Land Acquisition Officer v. Sambaru Bariha) so also order of this Court dated
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK LAA No.65 of 2019 Director Interim Test Range, Chandipur, Balasore …. Appellant Mrs. J. Sahoo, CGC Parbati Behera & anr. …. Respondents -versus-
Legal Reasoning
Mr. M.K. Panda, Advocate CORAM: JUSTICE SANJAY KUMAR MISHRA
Decision
ORDER 12.07.2024 LAA No.65 of 2019 & I.A. No.252 of 2023 Order No. 08. This matter is taken up through hybrid mode. 2. This I.A. has been filed by the Appellant on 28.12.2023 under sections 149 & 151 of C.P.C. for acceptance of court fee and condone the delay in filing the deficit court fee on 28.09.2022, though the Appeal was presented on 27.09.2019. Opposing to the said prayer made in the I.A., the private Respondent No.1 has filed an Objection dated 20.05.2024 relying on the judgment of this Court reported in AIR 1994 Orissa 90 (Land Acquisition Officer Vs. Sambaru Bariha) so also order of this Court dated 19.01.2024 passed in LAA No.63 of 2019 and order dated 02.05.2024 passed in LAA No.58 of 2019. 3. Though the Appeal was presented on 27.09.2019, as the court fee was paid on 28.09.2022, the Office has pointed out that after deducting the statutory period of limitation, the delay in filing the appeal is 1191 days. 4. To substantiate the prayer made in this I.A., Mrs. J. Sahoo, the learned Central Government Counsel, relying on the judgment of the apex Court passed in Civil Appeal No.5867 of 2015 (Sheo Raj Singh (Deceased) through LRs.& others vs. Union of India and another) so also in Civil Appeal No.4643 of 2009 (P.K. Palanisamy Vs. N. Arumugham & another), submits that the delay be condoned and the Court fee paid belatedly be accepted. 5. Opposing to the said prayer, learned Counsel for the Private Respondent No.1, relying on the judgment of this Court in Sambaru Bariha (supra) so also order of this Court dated 19.01.2024 passed in LAA No.63 of 2019 and order dated 02.05.2024 passed in LAA No.58 of 2019 submits, since no reason has been assigned in this Interlocutory Application justifying the delay in depositing the court fee on 28.09.2022, and that to without any Petition to accept the same and filing an application much thereafter i.e. on 28.12.2023, for acceptance of deficit court fee paid belatedly so also the Appeal deserves to be dismissed. 6. In view of the submissions made by the learned Counsel for the parties, it would be apt to reproduce below paragraph Nos.2, 5, 6, 10, 11 and 12 of the judgment of this Court in Sambaru Bariha (supra). is right “2. It may first be stated with respect that the learned single Judge in his observation that Section 149 of the Code is an exception to the general rule of paying court-fee at the time of filing of a document as enjoined by Section 4 of the Court-fees Act, 1875. It is apparent that an exception cannot be made a rule. Any other view would amount to amending Section 149 of the Code, because, instead of Page 2 of 7 discretion resting with the Court in the matter of allowing payment of the deficit court-fee, it would be open to a litigant to claim this benefit almost as a matter of right, whereas Section 149 gives power to grant time on the Court being satisfied on a case being made out for the same. 5. Despite the above, we would observe that when Section 149 has not put any fetter on the exercise of discretion, it may not be permissible to do so by laying any guideline as such. All that can justifiably be said is that the Court while exercising the discretion has to bear in mind that the power conferred is meant to be exercised in exceptional case and on being satisfied that non-payment of court-fee in time is for reason beyond the control of the appellant and the same is not due to his negligence. The shown has therefore to be adequate, cogent and strong, because, otherwise the exception would take the form of rule which would militate against the legislative intention. ground 6. With the aforesaid in mind, we answer the three questions framed by the learned single Judge. In so far as the first question is concerned, we state that the fact of non- receipt of the amount (by an advocate) required for purchase of court-fee cannot ordinarily be a "good cause" for extension of time, because in such a case non-receipt is not a 'cause'; it is really an effect. The cause lies somewhere else. It is the soundness of the cause basing on which discretionary power has to be invoked to come to the aid of a litigant. It may be a 'cause' for the advocate (Advocate-General in the present case); but the Advocate-General is not the appellant. Appellant is the State and the Advocate- general is an agent of the State within the meaning of Order III of the Code. The cause which has, however, to exist is not one which is relatable as to why the agent is being required to file the appeal with deficit court- fee but why the principal could not make Page 3 of 7 available the required amount to the agent. The cause of the agent cannot be the cause for the principal; and it is the cause of the principal which is relevant, and not the cause at the hand of the agent. In an exceptional case it may however be that though the principal has sent the amount, the same has not reached the hands of the agent, say due to postal strike, natural calamity or the like. In such cases, cause of non-receipt of the amount by the agent may also provide good ground; but not when the required amount had not been remitted at all to the agent. In such a case the appellant shall have to satisfy the court as to why the entire amount could not be made available by him/it to his/its counsel to enable the latter to file the appeal with the required amount of court-fee. the 10. Thus, by the time decision is taken to file appeal, expiry of limitation might be round the corner. Prudence would require to file appeals within time without taking the risk of asking for condonation, which may or may not be granted depending upon facts and circumstances of the case. But than, question is, if decision to file appeal has been taken within the period of limitation, why should the money required for payment of court-fee be not made available? Here comes the question of budgeting. As is known, each department is allotted some fund as per the budget passed by the legislature. It may be that by the time appeal is required to be filed, the budgetary provision the financial powers available to the concerned head does not permit drawing of other money, even if available under some other head. In some cases, it may as well be that the position of finance is no such that the same cannot be apportioned at any level till additional fund is made available by supplementary budget. is getting exhausted and 11. In view of what has been stated above, we would state that when State asks for time to pay the deficit court-fee, a simple statement like the one at hand that the amount required has not been received is not from the concerned authority Page 4 of 7 sufficient at all to invoke the discretionary power conferred by Section 149 of the Code. Adequate reason(s) must be assigned to the court to show that the appeal is being filed with deficit court-fee because of circumstances beyond the control of the concerned department. If negligence lies at the root of the same, the court may well refuse to invoke its discretionary power. 12. The third question would be relevant only in appeals under Section 54 of the Land Acquisition Act, which, according to us cannot be treated differently from other appeals. The fact that the claimant shall be paid interest in case of delayed disposal has no relevance to the question of exercise of discretionary power under Section 149 of the Code, inter alia, because public money cannot be allowed to be used to benefit a private person, if by due diligence the same can be avoided. A respondent in a case under Section 54 of the Land Acquisition Act may not be felt aggrieved at the delay in disposal of the appeal because he would be compensated by payment of interest. But the larger public interest would is the appellant suffer where the State inasmuch as the money which would have been available to the State, if interest would not have been required to be paid because of delay in disposal, could have been put to better use and more pressing public use. So, the fact that the claimant would be paid interest relevant consideration while seized with the question of exercising discretionary power under Section 149 of the Code.” repeat, not a is, to (Emphasis supplied) 7. Admittedly, when the Appeal was preferred on 27.09.2019, neither the Appellant-Union of India deposited the court fee, as required, nor filed any Application under Section 149 of C.P.C seeking for time to pay the court fee belatedly. Thereafter, as is ascertained from record, the court fee was paid on 28.09.2022, without any application Page 5 of 7 under Section 149 of C.P.C. indicating therein sufficient reason to deposit the deficit court fee belatedly and acceptance of the same. On being so pointed out, this I.A. has been filed long after i.e. on 28.12.2023, with a prayer to condone the delay in filing the deficit court fee and accept the same paid belatedly in the year 2022. 8. On examination of the judgments cited by the learned Central Government Counsel, it is found that the said judgments are not applicable to the issue involved in the present I.A. Rather, the judgment of this Court in Sambaru Bariha (supra) cited by the learned Counsel for the Respondent is squarely applicable to the present case. 9. Apart from the same, it is revealed from the record that the impugned judgment dated 11.03.2019 passed in L.A Case No.174 of 2012 (CIS No.31 of 2014), the Court below has enhanced the compensation amount reasonably referring the order passed in L.A 409 of 2012 which was exhibited before the court below as exhibit 2. 10. Needless to mention here that this Court, vide order dated 19.01.2024 passed in LAA No.63 of 2019 and order dated 02.05.2024 passed in LAA No.58 of 2019, has dismissed the said appeals because of late deposit of court fee and admittedly, the suit land of the said appeals are also pertaining to the same Mauja, which were also acquired by virtue of the same notification for the same purpose, as of the suit land in the present appeal. 11. However, the I.A. for acceptance of court fee paid belatedly by condoning the delay stands dismissed. As a consequence thereof, the Appeal also stands dismissed. Page 6 of 7 12. In view of the dismissal of the Appeal, the Appellant is directed to implement the judgment dated 11.03.2019 passed in L.A. Case No.174 of 2012 within a period of eight weeks hence. JUDGE (S.K. MISHRA) Banita Signature Not Verified Digitally Signed Signed by: BANITA PRIYADARSHINI PALEI Designation: SR. STENOGRAPHER Reason: AUTHENTICATION Location: HIGH COURT OF ORISSA, CUTTACK Date: 13-Jul-2024 14:11:31 Page 7 of 7