1. Sri S.K. Tyagi, learned counsel for the applicants/ appellants was heard at length on 24.11.2016 on the delay condonation applications and the order was reserved after noting the submissions in the leading First Appeal Defective No.126 of 2016, as under:
"Heard Sri S.K. Tyagi, learned counsel for the applicants/ appellants on applications for Leave to Appeal and delay condonation application .
These defective first appeals without certified copy of the impugned judgment, have been filed beyond limitation with applications for leave to appeal and delay condonation applications as under:
Sl. Nos.
First Appeal Defective Nos.
Application for Leave to Appeal No. Delay Condonation Application No. Period beyond limitation 1 126 of 2016 124822 of 2016 124818 of 2016 27 years 348 days 2 127 of 2016 124840 of 2016 124847 of 2016 27 years 348 days 3 128 of 2016 124965 of 2016 124975 of 2016 27 years 348 days 4 129 of 2016 124988 of 2016 124986 of 2016 27 years 342 days Learned counsel for the applicants submits that the Court should take a liberal view for condonation of delay, even of a period of more than 27 years, for reason that the first appeal involves question of right of the applicants to receive compensation as has been granted to others by virtue of decisions of this Court. He submits that Section 28-A of the Land Acquisition Act, 1894 protects the right of the tenure holders to obtain similar compensation as has been granted in the case of similarly situated other tenure holders. He submits that a liberal view should be adopted for condonation of delay. He relied upon the decision of Hon'ble Supreme Court in the case of Dhiraj Singh (D) Tr. Vs. Haryana State in Civil Appeal No. 6599-6601 of 2014 decided on 21.07.2014 (paras 6, 8, 10 and 11), Imrat Lal Vs. Land Acquisition Collector in Civil Appeal No. 10799 of 2013 decided on 29.11.2013 (para 11), Manoharan Vs. Sivarajan and others 2014 (122) RD 285 (para 13), N. Balakrishnan Vs. M. Krishnamurthy AIR 1998 SC 3222, Ram Nath Sao @ Ram Nath Sahu and others Vs. Gobardhan Sao and others AIR 2002 SC 1201 (para 11) and Nand Kishore Vs. State of Punjab 1995 (6) SCC 614.
He submits that although in Mafatlal Industries Limited and others Vs. Union of India and others (1997) 5 SCC 536 (paras 79 and 80) it has been held that one of the important principles of law, based upon public policy, is the sanctity attaching to the finality of any proceeding, be it a suit or any other proceeding. Yet this judgment is not applicable in the present set of facts as the judgment relates to Central Excise matter.
Order reserved."
FACTS OF THE CASE:-
2. Briefly stated, the facts of the present case are that by notification under Section 4(1) of the Land Acquisition Act, 1894 (hereinafter referred to as ''the Act') issued on 22.09.1979 and published in the official gazette of the State of U.P. on 10.11.1979, certain land for construction of Main Nala in NOIDA area of village Shahadara, Tehsil Dadri was acquired. Notification under Section 6 of the Act was issued on 13.03.1980 which was published in the official gazette on 10.05.1980. Possession of the land was taken on 15.12.1980. The Special Land Acquisition Officer gave his award on 21.01.1982 offering compensation @ Rs.4086.02 per bigha besides solatium and interest etc. as against the claimed compensation @ Rs.25,000/- per bigha. Dissatisfied with the award of the S.L.A.O., various references were made at the instance of the tenure holders under Section 18 of the Act being L.A.R. Nos.195, 197, 203 & 204, all of 1982. All the aforesaid Land Acquisition References including some other references were decided by the impugned common judgment dated 06.02.1988 passed by the court of 5th Additional District Judge, Ghaziabad. Certified copy of the impugned judgment was applied by the appellant on 09.02.1988, which was ready on 03.03.1988 and the same was received on 04.04.1988 as is evident from the photostat copy filed along with the appeal. However, instead of filing certified copy of the impugned common judgment, the appellants have filed an application for grant of three months' time to file certified copy of the impugned common judgment, which has not been filed as yet despite lapse of more than seven months.
3. By the impugned common judgment, the reference court enhanced the compensation and determined the market value of the acquired land @ Rs.10,000/- per bigha. It also awarded additional compensation under Section 23(1-A), solatium @ 30% and interest @ 9% till 14.12.1981 and thereafter @ 15% per annum till the date of payment of the enhanced amount.
4. The first appeals at serial Nos.1 & 2 above were filed on 10.04.2016 while the first appeals at Serial Nos.3 & 4 above have been filed on 11.05.2016 beyond limitation of more than 27 years as noted in the order dated 24.11.2016 quoted above.
5. The affidavits in support of applications for leave to appeal as well as delay condonation applications are identical in all the appeals and have been sworn by one and the same person, namely Subhash Chandra @ Subhash Bhati, aged about 26 years. All the paragraphs of both the affidavits have been sworn on personal knowledge. For ready reference, the affidavit filed in support of application for leave to appeal and affidavit filed in support of delay condonation application in the leading First Appeal Defective No.126 of 2016, are reproduced below:
"Affidavit filed in support of application for leave to appeal:-
1. That the deponent is pairokar of appellants in the present appeal, as such he is well acquainted with the facts deposed to below.
2. That the original tenure holders could not file the appeal in the Hon'ble High Court against the judgment and decree dated 06.02.1988.
3. That the legal heirs of deceased/ original tenure holders have been advised to file appeal in this Hon'ble High Court against the award dated 06.02.1988.
4. That therefore, the Hon'ble Court may kindly be pleased to grant leave to appeal to the legal heirs of deceased as mentioned above in this Hon'ble High Court against the award dated 06.02.1988 in the interest of justice.
Affidavit filed in support of delay condonation application:-
1. That the deponent is pairokar of appellants in the present appeal, as such he is well acquainted with the facts deposed to below.
2. That the present appeal has been preferred by the appellants for enhancement of compensation which has been awarded by Additional District Judge in reference proceeding.
3. That the agriculture land of the appellants was acquired in the year 1979, by the State Government for construction of Nala by Noida Authority.
4. That the appellants are poor and illiterate farmers, they were not in a position to file the appeal against the award given by District Judge in the Hon'ble High Court.
5. That the financial condition of the appellants were very serious, they were not in a position to pay the court fee, therefore they could not file the appeal in this Hon'ble High Court.
6. That the appellants were not having any source of income they were totally dependent upon the agricultural land, which was acquired by the State Government, therefore the appellants were forced by the circumstances to do labour work for their livelihood.
7. That the appellants got very meager compensation and the State Government also file appeal in the Hon'ble High Court, in which half amount of compensation was stayed and appeals of Noida Authority have finally dismissed by this Hon'ble Court, vide judgment dated 09.10.2014.
8. That thereafter, the appellants got balance amount of compensation from the Noida Authority and are also advised to file appeal against the award in view of judgment delivered in the case of "Khajan Singh".
9. That in the case of "Khajan Singh" the Hon'ble High Court have been pleased to award the compensation at the rate of Rs.297/- per sq. yard to all the tenure holders of several villages of Noida Authority on the basis of judgment of "Khajan Singh" several orders have been passed in view of various tenure holders who filed appeal against the acquisition proceeding of their land in the year 1976.
10. That the Hon'ble High Court have given uniform compensation to all the tenure holders of Noida Region, so as to make the parity, thus the appellants are filing present appeal after delay of 27 years, which kindly be pleased to condone the delay.
11. That the Hon'ble Supreme Court in the case of "Dheeraj Singh" delivered in the year 2014, have also condone the delay of 16 years and awarded same compensation to the tenure holders as it was given to other tenure holders of the same village and against same notification.
12. That valuable right of the appellants have been taken away by the State Government and they have deprived of their land which is only source of livelihood, therefore they are entitle to get the uniform compensation to that of other tenure holders of the nearby villages.
13. That therefore, the Hon'ble Court may be pleased to condone the delay in filing the present appeal in the Hon'ble High Court in the interest of justice."
DISCUSSIONS AND FINDINGS:-
6. Perusal of the facts as afore-noted gives rise to the following questions:-
(i) Whether determination of compensation by the High Court @ Rs.297/- per square yard in the case of Khazan and others Vs. State of U.P. in First Appeal No.564 of 1997, relating to much subsequent acquisitions and of an entirely different village/ locality, can furnish a ground for condonation of delay of about 28 years under Section 5 of the Limitation Act?
(ii) Whether under the facts and circumstances of the case, there is sufficient cause to condone the delay of about 28 years in filing the appeals?
7. Question No.(i) Whether determination of compensation by the High Court @ Rs.297/- per square yard in the case of Khazan and others Vs. State of U.P. in First Appeal No.564 of 1997, relating to much subsequent acquisitions and of an entirely different village/ locality, can furnish a ground for condonation of delay of about 28 years under Section 5 of the Limitation Act?
8. Facts of the case as afore-noted clearly establish that the acquisition was made by notification under Section 4 of the Act published in the gazette on 10.11.1979 followed by notification under Section 6 published in the official gazette on 10.05.1980. The possession of the land was taken on 15.12.1980. The S.L.A.O. made the award on 21.01.1982. References were made under Section 18 of the Act at the instance of tenure holders which were decided by the judgment dated 06.02.1988 by the court of 5th Additional District Judge, Ghaziabad. Certified copy of the judgment was received by the tenure holders on 04.04.1988. The award given by the reference court has attained finality inasmuch as no appeal was filed by the tenure holders under Section 54 of the Act. From perusal of the array of parties, it appears that the original tenure holders have died. However, it has not been disclosed in the affidavit as to when the original tenure holders died. The afore-noted appeals have been filed by 10 to 22 persons. The deponent of the affidavit is an outsider who alleged himself to be the pairokar in each appeal. He has alleged himself to be 26 years old. There is no disclosure of fact that how the deponent of the affidavit can have personal knowledge of non-filing of the appeals by the deceased tenure holders in all the four appeals when the deponent of the affidavit is an outsider and the limitation for filing each of the afore-noted first appeals expired even before his birth.
9. In the Rup Diamonds Vs. Union of India, 1989 (2) SCC 356 (para-8) Hon'ble Supreme Court laid down the law that petitioners who were not vigilant but were dormant and chose to sit on the fence till somebody else's case came to be decided, then their case cannot be considered on the analogy of one where a law had been declared unconstitutional and void by a court, so as to enable persons to recover monies paid under the compulsion of a law later so declared void.
10. In the case of State of Karnataka Vs. S.M. Kotrayya, (1996) 6 SCC 267, while considering the provisions of limitation under Section 21 of the Central Administrative Tribunal Act, 1985, Hon'ble Supreme Court held that the explanation offered was that the applicants/ petitioners came to know of the relief granted by the Tribunal in August 1989 and that they filed the petition immediately thereafter, is not a proper explanation at all. What was required of them to explain under sub-sections (1) and (2) of Section 21 was as to why they could not avail of the remedy of redressal of their grievances before the expiry of the period prescribed under sub-section (1) or (2). It was held that the Tribunal was wholly unjustified in condoning the delay.
11. In the case of State of Orrisa Vs. Mamta Mohanty, 2011 (3) SCC 436 (para-54), Hon'ble Supreme Court rejected the delay condonation application holding where the petitioner approached the Court after coming to know of the relief granted in a similar case as the same cannot furnish a proper explanation for delay and laches.
12. In the case of Mafatalal Industries Ltd. vs. Union Of India, 1997 (5) SCC 536 (para-79), nine Judges Constitution Bench of Hon'ble Supreme Court, held as under:
"79.We may now consider a situation where a manufacturer pays a duty unquestioningly - or he questions the levy but fails before the original authority and keeps quiet. It may also be a case where he files an appeal, the appeal goes against him and he keeps quiet. It may also be a case where he files a second appeal/revision, fails and then keeps quiet. The orders in any of the situations have become final against him. Then what happens is that after a year, five years, ten years, twenty years or even much later, a decision is rendered by a High Court or the Supreme Court in the case of another person holding that duty was not payable or was payable at a lesser rate in such a case. (We must reiterate and emphasize that while dealing with this situation we are keeping out the situation where the provision under which the duty is levied is declared unconstitutional by a court; that is a separate category and the discussion in this paragraph does not include that situation. In other words, we are dealing with a case where the duty was paid on account of misconstruction, misapplication or wrong interpretation of a provision of law, rule, notification or regulation, as the case may be.) Is it open to the manufacturer to say that the decision of a High Court or the Supreme Court, as the case may be, in the case of another person has made him aware of the mistake of law and, therefore, he is entitled to refund of the duty paid by him? Can he invoke Section 72 of the Contract Act in such a case and claim refund and whether in such a case, it can be held that reading Section 72 of the Contract Act along with Section 17 (1)(c) of the Limitation Act, 1963, the period of limitation for making such a claim for refund, whether by way of a suit or by way of a writ petition, is three years from the date of discovery of such mistake of law? Kanhaiya Lal is understood as saying that such a course is permissible. Later decisions commencing from Bhailal Bhai have held that the period of limitation in such cases is three years from the date of discovery of the mistake of law. With the greatest respect to the learned Judges who said so, we find ourselves unable to agree with the said proposition. Acceptance of the said proposition would do violence to several well accepted concepts of law. One of the important principles of law, based upon public policy, is the sanctity attaching to the finality of any proceeding, be it a suit or any other proceeding. ........................................................................................... ............................... Once this is so, it is ununderstandable how an assessment/adjudication made under the Act levying or affirming the duty can be ignored because some years later another view of law is taken by another court in another person's case. Nor is there any provision in the Act for reopening the concluded proceedings on the aforesaid basis. We must reiterate that the provisions of the Central Excise Act also constitute "law" within the meaning of Article 265 and any collection or retention of tax in accordance or pursuant to the said provisions is collection or retention under "the authority of law" within the meaning of the said article. In short, no claim for refund is permissible except under and in accordance with Rule 11 and Section 11-B. An order or decree of a court does not become ineffective or unenforceable simply because at a later point of time, a different view of law is taken. If this theory is applied universally, it will lead to unimaginable chaos. It is, however, suggested that this result follows only in tax matters because of Article 265. The explanation offered is untenable, as demonstrated hereinbefore. As a matter of fact, the situation today is chaotic because of the principles supposedly emerging from Kanhaiya Lal and other decisions following it. Every decision of this Court and of the High Courts on a question of law in favour of the assessee is giving rise to a wave of refund claims all over the country in respect of matters which have become final and are closed long number of years ago. We are not shown that such a thing is happening anywhere else in the world. Article 265 surely could not have been meant to provide for this. We are, therefore, of the clear and considered opinion that the theory of mistake of law and the consequent period of limitation of three years from the date of discovery of such mistake of law cannot be invoked by an assessee taking advantage of the decision in another assessee's case. All claims for refund ought to be,l and ought to have been, filed only under and in accordance with Rule 11/ Section 11-B and under no other provision and in no other forum. An assessee must succeed or fail in his own proceedings and the finality of the proceedings in his own case cannot be ignored and refund ordered in his favour just because in another assessee's case, a similar point is decided in favour of the manufacturer/assessee. (See the pertinent observations of Hidayatullah, C.J. In Tilokchand Motichand extracted in para 46.) The decisions of this Court saying to the contrary must be held to have been decided wrongly and are accordingly overruled herewith."
(Emphasis supplied by me) LAW OF LIMITATION:-
13. The ''law of limitation' is enshrined in the legal maxim ''interest reipublicae up sit finis litium' which means that it is for the general welfare that a period be put to litigation. Rules of limitation are not meant to destroy the rights of the parties, rather the idea is that every legal remedy must be kept alive for a legislatively fixed period of time.
14. Meaning of the word ''sufficient' is ''adequate' or ''enough', inasmuch as may be necessary to answer the purpose intended. The words ''sufficient cause' mean that the parties should not have acted in a negligent manner or there was a want of bona fide on his part in view of the facts and circumstances of a case or it cannot be alleged that the party has not acted diligently or remained inactive. The applicant must satisfy the Court that he was prevented by any "sufficient cause" from prosecuting his case, and unless a satisfactory explanation is furnished, the Court cannot allow the application for condonation of delay. The court has to examine whether the mistake is bona fide or was merely a device to cover an ulterior purpose. The expression "sufficient cause" should normally be given a liberal interpretation to ensure that substantial justice is done, but only so long as negligence, inaction or lack of bona fides cannot be imputed to the party concerned. Whether or not sufficient cause has been furnished, can be decided on the facts of a particular case and no straitjacket formula is possible. 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. 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 "dura lex sed lex" which means "the law is hard but it is the law", stands attracted in such a situation.
15. Where a case has been presented as in the present appeals; in the court beyond limitation, the applicant has to explain the court as to what was the ''sufficient cause' which means "adequate and enough reason" which prevented him to approach the court within limitation. In case a party is found to be negligent, or for want of bonafide on his part in the facts and circumstances of the case, or found to have not acted diligently or remained inactive, there cannot be a justified ground to condone the delay. In such circumstances, no court could be justified in condoning an inordinate delay by imposing any condition whatsoever.
16. In the case of Basawaraj and another Vs. Special Land Acquisition Officer, (2013) 14 SCC 81, Hon'ble Supreme Court considered the order of the High Court and rejected the application for condonation of delay of five and a half years in filing an appeal under Section 54 of the Act before the High Court on the ground of illness of one of the appellant and after referring to the judgments in the case of Manindra Land and Building Corporation Ltd. v. Bhootnath Banerjee & Ors., AIR 1964 SC 1336; Lala Matadin v. A. Narayanan, AIR 1970 SC 1953; Parimal v. Veena @ Bharti (2011) 3 SCC 545, and Maniben Devraj Shah v. Municipal Corporation of Brihan Mumbai (2012) 5 SCC 157, Arjun Singh v. Mohindra Kumar, AIR 1964 SC 993, Madanlal v. Shyamlal, (2002) (1) SCC 535; and Ram Nath Sao v. Gobardhan Sao & Ors., (2002) 3 SCC 195, Popat and Kotecha Property v. State Bank of India Staff Assn. (2005) 7 SCC 510; Rajendar Singh & Ors. v. Santa Singh & Ors., (1973) 2 SCC 705, Pundlik Jalam Patil v. Executive Engineer, Jalgaon Medium Project, (2008) 17 SCC 448, upheld the judgment of the High Court and dismissed the Civil Appeal observing in paras-14 & 15 as under:
"14. In P. Ramachandra Rao v. State of Karnataka, (2002) 4 SCC 578, this Court held that judicially engrafting principles of limitation amounts to legislating and would fly in the face of law laid down by the Constitution Bench in Abdul Rehman Antulay v. R.S. Nayak, (1992) 1 SCC 225.
15. The law on the issue can be summarised to the effect that where a case has been presented in the court beyond limitation, the applicant has to explain the court as to what was the "sufficient cause" which means an adequate and enough reason which prevented him to approach the court within limitation. In case a party is found to be negligent, or for want of bonafide on his part in the facts and circumstances of the case, or found to have not acted diligently or remained inactive, there cannot be a justified ground to condone the delay. No court could be justified in condoning such an inordinate delay by imposing any condition whatsoever. The application is to be decided only within the parameters laid down by this court in regard to the condonation of delay. In case there was no sufficient cause to prevent a litigant to approach the court on time condoning the delay without any justification, putting any condition whatsoever, amounts to passing an order in violation of the statutory provisions and it tantamounts to showing utter disregard to the legislature."
17. In the case of Brijesh Kumar and others Vs. State of Haryana and others, 2014 (11) SCC 351, a claimant/ tenure holder filed S.L.P. challenging the order of the High Court refusing to condone the delay of ten years and two months and 29 days in filing the appeal by the claimant under Section 54 of the Act in spite of the fact that other persons who had preferred appeals in time had been given a higher compensation. Hon'ble Supreme Court referred to various judgments and held as under:
"11. It is also a well settled principle of law that if some person has taken a relief approaching the Court just or immediately after the cause of action had arisen, other persons cannot take benefit thereof approaching the court at a belated stage for the reason that they cannot be permitted to take the impetus of the order passed at the behest of some diligent person.
15. In the instant case, after considering the facts and circumstances and the reasons for inordinate delay of 10 years 2 months and 29 days, the High Court did not find sufficient grounds to condone the delay.
16. In view of the facts of the case and the above-cited judgments, we do not find any fault with the impugned judgment (Brijesh Kumar v. State of Haryana, RFA No.5793 of 2012, decided on 22.11.2013). The petitions lack merit and are accordingly dismissed."
(Emphasis supplied by me)
18. In the case of Jagdish Lal Vs. State of Haryana, 1997 (6) SCC 538, Hon'ble Supreme Court held has under:
"18. ................................. Suffice it to state that the appellants kept sleeping over their rights for long and elected to wake up when they had the impetus from Union of India Vs. Virpal Singh Chauhan (1995) 6 SCC 684 and Ajit Singh's (1996) 2 SCC 715) ratios. But Vir Pal Chauhan and Sabharwal's [R.K. Sabharwal Vs. State of Punjab, (1995) 2 SCC 745] cases, kept at rest the promotion already made by that date, and declared them as valid; they were limited to the question of future promotions given by applying the rule of reservation, to all the persons prior to the date of judgment in Sabharwal's case, which required to examined in the light of the law laid in Sabharwal's case. Thus earlier promotions cannot be reopened. Only those cases arising after that date would be examined in the light of the law laid down in Sabharwal case Vir Pal Chauhan case and equally Ajit Singh case. If the candidate has already been further promoted to the higher echelons of service, his seniority is not open to be reviewed. In A.B.S. Karamchari Sangh [(1996) 6 SCC 65] case, a Bench of two Judges to which two of us, K. Ramaswamy and G.B. Pattanik, JJ. were members, had reiterated the above view and it was also held that all the prior promotions are not open to judicial review. In Chander Pal & Ors. v. State of Haryana, (1997) 10 SCC 474, a Bench of two judges consisting of S.C. Agrawal and G.T. Nanavati, JJ. considered the effect of Vir Pal Chauhan, Ajit Singh, Sabharwal and A.B.S Karmachari Sangh cases and held that the seniority of those respondents who had already retired or promoted to higher posts could not be disturbed. The seniority of the petitioner therein and the respondents who were holding the post in the same level or in the same cadre would be adjusted keeping in view the ratio in Vir Pal Chauhan and Ajit Singh's cases; but promotion, if any, had been given to any of them during the pendency of this writ petition, was directed not to be disturbed. Therein, the candidates appointed on the basis of economic backwardness, social status or occupation etc. were eligible for appointment against the post reserved for backward classes if their income did not exceed Rs. 18,000/- per annum and they were given accelerated promotions on the basis of reservation. In that backdrop, the above directions came to be issued. In fact, it did not touch upon Article 16(4) or 16(4-A). Therefore, desperate attempts of the appellants to redo the seniority had by them in various cadres/grades though in the same services according to the 1974 Rules or 1980 Rules, are not amenable to judicial review at this belated stage. The High Court, therefore, has rightly dismissed the writ petition on the ground of delay as well."
(Emphasis supplied by me)
19. In Rup Diamonds Vs. Union of India, 1989 (2) SCC 356, Hon'ble Supreme Court considered a case where the petitioner wanted to get the relief on the basis of the judgment in another case wherein a particular law had been declared ultravires. Hon'ble Supreme Court rejected the petition on the ground of delay and latches observing as under:
"8. ........ there is one more ground which basically sets the present case apart. Petitioners are re-agitating claims which they had not pursued for several years. Petitioners were not vigilant but were content to be dormant and chose to sit on the fence till somebody else's case came to be decided......................"
(Emphasis supplied by me)
20. In the Constitution Bench judgment in Union Of India & Anr vs Raghubir Singh (Dead) By Lrs. Etc, 1989 (2) SCC 754 (paras-8, 9 & 28), Hon'ble Supreme Court considered the doctrine of binding precedent and held as under:
"8. Taking note of the hierarchical character of the judicial system in India, it is of paramount importance that the law declared by this Court should be certain, clear and consistent. It is commonly known that most decisions of the courts are of significance not merely because they constitute an adjudication on the rights of the parties and resolve the dispute between them, but also because in doing so they embody a declaration of law operating as a binding principle in future cases. In this latter aspect lies their particular value in developing the jurisprudence of the law.
9. The doctrine of binding precedent has the merit of promoting a certainty and consistency in judicial decisions, and enables an organic development of the law, besides providing assurance to the individual as to the consequence of transactions forming part of his daily affairs. And, therefore, the need for a clear and consistent enunciation of legal principle in the decisions of a Court.
28. We are of opinion that a pronouncement of law by a Division Bench of this Court is binding on a Division Bench of the same or a smaller number of Judges, and in order that such decision be binding, it is not necessary that it should be a decision rendered by the Full Court or a Constitution Bench of the Court. We would, however, like to think that for the purpose of imparting certainty and endowing due authority decisions of this Court in the future should be rendered by Division Benches of at least three Judges unless, for compelling reasons, that is not conveniently possible."
(Emphasis supplied by me)
21. From the above discussion, it is clear that in the case of Brijesh Kumar and others (supra), Hon'ble Supreme Court has stated the law that if some person has taken a relief approaching the court just or immediately after the cause of action had arisen, other person cannot take benefit thereof approaching the court at a belated stage for the reason that they cannot be permitted to take impetus of the order passed at the behest of some diligent person. This principle of law is a judicially en-grafted principle and is binding in view of the law laid down by Hon'ble Supreme Court in the case of Basawaraj and another (supra) and the Constitution Bench judgment in the case of Union of India and another Vs. Raghubir Singh (dead) by LRs (supra). This squarely concludes the question No.(i). Therefore, the appellants cannot be permitted to take impetus of the judgment passed at the behest of some diligent person. The first appeals filed by the appellants after an inordinate delay of about 28 years on the ground of some judgment of the High Court awarding higher compensation, are not entertainable. Thus question No.(i) is answered accordingly.
22. Question No.(ii) Whether under the facts and circumstances of the case, there is sufficient cause to condone the delay of about 28 years in filing the appeals?
23. I have already extracted the affidavit filed in support of application for leave to appeal and the affidavit filed in support of the delay condonation application in the leading first appeal, which both are identical in all the appeals. In all the first appeals, the deponent is one Subhash Chandra @ Subhash Bhati, aged about 26 years, who has alleged himself to be the pairokar of the appellants and has sworn all the paragraphs of both the affidavits to his personal knowledge. The aforesaid deponent appears to be an outsider. In the first appeals at Serial Nos.1, 2 & 3, 10-12 persons each are the appellants while in the appeal at Serial No.4, the appellants are 22 in number. Thus, the total number of appellants in all the four appeals are about 50-52 but the affidavits accompanying the appeals and the applications have been filed by the aforesaid Subhash Chandra @ Subhash Bhati, who is neither one of the appellants nor related to the appellants as there is no averment in the affidavits. That apart, as per affidavit he is 26 years of age but has made the statement of facts on his personal knowledge for events even before his birth. Reference in this regard may be had to paragraph-2 of the affidavit accompanying the application for leave to appeal in which he stated on his personal knowledge that the original tenure holders could not file the appeal in the Hon'ble High Court against the judgment and the decree dated 06.02.1988. In paragraph-3 of the said affidavit, he stated that the legal heirs of the deceased tenure holders have been advised to file appeal in the High Court against the award dated 06.02.1988 but it has not been disclosed that who has advised them?
24. In paragraph-3 of the affidavit accompanying the delay condonation application, the aforesaid deponent (Subhash Chandra) stated that the agricultural lands of the appellants were acquired in the year 1979 for construction of a Nala by NOIDA Authority. This paragraph has been sworn on personal knowledge while as per his own showing the birth year of the deponent of the affidavit would be approximately the year 1990. In paragraph-4 of the aforesaid affidavit, it is stated that the appellants are poor and illiterate farmers and, therefore, they were not in a position to file the appeal against the award of the District Judge. In paragraph-5, it is alleged that the financial condition of the appellants were very serious and they were not in a position to pay the court fees. In paragraph-6, it is stated that the appellants were not having any source of income and totally dependent upon the agricultural lands which were acquired by the State Government. These are vague averments which have been sworn on personal knowledge by the deponent of the affidavit, who was not even born when the original tenure holders were alleged to be illiterate, facing financial problem and had no source of income except the agricultural land which was acquired. No document whatsoever has been filed along with the affidavit in support of these averments. In the same manner, averments have been made in paragraphs-7 & 8 of the affidavit that the State Government filed appeal in the High Court and appeals of NOIDA were finally dismissed by the High Court vide judgment dated 09.10.2014 and, thereafter, the appellants received the balance amount of compensation. The averments so made are totally vague and misleading in the absence of disclosure of any particulars of any first appeal filed by the State Government or the NOIDA against the impugned judgment. Paragraph-10 of the affidavit, really reflects the whole story behind filing of these appeals beyond limitation by more than 27 years as inasmuch as after the original tenure holders have died (as appears from the array of the parties) whose dates of death are unknown, the present appellants (total 52 in number in these four first appeals) have filed these appeals for compensation @ Rs.297/- square yard allegedly on the basis of some judgment of the High Court determining compensation. Even particulars of that judgment and the acquisition involved, have not been disclosed in the affidavits. In the grounds No.(iv), (v) & (vi) of the grounds of appeal, reference of judgments in two first appeals namely First Appeal No.1056 of 1999 relating to acquisition of land of village Bhangel Begumpur and First Appeal No.564 of 1997 relating to acquisition of land of village Nagla Charandas, Gejha Tilpatabad and Chhalera Bangar, have been given, which are made basis for filing these appeals to claim compensation @ Rs.297/- per square yard while the acquisition in question was made much earlier in the year 1979 and that too of a land of a different village, i.e. village Shahadara, Teshil Dadri. Thus, entire averments in the affidavit accompanying the delay condonation application are totally misleading and the appeals have been filed non-bonafidely by unscrupulous persons. It is abuse of process of court.
25. The affidavits do not disclose "sufficient cause" indicating an adequate and enough reason which prevented the appellants to approach the court within limitation. In any case, the appellants were totally negligent and not bona fide and remained inactive for about 27-28 years and, therefore, it is not justified to condone such an inordinate delay. In fact the attempt of the appellants in filing these appeals is a device to cover an ulterior purpose which itself is reflected from the facts as noted above. The argument of learned counsel for the appellants that in the facts of the case, the concept of liberal approach should be adopted, deserves to be rejected inasmuch as the concept of liberal approach has to encapsulate the concept of reasonableness and it cannot be allowed to an unfettered free play. The conduct, behaviour and attitude of the appellants relating to their inaction, negligence, lack of bonafides as has been discussed in detail above; dis-entitles them for condonation of inordinate delay of 27-28 years. In the case of Esha Bhattacharjee v. Raghunathpur Nafar Academy & Ors. (2013) 12 SCC 649, Hon'ble Supreme Court held that increasing tendency to perceive delay as a non-serious matter and, hence, lackadaisical propensity can be exhibited in a nonchalant manner requires to be curbed, of course, within legal parameters.
26. In any case, the appellants kept sleeping over their rights for more than 27 years and allegedly elected to wake up on the basis of some judgment of the High Court relating to a different acquisition and the village, and therefore, at this belated stage, the impugned judgment cannot be made amenable to judicial review. The appellants want to re-agitate the claims which they had not pursued for 27-28 years and remained dormant and not vigilant and, therefore, the inordinate delay of 27-28 years in filing the appeals without there being any sufficient cause, cannot be condoned.
27. In the case of Pundlik Jalam Patil v. Executive Engineer, Jalgaon Medium Project (supra), Hon'ble Supreme Court considered the order of the High Court condoning the delay of 1724 days in preferring an appeal by the State under Section 54 of the Act against the enhancement of compensation by the reference court and held as under:
"14. It is true that the power to condone the delay rests with the court in which the application was filed beyond time and decide whether there is sufficient cause for condoning the delay and ordinarily the superior court may not interfere with such discretion even if some error is to be found in the discretion so exercised by the court but where there is no sufficient cause for condoning the delay but the delay was condoned, it is a case of discretion not being exercised judicially and the order becomes vulnerable and susceptible for its correction by the superior court. The High Court having found that the respondent in its application made incorrect submission that it had no knowledge of the award passed by the Reference Court ought to have refused to exercise its discretion. The High Court exercised its discretion on wrong principles. In that view of the matter we cannot sustain the exercise of discretion in the manner done by the High Court.
15. Whether the respondent had satisfied the court that it had sufficient cause for not preferring the appeals within the prescribed time? Section 5 of the Limitation Act provides for extension of prescribed period of limitation in certain cases and confers jurisdiction upon the court to admit any application or any appeal after the prescribed period if it is satisfied that the appellant or the applicant had sufficient cause for not preferring such appeal or application within the prescribed period.
20. The respondent beneficiary of the acquisition did not initiate any steps whatsoever before the expiry of limitation and no circumstances are placed before the court that steps were taken to file appeals but it was not possible to file the appeals within time.
23. On the facts and in the circumstances, we are of the opinion that the respondent beneficiary was not diligent in availing the remedy of appeal. The averments made in the application seeking condonation of delay in filing appeals do not show any acceptable cause much less sufficient cause to exercise courts' discretion in its favour.
24. Learned senior counsel for the respondent also placed reliance upon the decision of this court in Union of India vs. Sube Ram and others [(1997) 9 SCC 69]. This court condoned delay of 3379 days in preferring the appeals by Special Leave. The said decision is mostly confined to the facts of that case and does not lay down any law as such requiring us to make any further analysis of the judgment.
29. It needs no restatement at our hands that the object for fixing time limit for litigation is based on public policy fixing a life span for legal remedy for the purpose of general welfare. They are meant to see that the parties do not resort to dilatory tactics but avail their legal remedies promptly. Salmond in his jurisprudence states that the laws come to the assistance of the vigilant and not of the sleepy.
(Emphasis supplied by me)"
28. In the case of Simrat Kaur and others Vs. State of Haryana and others, (2015) 13 SCC 563 (paras-10, 11 & 12), Hon'ble Supreme Court referred to its judgments in the case of Mewa Ram Vs. State of Haryana, (1986) 4 SCC 151, State of Nagaland vs Lipokao and others, (2005) 3 SCC 752, D. Gopnathan Pillai Vs. State of Kerla, (2007) 2 SCC 322 and observed as under:
"Hon'ble the Supreme Court opined that when mandatory provision is not complied and the delay is not properly, satisfactorily and convincingly explained, the Court cannot condone the delay on sympathetic ground only."
29. In view of the above discussion, I find that the judgments relied by the learned counsel for the appellants are of no help to the appellants.
30. For the reasons stated above, I am of the view that the delay condonation applications deserve to be rejected. The question No.(ii) is answered accordingly.
31. In view of the aforesaid, the application for leave to appeal and the application for condonation of delay in each of the afore-noted four first appeals are rejected.
32. Consequently, First Appeal Defective No.126 of 2016, First Appeal Defective No.127 of 2016, First Appeal Defective No.128 of 2016 and First Appeal Defective No.129 of 2016, also stand dismissed with cost of Rs.5000/- on each of the appellants (except dead) in each appeal, which shall be deposited by them within one month from today with the Legal Cell Authority, High Court, Allahabad.
Order Date :- 09.12.2016 NLYAFR (Judgment Reserved on 24.11.2016) (Judgment delivered on 09.12.2016 Court No. - 25 Misc. Application for Leave to Appeal No.124822 of 2016 & Delay Condonation Application No.124818 of 2016 IN Case :- FIRST APPEAL DEFECTIVE No. - 126 of 2016 Appellant :- Hari Singh (Deceased) And 11 Ors.
Respondent :- State Of U.P. Thru' Collector Counsel for Appellant :- Sanjeev Kumar Tyagi WITH Misc. Application for Leave to Appeal No.124840 of 2016 & Delay Condonation Application No.124847 of 2016 IN Case :- FIRST APPEAL DEFECTIVE No. - 127 of 2016 Appellant :- Dharam Pal @ Ram Pal (Deceased) And 12 Ors.
Respondent :- State Of U.P. Thru' Collector Counsel for Appellant :- Sanjeev Kumar Tyagi WITH Misc. Application for Leave to Appeal No.124965 of 2016 & Delay Condonation Application No.124975 of 2016 IN Case :- FIRST APPEAL DEFECTIVE No. - 128 of 2016 Appellant :- Rich Pal (Deceased) And 12 Ors.
Respondent :- State Of U.P. Thru' Collector Counsel for Appellant :- Sanjeev Kumar Tyagi WITH Misc. Application for Leave to Appeal No.124988 of 2016 & Delay Condonation Application No.124986 of 2016 IN Case :- FIRST APPEAL DEFECTIVE No. - 129 of 2016 Appellant :- Raghuveer (Deceased) And 26 Ors.
Respondent :- State Of U.P. Thru' Collector Counsel for Appellant :- Sanjeev Kumar Tyagi Hon'ble Surya Prakash Kesarwani,J.
1. Sri S.K. Tyagi, learned counsel for the applicants/ appellants was heard at length on 24.11.2016 on the delay condonation applications and the order was reserved after noting the submissions in the leading First Appeal Defective No.126 of 2016, as under:
"Heard Sri S.K. Tyagi, learned counsel for the applicants/ appellants on applications for Leave to Appeal and delay condonation application .
These defective first appeals without certified copy of the impugned judgment, have been filed beyond limitation with applications for leave to appeal and delay condonation applications as under:
Sl. Nos.
First Appeal Defective Nos.
Application for Leave to Appeal No. Delay Condonation Application No. Period beyond limitation 1 126 of 2016 124822 of 2016 124818 of 2016 27 years 348 days 2 127 of 2016 124840 of 2016 124847 of 2016 27 years 348 days 3 128 of 2016 124965 of 2016 124975 of 2016 27 years 348 days 4 129 of 2016 124988 of 2016 124986 of 2016 27 years 342 days Learned counsel for the applicants submits that the Court should take a liberal view for condonation of delay, even of a period of more than 27 years, for reason that the first appeal involves question of right of the applicants to receive compensation as has been granted to others by virtue of decisions of this Court. He submits that Section 28-A of the Land Acquisition Act, 1894 protects the right of the tenure holders to obtain similar compensation as has been granted in the case of similarly situated other tenure holders. He submits that a liberal view should be adopted for condonation of delay. He relied upon the decision of Hon'ble Supreme Court in the case of Dhiraj Singh (D) Tr. Vs. Haryana State in Civil Appeal No. 6599-6601 of 2014 decided on 21.07.2014 (paras 6, 8, 10 and 11), Imrat Lal Vs. Land Acquisition Collector in Civil Appeal No. 10799 of 2013 decided on 29.11.2013 (para 11), Manoharan Vs. Sivarajan and others 2014 (122) RD 285 (para 13), N. Balakrishnan Vs. M. Krishnamurthy AIR 1998 SC 3222, Ram Nath Sao @ Ram Nath Sahu and others Vs. Gobardhan Sao and others AIR 2002 SC 1201 (para 11) and Nand Kishore Vs. State of Punjab 1995 (6) SCC 614.
He submits that although in Mafatlal Industries Limited and others Vs. Union of India and others (1997) 5 SCC 536 (paras 79 and 80) it has been held that one of the important principles of law, based upon public policy, is the sanctity attaching to the finality of any proceeding, be it a suit or any other proceeding. Yet this judgment is not applicable in the present set of facts as the judgment relates to Central Excise matter.
Order reserved."
FACTS OF THE CASE:-
2. Briefly stated, the facts of the present case are that by notification under Section 4(1) of the Land Acquisition Act, 1894 (hereinafter referred to as ''the Act') issued on 22.09.1979 and published in the official gazette of the State of U.P. on 10.11.1979, certain land for construction of Main Nala in NOIDA area of village Shahadara, Tehsil Dadri was acquired. Notification under Section 6 of the Act was issued on 13.03.1980 which was published in the official gazette on 10.05.1980. Possession of the land was taken on 15.12.1980. The Special Land Acquisition Officer gave his award on 21.01.1982 offering compensation @ Rs.4086.02 per bigha besides solatium and interest etc. as against the claimed compensation @ Rs.25,000/- per bigha. Dissatisfied with the award of the S.L.A.O., various references were made at the instance of the tenure holders under Section 18 of the Act being L.A.R. Nos.195, 197, 203 & 204, all of 1982. All the aforesaid Land Acquisition References including some other references were decided by the impugned common judgment dated 06.02.1988 passed by the court of 5th Additional District Judge, Ghaziabad. Certified copy of the impugned judgment was applied by the appellant on 09.02.1988, which was ready on 03.03.1988 and the same was received on 04.04.1988 as is evident from the photostat copy filed along with the appeal. However, instead of filing certified copy of the impugned common judgment, the appellants have filed an application for grant of three months' time to file certified copy of the impugned common judgment, which has not been filed as yet despite lapse of more than seven months.
3. By the impugned common judgment, the reference court enhanced the compensation and determined the market value of the acquired land @ Rs.10,000/- per bigha. It also awarded additional compensation under Section 23(1-A), solatium @ 30% and interest @ 9% till 14.12.1981 and thereafter @ 15% per annum till the date of payment of the enhanced amount.
4. The first appeals at serial Nos.1 & 2 above were filed on 10.04.2016 while the first appeals at Serial Nos.3 & 4 above have been filed on 11.05.2016 beyond limitation of more than 27 years as noted in the order dated 24.11.2016 quoted above.
5. The affidavits in support of applications for leave to appeal as well as delay condonation applications are identical in all the appeals and have been sworn by one and the same person, namely Subhash Chandra @ Subhash Bhati, aged about 26 years. All the paragraphs of both the affidavits have been sworn on personal knowledge. For ready reference, the affidavit filed in support of application for leave to appeal and affidavit filed in support of delay condonation application in the leading First Appeal Defective No.126 of 2016, are reproduced below:
"Affidavit filed in support of application for leave to appeal:-
1. That the deponent is pairokar of appellants in the present appeal, as such he is well acquainted with the facts deposed to below.
2. That the original tenure holders could not file the appeal in the Hon'ble High Court against the judgment and decree dated 06.02.1988.
3. That the legal heirs of deceased/ original tenure holders have been advised to file appeal in this Hon'ble High Court against the award dated 06.02.1988.
4. That therefore, the Hon'ble Court may kindly be pleased to grant leave to appeal to the legal heirs of deceased as mentioned above in this Hon'ble High Court against the award dated 06.02.1988 in the interest of justice.
Affidavit filed in support of delay condonation application:-
1. That the deponent is pairokar of appellants in the present appeal, as such he is well acquainted with the facts deposed to below.
2. That the present appeal has been preferred by the appellants for enhancement of compensation which has been awarded by Additional District Judge in reference proceeding.
3. That the agriculture land of the appellants was acquired in the year 1979, by the State Government for construction of Nala by Noida Authority.
4. That the appellants are poor and illiterate farmers, they were not in a position to file the appeal against the award given by District Judge in the Hon'ble High Court.
5. That the financial condition of the appellants were very serious, they were not in a position to pay the court fee, therefore they could not file the appeal in this Hon'ble High Court.
6. That the appellants were not having any source of income they were totally dependent upon the agricultural land, which was acquired by the State Government, therefore the appellants were forced by the circumstances to do labour work for their livelihood.
7. That the appellants got very meager compensation and the State Government also file appeal in the Hon'ble High Court, in which half amount of compensation was stayed and appeals of Noida Authority have finally dismissed by this Hon'ble Court, vide judgment dated 09.10.2014.
8. That thereafter, the appellants got balance amount of compensation from the Noida Authority and are also advised to file appeal against the award in view of judgment delivered in the case of "Khajan Singh".
9. That in the case of "Khajan Singh" the Hon'ble High Court have been pleased to award the compensation at the rate of Rs.297/- per sq. yard to all the tenure holders of several villages of Noida Authority on the basis of judgment of "Khajan Singh" several orders have been passed in view of various tenure holders who filed appeal against the acquisition proceeding of their land in the year 1976.
10. That the Hon'ble High Court have given uniform compensation to all the tenure holders of Noida Region, so as to make the parity, thus the appellants are filing present appeal after delay of 27 years, which kindly be pleased to condone the delay.
11. That the Hon'ble Supreme Court in the case of "Dheeraj Singh" delivered in the year 2014, have also condone the delay of 16 years and awarded same compensation to the tenure holders as it was given to other tenure holders of the same village and against same notification.
12. That valuable right of the appellants have been taken away by the State Government and they have deprived of their land which is only source of livelihood, therefore they are entitle to get the uniform compensation to that of other tenure holders of the nearby villages.
13. That therefore, the Hon'ble Court may be pleased to condone the delay in filing the present appeal in the Hon'ble High Court in the interest of justice."
DISCUSSIONS AND FINDINGS:-
6. Perusal of the facts as afore-noted gives rise to the following questions:-
(i) Whether determination of compensation by the High Court @ Rs.297/- per square yard in the case of Khazan and others Vs. State of U.P. in First Appeal No.564 of 1997, relating to much subsequent acquisitions and of an entirely different village/ locality, can furnish a ground for condonation of delay of about 28 years under Section 5 of the Limitation Act?
(ii) Whether under the facts and circumstances of the case, there is sufficient cause to condone the delay of about 28 years in filing the appeals?
7. Question No.(i) Whether determination of compensation by the High Court @ Rs.297/- per square yard in the case of Khazan and others Vs. State of U.P. in First Appeal No.564 of 1997, relating to much subsequent acquisitions and of an entirely different village/ locality, can furnish a ground for condonation of delay of about 28 years under Section 5 of the Limitation Act?
8. Facts of the case as afore-noted clearly establish that the acquisition was made by notification under Section 4 of the Act published in the gazette on 10.11.1979 followed by notification under Section 6 published in the official gazette on 10.05.1980. The possession of the land was taken on 15.12.1980. The S.L.A.O. made the award on 21.01.1982. References were made under Section 18 of the Act at the instance of tenure holders which were decided by the judgment dated 06.02.1988 by the court of 5th Additional District Judge, Ghaziabad. Certified copy of the judgment was received by the tenure holders on 04.04.1988. The award given by the reference court has attained finality inasmuch as no appeal was filed by the tenure holders under Section 54 of the Act. From perusal of the array of parties, it appears that the original tenure holders have died. However, it has not been disclosed in the affidavit as to when the original tenure holders died. The afore-noted appeals have been filed by 10 to 22 persons. The deponent of the affidavit is an outsider who alleged himself to be the pairokar in each appeal. He has alleged himself to be 26 years old. There is no disclosure of fact that how the deponent of the affidavit can have personal knowledge of non-filing of the appeals by the deceased tenure holders in all the four appeals when the deponent of the affidavit is an outsider and the limitation for filing each of the afore-noted first appeals expired even before his birth.
9. In the Rup Diamonds Vs. Union of India, 1989 (2) SCC 356 (para-8) Hon'ble Supreme Court laid down the law that petitioners who were not vigilant but were dormant and chose to sit on the fence till somebody else's case came to be decided, then their case cannot be considered on the analogy of one where a law had been declared unconstitutional and void by a court, so as to enable persons to recover monies paid under the compulsion of a law later so declared void.
10. In the case of State of Karnataka Vs. S.M. Kotrayya, (1996) 6 SCC 267, while considering the provisions of limitation under Section 21 of the Central Administrative Tribunal Act, 1985, Hon'ble Supreme Court held that the explanation offered was that the applicants/ petitioners came to know of the relief granted by the Tribunal in August 1989 and that they filed the petition immediately thereafter, is not a proper explanation at all. What was required of them to explain under sub-sections (1) and (2) of Section 21 was as to why they could not avail of the remedy of redressal of their grievances before the expiry of the period prescribed under sub-section (1) or (2). It was held that the Tribunal was wholly unjustified in condoning the delay.
11. In the case of State of Orrisa Vs. Mamta Mohanty, 2011 (3) SCC 436 (para-54), Hon'ble Supreme Court rejected the delay condonation application holding where the petitioner approached the Court after coming to know of the relief granted in a similar case as the same cannot furnish a proper explanation for delay and laches.
12. In the case of Mafatalal Industries Ltd. vs. Union Of India, 1997 (5) SCC 536 (para-79), nine Judges Constitution Bench of Hon'ble Supreme Court, held as under:
"79.We may now consider a situation where a manufacturer pays a duty unquestioningly - or he questions the levy but fails before the original authority and keeps quiet. It may also be a case where he files an appeal, the appeal goes against him and he keeps quiet. It may also be a case where he files a second appeal/revision, fails and then keeps quiet. The orders in any of the situations have become final against him. Then what happens is that after a year, five years, ten years, twenty years or even much later, a decision is rendered by a High Court or the Supreme Court in the case of another person holding that duty was not payable or was payable at a lesser rate in such a case. (We must reiterate and emphasize that while dealing with this situation we are keeping out the situation where the provision under which the duty is levied is declared unconstitutional by a court; that is a separate category and the discussion in this paragraph does not include that situation. In other words, we are dealing with a case where the duty was paid on account of misconstruction, misapplication or wrong interpretation of a provision of law, rule, notification or regulation, as the case may be.) Is it open to the manufacturer to say that the decision of a High Court or the Supreme Court, as the case may be, in the case of another person has made him aware of the mistake of law and, therefore, he is entitled to refund of the duty paid by him? Can he invoke Section 72 of the Contract Act in such a case and claim refund and whether in such a case, it can be held that reading Section 72 of the Contract Act along with Section 17 (1)(c) of the Limitation Act, 1963, the period of limitation for making such a claim for refund, whether by way of a suit or by way of a writ petition, is three years from the date of discovery of such mistake of law? Kanhaiya Lal is understood as saying that such a course is permissible. Later decisions commencing from Bhailal Bhai have held that the period of limitation in such cases is three years from the date of discovery of the mistake of law. With the greatest respect to the learned Judges who said so, we find ourselves unable to agree with the said proposition. Acceptance of the said proposition would do violence to several well accepted concepts of law. One of the important principles of law, based upon public policy, is the sanctity attaching to the finality of any proceeding, be it a suit or any other proceeding. ........................................................................................... ............................... Once this is so, it is ununderstandable how an assessment/adjudication made under the Act levying or affirming the duty can be ignored because some years later another view of law is taken by another court in another person's case. Nor is there any provision in the Act for reopening the concluded proceedings on the aforesaid basis. We must reiterate that the provisions of the Central Excise Act also constitute "law" within the meaning of Article 265 and any collection or retention of tax in accordance or pursuant to the said provisions is collection or retention under "the authority of law" within the meaning of the said article. In short, no claim for refund is permissible except under and in accordance with Rule 11 and Section 11-B. An order or decree of a court does not become ineffective or unenforceable simply because at a later point of time, a different view of law is taken. If this theory is applied universally, it will lead to unimaginable chaos. It is, however, suggested that this result follows only in tax matters because of Article 265. The explanation offered is untenable, as demonstrated hereinbefore. As a matter of fact, the situation today is chaotic because of the principles supposedly emerging from Kanhaiya Lal and other decisions following it. Every decision of this Court and of the High Courts on a question of law in favour of the assessee is giving rise to a wave of refund claims all over the country in respect of matters which have become final and are closed long number of years ago. We are not shown that such a thing is happening anywhere else in the world. Article 265 surely could not have been meant to provide for this. We are, therefore, of the clear and considered opinion that the theory of mistake of law and the consequent period of limitation of three years from the date of discovery of such mistake of law cannot be invoked by an assessee taking advantage of the decision in another assessee's case. All claims for refund ought to be,l and ought to have been, filed only under and in accordance with Rule 11/ Section 11-B and under no other provision and in no other forum. An assessee must succeed or fail in his own proceedings and the finality of the proceedings in his own case cannot be ignored and refund ordered in his favour just because in another assessee's case, a similar point is decided in favour of the manufacturer/assessee. (See the pertinent observations of Hidayatullah, C.J. In Tilokchand Motichand extracted in para 46.) The decisions of this Court saying to the contrary must be held to have been decided wrongly and are accordingly overruled herewith."
(Emphasis supplied by me) LAW OF LIMITATION:-
13. The ''law of limitation' is enshrined in the legal maxim ''interest reipublicae up sit finis litium' which means that it is for the general welfare that a period be put to litigation. Rules of limitation are not meant to destroy the rights of the parties, rather the idea is that every legal remedy must be kept alive for a legislatively fixed period of time.
14. Meaning of the word ''sufficient' is ''adequate' or ''enough', inasmuch as may be necessary to answer the purpose intended. The words ''sufficient cause' mean that the parties should not have acted in a negligent manner or there was a want of bona fide on his part in view of the facts and circumstances of a case or it cannot be alleged that the party has not acted diligently or remained inactive. The applicant must satisfy the Court that he was prevented by any "sufficient cause" from prosecuting his case, and unless a satisfactory explanation is furnished, the Court cannot allow the application for condonation of delay. The court has to examine whether the mistake is bona fide or was merely a device to cover an ulterior purpose. The expression "sufficient cause" should normally be given a liberal interpretation to ensure that substantial justice is done, but only so long as negligence, inaction or lack of bona fides cannot be imputed to the party concerned. Whether or not sufficient cause has been furnished, can be decided on the facts of a particular case and no straitjacket formula is possible. 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. 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 "dura lex sed lex" which means "the law is hard but it is the law", stands attracted in such a situation.
15. Where a case has been presented as in the present appeals; in the court beyond limitation, the applicant has to explain the court as to what was the ''sufficient cause' which means "adequate and enough reason" which prevented him to approach the court within limitation. In case a party is found to be negligent, or for want of bonafide on his part in the facts and circumstances of the case, or found to have not acted diligently or remained inactive, there cannot be a justified ground to condone the delay. In such circumstances, no court could be justified in condoning an inordinate delay by imposing any condition whatsoever.
16. In the case of Basawaraj and another Vs. Special Land Acquisition Officer, (2013) 14 SCC 81, Hon'ble Supreme Court considered the order of the High Court and rejected the application for condonation of delay of five and a half years in filing an appeal under Section 54 of the Act before the High Court on the ground of illness of one of the appellant and after referring to the judgments in the case of Manindra Land and Building Corporation Ltd. v. Bhootnath Banerjee & Ors., AIR 1964 SC 1336; Lala Matadin v. A. Narayanan, AIR 1970 SC 1953; Parimal v. Veena @ Bharti (2011) 3 SCC 545, and Maniben Devraj Shah v. Municipal Corporation of Brihan Mumbai (2012) 5 SCC 157, Arjun Singh v. Mohindra Kumar, AIR 1964 SC 993, Madanlal v. Shyamlal, (2002) (1) SCC 535; and Ram Nath Sao v. Gobardhan Sao & Ors., (2002) 3 SCC 195, Popat and Kotecha Property v. State Bank of India Staff Assn. (2005) 7 SCC 510; Rajendar Singh & Ors. v. Santa Singh & Ors., (1973) 2 SCC 705, Pundlik Jalam Patil v. Executive Engineer, Jalgaon Medium Project, (2008) 17 SCC 448, upheld the judgment of the High Court and dismissed the Civil Appeal observing in paras-14 & 15 as under:
"14. In P. Ramachandra Rao v. State of Karnataka, (2002) 4 SCC 578, this Court held that judicially engrafting principles of limitation amounts to legislating and would fly in the face of law laid down by the Constitution Bench in Abdul Rehman Antulay v. R.S. Nayak, (1992) 1 SCC 225.
15. The law on the issue can be summarised to the effect that where a case has been presented in the court beyond limitation, the applicant has to explain the court as to what was the "sufficient cause" which means an adequate and enough reason which prevented him to approach the court within limitation. In case a party is found to be negligent, or for want of bonafide on his part in the facts and circumstances of the case, or found to have not acted diligently or remained inactive, there cannot be a justified ground to condone the delay. No court could be justified in condoning such an inordinate delay by imposing any condition whatsoever. The application is to be decided only within the parameters laid down by this court in regard to the condonation of delay. In case there was no sufficient cause to prevent a litigant to approach the court on time condoning the delay without any justification, putting any condition whatsoever, amounts to passing an order in violation of the statutory provisions and it tantamounts to showing utter disregard to the legislature."
17. In the case of Brijesh Kumar and others Vs. State of Haryana and others, 2014 (11) SCC 351, a claimant/ tenure holder filed S.L.P. challenging the order of the High Court refusing to condone the delay of ten years and two months and 29 days in filing the appeal by the claimant under Section 54 of the Act in spite of the fact that other persons who had preferred appeals in time had been given a higher compensation. Hon'ble Supreme Court referred to various judgments and held as under:
"11. It is also a well settled principle of law that if some person has taken a relief approaching the Court just or immediately after the cause of action had arisen, other persons cannot take benefit thereof approaching the court at a belated stage for the reason that they cannot be permitted to take the impetus of the order passed at the behest of some diligent person.
15. In the instant case, after considering the facts and circumstances and the reasons for inordinate delay of 10 years 2 months and 29 days, the High Court did not find sufficient grounds to condone the delay.
16. In view of the facts of the case and the above-cited judgments, we do not find any fault with the impugned judgment (Brijesh Kumar v. State of Haryana, RFA No.5793 of 2012, decided on 22.11.2013). The petitions lack merit and are accordingly dismissed."
(Emphasis supplied by me)
18. In the case of Jagdish Lal Vs. State of Haryana, 1997 (6) SCC 538, Hon'ble Supreme Court held has under:
"18. ................................. Suffice it to state that the appellants kept sleeping over their rights for long and elected to wake up when they had the impetus from Union of India Vs. Virpal Singh Chauhan (1995) 6 SCC 684 and Ajit Singh's (1996) 2 SCC 715) ratios. But Vir Pal Chauhan and Sabharwal's [R.K. Sabharwal Vs. State of Punjab, (1995) 2 SCC 745] cases, kept at rest the promotion already made by that date, and declared them as valid; they were limited to the question of future promotions given by applying the rule of reservation, to all the persons prior to the date of judgment in Sabharwal's case, which required to examined in the light of the law laid in Sabharwal's case. Thus earlier promotions cannot be reopened. Only those cases arising after that date would be examined in the light of the law laid down in Sabharwal case Vir Pal Chauhan case and equally Ajit Singh case. If the candidate has already been further promoted to the higher echelons of service, his seniority is not open to be reviewed. In A.B.S. Karamchari Sangh [(1996) 6 SCC 65] case, a Bench of two Judges to which two of us, K. Ramaswamy and G.B. Pattanik, JJ. were members, had reiterated the above view and it was also held that all the prior promotions are not open to judicial review. In Chander Pal & Ors. v. State of Haryana, (1997) 10 SCC 474, a Bench of two judges consisting of S.C. Agrawal and G.T. Nanavati, JJ. considered the effect of Vir Pal Chauhan, Ajit Singh, Sabharwal and A.B.S Karmachari Sangh cases and held that the seniority of those respondents who had already retired or promoted to higher posts could not be disturbed. The seniority of the petitioner therein and the respondents who were holding the post in the same level or in the same cadre would be adjusted keeping in view the ratio in Vir Pal Chauhan and Ajit Singh's cases; but promotion, if any, had been given to any of them during the pendency of this writ petition, was directed not to be disturbed. Therein, the candidates appointed on the basis of economic backwardness, social status or occupation etc. were eligible for appointment against the post reserved for backward classes if their income did not exceed Rs. 18,000/- per annum and they were given accelerated promotions on the basis of reservation. In that backdrop, the above directions came to be issued. In fact, it did not touch upon Article 16(4) or 16(4-A). Therefore, desperate attempts of the appellants to redo the seniority had by them in various cadres/grades though in the same services according to the 1974 Rules or 1980 Rules, are not amenable to judicial review at this belated stage. The High Court, therefore, has rightly dismissed the writ petition on the ground of delay as well."
(Emphasis supplied by me)
19. In Rup Diamonds Vs. Union of India, 1989 (2) SCC 356, Hon'ble Supreme Court considered a case where the petitioner wanted to get the relief on the basis of the judgment in another case wherein a particular law had been declared ultravires. Hon'ble Supreme Court rejected the petition on the ground of delay and latches observing as under:
"8. ........ there is one more ground which basically sets the present case apart. Petitioners are re-agitating claims which they had not pursued for several years. Petitioners were not vigilant but were content to be dormant and chose to sit on the fence till somebody else's case came to be decided......................"
(Emphasis supplied by me)
20. In the Constitution Bench judgment in Union Of India & Anr vs Raghubir Singh (Dead) By Lrs. Etc, 1989 (2) SCC 754 (paras-8, 9 & 28), Hon'ble Supreme Court considered the doctrine of binding precedent and held as under:
"8. Taking note of the hierarchical character of the judicial system in India, it is of paramount importance that the law declared by this Court should be certain, clear and consistent. It is commonly known that most decisions of the courts are of significance not merely because they constitute an adjudication on the rights of the parties and resolve the dispute between them, but also because in doing so they embody a declaration of law operating as a binding principle in future cases. In this latter aspect lies their particular value in developing the jurisprudence of the law.
9. The doctrine of binding precedent has the merit of promoting a certainty and consistency in judicial decisions, and enables an organic development of the law, besides providing assurance to the individual as to the consequence of transactions forming part of his daily affairs. And, therefore, the need for a clear and consistent enunciation of legal principle in the decisions of a Court.
28. We are of opinion that a pronouncement of law by a Division Bench of this Court is binding on a Division Bench of the same or a smaller number of Judges, and in order that such decision be binding, it is not necessary that it should be a decision rendered by the Full Court or a Constitution Bench of the Court. We would, however, like to think that for the purpose of imparting certainty and endowing due authority decisions of this Court in the future should be rendered by Division Benches of at least three Judges unless, for compelling reasons, that is not conveniently possible."
(Emphasis supplied by me)
21. From the above discussion, it is clear that in the case of Brijesh Kumar and others (supra), Hon'ble Supreme Court has stated the law that if some person has taken a relief approaching the court just or immediately after the cause of action had arisen, other person cannot take benefit thereof approaching the court at a belated stage for the reason that they cannot be permitted to take impetus of the order passed at the behest of some diligent person. This principle of law is a judicially en-grafted principle and is binding in view of the law laid down by Hon'ble Supreme Court in the case of Basawaraj and another (supra) and the Constitution Bench judgment in the case of Union of India and another Vs. Raghubir Singh (dead) by LRs (supra). This squarely concludes the question No.(i). Therefore, the appellants cannot be permitted to take impetus of the judgment passed at the behest of some diligent person. The first appeals filed by the appellants after an inordinate delay of about 28 years on the ground of some judgment of the High Court awarding higher compensation, are not entertainable. Thus question No.(i) is answered accordingly.
22. Question No.(ii) Whether under the facts and circumstances of the case, there is sufficient cause to condone the delay of about 28 years in filing the appeals?
23. I have already extracted the affidavit filed in support of application for leave to appeal and the affidavit filed in support of the delay condonation application in the leading first appeal, which both are identical in all the appeals. In all the first appeals, the deponent is one Subhash Chandra @ Subhash Bhati, aged about 26 years, who has alleged himself to be the pairokar of the appellants and has sworn all the paragraphs of both the affidavits to his personal knowledge. The aforesaid deponent appears to be an outsider. In the first appeals at Serial Nos.1, 2 & 3, 10-12 persons each are the appellants while in the appeal at Serial No.4, the appellants are 22 in number. Thus, the total number of appellants in all the four appeals are about 50-52 but the affidavits accompanying the appeals and the applications have been filed by the aforesaid Subhash Chandra @ Subhash Bhati, who is neither one of the appellants nor related to the appellants as there is no averment in the affidavits. That apart, as per affidavit he is 26 years of age but has made the statement of facts on his personal knowledge for events even before his birth. Reference in this regard may be had to paragraph-2 of the affidavit accompanying the application for leave to appeal in which he stated on his personal knowledge that the original tenure holders could not file the appeal in the Hon'ble High Court against the judgment and the decree dated 06.02.1988. In paragraph-3 of the said affidavit, he stated that the legal heirs of the deceased tenure holders have been advised to file appeal in the High Court against the award dated 06.02.1988 but it has not been disclosed that who has advised them?
24. In paragraph-3 of the affidavit accompanying the delay condonation application, the aforesaid deponent (Subhash Chandra) stated that the agricultural lands of the appellants were acquired in the year 1979 for construction of a Nala by NOIDA Authority. This paragraph has been sworn on personal knowledge while as per his own showing the birth year of the deponent of the affidavit would be approximately the year 1990. In paragraph-4 of the aforesaid affidavit, it is stated that the appellants are poor and illiterate farmers and, therefore, they were not in a position to file the appeal against the award of the District Judge. In paragraph-5, it is alleged that the financial condition of the appellants were very serious and they were not in a position to pay the court fees. In paragraph-6, it is stated that the appellants were not having any source of income and totally dependent upon the agricultural lands which were acquired by the State Government. These are vague averments which have been sworn on personal knowledge by the deponent of the affidavit, who was not even born when the original tenure holders were alleged to be illiterate, facing financial problem and had no source of income except the agricultural land which was acquired. No document whatsoever has been filed along with the affidavit in support of these averments. In the same manner, averments have been made in paragraphs-7 & 8 of the affidavit that the State Government filed appeal in the High Court and appeals of NOIDA were finally dismissed by the High Court vide judgment dated 09.10.2014 and, thereafter, the appellants received the balance amount of compensation. The averments so made are totally vague and misleading in the absence of disclosure of any particulars of any first appeal filed by the State Government or the NOIDA against the impugned judgment. Paragraph-10 of the affidavit, really reflects the whole story behind filing of these appeals beyond limitation by more than 27 years as inasmuch as after the original tenure holders have died (as appears from the array of the parties) whose dates of death are unknown, the present appellants (total 52 in number in these four first appeals) have filed these appeals for compensation @ Rs.297/- square yard allegedly on the basis of some judgment of the High Court determining compensation. Even particulars of that judgment and the acquisition involved, have not been disclosed in the affidavits. In the grounds No.(iv), (v) & (vi) of the grounds of appeal, reference of judgments in two first appeals namely First Appeal No.1056 of 1999 relating to acquisition of land of village Bhangel Begumpur and First Appeal No.564 of 1997 relating to acquisition of land of village Nagla Charandas, Gejha Tilpatabad and Chhalera Bangar, have been given, which are made basis for filing these appeals to claim compensation @ Rs.297/- per square yard while the acquisition in question was made much earlier in the year 1979 and that too of a land of a different village, i.e. village Shahadara, Teshil Dadri. Thus, entire averments in the affidavit accompanying the delay condonation application are totally misleading and the appeals have been filed non-bonafidely by unscrupulous persons. It is abuse of process of court.
25. The affidavits do not disclose "sufficient cause" indicating an adequate and enough reason which prevented the appellants to approach the court within limitation. In any case, the appellants were totally negligent and not bona fide and remained inactive for about 27-28 years and, therefore, it is not justified to condone such an inordinate delay. In fact the attempt of the appellants in filing these appeals is a device to cover an ulterior purpose which itself is reflected from the facts as noted above. The argument of learned counsel for the appellants that in the facts of the case, the concept of liberal approach should be adopted, deserves to be rejected inasmuch as the concept of liberal approach has to encapsulate the concept of reasonableness and it cannot be allowed to an unfettered free play. The conduct, behaviour and attitude of the appellants relating to their inaction, negligence, lack of bonafides as has been discussed in detail above; dis-entitles them for condonation of inordinate delay of 27-28 years. In the case of Esha Bhattacharjee v. Raghunathpur Nafar Academy & Ors. (2013) 12 SCC 649, Hon'ble Supreme Court held that increasing tendency to perceive delay as a non-serious matter and, hence, lackadaisical propensity can be exhibited in a nonchalant manner requires to be curbed, of course, within legal parameters.
26. In any case, the appellants kept sleeping over their rights for more than 27 years and allegedly elected to wake up on the basis of some judgment of the High Court relating to a different acquisition and the village, and therefore, at this belated stage, the impugned judgment cannot be made amenable to judicial review. The appellants want to re-agitate the claims which they had not pursued for 27-28 years and remained dormant and not vigilant and, therefore, the inordinate delay of 27-28 years in filing the appeals without there being any sufficient cause, cannot be condoned.
27. In the case of Pundlik Jalam Patil v. Executive Engineer, Jalgaon Medium Project (supra), Hon'ble Supreme Court considered the order of the High Court condoning the delay of 1724 days in preferring an appeal by the State under Section 54 of the Act against the enhancement of compensation by the reference court and held as under:
"14. It is true that the power to condone the delay rests with the court in which the application was filed beyond time and decide whether there is sufficient cause for condoning the delay and ordinarily the superior court may not interfere with such discretion even if some error is to be found in the discretion so exercised by the court but where there is no sufficient cause for condoning the delay but the delay was condoned, it is a case of discretion not being exercised judicially and the order becomes vulnerable and susceptible for its correction by the superior court. The High Court having found that the respondent in its application made incorrect submission that it had no knowledge of the award passed by the Reference Court ought to have refused to exercise its discretion. The High Court exercised its discretion on wrong principles. In that view of the matter we cannot sustain the exercise of discretion in the manner done by the High Court.
15. Whether the respondent had satisfied the court that it had sufficient cause for not preferring the appeals within the prescribed time? Section 5 of the Limitation Act provides for extension of prescribed period of limitation in certain cases and confers jurisdiction upon the court to admit any application or any appeal after the prescribed period if it is satisfied that the appellant or the applicant had sufficient cause for not preferring such appeal or application within the prescribed period.
20. The respondent beneficiary of the acquisition did not initiate any steps whatsoever before the expiry of limitation and no circumstances are placed before the court that steps were taken to file appeals but it was not possible to file the appeals within time.
23. On the facts and in the circumstances, we are of the opinion that the respondent beneficiary was not diligent in availing the remedy of appeal. The averments made in the application seeking condonation of delay in filing appeals do not show any acceptable cause much less sufficient cause to exercise courts' discretion in its favour.
24. Learned senior counsel for the respondent also placed reliance upon the decision of this court in Union of India vs. Sube Ram and others [(1997) 9 SCC 69]. This court condoned delay of 3379 days in preferring the appeals by Special Leave. The said decision is mostly confined to the facts of that case and does not lay down any law as such requiring us to make any further analysis of the judgment.
29. It needs no restatement at our hands that the object for fixing time limit for litigation is based on public policy fixing a life span for legal remedy for the purpose of general welfare. They are meant to see that the parties do not resort to dilatory tactics but avail their legal remedies promptly. Salmond in his jurisprudence states that the laws come to the assistance of the vigilant and not of the sleepy.
(Emphasis supplied by me)"
28. In the case of Simrat Kaur and others Vs. State of Haryana and others, (2015) 13 SCC 563 (paras-10, 11 & 12), Hon'ble Supreme Court referred to its judgments in the case of Mewa Ram Vs. State of Haryana, (1986) 4 SCC 151, State of Nagaland vs Lipokao and others, (2005) 3 SCC 752, D. Gopnathan Pillai Vs. State of Kerla, (2007) 2 SCC 322 and observed as under:
"Hon'ble the Supreme Court opined that when mandatory provision is not complied and the delay is not properly, satisfactorily and convincingly explained, the Court cannot condone the delay on sympathetic ground only."
29. In view of the above discussion, I find that the judgments relied by the learned counsel for the appellants are of no help to the appellants.
30. For the reasons stated above, I am of the view that the delay condonation applications deserve to be rejected. The question No.(ii) is answered accordingly.
31. In view of the aforesaid, the application for leave to appeal and the application for condonation of delay in each of the afore-noted four first appeals are rejected.
32. Consequently, First Appeal Defective No.126 of 2016, First Appeal Defective No.127 of 2016, First Appeal Defective No.128 of 2016 and First Appeal Defective No.129 of 2016, also stand dismissed with cost of Rs.5000/- on each of the appellants (except dead) in each appeal, which shall be deposited by them within one month from today with the Legal Cell Authority, High Court, Allahabad.
Order Date :- 09.12.2016 NLY