Bombay High CourtCA/8499/2016disposed offdismissed for default

Vasantrao Bapurao Sagar v. The State Of Maharashtra And ANR

2019-02-26Hon'Ble Shri Justice P.R. Bora15 pages

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD 904 CIVIL APPLICATION NO.1593 OF 2012 IN X-OBJST/160/2012 SITARAM GULABCHAND AGRAWAL MUNICIPAL COUNCIL THROUGH CHIEF OFFICER 905 CIVIL APPLICATION NO.6789 OF 2012 IN X-OBJST/13679/2012 GOPAL VASANT SURWASE AND ANR THE STATE OF MAHARASHTRA AND ORS 906 CIVIL APPLICATION NO.1895 OF 2013 IN X-OBJST/2512/2013 WITH FA/2304/2010 WITH FA/2307/2010 WITH FA/2309/2010 WITH FA/2310/2010 WITH FA/2311/2010 WITH FA/2312/2010 WITH CA/6184/2011 IN FA/2312/2010 WITH FA/2316/2010 WITH FA/2317/2010 WITH FA/2318/2010 WITH FA/2319/2010 WITH FA/2320/2010 WITH CA/9697/2012 IN X-OBJST/20738/2012 SIDDAPPA BASWANT MALGE, DIED THR. L.RS. VIRBHADRA AND ORS THE M.I.D.C. THROUGH DIVISIONAL /REGIONAL OFFICER LATUR AND ORS 907 CIVIL APPLICATION NO.4994 OF 2013 IN X-OBJST/33715/2012 WITH CA/1980/2012 IN FA/268/2012 MANJUBAI PRAVINKUMAR KHANDELWAL AND ORS M/S NATIONAL INSURANCE CO. LTD.

908 CIVIL APPLICATION NO.5714 OF 2013 IN X-OBJST/12263/2013 USHA ANIL PATIL JAYSHREE TEJRAO DHAGE AND ANR

(2) 909 CIVIL APPLICATION NO.6100 OF 2013 IN X-OBJST/12774/2013 PREMSINH HAMBARSINH GIRASE(DEAD) LRS NAVALSINH HAMBARSINH GIRASE AND ORS THE EXECUTIVE ENGINEER, DHULE MEDIUM PROJET NO. 1 910 CIVIL APPLICATION NO.8669 OF 2013 IN X-OBJST/17159/2013 LAXMAN DAYARAM KHACHANE THE STATE OF MAHARASHTRA AND ANOTHER 911 CIVIL APPLICATION NO.10522 OF 2013 IN X-OBJST/22376/2013 ABDUL HAQ ABDUL KARIM DIED TH LRS SAMIR ABDUL HAQ DESHMUKH AND ORS THE SPECIAL LAND ACQUISITION OFFICER, DHULE AND OTHERS 912 CIVIL APPLICATION NO.10891 OF 2013 IN X-OBJST/22358/2013 BAHIDAS HILAL PATIL THE SPECIAL LAND ACQUISITION OFFICER, DHULE AND OTHERS 913 CIVIL APPLICATION NO.15663 OF 2013 IN X-OBJST/29675/2013 WITH CA/6978/2010 IN FA/1953/2011 RAOSAHEB BHIMRAO JADHAV THE STATE OF MAHARASHTRA AND OTHERS 914 CIVIL APPLICATION NO.833 OF 2014 IN X-OBJST/21367/2013 KAMALBAI GANGARAM PATIL EXECUTIVE ENGINEER, MINOR IRRIGATION DIVISION, DHULE AND ANOTHER 915 CIVIL APPLICATION NO.839 OF 2014

(3) IN X-OBJST/21377/2013 BHAUSAHEB POPAT KHAIRNAR AND ANR EXECUTIVE ENGINEER, MINOR IRRIGATION DIVISION AND ANOTHER 916 CIVIL APPLICATION NO.840 OF 2014 IN X-OBJST/29685/2013 MAHADU RAMA BIRAJDAR THE STATE OF MAHARASHTRA AND OTHERS 917 CIVIL APPLICATION NO.841 OF 2014 IN X-OBJST/21657/2013 SUSHILABAI RAGHUNATH KHAIRNAR EXECUTIVE ENGINEER, MINOR IRRIGATION DIVISION AND ANOTHER 918 CIVIL APPLICATION NO.842 OF 2014 IN X-OBJST/21382/2013 HIRALAL KASHINATH PATIL AND ORS EXECUTIVE ENGINEER, MINOR IRRIGATION DIVISION, DHULE AND ANOTHER 919 CIVIL APPLICATION NO.843 OF 2014 IN X-OBJST/21659/2013 CHANDRABHAN RAGHUNATH PATIL EXECUTIVE ENGINEER, MINOR IRRIGATION DIVISION AND ANOTHER 920 CIVIL APPLICATION NO.845 OF 2014 IN X-OBJST/29674/2013 BALIRAM RAMAJI BIRAJDAR THE STATE OF MAHARASHTRA AND OTHERS 921 CIVIL APPLICATION NO.2228 OF 2014 IN X-OBJST/1788/2014

(4) DIWAN NIMBA GIRASE THE STATE OF MAHARASHTRA & OTHERS.

922 CIVIL APPLICATION NO.2969 OF 2014 IN X-OBJST/13645/2009 IN FA/553/2009 WITH CA/1748/2008 IN FA/553/2009 SHANTABAI ATMARAM JADHAV THE STATE OF MAH AND ANR 923 CIVIL APPLICATION NO.2970 OF 2014 IN X-OBJST/13640/2009 IN FA/548/2009 WITH CA/1726/2008 IN FA/548/2009 JAIDEV JYOTIRAM TANDLE THE STATE OF MAH AND ANR 924 CIVIL APPLICATION NO.2971 OF 2014 IN X-OBJST/13636/2009 IN FA/552/2009 WITH CA/1739/2008 IN FA/552/2009 ATMARAM SITARAM JADHAV THE STATE OF MAH AND ANR 925 CIVIL APPLICATION NO.5138 OF 2014 IN X-OBJST/9779/2014 BABASAHEB NAMDEO KADAM DECEASED THRO. LRS. SATYAPREM BABASAHEB KADAM GODAVARI MARATHWADA IRRIGATION DEVELOPMENT CORPORATION, BEED AND ANOTHER 926 CIVIL APPLICATION NO.5139 OF 2014 IN X-OBJST/9787/2014 GHANSHAYM BHAURAO PAITHANE DECEASED THRO. LRS. BANSI GHANSHYAM PAITHANE AND OTHER GODAVARI MARATHWADA IRRIGATION DEVELOPMENT CORPORATION, BEED AND ANOTHER 927 CIVIL APPLICATION NO.8284 OF 2014 IN X-OBJST/9785/2014

(5) RAMESHSWAR NAMDEO PAITHANE AND AND OTHERS GODAVARI MARATHWADA IRRIGATION DEVELOPMENT CORPORATION , BEED AND ANOTHER 928 CIVIL APPLICATION NO.11965 OF 2014 IN X-OBJST/28116/2014 NANABHAU RAGHO BEDSE EXECUTIVE ENGINEER MEDIUM PROJECT DIVISION NO.1 AND ANOTHER 929 CIVIL APPLICATION NO.12149 OF 2014 IN X-OBJST/28114/2014 SUNDARBAI RAGHO BEDSE SINCE DECEASED THROUGH LRS NANBAHU RAGHO BEDSE EXECUTIVE ENGINEER MEDIUM PROJECT DIVISION NO.1 DHULE AND ANOTHER 930 CIVIL APPLICATION NO.309 OF 2015 IN X-OBJST/27052/2014 SURESH NATHU PATIL THE EXECUTIVE ENGINEER MINOR IRRIGATION DIVISION DHULE AND ANOTHER 931 CIVIL APPLICATION NO.2497 OF 2015 IN X-OBJST/22823/2014 VISHWAS ANANDA DESALE THE SPECIAL LAND ACQUISITION OFFICER GENERAL AND ANOTHER 932 CIVIL APPLICATION NO.4123 OF 2015 IN X-OBJST/6013/2015 WITH CA/15665/2013 IN FA/46/2013 SHRIKANT SHRIPATI LOKHANDE GMIDC THROUGH EXECUTIVE ENGINEER LIFT IRRIGATION DIVNOSMANABAD AND OTHERS

(6) 933 CIVIL APPLICATION NO.5485 OF 2015 IN X-OBJST/23342/2014 NOOR MOHAMMAD CHINDHA DESHMUKH THE SPECIAL LAND ACQUISITION OFFICER DHULE AND OTHERS 934 CIVIL APPLICATION NO.7681 OF 2015 IN X-OBJST/6015/2015 WALMIK SHRIPATI LOKHANDE GMIDC THROUGH EXECUTIVE ENGINEER LIFT IRRIGATION DIVNOSMANABAD 935 CIVIL APPLICATION NO.7688 OF 2015 IN X-OBJST/6017/2015 DHONDIBA SHRIPATI LOKHANDE GMIDC THROUGH EXECUTIVE ENGINEER LIFT IRRIGATION DIVNOSMANABAD AND OTHERS 936 CIVIL APPLICATION NO.9684 OF 2015 IN X-OBJST/12499/2015 NARMADABAI HIRALAL GUJARATHI DIED THR L.RS. NARAYAN MOHANLAL GUJARATHI THE STATE OF MAHARASHTRA AND OTHERS 937 CIVIL APPLICATION NO.14942 OF 2015 IN X-OBJST/33283/2015 BHAGWAN DEVIDAS NARWADE THE STATE OF MAH AND ORS 938 CIVIL APPLICATION NO.6251 OF 2016 IN X-OBJST/6580/2016 KAJAL SUBHASH KAMBLE LATUR SOLVENT PVT. LTD. THR ITS PROP. SHAMTILAL KISHANLAL SHABU AND ORS

(7) 939 CIVIL APPLICATION NO.6264 OF 2016 IN X-OBJST/25971/2015 GULAM DASTGIR DAUDSAHEB ANSARI AND ORS THE STATE OF MAHARASHTRA 940 CIVIL APPLICATION NO.

8475 OF 2016 IN X-OBJST/4473/2016 WITH CA/6107/2013 IN FA/1703/2015 WITH CA/6110/2013 IN FA/1704/2015 WITH CA/6112/2013 IN FA/1708/2015 WITH CA/6114/2013 IN FA/1706/2015 WITH CA/6116/2013 IN FA/1707/2015 WITH CA/6118/2013 IN FA/1712/2015 WITH CA/6120/2013 IN FA/1711/2015 WITH CA/6122/2013 IN FA/1710/2015 WITH CA/6124/2013 IN FA/1709/2015 WITH CA/6126/2013 IN FA/1705/2015 WITH CA/8477/2016 IN X-OBJST/4486/2016 WITH CA/8478/2016 IN X-OBJST/4495/2016 WITH CA/8479/2016 IN XOBJST/4476/2016 WITH CA/8480/2016 IN X-OBJST/4471/2016 WITH CA/8481/2016 IN X-OBJST/4478/2016 WITH CA/8482/2016 IN X-OBJST/4489/2016 WITH CA/8483/2016 IN X-OBJST/4492/2016 WITH CA/8484/2016 IN XOBJST/4481/2016 WITH CA/8485/2016 IN X-OBJST/4484/2016 BHASKAR RAMKISHAN KOMPLE THE STATE OF MAHARASHTRA AND ANOTHER 941 CIVIL APPLICATION NO.

8486 OF 2016 IN X-OBJST/10455/2016 SUBHASH GYANOBA JADHAV DIED THR LRS NIRMALABAI AND ORS THE STATE OF MAHARASHTRA AND ANR 942 CIVIL APPLICATION NO.8488 OF 2016 IN X-OBJST/10453/2016 WAMAN GYANOBA JADHAV AND ORS THE STATE OF MAHARASHTRA AND ANR 943 CIVIL APPLICATION NO.

(8) 944 CIVIL APPLICATION NO.8490 OF 2016 IN X-OBJST/10447/2016 GANPAT BAPURAO MANDUMALE THE STATE OF MAHARASHTRA AND ANR 945 CIVIL APPLICATION NO.8499 OF 2016 IN X-OBJST/10459/2016 VASANTRAO BAPURAO SAGAR THE STATE OF MAHARASHTRA AND ANR 946 CIVIL APPLICATION NO.8500 OF 2016 IN X-OBJST/10465/2016 SHANKAR BAPURAO MANDUMALE SAGAR AND ORS THE STATE OF MAHARASHTRA AND ANR 947 CIVIL APPLICATION NO.8502 OF 2016 IN X-OBJST/10451/2016 VITHAL HANMANTRAO KINE THE STATE OF MAHARASHTRA AND ANR 948 CIVIL APPLICATION NO.8503 OF 2016 IN X-OBJST/10467/2016 SAMBHAJI MAROTI PATIL (JADHAV) AND ORS THE STATE OF MAHARASHTRA AND ANR 949 CIVIL APPLICATION NO.8505 OF 2016 IN X-OBJST/10463/2016 ASHOK AMRUTRAO MORE AND ORS THE STATE OF MAHARASHTRA AND ANR 950 CIVIL APPLICATION NO.8506 OF 2016 IN X-OBJST/10457/2016

(9) KASHINATH HAVGIRAO BIRADAR THE STATE OF MAHARASHTRA AND ANR 951 CIVIL APPLICATION NO.8507 OF 2016 IN X-OBJST/10469/2016 PRABHU GYANOBA MORE THE STATE OF MAHARASHTRA AND ANR 952 CIVIL APPLICATION NO.8508 OF 2016 IN X-OBJST/10449/2016 NAMDEO VENKATRAO JADHAV THE STATE OF MAHARASHTRA AND ANR 953 CIVIL APPLICATION NO.9916 OF 2016 IN X-OBJST/16677/2016 SHANKUNTALABAI KISHAN SONAWANE AND OTHERS GODAWARI MARATHWADA IRRIGATION DVELOPMENT CORPORATIONAURANGABAD THROUGH ITS EXE Advocate for Applicants : Respective counsel present S/Shri AM Phule, PM Kulkarni and SJ Salgare, AGPs for Respondent-State (in respective matters) Respective Counsel for Respondent/s present --- CORAM : P.R. BORA, J.

DATED : 26th February, 2019.

PER COURT:- 1.

All these applications are filed seeking condonation of delay, which has occurred in filing the cross-objections by the respective original claimants in respective appeals. The appeals are filed either by the acquiring body or by the State

(10) Government against the judgments and Awards passed in Land Acquisition References (LARs). The period of delay varies in every application. In some applications when the delay is of a shorter period, delay caused in some of the matters is of a huge period. In every application attempt has been made to justify the said delay and variety of reasons are assigned.

Under Sub-rule (1) of Rule 22 of Order 41 of the Code of Civil Procedure (for short the Code), a power has been conferred upon the Appellate Court to extend the time to file crossobjection. The Appellate court can grant such further time as it may seem fit to allow.

The issue as about condonation of delay in filing the cross-objection was for consideration before this Court in the case of State of Maharashtra Vs. Kalu Ladku Mhatre - 2011 (4) Mh.L.J. 741. I deem it appropriate to reproduce herein below the discussion made by this court in regard to the said issue in paras 5 to 7 of the said judgment, which read thus, -

(11) "5. I have given careful consideration to the submissions. The first issue is regarding the condonation of delay in filing the Cross Objection. A Reference will have to be made to Sub Rule (1) of Rule 22 of Order XLI of the said Code which reads thus:

" Any respondent, though he may not have appealed from any part of the decree, may not only support the decree [but may also state that the finding against him in the Court below in respect of any issue ought to have been in his favour; and may also take any cross-objection] to the decree which he could have taken by way of appeal, provided he has filed such objection in the Appellate Court within one month from the date of service on him or his pleader of notice of the day fixed for hearing the appeal, or within such further time as the Appellate Court may see fit to allow."

6. Thus, under Sub Rule (1) of Rule 22 of Order XLI of the said Code, a power has been conferred upon the Appellate Court to extend the time to file Cross Objection. The Appellate Court can grant such further time as it may see fit to allow. The Sub-Rule (1) of Rule 22 does not lay down that sufficient cause is required to be shown by the respondent. As the said Code vests the power to extend the time to file CrossObjection in the Appellate Court, it is not at all necessary for the respondent in Appeal to invoke Section 5 of the Limitation Act, 1963. Section 5 of the Limitation Act reads thus:

"Extension of prescribed period of certain cases - Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period, if the appellant or the applicant satisfied the Court that

(12) he had sufficient cause for not preferring the appeal or making the application within such period."

7. The last part of Sub Rule (1) of Rule 22 of Order XLI deals with the grant of extension of time for filing of Cross Objection and Section 5 of the Limitation Act deals with the extension of time to prefer an Appeal. Section 5 of the Limitation Act incorporates a condition precedent of the appellant satisfying the Appellate Court that he had sufficient cause for not preferring the Appeal within the prescribed period of limitation. Sub Rule (1) of Rule 22 of Order XLI does not incorporate the stringent requirement of establishing a sufficient cause. Thus, a wide power to extend the time to file CrossObjection has been vested in the Appellate Court.

Though there is no requirement of establishing sufficient cause within the meaning of Section 5 of the Limitation Act, in the application for seeking extension of time to file Cross-Objection, brief reasons for delay will have to be set out. A wider discretion has been conferred on the Appellate Court under the Sub Rule (1) of Rule 22 than what is conferred by Section 5 of the Limitation Act. The power to extend time under Sub Rule (1) of Rule 22 of Order XLI of the Code has to be liberally exercised in case where a Cross-Objection is sought to be filed before the Appeal is heard for final hearing."

In the aforesaid matter, First Appeal which was filed in the year 2002 was listed on Board for final hearing, for the first time, in June 2011. Thereafter cross-objection was filed. The reason, as was assigned in justification of the

(13) delay caused in preferring the application was that, the respondent had instructed his Advocate to file the cross-objection, however, he was informed that the court fees is required to be paid and for various reasons the court fees could not be arranged by the said respondent.

In the matters which are before this Court for consideration, similar reasons are assigned by the respective respondents-claimants in justification of the delay caused in filing the cross-objections by them. As observed by this Court in the cited judgment, sub-rule (1) of Rule 22 of Order 41 of the Code does not incorporate the stringent requirement of establishing a sufficient cause. This Court has further observed in the cited judgment that a wide power to extend time to file cross-objection has been vested in the Appellate court. It has also observed that the power to extend the time under sub-rule (1) of Rule 22 of Order 41 of the Code has to be liberally exercised in a case where cross-objection is sought to be filed before the appeal is listed for final hearing. Having regard to the view taken by this

(14) Court in the case cited supra, though I am inclined to condone the delay, while exercising such discretion in favour of the respondents-claimants, it appears to me that since the respondentsclaimants did not file the cross-objection within the period as stipulated in sub-rule (1) of Rule 22 of Order 41 of the Code, it would not be unjust and improper if they are disentitled of the interest for the period of delay in the event their crossobjections are allowed and consequently the amount of compensation is enhanced on the said enhanced amount of compensation.

In the result, following order is passed, -

ORDER

The delay occasioned in filing the cross-objections by the respective respondents-claimants in the respective appeals, is condoned.

ii.

The cross-objections be registered in accordance with law.

(15) ii.

It is clarified that in the event of their success in the cross-objections, resulting in enhancement in the amount of compensation, the respondents-claimants shall not be entitled for the interest of the period of delay on the enhanced amount of compensation.

iii. Registry to list the respective appeals along with the cross-objections therein for final disposal in their chronology.

(P.R. BORA) JUDGE bdv