1. Heard learned counsel for the appellant and learned counsel for th respondent and perused the record.
2. This second appeal has been preferred by defendant appellant U.P.State Industrial Development Corporation Ltd. ( hereinafter referred to as the UPSIDC against Salek Chand (deceased) and others.. plaintiff respondent under section 100 C.P.C. against the judgment and order dated 20.5.2011 passed by the Additional District Judge, Court No.4 Ghaziabad in Civil Appeal no. 124 of 1990, UPSIDC Versus Salek Chand and others whereby the court below rejected the delay condonation application paper No. C-35 and held that Civil Appeal No. 124/90 stood abated.
3. Original Suit No. 1273 /88 was instituted by the plaintiff respondent Salek Chand against the defendant appellant for a Relief of permanent prohibitory injunction. Case of the plaintff is that he is owner in possession of the Khata Khtauni no.161, Khasra 1603 area 1 Bigha 2 biswas pakka situate in village Rajapur pergana Dasna, Tehsil and district Ghaziabad. He had purchased the said land on 25.8.59. Defendant appellant had no right, title and interest therein. Neither the said land was ever acquired nor any award was made. The plaintiff did not get any compensation therefor.
4. Defendant appellant filed W.S. and pleaded that plaintiff is not owner in possession of the said property. Vide Notification No. 4032 (III)E-P/XVIII-R. 271-H/62 dated 1.11.1962 published in the extra-ordinary Gazette of State of U.P. the said land has been acquired and since then the plaintiff ceased to have any right, title and interest and the formal possession of the land in suit has been taken by the defendant appellant. Since 26.3.1963 defendant is in possession over the land in suit and it is wrong to say that the said property has not been acquired.
5. Five Issues were framed by the learned trial court on the basis of the pleadings of the parties.
6. Issue no.1 was framed to the effect that whether plaintiff is the owner in possession of disputed plot khasra no.1603/1-2-0 and Issue no.2 was framed to the effect that whether the disputed land has been acquired by defendant and defendant is in possession thereon.
7. Parties adduced oral as well a documentary evidence.
8. Leaned trial court decided Issue no.1 in affirmative and Issue no.2 in negative and held that no award was ever made under section 11-A of Land Acquisition Act, 1894 and no compensation was ever paid to the plaintiff and therefore, the Notification issued for land acquisition has rendered ineffective. The trial court held that the plaintiff is still the owner in possession of the land in suit and vide judgment and decree dated 31.10.1990 decreed the plaintiff's suit and restrained the defendant appellant from interfering in the ownership and possession of the plaintiff in disputed land khasra no. 161/1603 area 1 bigha and 2 biswas.
9. Aggrieved by the aforesaid judgment and decree Civil Appeal No. 124/90 was filed by the defendant UPSIDC against Salek Chand plaintiff under section 96 of the C.P.C.
10. During the pendency of the aforesaid civil appeal Salek Chand plaintiff respondent died on 8.4.1992. After about 18 years on 4.3.2010 paper no. K-34 Amendment application/substitution application was filed along with delay condonation application C-35 under section 5 of the Indian Limitation Act supported by C-36 affidavit wherein UPSIDC stated that it could know the death of sole respondent only on 26.5.2009 and not before that and after 26.5.2009 they collected information of the heirs of the deceased and filed the aforesaid application on 4.3.2010.
11. Opposite parties filed objection by making averments that appellant UPSIDC had filed false affidavit knowingly, intentionally and deliberately and therefore, it cannot be given the benefit of section 5 of Limitation Act because it had come to know the information of the death of the sole respondent on 16.4.1993 as is apparent from the appellant's letter no.15115/ SIDC/ RS/Allahabad dated 16.4.1993 which reveals that having come to know, the Executive Officer of UPSIDC had written that letter to the General Manager Law and Senior Land Acquisition Officer informing the date of death of plaintiff Salek Chand who was sole respondent in Civil Appeal No. 124/90. In the said letter the aforesaid General Manager was directed to move substitution application after making inquiry about the legal heirs of the deceased. The said letter is paper no.C-44/3 on record. Be it known that the aforesaid information of the date of death of the sole respondent was given to executive officer by the legal representatives of Salek Chand, deceased.
12. The appellate court having heard the learned counsel for the parties held that the grounds taken in the application under section 5 of the Limitation Act and affidavit C-36 filed by UPSIDC is a bundle of lie and accordingly dismissed the delay condonation application C-35 made by the defendant appellant .
13.Feeling aggrieved this second appeal has been preferred by the defendant appellant UPSIDC.
14. Learned counsel for the defendant appellant has argued that the carelessness and indifference of the officer of UPSIDC are to be ignored and the court should make its endeavour best to adjudicate the lis in between the parties on merit and not to shut the opportunity of hearing or of its decision on merit by rejecting delay condonation application. He further submitted that the UPSIDC could get the information of the death of the sole respondent only on 26.5.2009 and after making queries about the proper legal heirs of the deceased plaintiff respondent substitution application was made on 4.3.2010 and therefore, from the date of knowledge as stated above the said application was well within the time and the learned lower appellate court erred in not appreciating the ground taken for the condonation of delay causing injustice to the appellant. To strengthen his submission he relied on the following case law :-
State of J&K and others Versus Mohmad Maqbool Sofi and others AIR 2010 SC 1445; Ganga Dhar and others Vs. Shri Raj Kumar AIR 1983 SC 1202 and Ishwari Vs. Deputy Director of Consolidation 1990 ACJ 117 wherein the delay of 4 months, one year and 2 year respectively were condoned.
15. On the other hand learned counsel for the plaintiff respondent has repelled the submissions made by the learned counsel for the defendant appellant and argued that defendant appellant had not come with clean hands, rather it had deliberately, intentionally and knowingly tried to defraud and mislead the court by swearing false affidavit C-36. In fact the legal representatives of sole plaintiff respondent Salek Chand themselves have given information in writing to the Executive Officer of UPSIDC informing the date of death (8.4.1992) of the deceased whereupon the said Executive Officer wrote a letter to General Manager Law and Senior Land Acquisition Officer informing the aforesaid date of death as is apparent from paper no. C-44/3, the correspondence letter dated 16.4.1993 of the appellant itself but on one hand the defendant turned a deaf ear to it and on the other hand filed a false affidavit C-36 before the first appellate court deposing completely wrong fact that the department could know the death of sole respondent only on 26.5.2009. Therefore, according to him it is not the case wherein a reasonable delay occurred in making substitution application rather it is a case where the defendant appellant has conceded material fact and practiced fraud by taking resort of false swearing of fact in the affidavit filed in support of delay condonation application. The delay in this case is not reasonable rather it is exorbitant for about 18 years from the date of knowledge in a case where the so called land acquisition proceeding has rendered infructuous and ineffective for want of any award made within two years from the alleged date of Notification in view of the provisions contained under section 11-A of the Land Acquisition Act, 1894. He has relied on an order dated 20.5.2009 passed by the Hon'ble Supreme Court in Civil Appeal No. 1455/2004 UPSIDC Vs. Hem Chand wherein the Hon'ble Supreme Court refused to condone the delay of 968 days in making the substitution application. The aforesaid order has been referred to in the impugned order dated 20.5.2011 passed by first appellate court. He submitted that even in filing the second appeal there had been a delay of about 10 months, but the respondent himself requested the court to condone the delay caused in filing the second appeal and hear the appeal on the point of admission which has no leg to stand. Considering the submission of the respondent the delay was condoned. It reflects that defendant appellant is negligent throughout and appears to have crossed the limit and ultimately took the resort of false swearing of affidavit to move the court to exercise its discretion in favour of undeserving defendant appellant to condone an unexplained delay for 18 years.
16. I have carefully gone through the facts and circumstances of the case and the findings arrived at by the learned appellate court while rejecting the delay condonation application.
17. Section 11A of the Land Acquisition Act, 1894 reads as under :-
"11A Period within which an award shall be made.--(1) The Collector shall make an award under section 11 within a period of two years from the date of the publication of the declaration and if no award is made within that period, the entire proceedings for the acquisition of the land shall lapse:
Provided that in a case where the said declaration has been published before the commencement of the Land Acquisition (Amendment) Act, 1984, the award shall be made within a period of two years from such commencement......................................."
18. In Civil Appeal State of Haryana, appellant vs. Chandra Mani and others, respondent AIR 1996 SC 1623 , the Hon'ble Supreme Court, while condoning the delay of 109 days, has thrown light, on the issue of delay condonation, in para 10 of the judgment which reads as under :-
"10. It is notorious and common knowledge that delay in more than 60 per cent of the cases filed in this Court--be it by private party or the State--are barred by limitation and this Court generally adopts liberal approach in condonation of delay finding somewhat sufficient cause to decide the appeal on merits. It is equally common knowledge that litigants including the State are accorded the same treatment and the law is administered in an even-handed manner. When the State is an applicant, praying for condonation of delay. It is common knowledge that on account of impersonal machinery and the inherited bureaucratic methodology imbued with the note-making, file-pushing, and passing-on-the-buck ethos, delay on the part of the State is less difficult to understand though more difficult to approve, but the State represents collective cause of the community. It is axiomatic that decisions are taken by officer/agencies proverbially at slow pace and encumbered process of pushing the files from table to table and keeping it on table for considerable time causing delay ---intentional or otherwise -is a routine. Considerable delay of procedural red tape in the process of their making decision is a common feature. Therefore, certain amount of latitude is not impermissible. If the appeals brought by the State are lost for such default no person is individually affected but what in the ultimate analysis suffers, is public interest. The expression "sufficient cause" should, therefore, be considered with pragmatism in justice-oriented approach rather than the technical detection of sufficient cause for explaining every day's delay. The factors which are peculiar to and characteristic of the functioning of the Governmental conditions would be cognizant to and require adoption of pragmatic approach in justice-oriented process. The Court should decide the matters on merits unless the case is hopelessly without merit. No separate standards to determine the cause laid by the State vis-a-vis private litigant could be laid to prove strict standards of sufficient cause. The Government at appropriate level should constitute legal cells to examine the cases whether any legal principles are involved for decision by the Courts or whether cases require adjustment and should authorise the officers take a decision or give appropriate permission for settlement. In the event of decision to file appeal needed prompt action should be pursued by the officer responsible to file the appeal and he should be made personally responsible for lapses, if any. Equally, the State cannot be put on the same footing as an individual. The individual would always be quick in taking the decision whether he would pursue the remedy by way of an appeal or application since he is a person legally injured while State is an impersonal machinery working through its officers or servants. Considered from the perspective, it must be held that the delay of 109 days in this case has been explained and that it is a fit case for condonation of the delay."
19. I have given my conscious judicial thought over the issue involved in this second appeal before this Court. In the aforesaid judgment the Hon'ble Supreme Court has made it clear that the court should decide the matter on merits unless the case is hopelessly without merit. As pointed out earlier there is no evidence on record to show that any award within 2 years was made or compensation was given to plaintiff/respondent subsequent to the notification of acquisition of his land therefore, there was violation of the provision of Section 11-A of the Land Acquisition Act, 1894. Hence the said Notification of acquisition of land has rendered ineffective. The entire proceedings of acquisition has already lapsed. Consequently there does not appear any error on the part of the learned trial court who had observed that the plaintiff respondent is still the owner in possession of the land in suit. More than 42 years have already elapsed after the notification of land acquisition in question and no compensation has been received to the plaintiff nor any award has been made so far. The purpose of acquisition must have failed. Plaintiff is still in possession throughout. The suit filed for permanent prohibitory injunction was decided by the trial court on 31.10.1990. Feeling aggrieved Civil Appeal No. 124/90 was filed by defendant/appellant under section 96 of the Code of Civil Procedure in the year 1990. Sole plaintiff/respondent Salek Chand died on 08.04.1992. The information of death was communicated to the appellant department in 1993 as stated above but substitution application 34-C was filed after 18 years on 04.3.2010 along with delay condonation application. The application for condonation of delay paper no. C-35 supported by affidavit C-36 was filed on wrong and false grounds that they were unaware of the date of death of the deceased plaintiff upto 26.5.2009. There is clear and categorical finding of the appellate court in the order impugned that defendant appellant is telling lie and the finding arrived at by the appellate court is based on the document of the defendant appellant itself which has no courage to challenge the aforesaid false swearing of the affidavit. The learned counsel for the appellant did not say before this Court that the department was not informed about the death of plaintiff in the year 1993. To my mind appellant cannot be given such a latitude in condoning the delay of 18 years at the cost of poor citizen of India who is contesting the suit throughout since 1988. The false swearing of the affidavit by the appellant tells heavily against it and the discretion of the court cannot be exercised in its favour for want of good and satisfactory reason to explain the delay.
20. There is no perversity or legal flaw in the order of the appellate court. The case of the defendant appellant is hopeless. There does not appear any least chance for its success.
21. There is no substantial question of law involved in the second appeal. Hence it stands dismissed at the admission stage itself.
Dated: 20.12.2012 Sh