Herbin Fernandez and Elizabeth Herbin v State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE & THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN TUESDAY, THE 11TH DAY OF JULY 2017/20TH ASHADHA, 1939 LA.App..No. 790 of 2013 () --------------------------- AGAINST THE JUDGMENT IN LAR 209/1998 of II ADDL.SUB COURT,THIRUVANANTHAPURAM DATED 20-08-2004 APPELLANT(S)/CLAIMANTS: ---------------------- 1. HERBIN FERNANDEZ, T.C. 44/694, VALIATHURAI, VALLAKKADAVU, THIRUVANANTHAPURAM. 2. ELIZABATH HERBIN, W/O. HERBIN FERNANDEZ, T.C. 44/694, VALIATHURAI, VALLAKKADAVU, THIRUVANANTHAPURAM.9 BY ADVS.SRI.G.S.REGHUNATH SRI.K.RAJESH KANNAN SRI.A.S.SHAMMY RAJ SRI.P.SHANES RESPONDENT/RESPONDENT: ---------------------- STATE OF KERALA, REPRESENTED BY SPECIAL TAHSILDAR, LA PWD (SC), THIRUVANANTHAPURAM 695001. R1 BY ADV. GOVERNMENT PLEADER SMT.RASHMI K.M. THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 11-07-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **A.M. SHAFFIQUE & ANU SIVARAMAN, JJ.** =========================== C.M.Appln.No.988 of 2013 in L.A.A.No.790 of 2013 & L.A.A.No.790 of 2013 ================== Dated this, the 11[th] day of July, 2017 ## **J U D G M E N T** ## _**Shaffique, J.**_ C.M.Appln.No.988/2013 is an application seeking to condone delay of 3083 days in filing the appeal. The appeal arises out of judgment dated 20/8/2004 in LAR No.209/98. In the affidavit filed in support of the above application, it is stated that 1[st] petitioner was laid up due to diabetes and arthritis for a long time from December 2005. He is a businessman who had suffered loss of business and financial problems. It is stated that the Advocate's clerk had informed him that a sum of `5,78,921/- was due to him as per the award passed by the lower court. First petitioner was taken to office by a relative and he had signed necessary papers believing that he will only get the amount received as compensation. Thereafter, it is stated that he met Mr.Gopinathan C.M.Appln.No.988 of 2013 in L.A.A.No.790 of 2013 & L.A.A.No.790 of 2013 -:2:- Nair whose wife's property was subject matter of LAR No.215/98 and LAR 289/98 (Ext.A5 in the judgment). He was informed that the compensation awarded is `9 lakhs per cent and he was also entitled to receive the said amount. He thereafter made enquiries and got information that in almost all the cases regarding the properties acquired on either side of the road, `9 lakhs has been fixed as market value. Hence, he raised necessary amount for filing the appeal and approached his lawyer who conducted LAA No.523/2012 for the claimants in LAR No.215/98 and thereafter the appeal is filed. According to him, there is no wilful default or neglect on his part in filing the appeal in time and since he has got a strong case, the delay has to be condoned. 2. Counter affidavit has been filed by the respondent opposing the above application. It is stated that the petitioners have received the entire amount awarded by the Court below and they had not taken any steps to prefer an appeal within a reasonable time. They were satisfied with the Award passed by the Reference Court and had come up by filing the appeal after C.M.Appln.No.988 of 2013 in L.A.A.No.790 of 2013 & L.A.A.No.790 of 2013 -:3:- such a long time on experimental basis. Therefore, the respondent sought for dismissal of the application. 3. Additional affidavit has been filed by the appellants wherein they had reiterated the averments raised in the earlier affidavit and had also stated that in 1973, the first appellant had undergone a surgical implant in his leg and the said injury seriously affected his movements for the last 10 years. He was unable to do any work and was totally dependent on his children even for livelihood. He was frequently hospitalized due to all such complications and physical disabilities and was practically bed ridden most of the time. 4. Learned counsel for the appellants placed reliance upon judgment of the Apex Court in Dhiraj Singh v. State of Haryana [(2014) 14 SCC 127] and also the judgment in Imrat Lal and Others v. Land Acquisition Collector [(2014) 14 SCC 133] in order to substantiate the contention that a liberal approach has to be taken as far as delay in land acquisition cases are concerned. It is contended that when in identical cases higher compensation C.M.Appln.No.988 of 2013 in L.A.A.No.790 of 2013 & L.A.A.No.790 of 2013 -:4:- had been granted, merely for the reason that there is delay in filing the appeal, the appellants should not be discriminated against others and therefore the appellants should also be given a chance to agitate their rights before the Appellate Court. He also placed reliance on the Division Bench judgment of this Court dated 3/1/2008 in LAA No.972/2004 and connected cases, which is a judgment with reference to the very same notification wherein land value had been fixed at `9 lakh per cent. It is therefore contended that when in identical cases enhancement was granted, delay in filing the appeal shall not be taken as a ground to reject the rightful claim of the appellants. 5. The question to be considered is whether sufficient reason had been stated to condone the delay. There is no dispute about the fact that when an application under Section 5 of the Limitation Act, 1963 is considered, the appellant will have to show sufficient reasons for condoning the delay. Of course, as held by the Supreme Court, the approach of the Court should be pragmatic and not pedantic. Whether there is sufficient cause or C.M.Appln.No.988 of 2013 in L.A.A.No.790 of 2013 & L.A.A.No.790 of 2013 -:5:- not is a matter to be considered on the facts and circumstances of each case. In land acquisition cases, it is trite that a liberal approach has to be taken in the matter. The question is whether such a gross delay can be condoned or not. In Dhiraj Singh's case (supra), the Apex Court was concerned with a question whether such gross delay can be condoned or not. In that case, the appellants contended that due to their financially weak condition, they could not file appeals before the Division Bench and thereafter coming to know about the judgment dated 27/7/2005, the appeals were filed. The High Court refused to condone the delay and appeals were dismissed. The Apex Court observed that there was long delay in filing the appeals. However, in para 10 and 11 of the judgment, it is indicated that the appellants are agriculturists and their contention was that they could not prefer the appeals because of their financially weak condition which has not been disputed by the respondents. Reference is made to an earlier judgment in Market Committee v. Krishan Murari [(1996) 1 SCC 311] where the delay was 3240 days in filing the appeal. In C.M.Appln.No.988 of 2013 in L.A.A.No.790 of 2013 & L.A.A.No.790 of 2013 -:6:- para 11, it is clearly indicated that in a matter of land acquisition, where land of peasants is acquired, a different approach has to be taken and they should not be deprived of a reasonable compensation for their lands. It is on the basis of the aforesaid factual background that the case had been decided. Further, the Apex Court at paras 14 and 15 held as under and finally disposed of the matter at para 16 which reads as under: _**“14.** The appellants are identically situated and there is no reason to meet out a different treatment to them. We also note that, while in these cases, the High Court had refused to condone the delay and dismissed the LPAs of the appellants, other LPAs were allowed by the High Court itself by condoning the delay of the same magnitude in the same circumstances._ _**15.** Equities can be balanced by denying the appellants’ interest for the period for which they did not approach the Court. The substantive rights of the appellants should not be allowed to be defeated on technical grounds by taking hypertechnical view of self-imposed limitations. In the matter of compensation for land acquisition, we are of the view that approach of the court has to be pragmatic and not pedantic._ _**16.** The principles regarding condonation of delay_ C.M.Appln.No.988 of 2013 in L.A.A.No.790 of 2013 & L.A.A.No.790 of 2013 -:7:- _particularly in land acquisition matters, have been enunciated in Collector (LA) v. Katiji, wherein it is stated in para 3 as under: (SCC p. 108)_ _“3. The legislature has conferred the power to condone delay by enacting Section 5 of the Limitation Act of 1963 in order to enable the courts to do substantial justice to parties by disposing of matters on ‘merits’. The expression ‘sufficient cause’ employed by the legislature is adequately elastic to enable the courts to apply the law in a meaningful manner which subserves the ends of justice—that being the life-purpose for the existence of the institution of courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters instituted in this Court. But the message does not appear to have percolated down to all the other courts in the hierarchy. And such a liberal approach is adopted on principle as it is realised that:_ _(1) Ordinarily a litigant does not stand to benefit by lodging an appeal late._ _(2) Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties._ _(3) ‘Every day’s delay must be explained’ does not mean that a pedantic approach should be made._ C.M.Appln.No.988 of 2013 in L.A.A.No.790 of 2013 & L.A.A.No.790 of 2013 -:8:- _Why not every hour’s delay, every second’s delay? The doctrine must be applied in a rational common sense pragmatic manner._ _(4) When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay._ _(5) There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk._ _(6) It must be grasped that judiciary is respected not on account of its power to legalise injustice on technical grounds but because it is capable of removing injustice and is expected to do so.”_ 6. In Imrat Lal (supra), the Apex Court considered an application to condone delay of 1110 days in a matter relating to claimants who are villagers who were illiterate and not conversant with the intricacies of law. That is not the situation here. This is an instance where the first appellant was a businessman, who had suffered loss and he was represented by a counsel. He received the amount awarded by the Sub Court. He does not have C.M.Appln.No.988 of 2013 in L.A.A.No.790 of 2013 & L.A.A.No.790 of 2013 -:9:- a case that he did not have a right of appeal. He decided to file appeal only when he had come to know about an earlier judgment. As to when he came to know about the said earlier judgment is not borne out from the affidavit. Further, the judgment relied upon would show that it was rendered on 3/1/2008. Therefore, it has to be assumed that at least in 2008, he had come to know about the enhancement of compensation. Once it is known, the appeal is filed only on 15/7/2013. The case of the petitioners cannot be equated with that of the peasants who were claimants either in Dhiraj Singh's case (supra) or Imrat Lal (supra). In a place like State of Kerala one cannot say that the businessmen are illiterate and had no knowledge about the appellate proceedings. Hence, we are not satisfied that such a gross delay can be condoned. 7. It is contended that while condoning the delay, no loss will be caused to the Government. We do not think so. Every acquisition will have its own financial implications and necessary provision will have to be made by the Government for paying the C.M.Appln.No.988 of 2013 in L.A.A.No.790 of 2013 & L.A.A.No.790 of 2013 -:10:- enhanced compensation. If the claimant files appeal or makes a claim after several years of acquisition, the Government will be liable to make provisions to provide compensation as well as payment of interest which accrues @15% per annum. Under such circumstances, we are of the view that in the present case, sufficient cause has not been shown to condone delay and the judgments relied upon by the learned counsel for the appellants cannot be made applicable to the fact situation. The application to condone delay is dismissed. Consequently, the appeal stands dismissed. Sd/- **A.M. SHAFFIQUE, JUDGE** Sd/- **ANU SIVARAMAN, JUDGE** Rp11/7/2017 //True Copy// P.S to Judge