HARDEV SINGH ETC Vs. SPECIAL LAND ACQUISITION

JUDGEMENT

(1.) THIS is an application under Section 5 of the Limitation Act for condoning the delay of 9 1/2 years in filing the appeal before this Court. Although the delay is considerable but after reading the averments made in the application which is supported by an affidavit, this Court has reached the conclusion that the appellants have been able to make out a case for condoning the delay. The facts which are necessary and may be noticed are that, appellants owned 131 kanals 16 1/2 marks of land which was acquired by the Union of India by a notification issued under Section 4 of the Land Acquisition Act on 21-8-1974 alongwith the other lands measuring in all 6363 kanals 12 marlas. It has been stated in the application that instead of describing the area of the appellant as 131 kanals 15 1/2 marlas, it was wrongly mentioned as 118 kanals 4 marlas. The mistake came to the notice of the appellants after they received the certified copy of the award for the purpose of filing the appeal in this Court, After the receipt of the copy they contacted their original counsel Shri Sham Lal who advised them to get the order corrected before filing the appeal in the High Court. Thereafter, the appellants contacted Shri B. D. Kumar, Advocate and he too gave the same advice. It is further stated in the application that on 26-4-1985 Shri Bhagat Ram, Patwari made a statement before the Court of Additional District Judge that the area was 131 kanals 16 1/2 marlas. Similar was the statement made by the counsel for the Government Before the correction could be made in the award, the Union of India moved an application to the effect that the land was not 131 kanals 16 1/2 marlas but it gave yet another area i. e. 116 kanals 7 marlas. Finally, the application of the Union of India was decided on 4-10-1988 holding that the appellant's area to the extent of 131 kanals 16 1/2 marlas was acquired. Even now the Union of India as the facts has been brought on the record of the case, is not satisfied with the order (Annexure 'a') and has come in revision petition. It is further the case of the appellants that the correction having been made on 4. 10. 1988, the appeal has been filed on 10-2-1989 which is very much within time. As stated above, the present application for condonation of delay is supported by an affidavit.

(2.) DURING the course of hearing of the application, this Court thought it appropriate to record the statement of one of the counsel at Bar. Shri B. D. Kumar, Advocate who conducted the case of the appellant at a later stage appeared before this Court on 22-5-1990 and made a statement at the Bar that he gave the advice that the appeal could be filed only when correct area was mentioned in the award.

(3.) THE counsel for Union of India has opposed the application on two counts. In the first instance, it has been argued that it is not stated in the application as to when the counsel advised that the appeal could not be maintained before the order was corrected. In the second instance, it has been argued that no application for correction of the area was filed by the two appellants.