D.P.S.Chauhan - (1.) THE appeal under section 54 of the Land Acquisition Act has been reported by the Stamp Reporter as beyond time by 514 days. It is accompanied with an application for condonation of delay together with an affidavit.
(2.) IN the affidavit, the facts stated are :- (a) The award was given by the: court below on 14-10-1991 and then an application for obtaining the certified copy of the judgment and decree dated 14-10-91 was applied on 23-11-1991, which was made ready on 11-12-91, and thereafter certified copy of the judgment and decree was obtained by the District Government Counsel (Civil) Allahabad on 12-12- 1991. (b) The District Government Counsel (Civil) Allahabad sent his opinion on 12-12-91 in the office of special Eland acquisition officer, which was received the same day in his office and was sent for opinion of the Irrigation Department on 10-12-91, which was received in the office of the deponent on 6-1-92. (c) The papers thereafter were sent to the Government on 10-1-92 for according necessary information for filing appeal. (d) From January 1992 to January 1993, the papers were lying with the Government for granting permission far filing appeal, which ultimately was received on 29.1-93 and after receiving the permission the necessary expenses for court fee etc. demanded for the Acquiring Body of the Irrigation Department and a letter in that regard was sent on 11-2-93. (e) The Irrigation Department made the amount for court fee etc. available on 3-4-93 and the amount was paid by cheque. The account was to be opened as it so happened that the account in the name of Collector Allahabad was attached in some other cases and this state of affairs continuing since 6-6-1993. Thereafter, when the account of Collector were released the cheque given by the acquiring body was deposited and the money was withdrawn on 7-6-1993 The necessary amount was deposited in the office of the Chief Standing Counsel, High Court Allahabad on 8-6-1993. (f) Due to summer vacation the appeal and the papers were prepared on the opinion of the High Court. Since there were 17 appeals the Special Land Acquisition Office took time in drafting and in typing, ultimately the appeal was submitted for reporting to the Stamp Office which reported the appeal on 5-7-93. (g) It is stated that the delay in filing the appeal was not deliberate. It was due to the reasons beyoud control of the deponent and the papers remained pending with the Government for granting permission in filing the appeal. That it may be noted that no care has been taken in checking the application and the affidavit. The application for condonation of delay is titled as application under section 151 of the Code of Civil Procedure whereas it should have been under section 5 of the Indian Limitation Act. Apart from this, in the affidavit in paragraph no. 5, it is stated that the papers were sent to the Government on 10-i-92 for granting necessary information. The use of the word information is apparently incorrect, it should have been permission. Further in paragraph no. 5 of the affidavit, it is stated that the Special Land Acquisition Officer (Irrigation) Allahabad, after receiving the permission, the necessary expenses for court fee etc. demanded for the Acquiring body/Irrigation Department. The use of the word 'for' is wrong and it should have been 'from'. That it is apparent from the affidavit that the delay of each day has not been explained what so in a satisfactory manner. It may not be in a mathematical exactitude but has to be in a satisfactory manner. The award was given on 14-10-1991. The limitation for appeal as provided under the Indian Limitation Act, was 90 days. In making application for certified copy 40 days' time was taken. The copy thereafter became ready on 11-12-91 and was obtained by the District Government counsel on 12-12 91. There is no explanation as to why the copy of the application was made after 40 days of the pronouncement of the award. Further, the facts stated is paragraph no. 4 of the affidavit are absolutely false as it is stated in paragraph no. 4 of the affidavit that the District Government Counsel (Civil) Allahabad sent his opinion on 12-12-91 in the office of Special Land Acquisition Officer, which was received same day in the office of the deponent i.e. Land Acquisition Officer. A letter was sent for the opinion of the Irrigation department on 10-12-1991, which was received in the office of of the deponent on 6-1-92. The statements so made in paragraph no. 4 of the affidavit are apparently false as certified copy of the award was obtained by the District Government counsel on 12-12-91, on which date he sent his opinion to the Land Acquisition Officer. Then how it could be possible for obtaining the opinion of the Irrigation Department on 10-12-91 when neither certified copy was obtained nor the opinion by the District Government Counsel was given. Thus, it is apparent that the deponent of the affidavit has made false affidavit and it seems to have been made negligently and I do not consider apt to issue notices under section 340 CrPC except a little caution to the officer, who has sworn the affidavit for remaining careful in future. Further it is stated in paragraph no. 3 of the affidavit that on 10-1-92 letter was sent to the Government for permission for filing the appeal and the papers remained lying with the Government. After 29-1-93, when the Land Acquisition Officer was informed about the permission for filing the appeal at the State Government's level the time consumed is only 90 days. Thereafter Irrigation Department made the amount of the court fee available on 3-4-90.The amount was made available on 3-4-93 by cheque. The account was to be opened and it so happened that the account in the name of the Collector was attached in some other cases, therefore, new accounts to be opened and this state of affairs continuing since 6-6- 93. Thereafter, when the account of the Collector was released the cheque given by the acquiring body was deposited and money was withdrawn on 7-6-1993. It has been mentioned in paragraph no. 6 of the affidavit that the account was to be opened. There after, it is stated that the account of the Collector was attached in some other cases and therefore new account to be opened and this state of affairs continuing since 6-6-93. This statement shows that the new account was opened but it took little more than two months. Thereafter another inconsistent statement has been made in the same paragraph no. 6 of the affidavit that when the account of the collector released, cheque given by the acquiring body was deposited and the money was withdrawn on 7-6-93. It may be stated that no account number has been given. Further, no particulars of the case have been given in which the attachment of the account was made. No order of the release of the account has been given and no order of the attachment of the account has been disclosed. The appeal could very well be prepared in summer vacations and same could have been filed immediately on re-opening of the court, but there is no explanation as to why the appeal was filed on 15th July, 1993 when the High Court re-opened on 5th July 1993.
(3.) HEARD learned Standing Counsel and the learned counsel for the respondents Sri Daya Shankar Misra. The application for condonation of delay was ultimately opposed by Sri Daya Shanker Misra. He has stated that the appellant was careless and negligent and it is not a case where the court should exercise its discretion in condoning the delay thereby effecting; the rights of the respondents, which have accrued to them. The learned counsel for the respondents placed reliance on a Division Bench decision of this court in First Appeal No. 676 of 1991, State of U. P. v.Jagdish Prasad, submitted that this Court rejected the application for condonation of delay and the facts were more to less similar. The Court observed to the following effect : "Therefore, while removing injustice an onerous duty is cast upon the Court to consider plight of the other party who has not committed any default and is the winning party so that relief in favour of one may not become injustice to other and only where, there is no deliberate delay, inaction or gross negligence, indulgence is certainly to be shown extending the period of limitation and in such cases the other party cannot claim to have a vested right, but the cases in hand do not fulfil the above test and in both the appeals the appellate throughout remained inactive.";