(Per : HONOURABLE MR.JUSTICE JAYANT PATEL) All the applications are for condonation of delay in preferring appeals against the judgment and award passed by the reference court which is impugned in the concerned first appeal.
The private respondents are served. None appears on their behalf. Ms.Sejal Bhatt appears for Trivedi & Gupta for respondent Gujarat Water Supply and Sewerage Board.
As such, the present applications are the part of the group of Civil Application No.11572/09 and allied matters which came to be disposed of by this Court vide order dated 18.08.2010 and the delay was condoned on payment of the cost as mentioned in the order. However, since the concerned original claimant had expired and the legal heirs were not impleaded as party in the present applications, they were not considered simultaneously.
We may record that in the similar matters in Civil Application Nos.11572/09 and allied applications, this Court vide order dated 18.08.2010 had passed the following order-
"1.
It has been stated by MR. Vishal Mehta for Mr. Shashtri for the applicant that opponent No.1 is reported as expired, but her legal heir Vasantiben wd/o Kuberbhai Lunabhai Mali are there on record.
2. As opponent No.1 has expired and the other legal heirs are already there as respondent Nos.1/2 to 1/5, no further action may be required.
3. Considering the above, we find that respondent Nos.1/2 to 1/5 can also be described as the legal heirs of deceased Vasantiben wd/o Kuberbhai Lunabhai Mali. Hence, further action of joining legal heirs would not be required.
4. Present application is for condonation of delay of 1352 days in preferring the first appeal against the judgment and order of the Reference Court dated 9.9.2004 in the respective Land Reference Cases.
5. As such, the present application is forming part of the group of Civil Application Nos.11557 of 2009 in First Appeal (Stamp) No.2757 of 2008 and allied matters, which came to be disposed of by this Court vide order dated 7.7.2010. However, at the relevant point of time, since it was reported that some of the parties had expired, position of the legal heirs was not clarified, therefore, the present application was separated. Today, the position is clarified. Hence, present application is considered further.
6. It may be recorded that this Court in the above referred matter vide order dated 7.7.2010 had passed the following order.
"1. All the applications are for condonation of delay of 1352 days in preferring the respective First Appeals against the concerned judgment and order of the Reference Court dated 9-9-2004 in the respective Land Reference Cases.
2. We have heard Mr.Shastri,learned counsel appearing for the applicant. Mr.Mehul Shah who is appearing for the respective claimants in the respective applications, has no objection if the delay is condoned on the terms and conditions as it may be found proper by the Court. Mr.Naik for M/s.Trivedi and Gupta has also no objection if the delay is condoned. The other respondents are served but they have not appeared.
3. So far as Civil Application No.11571 of 2009 is concerned, Mr.Siraj Gori for Mr.Amar D.Mithani, has made submissions, which shall be considered herein-after, for resisting the application for condonation of delay.
4. It is an admitted position that the very judgment and the order of the Reference Court in the present group of matters is subject matter of the appeal being First Appeal Nos.5155 of 2007 to 5170 of 2007 preferred by Gujarat Water Supply and Sewerage Board before this Court and it is also an admitted position that all such appeals are admitted by this Court(Coram:R.P.Dholakia and K.S.Jhaveri,JJ) vide order dated 7-2-2008 and the appeals are awaiting final hearing. Therefore, when against the very judgment the other appeals are admitted by this Court and awaiting final hearing, there would be a case to be considered on merits in the appeals.
5. However, learned counsel appearing for one of the claimants Mr.Siraj Gori for Mr.Mithani contended that in view of the position as was prevailing at the time when the interim application in the aforesaid appeals being First Appeal Nos.5155 of 2007 to 5170 of 2007 were considered by this court, it can be said that the applicants herein have woken up from the slumber and there is a callous approach on the part of the applicant in not pursuing the matter well in time. He also drew our attention to the observations made by this court in the order dated 7-2-2008 in Civil Application Nos.14342 of 2007 to 14357 of 2007 and contended that at the relevant point of time a declaration was made on behalf of the applicant-appellant Municipality,who was respondent in the said proceedings that they have accepted the judgment and order of the Court below and not only that but this court in the said order granted stay against the execution and the implementation of the judgment and award of the Reference Court expressly in favour of the Gujarat Water Supply and Sewerage Board-the appellant therein only and not against Dahod Municipality,who is applicant-appellant herein. He,therefore, contented that the present applications for condonation of delay do not deserve to be entertained or in any case may not be granted by this court. He submitted that the aforesaid orders are passed on 7-2-2008 whereas the present appeals are preferred on 28-8-2008, therefore, also there is delay in preferring the appeals on the part of the applicant-Municipality, which has not been sufficiently explained. He submitted that if the party having known about the judgment and the order and kept silent for a long time, it is not open for such party to prefer the appeal at any time and to pray for condonation of delay and, therefore,the application for condonation of delay deserves to be rejected, at least qua his client,who is original claimant in the proceedings of Civil Application No.11571 of 2009.
6. It appears to us that if the delay is not condoned anomalous situation would arise inasmuch as some of the original claimants have agreed for condonation of delay and, therefore, the very common judgment and the order would remain under judicial scrutiny qua them whereas for the claimants herein,who has resisted the condonation of delay, different situation would prevail. The same is coupled with the strong circumstances that the First Appeal Nos.5155 of 2007 to 5170 of 2007 preferred by Gujarat Water Supply and Sewerage Board arise against the very judgment and the award of the Reference Court qua the respondents-claimants and those appeals are admitted and are to be finally heard. Therefore, if the delay is not condoned in the present First Appeals the consequence may arise for dismissal of the First Appeals qua the applicant - appellant herein whereas it will have to be examined in the First Appeals which are already preferred by the aforesaid Board and admitted by this Court.
7. In view of the aforesaid peculiar circumstances, we find that when the First Appeals against the very judgment and the award of the Reference Court are already admitted,though might have been preferred by the Board or other parties to the proceedings, it would be just and proper to take the lenient view in the matter of condonation of delay since on merits there would be a case to be considered in the respective First appeals.
8. The contention that the observations were made at the relevant point of time based on the statement of the learned counsel who represented the Municipality,cannot be made a valid base for declining the condonation of delay and the reason being that as per the applicant since the execution was permitted against the Municipality vide the aforesaid order passed in the Appeals preferred by the Board, it has necessitated the appellant herein to prefer the appeals. There is no Resolution of the Municipality placed on record for taking decision to accept the judgment and award of the Reference Court. Under the circumstances, it is not possible to conclude at this stage in the matter of condonation of delay that the General Body of the Municipality had resolved for accepting the decision. Be it noted that the matter is at the stage of condonation of delay and the merits of the appeal is yet to be examined in the First Appeal.
9. It is well settled that even if the lenient view is taken on the aspect of condonation of delay, appropriate cost deserves to be imposed for compensating the delay to the opposite party.
10. In view of the aforesaid peculiar facts,as referred to herein above, we find that if the cost is imposed of Rs.1500/- to each claimant and Rs.500/- to the remaining respondents in each of the matter, the same would meet with the ends of justice.
11. Hence the delay of 1352 days in preferring the First Appeals against the judgment and the award of the Reference Court, which are impugned in the respective First Appeals, is condoned on condition that the applicant-appellant shall pay the cost of Rs.1500/- to the claimants in one set in each matter separately and further pay the cost of Rs.500/- to each of the other respondents, namely, State of Gujarat, Special Land Acquisition Officer and Gujarat Water Supply and Sewerage Board within a period of four weeks from today. It would also be open to the applicant to deposit the amount of cost with this Court within the aforesaid period and if such amount of cost is deposited, the concerned parties would be at liberty to withdraw the said amount. After the amount of cost is deposited, it would be open to applicant to move this Court for hearing of the Appeals.
12. Applications are allowed to the aforesaid extent. Rule is made absolute to the aforesaid extent No order as to costs."
7. Same situation would prevail in the present matter. Hence, it is ordered that delay of 1352 days in preferring the First Appeal against the judgment and the award of the Reference Court, which is impugned in the First Appeal, is condoned on condition that the applicant-appellant shall pay the cost of Rs.1500/- to the claimants in one set in each matter separately and further pay the cost of Rs.500/- to each of the other respondents, namely, State of Gujarat, Special Land Acquisition Officer and Gujarat Water Supply and Sewerage Board within a period of four weeks from today. It would also be open to the applicant to deposit the amount of cost with this Court within the aforesaid period and if such amount of cost is deposited, the concerned parties would be at liberty to withdraw the said amount. After the amount of cost is deposited, it would be open to applicant to move this Court for hearing of the Appeal.
8. Application is allowed to the aforesaid extent. Rule is made absolute to the aforesaid extent. No order as to costs."
Same view deserves to be taken in the present matter. Hence, it is ordered that delay in preferring the First Appeal against the judgment and the award of the Reference Court, which is impugned in the First Appeal, is condoned on condition that the applicant pays the cost of Rs.1500/- to the claimants in one set in each matter separately and further pay the cost of Rs.500/- to each of the other respondents, namely, State of Gujarat, Special Land Acquisition Officer and Gujarat Water Supply and Sewerage Board within a period of four weeks from today. It would also be open to the applicant to deposit the amount of cost with this Court within the aforesaid period and if such amount of cost is deposited, the concerned parties would be at liberty to withdraw the said amount. After the amount of cost is deposited, it would be open to applicant to move this Court for hearing of the Appeal.
Application is allowed to the aforesaid extent. Rule is made absolute to the aforesaid extent.
(JAYANT PATEL, J.) (C.L.
SONI, J.) *bjoy Top