aizawl forwarded the Judgment & Order dated 06.10.2017 to the Defence Estate Officer/DEO. Thereafter it appears that no steps were taken by the applicant against the Judgment and Order, till, the Deputy Commission fixed 03.04.2018 as the date for Joint Survey whereby, a Joint Survey Report was prepared on 03.05.2018 as an initial step for compliance of the Judgment & Order dated 06.10.2017. It is also seen that thereafter some steps were initiated towards the compliance of the Judgment & Order dated 06.10.2017.

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12] The opposite respondent parties had then filed an execution case against the applicant/ appellant on 27/8/2019 in Execution Case No. 44/2018.On 05.11.2018, the CGC, Aizawl forwarded a copy of the Execution Case No. 44/2018, to the DEO, and the same was received on 13.11.2018, thereafter, on 22.11.2018, the legal opinion of the CGC, Aizawl was sought by the DEO in the matter in Execution Case No. 44/2018, Guwahati. It is noted that even at this stage no steps was taken to appeal against the Judgment and order dated 6/10/2017 in C.S. No. 29/2013.

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13] From the evidence on record, it is seen that, it was only on 22/06/2021 that the matter was referred by the DEO, Guwahati to the Assistant Solicitor General, Gauhati High Court, Guwahati, for seeking the legal opinion in the matter of filing Appeal before the Gauhati High Court, Aizawl Bench against the Judgment and Order dated 6/10/2017 in C.S. No. 29/2013. The Assistant Solicitor General, Gauhati High Court,

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Guwahati passed its opinion on 23/7/2021. Thereafter, on 19/8/2021, the CGC, Aizawl

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was requested by the DEO, Guwahati to prepared a draft appeal to be filed before the appropriate court.

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14] I find that prior to obtaining the opinion of the Asst. Solicitor General on 22/06/2021, the thought of filing an appeal against the Judgment & Order dated 06.10.2017 had apparently not occurred to the applicants/appellants and no steps was taken whatsoever to appeal against the Judgment and order dated 6/10/2017 in C.S. No. 29/2013 whatsoever. Thus, I find that no sufficient explanation for the delay in filling the appeal against the Judgment & Order dated 06.10.2017 between the period from 6/10/2017 to 22/06/2021 is made out. The subsequent explanation in preparing the appeal petition after obtaining the opinion of the Asst. Solicitor General, Gauhati High Court, Guwahati on 22.06.2021 is noted, but this cannot be a sufficient cause to explain the inaction of the appellant in not taking steps for filing an appeal promptly on receiving a copy of the Judgment & Order dated 06.10.2017 on 12.10.2017. This inaction has held to a delay of 1411 days in filling the appeal against the Judgment & Order 6/10/2017. Further, in the instant case it is seen that the applicant/appellant has taken various steps in furtherance of the Judgment & Order dated 06.10.2017 and had sought the legal opinion of the CGC, whether or not to file an appeal against the Execution Case No. 44/2018 on 22.11.2018 and not against the impugned Judgment & Order dated 06.10.2017, only when certain differences of opinion arose in the execution of the Judgment & Order dated 06.10.2017. I am thus constrained to hold

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that there was inaction and negligence on the part of the applicants in filing the appeal belatedly and out of time.

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15] I am also of the considered opinion that the cases relied upon by the learned counsel for the applicants/appellants cannot be applied to the facts of the present case wherein the circumstances for condoning the delay are found to be different.

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16] The Apex court in Basawaraj & Anr vs Spl.Laq Officer (supra) held that:

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“It is seen that the circumstances wherein the delay in filing an appeal was condoned in the cases relied upon by the Learned counsel for the applicant/appellant are different from the instant condonation application and not applicable.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 “duralexsedlex” 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.The Statute of Limitation is founded on public policy, its aim being to secure peace in the community, to suppress fraud and perjury, to quicken diligence and to prevent oppression. It seeks to bury all acts of the past which have not

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been agitated unexplainably and have from lapse of time become stale.”

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17] In view of the aforesaid observation and discussions and In view of the decision of the Apex, I am of the considered opinion that no reasonable grounds are available for condoning the delay of 1411 days and I.A.(C) No. 107 of 2021 is accordingly dismissed & disposed of. In the result, I.A.(C) No. 10 0f 2022 is also dismissed and stands disposed of.

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JUDGE

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Comparing Assistant

Union of India and 2 Ors. v. Sh. Rohmingliana and 105 Ors.

Case brief

What is this about?

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Union of India and 2 Ors. v. Sh. Rohmingliana and 105 Ors.

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