COLLECTOR OF JORHAT Vs. ON THE DEATH OF MOHANIAN MALPANI GOBINDLAL MALPANI & OTHERS
HIGH COURT OF GAUHATI
COLLECTOR OF JORHAT
ON THE DEATH OF MOHANIAN MALPANI GOBINDLAL MALPANI And OTHERS
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K. Lahiri C.J. -
(1.)We propose to dispose of the Misc. cases by a common order as the facts as well as the questions of law are similar. The appeals are against awards made by the District Judge, Jorhat in Misc. L.A. Case No. 45/78 and 44/78, respectively. Both the appeals were filed on 1.12.83, admittedly 176 days beyond the period of limitation for preferring the appeal. Mr. A.S. Bhattacharjee, learned Sr. Govt. Advocate, Assam submit that the delay in filing the appeals in both the cases should be condoned on the grounds set out in paragraphs 3 to 7 of applications filed by the appellants-petitioners under section 5 of the Limitation Act. We extract those common grounds from the application in Misc. Case No. 13 of 1984 :
"3. That there is sufficient ground in the appeal and the same may kindly be allowed on merit.
4. That the appeal could not be filed in time because of the Staff who was dealing with the case was on leave cannot be traced out in the office.
5. That if the delay is not condoned the petitioner will suffer great hardships and injury.
6. That there are no laches or negligence on the part of the petitioner in preferring the appeal in time.
7. That this petition is filed bonafide and for the ends of justice and the relief sought for would be just and proper".
(2.)Both the applications under section 5 of the Limitation Act are supported by Affidavits and in both the affidavits the deponent, an Upper Division Assistant in the Office of the Sr. Govt. Advocate, Assam, Gauhati, has stated that the statements in the affidavit were true to his knowledge those contained in paragraphs 1 and 2 of the application being matter of records were true to his information derived therefrom which he believed to be true and those made in the rest of the application were his humble submissions before the Court. It is, therefore, seen that the statements of fact set out in paragraphs 3 to 7 of the petition are merely submissions of the Upper Division Assistant in the office of the Sr. Govt. Advocate, Assam, Gauhati. The respondents opposite parties filed affidavits-in-opposition contesting these applications. They have stated that the awards were made on 4.3.83, the learned District Judge granted four months' time to the Collector to make the payment and the order was communicated to the Land Acquisition Officer, Jorhat who functioned as Collector of Jorhat and he received the order in the first week of March, 1983. But the Collector neither made the payment of the enhanced amount nor did he take any steps to file any appeal against the award passed on 4.3.83. Thereafter, the respondents had to take execution proceedings on 6.9.83 after a lapse of five and half months and notices were issued against the Collector. On or about 10.11.83 learned Government pleader, Jorhat, who was conducting the case on behalf of the Collector filed applications praying for two months' time to file appeals in the High Court and to obtain stay orders. The court granted time till 10.1.84 to obtain stay orders from the High Court. However, on 2.2.84 the Govt, pleader could not produce any stay order and the cases had to be adjourned till 20.3.84. Again on 20.4.84, the Govt, pleader, Jorhat filed applications for granting time to the Collector to obtain stay orders from the High Court. Thereafter, the execution proceedings proceeded. The Awardees asked for attachment of money deposited in the State Bank of India and the Collector was informed accordingly. The Collector deposited the awarded amounts in Court on 7.1.85 and the awards were satisfied on 8.1.85. It has been affirmatively stated that the Collector was also aware of the awards made by the District Judge but he did not take any steps to file the appeals within the period of limitation Respondents-opposite parties lodged 'Caveat' in both the appeals received copies of the applications under section 5 of the Limitation Act. They have stoutly contested that the delay in presenting the appeals beyond the period of limitation was due to the fact that the staff who was dealing with the cases was on leave and/or the records could not be traced out in the office.
(3.)It appears that the only ground on which the petitioner appellant prays for extension of the period of limitation is that the appeals could not be filed in time because of the staff who was dealing with the case was on leave and either be could not be traced out or the records could not be tracked. Let us take that the statement means both. Who is that staff ? We do not get any answer. If he is the clerk dealing with the appeals, how is it that no affidavit has been filed by him ? There is no material to show that the statements made in the paragraphs were true to any body's knowledge. The Upper Division Assistant in the office of the Sr. Govt. Advocate should have named "the staff". He has not even said for how many days the said staff was on leave. We are to condone a long period of 176 days and the petitioner is to explain every day's delay. We find that the Upper Division Assistant has conveniently avoided to make any statement regarding the correctness of the averments made in the petition. He has merely stated that these were his submissions. He has never stated that these were true to his knowledge. There is no material to show that there was a staff who went on leave and/or kept the records somewhere which was not traceable by anybody else. In our opinion, this cannot even be "a cause" for condoning the delay, not to speak of "a sufficient cause". It is apparent that the Collector was all along aware of the awards. These facts have been clearly stated in the affidavit-in-opposition filed by the opposite parties.
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