Disposed

Susheel Kumar v. NTPC

Himachal Pradesh HC11 Jul 2022CMP.M/1680/2017

Case brief

AI extract

What is this about?

The Single Judge allowed an application for condonation of delay in filing a land acquisition appeal. Despite witnesses failing to prove illness or financial hardship, the court adopted a pragmatic approach citing Supreme Court precedents. The delay was condoned, and interest on enhanced compensation was denied for the delayed period.

What did the court decide?

Application for condonation of delay allowed. Delay in filing the Land Acquisition Proceedings is condoned. Interest denied for the delay period.

Susheel Kumar Vs NTPC — Land Acquisition | Himachal Pradesh HC (2022)

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Susheel Kumar v. NTPC

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CMP(M) No. 1680 of 2017

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11.7.2022

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Present Ms. Veena Sharma, Advocate, for the applicants.

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Mr. Jagdish Thakur, Advocate, for respondent No.1.

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Mr. Sudhir Bhatnagar and Mr. Narinder Guleria, Additional Advocates General with Mr. Sunny Dhatwalia, Assistant Advocate General, for respondent No. 2.

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By way of instant application filed under S. 5 of Limitation

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Act, prayer has been made on behalf of the applicants for condonation of delay in filing the accompanying appeal, which is barred by limitation. As per calculations made by the Registry of this court, there is delay of two years and forty-one days in filing the appeal.

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Prayer made in the application has been opposed by learned counsel for the respondent N.1, which has stated in its reply that no plausible explanation has been rendered on record qua the delay, as such, same cannot be condoned.

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Having taken note of the pleadings adduced on record by respective parties, this court on 28.2.2019, framed following issue for determination:

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“Whether the delay in filing eh present appeal is sufficiently explicated? OPA”

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Applicants, with a view to prove their case, examined as many as three witnesses.

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Smt. Raj Bala, one of the co-applicants deposed that she had engaged Shri Daulat Ram Sharma as her counsel but she never came to be intimated by him about the fate of land reference petition, however, she self-stated that her brothers Susheel Kumar and Ravinder Kumar, were intimated by said counsel, about the date of the land reference petition No. 189 of 2008. In her cross-examination, above named

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witness admitted that she was asked by her brothers to depose on the issue struck by this court on 28.2.2019. She also feigned ignorance with regard to the period when her mother remained allegedly sick.

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Susheel Kumar, another co-applicant, deposed that he does not know the date when Shri Daulat Ram Sharma, Advocate intimated him about decision rendered by land reference Court in land reference petition. He feigned ignorance with regard to the date when award sought to be laid challenge by way accompanying appeal came to be passed. In his cross-examination this witness admitted that when the Land Acquisition Collector made an award he received the compensation. He admitted that after award of Land Acquisition Collector he filed reference petition before learned District Judge, Bilaspur. He admitted that the verdict of dismissal was made by land reference court upon land reference petition vide award dated 2.6.2014. While admitting that he was arrayed as co-petitioner, he stated that he did not come to know when his land reference petition was dismissed. While admitting his signatures on CMP(M) No. 1680 of 2017, encircled ‘A’, he stated that he could nto file the appeal in time because at the relevant time, his mother was sick and ailing. He also admitted that he has not appended with his application any medical record disclosing that at the relevant time, his mother was sick and ailing. He further admitted that he is a literate person and understands and comprehends the contents of application.

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Another co-applicant Ravinder Kumar stated that he engaged Shri Daulat Ram Sharma, Advocate as his counsel. He stated that his counsel did not intimate him in time about decision by land reference court in the land reference petition No. 189 of 2008. He stated that he does not know when intimation for the first time was made to him by his

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counsel. While admitting himself to be younger brother of Susheel Kumar, this witness stated that his was mother was hale and hearty.

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If the aforesaid statements made on oath by the witnesses adduced on record are read in their entirety, there appears to be merit in the contention of Mr. Jagdish Thakur, Advocate appearing for the nonapplicant/respondent No.1, that the evidence led on record by the applicants is totally contrary to pleadings set out in the application.

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If the averments contained in the application for condonation of delay are perused in their entirety, entire case set up by the applicants is that on account of illness of their mother, they were unable to file the appeal well within time but none of the witnesses stated anything specific with respect to the period of illness of mother of applicants. Most importantly, one of the witnesses Ravinder Kumar, who is brother of Susheel Kumar admitted that his mother was hale and hearty. Similarly, Raj Bala who is sister of Susheel and Ravinder, nowhere stated anything specific with regard to the time and period when mother of the applicants was ill. Apart from above, applicants in their application set up a case that they were unable to file appeal well within time due to shortage of finances, but such plea never came to be proved by way of leading evidence.

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Though, having carefully examined the entire evidence led on record, this court has no hesitation to conclude that the applicants have not been able to prove, by leading cogent and convincing evidence, that they were unable to file appeal within time on account of illness of mother and shortage of finances but having taken note of judgment of Hon'ble Apex Court in Dhiraj Singh (Dead) through legal representatives and others v. State of Haryana and others , (2014) 14 SCC 127, wherein it has been held that while dealing with land

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acquisition matters, approach of the court while condoning the delay in filing the appeal should be pragmatic and not pedantic and equities can be balanced by denying the interest to the appellants for the period for which they did not approach the court. Hon'ble Apex Court further held

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that substantive rights of the appellants should not be allowed to be defeated on technical grounds by taking hyper-technical view of selfimposed limitation. Hon'ble Apex Court has held as under:

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“16. The principles regarding condonation of delay particularly in land acquisition matters, have been enunciated in Collector (LA) v. Katiji 1987 2 SCC 107, wherein it is stated in para 3 as under: ( SCC p. 108)

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“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 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 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 realised that:

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(1) Ordinarily a litigant does not stand to benefit by lodging an appeal late.

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(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.

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(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.

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(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.

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(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.

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(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.”

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(emphasis in original)

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The aforesaid judgment was followed by this Court in DDA v. Bhola Nath Sharma 2011 2 SCC 54, which was also a matter concerning land acquisition.

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We, accordingly, allow these appeals. Impugned orders of the High Court are set aside. Delay in filing 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.”

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It has been categorically reiterated in the judgment supra that 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.

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That aforesaid view has further been reiterated by the Hon'ble Apex Court in K. Subbaraydu and others v. Special Deputy Collector (Land Acquisition), (2017) 12 SCC 840.

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No doubt in the case at hand, issue with regard to delay in filing appeal came to be set up at the behest of applicants which they admittedly failed to prove in accordance with law, but as has been held by Hon'ble Apex Court in the aforesaid judgment, approach of courts in condoning the delay in filing appeal in land acquisition matters should be pragmatic and not pedantic, delay in maintaining the accompanying appeal is condoned. Otherwise also, great prejudice would be caused to applicants if their prayer for condonation of delay is not accepted. Applicants have certainly not gained anything by not filing the appeal within limitation rather, in the event of dismissal of present application,

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they would lose opportunity to get the compensation enhanced by approaching this court in the appropriate proceedings laying therein challenge to the award passed by the reference court.

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Consequently in view of the discussion and law taken into consideration supra, this court is convinced and satisfied that the delay in maintaining appeal deserves to be condoned and same is accordingly condoned in the interests of justice. However, it is clarified that applicants would not be entitled to interest on the amount of compensation, for the period of delay, as has been held by Hon'ble Apex

Court.

RFA No. of 2022

Be registered.

List for admission on 25.7.2022 .

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Record be called for.

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(Sandeep Sharma) Judge

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July 11, 2022 (vikrant)

Susheel Kumar v. NTPC

Case brief

What is this about?

What did the court decide?

Susheel Kumar v. NTPC

Case brief

What is this about?

What did the court decide?

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