Bombay High CourtCA/9207/2017disposed offdismissed for default

Ashok Sambhaji Suryawanshi Died Thr Lrs Mangalbai And ORS v. The State Of Maharashtra And Another

2019-02-28Hon'Ble Shri Justice P.R. Bora16 pages

{1} CA 5048 OF 2017 & ORS

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD 922 CIVIL APPLICATION NO.5048 OF 2017 IN X-OBJST/4998/2017 BHIMRAO SADASHIV TATTAPURE THE EXECUTIVE ENGINEER, MINOR IRRIGATION DIVISION LATUR AND ORS 923 CIVIL APPLICATION NO.5060 OF 2017 IN X-OBJST/5313/2017 WITH CA/5061/2017 IN XOBJST/5330/2017 NIRMALABAI MAHADAV WADKAR AND ORS THE EXECUTIVE ENGINEER, MINOR IRRIGATION DIVISION LATUR AND ORS 928 CIVIL APPLICATION NO.5833 OF 2017 IN X-OBJST/25154/2015 DATTU RAMCHANDRA SHINDE THE STATE OF MAHARASHTRA AND ANR 929 CIVIL APPLICATION NO.6366 OF 2017 IN X-OBJST/14087/2017 DARBAR GAJESING AND ORS THE SPECIAL LAND ACQUISITION OFFICER, UTPH-1, JALGAONAND ANR 930 CIVIL APPLICATION NO.7289 OF 2017 IN X-OBJST/16217/2016

{2} CA 5048 OF 2017 & ORS UTTAM MANOHAR WAGH AND OTHERS THE EXECUTIVE ENGINEER, MINOR IRRIGATION DIVISION, BEED AND ANR 931 CIVIL APPLICATION NO.7321 OF 2017 IN X-OBJST/28631/2016 SHANKAR GANPATI LAMB DIED AND ORS GODAWARI MINOR IRRIGATION DEVELOPMENT CORPORATION THROUGH ITS EXE. ENGINEER AND ORS 932 CIVIL APPLICATION NO.7396 OF 2017 IN X-OBJST/16349/2017 WITH CA/4227/2012 IN FA/677/2011 YAMUNABAI TRYAMBAK DHANGAR THE COLLECTOR, JALGAON AND ORS 933 CIVIL APPLICATION NO.7494 OF 2017 IN X-OBJST/16347/2017 WITH CA/4225/2012 IN FA/682/2011 TRYAMBAK LALCHAND DHANGAR THE COLLECTOR, JALGAON AND ORS 934 CIVIL APPLICATION NO.7963 OF 2017 IN X-OBJST/7933/2017 PARWATIBAI MADHAV SIRSAT AND ORS THE EXECUTIVE ENGINEER, LATUR MEDIUM PROJECT DIV. LATUR AND ANR 935 CIVIL APPLICATION NO.8538 OF 2017 IN X-OBJST/7923/2017

{3} CA 5048 OF 2017 & ORS BHAGWAN RAM SIRSAT AND ANR THE EXECUTIVE ENGINEER, LATUR MEDIUM PROJECT DIV. LATUR AND ANR 936 CIVIL APPLICATION NO.8540 OF 2017 IN X-OBJST/7936/2017 SHRIRANG EKNATH SIRSAT AND ANR THE EXECUTIVE ENGINEER, LATUR MEDIUM PROJECT DIV. LATUR AND ANR 937 CIVIL APPLICATION NO.8576 OF 2017 IN X-OBJST/17166/2017 ABHIMAN BHAVSING NIKAM THE COLLECTOR, JALGAON AND ORS 938 CIVIL APPLICATION NO.8625 OF 2017 IN X-OBJST/28271/2016 WITH CA/9699/2012 IN FA/158/2015 NAGORAO DIGAMBARRAO KANDHARKAR AND ORS THE STATE OF MAHARASHTRA AND ORS 939 CIVIL APPLICATION NO.9166 OF 2017 IN X-OBJST/7946/2017 BHAGWAN RAM SIRSAT THE EXECUTIVE ENGINEER, LATUR MEDIUM PROJECT DIV. LATUR AND ANR 940 CIVIL APPLICATION NO.9199 OF 2017

{4} CA 5048 OF 2017 & ORS IN X-OBJST/16343/2017 WITH CA/4226/2012 IN FA/683/2011 GOPICHAND SARICHAND JADHAV THE COLLECTOR, JALGAON AND ORS 941 CIVIL APPLICATION NO.9207 OF 2017 IN X-OBJST/27755/2016 WITH CA/4950/2013 IN FA/226/2015 ASHOK SAMBHAJI SURYAWANSHI DIED THR LRS MANGALBAI ANDORS THE STATE OF MAHARASHTRA AND ANOTHER 942 CIVIL APPLICATION NO.9498 OF 2017 IN X-APLST/14143/2017 MADHAV GANPATRAO GAWANDE AND ANR MAHARASHTRA STATE ROAD TRANSPORT CORPORATION THR. DIV.CONTROLLER, DIV. OFFICE AURANGABAD 943 CIVIL APPLICATION NO.9551 OF 2017 IN X-OBJST/7931/2017 MANIK RAM SIRSAT AND ORS THE EXECUTIVE ENGINEER, LATUR MEDIUM PROJECT DIV. LATUR AND ANR 944 CIVIL APPLICATION NO.10012 OF 2017 IN X-OBJST/7831/2017 HARISHCHANDRA GOVIND SIRSAT AND ANR THE EXECUTIVE ENGINEER, LATUR MEDIUM PROJECT DIV.

{5} CA 5048 OF 2017 & ORS 945 CIVIL APPLICATION NO.10786 OF 2017 IN X-OBJST/26890/2017 THE COMMISSIONER, JALGAON MUNICIPAL CORPORATION JALGAON SAHAR, JALGAON SHYAM VASUDEO SARAF AND ANR 946 CIVIL APPLICATION NO.13129 OF 2017 IN X-OBJST/4971/2017 KIRAN VASANT KIVANDE THE EXECUTIVE ENGINEER, MINOR IRRIGATION DIVISION LATUR AND ORS 947 CIVIL APPLICATION NO.13130 OF 2017 IN X-OBJST/4973/2017 DHONDIRAM SHANKAR WADKAR (DIED) SHOBHA DHONDIRAM WADKAR AND ORS THE EXECUTIVE ENGINEER, MINOR IRRIGATION DIVISION LATUR AND ORS 948 CIVIL APPLICATION NO.13333 OF 2017 IN X-OBJST/9641/2017 WITH CA/8554/2011 IN FA/1239/2012 WITH CA/4745/2014 IN FA/1239/2012 WITH CA/13334/2017 IN X-OBJST/10427/2017 WITH CA/13335/2017 IN XOBJST/37037/2015 MANIK RAM SIRSAT THE EXECUTIVE ENGINEER, LATUR MEDIUM PROJECT DIV. LATUR AND ANR 949 CIVIL APPLICATION NO.13394 OF 2017 IN X-OBJST/16305/2017

{6} CA 5048 OF 2017 & ORS PRMNATH VAIJINATH SONVANE THE STATE OF MAHARASHTRA AND ANR 950 CIVIL APPLICATION NO.13395 OF 2017 IN X-OBJST/28261/2017 BALAJI GOVIND JADHAV AND ORS THE STATE OF MAH AND ANR 951 CIVIL APPLICATION NO.13396 OF 2017 IN X-OBJST/37033/2015 WITH CA/8570/2011 IN FA/1236/2012 WITH CA/4829/2014 IN FA/1236/2012 WITH CA/13398/2017 IN X-OBJST/3205/2016 DHANABAI LALCHAND PARDESHI THE EXECUTIVE ENGINEER, M.I.D. JALGAON AND ANR 952 CIVIL APPLICATION NO.13399 OF 2017 IN X-OBJST/32255/2016 MANOHAR SHANKAR BEMBADE THE STATE OF MAHARASHTRA AND ANR 953 CIVIL APPLICATION NO.13418 OF 2017 IN X-OBJST/7861/2017 NARHARI EKNATH SIRSAT THE EXECUTIVE ENGINEER, LATUR MEDIUM PROJECT DIV. LATUR AND ANR 954 CIVIL APPLICATION NO.13419 OF 2017

{7} CA 5048 OF 2017 & ORS IN X-OBJST/7848/2017 BABU PIRAJI GITE AND ORS THE EXECUTIVE ENGINEER LATUR MEDIUM PROJECT DIVISION LATUR AND ANR 955 CIVIL APPLICATION NO.13428 OF 2017 IN X-OBJST/7835/2017 WITH CA/3011/2012 IN FA/164/2013 GANGADHAR GANPATI GITE THE EXECUTIVE ENGINEER, LATUR MEDIUM PROJECT DIVISION, LATUR AND ANR 956 CIVIL APPLICATION NO.13433 OF 2017 IN X-OBJST/7865/2017 WITH CA/3009/2012 IN FA/163/2013 ANTARAM BASWANT SIRSAT THE EXECUTIE ENGINEER, LATUR MEDIUM PROJECT DIV. LATUR AND ANR 957 CIVIL APPLICATION NO.13434 OF 2017 IN X-OBJST/9632/2017 WITH CA/2972/2012 IN FA/159/2013 SAYED HABIB S/O SAYED KASIM (DIED) LRS SAYED MUKHTAR HABIB AND ORS THE EXECUTIVE ENGINEER, LATUR MEDIUM PROJECT DIVISION LATUR AND ANR 958 CIVIL APPLICATION NO.13438 OF 2017 IN X-OBJST/7868/2017 WITH CA/3015/2012 IN FA/161/2013 BALAJI MAHADU GITE AND ORS THE EXECUTIVE ENGINEER, LATUR MEDIUM PROJECT DIV. LATUR

{8} CA 5048 OF 2017 & ORS AND ANR 959 CIVIL APPLICATION NO.13439 OF 2017 IN X-OBJST/33730/2017 WITH CA/13441/2017 IN XOBJST/33734/2017 VENKAT MUKTAJI MALISE THE STATE OF MAH. AND ANR 960 CIVIL APPLICATION NO.13447 OF 2017 IN X-OBJST/32269/2016 WITH CA/13448/2017 IN XOBJST/32264/2016 WITH CA/13449/2017 IN XOBJST/32267/2016 WITH CA/13450/2017 IN XOBJST/32262/2016 SANDEEP ASHOK UGILE THE STATE OF MAHARASHTRA AND ANR 961 CIVIL APPLICATION NO.13451 OF 2017 IN X-OBJST/32259/2016 ASHOK NAMDEO UGILE THE STATE OF MAHARASHTRA AND ANR 962 CIVIL APPLICATION NO.2302 OF 2018 IN X-OBJST/39406/2017 BABAN DEVIDAS NARWADE THE STATE OF MAHARASHTRA AND ORS 963 CIVIL APPLICATION NO.2580 OF 2018 IN X-OBJST/2394/2018

{9} CA 5048 OF 2017 & ORS MAHADAPPA SIDRAMAPPA MENKUDALE DIED LRS USHA KUMAR MENKUDALE AND OTHERS THE STATE OF MAHARASHTRA AND ANOTHER 964 CIVIL APPLICATION NO.2892 OF 2018 IN X-OBJST/35317/2015 ANNUBAI PITAMBAR KOLI SINCE DECEASED THR. LRS RAGHUNATH AND ANOTHER THE EXECUTIVE ENGINEER DHULE MEDIUM PROJECT DIVISION NO.1 AND ANOTHER 965 CIVIL APPLICATION NO.3271 OF 2018 IN X-OBJST/8762/2017 DATTU GYANBA SIRSAT THE EXECUTIVE ENGINEER, LATUR MEDIUM PROJECT DIVISION LATUR AND ANR 966 CIVIL APPLICATION NO.4639 OF 2018 IN X-OBJST/7980/2018 WITH CA/2913/2014 IN CA/2912/2014 WITH CA/2915/2014 IN FA/268/2015 WITH CA/2917/2014 IN FA/273/2015 WITH CA/2919/2014 IN FA/272/2015 WITH CA/2921/2014 IN FA/270/2015 WITH CA/2923/2014 IN FA/274/2015 WITH CA/2925/2014 IN FA/269/2015 WITH CA/2927/2014 IN FA/271/2015 WITH CA/2929/2014 IN FA/275/2015 WITH CA/4640/2018 IN X-OBJST/7973/2018 WITH CA/4641/2018 IN X-OBJST/7975/2018 WITH CA/4642/2018 IN X-OBJST/7971/2018 WITH CA/4647/2018 IN X-OBJST/7964/2018 WITH CA/4649/2018 IN X-OBJST/7961/2018 WITH CA/4650/2018 IN X-OBJST/7969/2018

{10} CA 5048 OF 2017 & ORS WITH CA/4651/2018 IN X-OBJST/7967/2018 WITH CA/4653/2018 IN X-OBJST/7978/2018 CHANDRAKALA BHANUDAS CHOLE AND ANR THE STATE OF MAHARASHTRA AND ANR 967 CIVIL APPLICATION NO.5353 OF 2018 IN X-OBJST/37512/2017 WITH CA/13933/2011 IN FA/166/2017 BHAGWAN DHONDIBA GARJE AND ORS THE STATE OF MAHARSHTRA AND ANR 968 CIVIL APPLICATION NO.5827 OF 2018 IN X-OBJST/11459/2018 ASHOK PANDHARI KADAM AND ORS THE STATE OF MAHARASHTRA AND ANR 969 CIVIL APPLICATION NO.6131 OF 2018 IN X-OBJST/8606/2018 NEHRU BABURAO SONWANE DIED LRS USHABAI AND OTHERS THE STATE OF MAHARASHTRA AND ANOTHER 970 CIVIL APPLICATION NO.6183 OF 2018 IN X-OBJST/17373/2017 WITH CA/11412/2013 IN FA/2061/2014 JAGGANATH VISHWANATH SONWANE THR POWER OF ATTORNEY HOLDER BHALCHANDRA J SONWANE THE STATE OF MAHARASHTRA AND ANOTHER

{11} CA 5048 OF 2017 & ORS 971 CIVIL APPLICATION NO.6198 OF 2018 IN X-OBJST/33677/2017 WITH CA/6021/2014 IN FA/77/2009 MANGALABAI BHIMRAO JADHAV THE GODAWARI MARATHWADA IRRIGATION DEVELOPMENT CORPORATION THR ITS EX. ENGINEER AMBAJOGAI Respective Counsel for Applicant/s present.

S/Shri A.M. Phule, P.M. Kulkarni and S.J. Salgare, AGPs for Respondent-State (in respective matters).

Respective Counsel for Respondent/s present.

CORAM : P.R.BORA, J.

DATE: 28th February, 2019 PER COURT:- 1.

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

{12} CA 5048 OF 2017 & ORS 2.

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 cross-objection. The Appellate court can grant such further time as it may see 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, - "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

{13} CA 5048 OF 2017 & ORS 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 sufÏcient cause is required to be shown by the respondent. As the said Code vests the power to extend the time to file Cross-Objection 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 he had sufÏcient 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 sufÏcient 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 sufÏcient cause. Thus, a wide power to extend the time to file Cross- Objection has been vested in the Appellate Court. Though there is no requirement of establishing sufÏcient cause

{14} CA 5048 OF 2017 & ORS 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." 4.

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 delay caused in preferring the application was that, the respondent had instructed his Advocate to file the crossobjection, 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. 5.

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

{15} CA 5048 OF 2017 & ORS Rule 22 of Order 41 of the Code does not incorporate the stringent requirement of establishing a sufÏcient 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 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 respondents-claimants did not file the crossobjection 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 cross-objections are allowed and consequently the amount of compensation is enhanced on the said enhanced amount of compensation.

In the result, following order is passed, -

{16} CA 5048 OF 2017 & ORS

ORDER

The delay occasioned in filing the crossobjections by the respective respondentsclaimants in the respective appeals, is condoned.

ii.

The cross-objections be registered in accordance with law.

iii.

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.

iv.

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

(P.R.BORA) JUDGE SPT