S.S. BINU v State of Kerala and The Managing Director, Thiruvananthapuram International Airport Development Society

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE & THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN FRIDAY, THE 14TH DAY OF JULY 2017/23RD ASHADHA, 1939 LA.App..No. 368 of 2016 () --------------------------- AGAINST THE DECREE AND JUDGMENT IN LAR 429/2003 of I ADDL.SUB COURT,TRIVANDRUM DATED 20-03-2007 APPELLANT/CLAIMANT: ------------------ S.S.BINU T.C.77/2828, BEENA BHAVAN, CHACKAI, THIRUVANANTHAPURAM, NOW RESIDING AT PROMODH BHAVAN, PANGAPPARA, KARIAVATTOM P O, THIRUVANANTHAPURAM. BY ADV. SRI.KARTHIK BHAVADASAN RESPONDENTS/RESPONDENTS: ------------------------- 1. STATE OF KERALA (THE SPECIAL TAHSILDAR, LA INTERNATIONAL AIRPORT THIRUVANANTHAPURAM)REPRESENTED BY THE DISTRICT COLLECTOR, THIRUVANANTHAPURAM-695004. 2. THE MANAGING DIRECTOR, THIRUVANANTHAPURAM, INTERNATIONAL AIRPORT DEVELOPMENT SOCEITY, THIRUVANANTHAPURAM-695001. BY SR.GOVERNMENT PLEADER SMT.AMMINIKUTTY.K THIS LAND ACQUISITION APPEAL HAVING BEEN FINALLY HEARD ON 14-07-2017 ALONG WITH LAA NO.369/2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **A.M.SHAFFIQUE, J & ANU SIVARAMAN, J** *** * * * * * * * * * * * * *** C.M.Appl.No.579 of 2016 in L.A.A.No.368 of 2016 & C.M.Appl.No.580 of 2016 in L.A.A.No.369 of 2016 & L.A.A.Nos.368 and 369 of 2016 ---------------------------------------Dated this the 10[th] day of July 2017 ## **O R D E R & J U D G M E N T** ## **Shaffique, J** In L.A.A.No.368/2016, C.M.Appl.No.579 of 2016 is filed to condone the delay of 3416 days and in L.A.A.No.369/2016, C.M.Appl.No.580 of 2016 has been filed to condone the delay of 3439 days in filing the appeals. 2. In the affidavit filed in support of the above applications, it is stated that the judgments were rendered on 20/03/2007 and 23/02/2007. According to the appellants, they intended to prefer appeals and the lawyer also advised that appeals ought to be filed. In both appeals, the appellants have obtained the certified copy on 07/05/2008. It is stated that they have entrusted the matter to counsel Adv.Late Ambalapatha Narayanankutty to prefer the appeals. The counsel informed that C.M.Appl.No.579 of 2016 in L.A.A.No.368 of 2016 & C.M.Appl.No.580 of 2016 2 in L.A.A.No.369 of 2016 & L.A.A.Nos.368 and 369 of 2016 they will have to pay court fee of Rs. 1,22,080/-. It is stated that the compensation received by way of acquisition was fully utilised for construction of a residential house and that the appellants sought for time for arranging court fee. They, thereafter approached the counsel's office and they had come to know that the counsel passed away in 2015. According to them, without knowing nothing about the matter, they approached another counsel and in the meantime, the delay had occurred. 3. Learned counsel for the appellants submits that a liberal approach has to be taken in the matter and in an identical case, the Apex Court had condoned the delay. 4. Counter affidavit has been filed by the Government stating that the appellants had received the amount awarded by the Court below on 01/01/2009 and thereafter there is no reason why the appeal was not filed immediately thereafter. 5. Learned Government Pleader contends that there is substantial delay in filing the appeals which cannot be condoned. 4. Learned counsel for the appellants placed reliance upon the judgment of the Apex Court in Dhiraj Singh v. State of Haryana [(2014) 14 SCC 127] and also the judgment in Imrat Lal C.M.Appl.No.579 of 2016 in L.A.A.No.368 of 2016 & C.M.Appl.No.580 of 2016 3 in L.A.A.No.369 of 2016 & L.A.A.Nos.368 and 369 of 2016 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 had been granted, merely for the reason that there is delay in filing the appeals, 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 03/01/2008 in L.A.A 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 appeals 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 appellants will have to show sufficient reasons for condoning the delay. Of course, as C.M.Appl.No.579 of 2016 in L.A.A.No.368 of 2016 & C.M.Appl.No.580 of 2016 4 in L.A.A.No.369 of 2016 & L.A.A.Nos.368 and 369 of 2016 held by the Supreme Court, the approach of the Court should be pragmatic and not pedantic. Whether there is sufficient cause or 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 27/07/2005, 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 paragraphs 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 C.M.Appl.No.579 of 2016 in L.A.A.No.368 of 2016 & C.M.Appl.No.580 of 2016 5 in L.A.A.No.369 of 2016 & L.A.A.Nos.368 and 369 of 2016 days in filing the appeal. In paragraph 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 paragraphs 14 and 15 held as under and finally disposed of the matter at paragraph 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 particularly in land acquisition matters, have been_ C.M.Appl.No.579 of 2016 in L.A.A.No.368 of 2016 & C.M.Appl.No.580 of 2016 6 in L.A.A.No.369 of 2016 & L.A.A.Nos.368 and 369 of 2016 _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. Why not every hour’s delay, every second’s delay? The doctrine must be applied in a rational common sense pragmatic manner._ C.M.Appl.No.579 of 2016 in L.A.A.No.368 of 2016 & C.M.Appl.No.580 of 2016 7 in L.A.A.No.369 of 2016 & L.A.A.Nos.368 and 369 of 2016 - _(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 the delay of 1110 days in a matter relating to claimants who are villagers who were illiterate and not conversant with the intricacies of law. There is no such situation in the present case. Here, even according to the appellants, they wanted to file the appeals and they have entrusted the matter to the counsel. The counsel had asked them to make arrangements for the court fee. It is seen from the affidavits that they made enquiries only after a considerably long period and they had come to know that the counsel expired in 2015. C.M.Appl.No.579 of 2016 in L.A.A.No.368 of 2016 & C.M.Appl.No.580 of 2016 8 in L.A.A.No.369 of 2016 & L.A.A.Nos.368 and 369 of 2016 7. The learned Government Pleader contends that when the compensation awarded by the Reference Court was received by them as early as in 2009, they are apparently in possession of sufficient funds to prefer appeals and having not done so, they are not entitled for any indulgence from the Court. Apparently, the factual matrix in the present case cannot be equated either to Dhiraj Singh (supra) and also the judgment in Imrat Lal (supra). We are not concerned with persons who are illiterate or agriculturists. Here, the appellants had proper legal advice, but they kept quite for considerably long period. Even after the cases were decided by which compensation was enhanced by the High Court in similar cases, no attempt were made to file the appeals. 8. In the said circumstances, we are of the view that such gross delay cannot be condoned. 9. Yet another argument raised was 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 enhanced compensation. If the claimant files appeal or makes a claim after several years of acquisition, the C.M.Appl.No.579 of 2016 in L.A.A.No.368 of 2016 & C.M.Appl.No.580 of 2016 9 in L.A.A.No.369 of 2016 & L.A.A.Nos.368 and 369 of 2016 Government will be liable to make provisions to provide compensation as well as payment of interest which accrues @15% per annum. 10. Under such circumstances, we are of the view that in the present cases, 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 applications to condone delay are dismissed. Consequently, the appeals stand dismissed. (sd/-) ## **(A.M.SHAFFIQUE, JUDGE)** (sd/-) ## **(ANU SIVARAMAN, JUDGE)** jsr True Copy PA to Judge