Per Syed Bashir-ud-din (J):

Petitioners land measuring 15 Marlas and 37 sqft. in Khasara No. 5 of village Theed is in the process of compulsory acquisition under Jammu and Kashmir Land Acquisition Act. Petitioner challenges the acquisition on the ground that the notification issued under the Land Acquisition Act for acquisition of his land does not reveal in detail the public purpose for which the land is required and the notification is not published in the Government Gazette. Challenging the acquisition on these grounds, the writ court in OWP No. 126/2001 filed by the petitioner on 18-10-2001 dismissed the writ after both contentions of the counsels were rejected. Instead agitating the matter further in appeal, the petitioner choose to question the proceedings and the factum of acquisition in a regular suit. Ad-interim relief of injunction against the State Land Acquisition Authorities was rejected by the trial court (Sub Judge, Municipal Magistrate Sgr.), and in appeal by the appellate court, against which order a civil revision petition is pending in the High Court. The suit is pending trial before the court below. In the meanwhile, petitioner has come up with a Letters Patent Appeal alongwith an application seeking exclusion of the time period spent in prosecuting the civil suit and the miscellaneous applications arising therein, specifically under section 14 of the Limitation Act. The main argument plank pressed for sustainance of exclusion of the period of limitation of the letters Patent Appeal, as stated in the application and further submitted by the Senior Advocate, Mr. S.T.Hussain, is that the petitioner filed a suit for declaration and perpetual injunction on the advice of the counsel, who, after the dismissal of the appeal against the order of the trial court, again advised applicant to file the Letters Patent Appeal against the impugned judgment of October, 19, 2001 of the learned Single Judge.

2. The respondents, Lakes and Waterways Department and its authorities have in their objections stated that the application for exclusion of time is malafide. The same counsel has been pursuing the matter in Revision before the High Court and the writ petition. The Revision as also the Letters Patent Appeal, the two parallel proceedings, are being prosecuted which sufficiently indicate that this act is wilful and conscious, enough not to launch and prosecute the proceedings in the civil court, bonafide.

3. The learned counsel Mr. S. T. Hussain, Senior Advocate, submits that the time taken to prosecute the proceedings before the Lower Court has been with due diligence and in good faith. The petitioner has, on the advice of his counsel, filed a suit, taken the proceedings and filed the revision. It is only then that the petitioner knew that the court below is not able to proceed further in the matter and therefore again, on legal advice, applicant filed the Letters Patent Appeal alongwith the application for condonation of delay. The learned counsel further submits that the case also falls under section 5 of the limitation Act and the period of limitation merits to be condoned on sufficiency of cause made out by the petitioner.

4. The respondents counsel has put up a stout defence to the submissions made by the petitioners counsel, in as much as the counsel submits that the land with built up house in question is required for development of Dal Lake by Lakes and Waterways Development authorities. The petitioner on one or other pretext, is taking proceedings and questioning mode and method to acquire the land for the public purpose as indicated above. The claimed exclusion of time under section 14 of the Limitation Act is nothing but to protract the proceedings malafide. The element of due diligence and good faith is wanting in the matter.

5. There is hardly any dispute with regard to the fact that whether the time spend in prosecuting the civil suit and other miscellaneous civil proceedings connected thereto, can be excluded in

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