: (Per M.R. Calla, J.) Rule. Shri J.R. Nanavati and Shri P.V. Hathi, waive service of the rule.
2.This Civil Application has been filed in Letters Patent Appeal seeking condonation of delay of 292 days in filing the Appeal.
3.Special Civil Application No.4015 of 1990 out of which this matter arises was decided by the learned Single Judge on 6.5.1999, whereby the Special Civil Application was allowed and the rule was made absolute. It has been submitted that although the judgement was rendered on 6.5.1999, no application for obtaining certified copy was filed and the office of the Government Pleader did not even inform the concerned department that the Special Civil Application has been decided. The Department of Revenue came to know about the decision in the Special Civil Application in this case only on 8.6.1999, when the copy of the writ was served.
4.After service of the writ on 8.6.1999 as aforesaid, the Revenue Department requested the office of the Govt. Pleader on 5.7.1999 to give its opinion. On 20.7.1999, Revenue Department also requested the Collector to give his opinion in the matter. Legal Department was also consulted on 26.7.1999.
5.It is also submitted that after two reminders by the Revenue Department sent to the office of the Govt. Pleader on 20.7.1999 and 23.7.1999, the Govt. Pleader gave his opinion on 2.8.1999 that in case an appeal is filed, there were rare chances of success.On 29.7.1999, Deputy Secretary, Legal Department gave his opinion that appeal is not to be filed.
6.The matter was then sent to the Law Minister on 13.8.1999 along with the opinion which had been given by the Govt. Pleader. From 13.8.1999 to 24.8.1999, the file remained with the Law Minister and it was on 24.8.1999, that the Law Minister sent the same to the Revenue Minister without any endorsement either way, by simply appending signature. The file then remained pending with the Revenue Minister upto 24.1.2000, i.e. for a period about five months. Although in between a note was submitted to the Revenue Minister on 11.10.1999 by the Department, to clear the file.On 24.1.2000, the file was sent to the Secretary, Land Reforms, without appending signature and without making any endorsement.
7.The Secretary, Land Reforms then called for details from the Revenue Department on 29.1.2000. Such details were received by the Secretary, Land Reforms from the Revenue Department on 31.1.2000. The then Secretary, Land Reforms was transferred and Shri B.K. Sinha took over in his place as Secretary, Land Reforms on 3.2.2000. The matter was discussed by him with the Deputy Secretary, Land Reforms on 5.2.2000 and was further discussed with the Deputy Secretary, Urban Land Ceiling Department on 7.2.2000. On 9.2.2000, decision was taken to file appeal and a detailed proposal to file appeal was submitted by the Deputy Secretary to the Revenue Minister requesting to approve the same, and he accorded approval on the very day, i.e. 9.2.2000 itself.
8.On 15.2.2000 the file was sent to the Law Minister for approval and after approval by the Law Ministry, it was submitted to the Chief Minister on 15.2.2000, who also approved the same on the very same day. Thereafter, the file was returned to the Legal Department on 17.2.2000.
9.On 18.2.2000, the Legal Department issued instructions to file appeal to the Govt. Pleader. The Govt. Pleader having received instructions, discussed the matter with the Collector on 25.2.2000 and it was on 3.3.2000 that the Govt. Pleader instructed the Deputy Govt. Pleader, Shri S.K. Patel to file appeal and gave papers. Shri S.K. Patel, Deputy Govt. Pleader wanted further instructions from the Revenue Department which took time upto 13.3.2000 and contacted learned Additional Advocate General on 15.3.2000 and discussed the matter with learned Additional Advocate General on 16.3.2000. On 17.3.2000 necessary papers were collected and the Letters Patent Appeal was filed on 23.3.2000. It may also be mentioned that the application for condonation of delay and the affidavit in support thereof had been sworn on 23.3.2000, but application for condonation of delay was filed the next day, i.e. on 24.3.2000. It is thereafter that the certified copy was applied for on 28.3.2000, which was delivered on 30.3.2000.
10.On the basis of facts as stated above in the Civil Application, condonation of delay of 292 days in filing the Letters Patent Appeal is sought. Notice of this Civil Application was issued on 5.4.2000 by the Court and the same was made returnable for 26.4.2000. In reply to this Civil Application, an affidavit in reply dated 19.7.2000 was filed by the respondent, Manoharsinh P. Jadeja and affidavit in rejoinder thereto dated 6.9.2000 has been filed on behalf of the appellants by Ms.Gita K. Mehta, Deputy Secretary, Land Reforms, Revenue Department and one more affidavit in support of the application for condonation of delay dated 6.9.2000 was filed by one Shri R.R. Chavda, Section Officer, Legal Department.
11.We have herd learned counsel and have gone through the pleadings as aforesaid in the application, reply and rejoinder, etc. There is no doubt that the matter has not been attended to by the present applicants with requisite care. The explanation for the period, i.e. 6.5.1999 to 8.6.1999 is that the learned Govt. Pleader did not inform the concerned Department and the concerned Department came to know about the decision dated 6.5.1999 only when the copy of the writ was served on 8.6.1999. Even after 8.6.1999 action was initiated on 5.7.1999 for the first time. Thereafter, the matter has been processed at various levels and we find that the file remained lying with the Law Minister for a short period of about 12 days, but the same has remained lying for a long period of about 5 months with the Revenue Minister. Thereafter, the matter has been sent to the Secretary, Land Reforms on 24.1.2000. Decision to file appeal was taken by the concerned Department on 9.2.2000 and after obtaining necessary approval from the Law Minister and the Chief Minister on 15.2.2000, the instructions were issued by the Legal Department to file appeal on 18.2.2000. Thereafter, the Letters Patent Appeal was filed, in fact on 23.3.2000, and the application for condonation of delay was filed on 24.3.2000.
12.In the facts of the present case we do find that the matter has remained pending consideration at different levels for a period more than necessary and we also notice that the learned Govt. Pleader had opined that there were rare chances of success and the decision to file appeal was ultimately taken on 9.2.2000.
13.Shri Suresh N. Shelat, learned Additional Advocate General placed reliance on State of Haryana v. Chandra Mani and others, reported in AIR 1996 SC 1623, in which case the delay of 109 days was condoned by the Supreme Court The Supreme Court has observed that;
"....It is axiomatic that decisions are taken by officers/ agencies proverbially at slow pace and encumbered process of pushing the files from table to table and keeping it on table for considerable time causing delay intentional or otherwise is a routine. Considerable delay of procedural red tape in the process of their making decision is a common feature. Therefore, certain amount of latitude is not impermissible. If the appeals brought by the State are lost for such default no person is individually affected but what in the ultimate analysis suffers, is public interest. The expression "sufficient cause" should, therefore, be considered with pragmatism in justice oriented approach rather than the technical detection of sufficient cause for explaining every day's delay. The factors which are peculiar to and characteristic of the functioning of the Governmental conditions would be congizant to and requires adoption of pragmatic approach in justice oriented process. The Court should decide the matters on merits unless the case is hopelessly without merit. No separate standards to determine the cause laid by the State vis-a-vis private litigant could be laid to prove strict standards of sufficient cause..."
14.Yet another case relied upon by him is State of U.P. and others v. Harish Chandra and others, reported in AIR 1996 SC 2173, in which case delay of 480 days was condoned by the Supreme Court. In para 7 of the judgement the Supreme Court has observed that, "....It is undoubtedly true that the applicant seeking for condonation of delay is duty bound to explain the reasons for the delay but as has been held by this Court in several cases, the very manner in which the bureaucratic process moves, if the case deserves merit the Court should consider the question of condonation from that perspective....."
15.Mr.Shelat, learned Additional Advocate General also placed reliance on State of Bihar & others v. Kameshwar Prasad Singh & another, JT 2000 (5) SC 389. In this case a delay of 679 days was condoned by the Supreme Court. In this case the Supreme Court has considered the question of condonation of delay in light of the principles set out earlier by the Supreme Court in the case of Collector, Land Acquisition, Anantnag & another v. Mst. Katiji & others, reported in JT 1987 (1) SC 537 and also made a reference to the case of State of Haryana v. Chandramani & others, AIR 1996 SC 1623 (supra), from which cases the observations have been narrated in extenso, to the effect that the Court should decide the matters on merits unless the case is hopelessly without merit, that the State cannot be put on the same footing as an individual; the individual would always be quick in taking decision whether he would pursue the remedy byway of an appeal or application since he is a person legally injured while State is an impersonal machinery working through its officers or servants. Thereafter, a reference has been made to the cases of (i) Nand Kishore v. State of Punjab, reported in JT 1995 (6) SCC 614,
(ii) N. Balakrishnan v. M. Krishnamurthy, reported in JT 1998 (6) SC 242, wherein it was held that the purpose of Limitation Act was not to destroy the rights. In para 14 of this judgement, the Supreme Court has observed that, "....Dismissing the appeals on technical grounds of limitation would not, in any way, advance the interests of justice but admittedly, result in failure of justice as the impugned judgements are likely to affect not only the parties before us, but hundreds of other persons ...."
16.As against these decisions while opposing the application for condonation of delay and seriously contesting the same, Mr.Nanavati submitted that the applicants in this case have admitted their negligence. Mr.Nanavati placed strong reliance on the decision in the case of P.K. Ramachandran v. State of Kerala and another, reported in AIR 1998 SC 2276. In para 6 of this judgement, the Supreme Court has observed that, "Law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribe and the Courts have no power to extend the period of limitation on equitable grounds....."
The facts of this case as are there in the reported decision do not show that it was a case of delay in processing the case in the official channels, rather it shows that the delay was sought to be condoned on the ground that the Advocate General's office was fed up with so many arbitration matters equally important to that case. The Supreme Court found that this can hardly be said to be a reasonable, satisfactory or even a proper explanation for seeking condonation of delay. Thus, this case is clearly distinguishable form the line of cases as have been relied upon by the applicants. Mr.Nanavati, learned advocate, yet argued that the contents of para 5 of the judgement in the case of P.K. Ramachandran v. State of Kerala would show that the Supreme Court has observed that despite the opinion of the Law Officer and the Advocate General that there was no scope for filing appeal, the appeal was filed and yet the appeal was filed without disclosing as to why it had been filed. Mr.Nanavati has submitted that therefore, in the present case the applicant ought to have disclosed as to why the appeal was filed now. In the present case, no decision was taken for not filing the appeal. Even the learned Govt. Pleader had opined that if appeal was filed there were rare chance of success. There was no categorical opinion that appeal is not to be filed and the matter remained under consideration throughout. It is a different matter that processing in this case has taken more than reasonable time and the concerned functionaries have not attended the matter with required promptitude. However, we find that the principle which is discernible from the aforesaid cases to which reference has been made is that while considering the question of condonation of delay merits of the case are also required to be tested because it has been observed that if the case deserves consideration on merit or unless it is a hopeless case on merits, delay may be condoned and for that purpose certain observations also have been made that even length of delay is not material. On the basis of this principle which is clearly deducible and discernible we called upon the learned counsel for both the sides to address on the merits of the case for the limited purpose of testing as to whether is it that hopeless case on merits that condonation of delay should be refused.
17.Urban Land Ceiling Act had come into force on 17.2.1976, whereas the Agricultural Land Ceiling Act which was enacted in 1960 was amended on 23.2.1974, but this amending Act was brought into effect from 1.4.1976, i.e. after 17.2.1976, whereby the definition of "land" was amended so as to include 'bid lands' which has been the subject matter of dispute in the main Special Civil Application. The case with which the original petitioner came to the Court was that the enactment of any law relating to the ceiling of agricultural land was beyond the scope of legislative competence of the State legislature after the Urban Land Ceiling Act coming into force, i.e. 17.2.1976 and therefore, in respect of those agricultural lands, which form part of urban agglomeration (subject of urban ceiling), the State legislature could not legislate after 17.2.1976, and that whereas the land in dispute is admittedly a part of the urban agglomeration of Rajkot, i.e. Saurashtra area and the present respondent, original petitioner is a direct descendant of the Ruler of Rajkot, he was aggrieved from the determination of ceiling of his agricultural land forming part of urban agglomeration of Rajkot on the basis of the Amending Act brought into effect from 1.4.1976 (after 17.2.1976) and the case is that this amendment is not applicable to the land in question. It was also submitted that the proceedings have been taken simultaneously under the Urban Land Ceiling Act also. It was also submitted that the decision as has been rendered by the learned Single Judge is fully covered by two Supreme Court decisions, namely, (i) Thumati Venkaiah, etc. etc. v. State of Andhra Pradesh, AIR 1980 SC 1568, and (ii) Krishna Bhimrao Deshpande v. Land Tribunal, Dharwad and others, AIR 1993 SC 883.
In the case of Thumati Venkaiah, etc. etc. (supra), Andhra Pradesh Land Reforms (Ceiling on Agricultural Holdings) Act, 1973 was in question in which an amendment was made. The amending Act was enacted in the year 1977 and it was given retrospective effect from 1.1.1975. Thus, the amending Act itself was enacted after 17.2.1976 and was given retrospective effect from a date prior to 17.2.1976, i.e. 1.1.1975.
In the case of Krishna Bhimrao Deshpande (supra), the case which came up before the Supreme Court from Karnataka, is that Karnataka Land Reforms Act, 1962 was amended in the year 1974. The amendment was enacted on 1.4.1974 and the same was given effect to from 2.1.1985, i.e. after the date of 17.2.1976. It is also submitted that in both these cases, the lands in question were also found to be part of urban agglomeration and therefore, the Supreme Court held that with regard to such agricultural land, which forms part of urban agglomeration, the State legislature could not make any enactment for the purpose of agricultural ceiling after the date on which Central Act of Urban Land Ceiling came into force on 17.2.1976 and any enactment relating to such lands could be taken up only by the Parliament after 17.2.1976.
18.As against it, Mr.Shealt, learned Additional Advocate General, on behalf of the Government contended that the amendment which has been made in the instant case in the Agricultural Land (Ceiling) Act on 23.2.1974, which was brought into effect from 1.4.1976 is only with regard to change in the definition of "land" and no changes have been made so far as the provisions relating to Ceiling are concerned and he has also submitted that even according to the decision of the Supreme Court in the case of Krishna Bhimrao Deshpande v. Land Tribunal, Dharwad and others, reported in AIR 1993 SC 883 (supra), on which reliance has been placed by the original petitioner, the Supreme Court has held that the State legislature is not wholly denuded from the power of making any enactment in this regard, i.e. the aspects other than the aspects which directly deal with the question of ceiling.
19.Having heard learned counsel, we find that it cannot be said that the case of the applicants is not even worth consideration or that they have a hopeless case. Having tested the merits of the case for the limited purpose of considering the question of condonation of delay in the light of the judgements which have been cited before us and in view of the principle which is discernible as above, we find it a fit case for condonation of delay in the facts and circumstances of this case. Accordingly, the delay of 292 days in filing this Letters Patent Appeal is hereby condoned.
20.This Civil Application seeking condonation of delay is hereby allowed. Rule is made absolute. (M.R. Calla, J.) 13th September 2000(Ravi R. Tripathi, J.) karim*