Deelip Jaiwantrao Kothare And ORS v. The State Of Maharashtra And ORS

1 928-CA-1169-2020

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD CIVIL APPLICATION NO. 1169 OF 2020 IN FIRST APPEAL STAMP NO. 37584 OF 2020 Deelip S/o Jaiwantrao Kothare and Anr.

...Applicants

Versus

The State of Maharashtra and Ors.

...Respondents

Mr G.N. Chincholkar, Advocate for Applicants Mr K.B. Jadhavar, A.G.P.for Respondent Nos. 1 and 3 CORAM : SHRIKANT D. KULKARNI, J.

DATE : 16th SEPTEMBER, 2020 PER COURT :

1.

It is an application for condonation of delay moved by the applicants/original claimants by taking aid of section 5 of the Limitation Act, 1963.

2.

Mr G.N. Chincholkar, the learned counsel for the applicants is neither available in the Court Hall where the Video Conferencing facility is made available nor available on-line, when the matter is called out.

3.

Heard the learned Assistant Government Pleader for Respondent Nos. 1 and 3. Respondent No. 2 though duly served with the notice, remained absent. Perused the record.

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There is delay of 296 days in preferring the appeal by the applicants. The applicants have assigned the reasons in their application in para No. 3 to that effect. They could not prefer the appeal within time due to financial crisis. The delay was neither deliberate nor intentional. The delay needs to be condoned in order to decide the cause on merits.

5.

The reliance can be placed on the ratio laid down by Hon'ble Supreme Court in case of the Collector, Land Acquisition, Anantnag & another Vs. Mast. Katji and others, reported in AIR 1987 Supreme Court 1353, wherein it is observed that 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. Making a justice oriented approach from this perspective, there is sufficient cause to condone the delay in the institution of the appeal. 6..

It is necessary to obtain undertakings from the applicants that they would not take statutory benefits for the delayed period in case, they succeed in appeal for enhancement. 7.

Having regard to the above reasons and discussion, I proceed to pass the following order :-

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ORDER

(i) The application for condonation of delay moved by the applicants is hereby allowed.

(ii) The appeal be registered after due scrutiny.

(iii) The applicants/original claimants shall furnish their undertaking with the Registry that they would not claim the statutory benefits provided in the Land Acquisition Act, 1894 for the delayed period in case they succeed in the appeal.

(iv) Issue notice to respondent Nos. 1 to 3, returnable on 28th October, 2020. The learned Assistant Government Pleader waives notice for respondent Nos. 1 and 3.

(v) Call record and proceedings from the Reference Court. 8.

Place the matter on 28th October, 2020.

[ SHRIKANT D. KULKARNI, J. ] mta