State Of Orissa vs Arjuna Dehury & Others

S.K. Mishra, J

I.A. Nos.173 & 174 of 2024, I.A. No.76 of 2018 and LAA No.22 of 2011

The matter is taken up through hybrid mode.

These applications have been filed for condonation of delay, setting aside the abatement of Appeal as against the deceased Respondent No.2 and for substitution of the legal heirs of deceased Respondent No.2, respectively.

As is revealed from record, since there is a delay of 333 days in presenting the Memorandum of Appeal, notice being issued on limitation to the Respondents, as the said notice from the Respondent No.2 returned unserved with a noting “addressee expired”, it was ordered on 30.03.2016 by the Registry to take necessary steps for substitution of legal heirs of deceased Respondent No.2, subject to the question of limitation, if any, within a week hence from the said date, failing which it was ordered to place the matter before the bench for orders.

As no steps was taken within the time granted by the Registry vide order dated 30.03.2016, the matter was listed on 06.09.2018 before the assigned Bench and the coordinate Bench ordered to take necessary steps for substitution of the deceased Respondent No.2 as well as limitation within a period of seven days from the said date making it clear that, if such steps are not taken within the time stipulated, the Appeal shall stand dismissed without further reference to the Bench.

Despite such order, only steps for substitution was taken on 12.10.2019 by filing I.A. No.76 of 2018. Thereafter, instead of complying the said order, I.A. No.65 of 2018 was filed by the State-Appellant seeking for further 15 days’ time to comply the orders dated 30.03.2016 and 06.09.2018.

Vide order dated 11.10.2018, the coordinate Bench permitted the Appellant to take steps for substitution in respect of Respondent No.2 within seven days after the ensuing Durga Puja Holidays, mentioning therein that if the Appellant fails to comply the said order, the Appeal shall stand dismissed without further reference to the Bench.

Immediately, on the very next day i.e. 12.10.2018, though I.A. No.76 of 2018 was filed by the State Appellant for substitution of the legal heirs of Respondent No.2, no steps for limitation was taken in terms of the orders dated 30. 03.2016 and 06.09.2018.

Thereafter,  when  the  matter  was  listed  on 18. 04.2024, the learned Counsel for the State-Appellant did not bring to the notice of this Court regarding the previous order dated 11.10.2018 passed by the coordinate Bench. An application for setting aside abatement and condonation of delay being permitted, I.A. Nos.173 and 174 of 2024 have been filed for condonation of delay so also for setting aside abatement of Appeal as against the Respondent No.2 and that too, without explaining the delay in filing the Application for substitution so also condonation of delay in the I.A. No.173 of 2024.

Since  the  coordinate  Bench,  vide  order  dated 06.09.2018, directed to take steps for substitution so also limitation and only steps for substitution was taken by the State-Appellant, the Appeal should have been dismissed much before for non-compliance of the said peremptory order. The order dated 06.09.2018 being relevant is extracted below for ready reference.

“ In view of the resolution passed by the Orissa high Court Bar Association, lawyers have abstained from the Court work.

Steps for substitution vide deceased respondent no.2 as well as limitation shall be taken within a period of seven days hence. It is made clear that if such steps are not taken within the time stipulated hereinabove, the Land Acquisition Appeal shall stand dismissed without further reference to the Bench

(Emphasis supplied)

In view of the above, this Court is not inclined to condone the delay in filing the application for substitution of deceased Respondent No.2 so also allow the application for setting aside abatement.

Accordingly, all the I.As. dismissed. As a consequence thereof, the Appeal also stands dismissed.

Registry is directed to communicate a copy of this order to the Court below so also Respondents (claimants before the Court below).

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