Hardev Singh etc. vs Special Land Acquisition

N.C. Jain, J.—This is an application u/s 5 of the Limitation Act for condoning the delay of 9 1/2 years in filing the appeal before this Court. Although the delay is considerable but after reading the averments made in the application which is supported by an affidavit, this Court has reached the conclusion that the appellants have been able to make out a case for condoning the delay. The facts which are necessary and may be noticed are that, appellants owned 131 kanals 16 1/2 marks of land which was acquired by the Union of India by a notification issued u/s 4 of the Land Acquisition Act on 21-8-1974 alongwith the other lands measuring in all 6363 kanals 12 marlas. It has been stated in the application that instead of describing the area of the appellant as 131 kanals 15 1/2 marlas, it was wrongly mentioned as 118 kanals 4 marlas. The mistake came to the notice of the appellants after they received the certified copy of the award for the purpose of filing the appeal in this Court, After the receipt of the copy they contacted their original counsel Shri Sham Lal who advised them to get the order corrected before filing the appeal in the High Court. Thereafter, the appellants contacted Shri B. D. Kumar, Advocate and he too gave the same advice. It is further stated in the application that on 26-4-1985 Shri Bhagat Ram, Patwari made a statement before the Court of Additional District Judge that the area was 131 kanals 16 1/2 marlas. Similar was the statement made by the counsel for the Government Before the correction could be made in the award, the Union of India moved an application to the effect that the land was not 131 kanals 16 1/2 marlas but it gave yet another area i. e. 116 kanals 7 marlas. Finally, the application of the Union of India was decided on 4-10-1988 holding that the appellant''s area to the extent of 131 kanals 16 1/2 marlas was acquired. Even now the Union of India as the facts has been brought on the record of the case, is not satisfied with the order (Annexure ''A'') and has come in revision petition. It is further the case of the appellants that the correction having been made on 4.10.1988, the appeal has been filed on 10-2-1989 which is very much within time. As stated above, the present application for condonation of delay is supported by an affidavit.

During the course of hearing of the application, this Court thought it appropriate to record the statement of one of the counsel at Bar. Shri B.D. Kumar, Advocate who conducted the case of the appellant at a later stage appeared before this Court on 22-5-1990 and made a statement at the Bar that he gave the advice that the appeal could be filed only when correct area was mentioned in the award.

The counsel for Union of India has opposed the application on two counts. In the first instance, it has been argued that it is not stated in the application as to when the counsel advised that the appeal could not be maintained before the order was corrected. In the second instance, it has been argued that no application for correction of the area was filed by the two appellants.

After hearing the counsel for the parties, I am of the view that there is no force in either of the arguments of the counsel for the Union of India. It has been stated in para 4 of the application that the appellants received the certified copy of the award and thereafter they ''immediately'' contacted their counsel who gave the necessary advice. The word ''immediately'' would mean that the appellants contacted their counsel after obtaining the certified copy of the award Infact, if this objection had been taken in reply dated 23-10-1989 to the application u/s 5 of the Limitation Act something could have been asked from the counsel Shri B.D. Kumar who appeared in person before this Court on 22-5-1990. This objection has been taken for the first time in the supplementary affidavit dated 7-7-1990. Even otherwise, the perusal of the original award filed alongwith the appeal shows that the certified copy was applied for on 31-7-1979 and the same was delivered on 24-8-1979 after it was prepared on 10-8-1979. A bare look on the stamp at the back of the copy of the award makes it clear that Shri Sham Lal, Advocate, who was conducting the case initially applied for obtaining the certified copy. Since core of the lawyers was inclined to file an affidavit about wrong advice having been tendered, this Court had to remain contented with the statement made at the bar by Shri B. D. Kumar, Advocate. As regards the second objection that no step was taken to get the necessary correction of area made, it is sufficient to observe that execution proceedings were filed by the appellants and before they could take any step, it was stated by the Patwari that the correct area was 131 kanals 16 1/2 marlas which was the case of the appellants themselves. In view thereof, even if no steps were taken by the appellants to have the area corrected, correction came in routine at a time when the execution proceedings were still pending. Since the area has been corrected now, the appellants have come up in appeal. In view of the factual position stated above, this Court is satisfied that the appellants were prevented by a sufficient cause from preferring the appeal.

Moreover, it is well settled that a litigant does not stand to gain by lodging a belated appeal. Infact. the Apex Court in Collector, Land Acquisition, Anantnag and Another Vs. Mst. Katiji and Others, , held that liberal approach should be adopted in the matter of condonation of delay and laid down as many as 9 principles. The instant case is squarely covered by the dictum laid down by the Apex Court in Collector Land Acquisition''s case (supra).

For the reasons recorded above, the application for condonation of delay is allowed. The appeal is to be held within time. The same is ordered to be admitted and it be numbered.