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Himachal Pradesh High Court · body

2001 DIGILAW 246 (HP)

SECRETARY REVENUE v. SARDAR VAKIL SINGH

2001-09-21

M.R.VERMA

body2001
JUDGMENT M.R. Verma, J :- The applicants by this application under Section 5 of the Indian Limitation Act (hereafter referred to as the Act) have prayed for condonation of delay in filing an appeal agianst the judgment and decree dated 1.7.1999 passed by the learned District Judge, Chamba in Civil Appeal No.30of 1998. 2. It is averred in the application that the judgment sought to be impugned was passed on 17.7.1999, certified copies of the judgment and decree were applied for on the same day and were attested on 26.7.1999 and delivered on 31.7.1999. The District Attorney, Chamba recommended preferring of an appeal and sent the papers to the Collector, chamba on 5.8.1999. Having gone through the papers, the Collector, Chamba set the papers proposing the appeal to Jcint Secretary (Home) to the govt. of Himachal Pradesh on 9.8.1999. The papers remained pending with the Joint Secretary (Home) till 21.9.199(?) when he sent the same to the Advocate General, Himachal Pradesh who returned those 22apers to Collector1 Chamba on 4.10.1999. The Collector, Chamba then sent the papers of the proposed appeal to the Financial Commissioner (Revenue) on 15.10.1999 for obtaining sanction for filing the appeal and the Financial Commissioner (Revenue) returned the papers to collector, Chamba on 3.12.1999. Thereafter on 3.1.2000 the Collector, Chamba detailed Naib Tehsildar, Dalhousie for filing the appeal and it was pointed out by the Advocate General that certain formalities were to be observed and in the meantime the High Court was closed for winter vacations. Against this background, it is claimed that the applicants were prevented by sufficient cause in not filing the appeal in time. 3. This application is dated 5.4.2000 and has been filed on 29.4.2000 alongwith the memo of appeal which is dated 4.3.2000. The averments made in the application are supported by the affidavit of the then Collector, Chamba. This affidavit is dated 5.4.2000. 4. The application was resisted by respondent No. 1 on the grounds that no sufficient cause has been made out for delaying filing the present appeal and the State Government cannot claim special immunity in the matter of condonation of delay under Section 5 of the Limitation Act. 5. This affidavit is dated 5.4.2000. 4. The application was resisted by respondent No. 1 on the grounds that no sufficient cause has been made out for delaying filing the present appeal and the State Government cannot claim special immunity in the matter of condonation of delay under Section 5 of the Limitation Act. 5. The matter was initially heard on 10.11.2000 and on the basis of arguments then addressed, keeping in view the public interest which prima facie appears to be involved in the dispute, this Court vide order dated 16.11.2000 observed that in the case in hand, there is no reason assigned for the inordinate delays specified as under: (1) Pendency of the appeal papers with Joint Secretary (Home) to the government of H.P. w.e.f. 9.8.1999 to 21.9.1999; (2) Pendency of the appeal papers with the Financial Commissioner (Rev.) w.e.f. 15.10.99 to 3.12.1999; and (3) Non presentation of appeal w.e.f. 3.1.2000 to 7.1.2000 and 21.2.2000 to 29.4.2000. 4. In view of the above, in the public interest and the interest of justice, I a inclined to give an opportunity to the State to file additional affidavit(s) preferably of the public servants with whom the appeal papers remained pending during the aforesaid period, explaining the, reasons for such pendency with liberty to the respondents to file counter affidavit(s) to enable a just and proper adjudication of this application. Ordered accordingly. 6. After the passing of the aforesaid order, the applicants/State continued to seek adjournments for filing supplementary affidavits one of which was filed on 26.3.2001 and another on 27.3.2001. 7. Respondent No. 1 filed counter affidavits to the aforesaid supplementary affidavits. 8. As per the supplementary affidavit of the present Collector, Chamba, telex message was received from Commissioner-cum-Secretary (Rev.) on 29.10.1999 with a direction to depute some responsible officer/official to collect the relevant records and in turn the Collector, Chamba set a fax message to S.D.M., Dalhousie on 1.11.1999 to do the needful which was received in his office on the same day, i.e. on 1.11.1999. The receipt Clerk of that office Anil Parkash did not hand over the fax message to the dealing Assistant nor brought the matter to the notice of the S.D.M., Dalhousie, the acts of negligence for which he is stated to have been charge-sheeted. The receipt Clerk of that office Anil Parkash did not hand over the fax message to the dealing Assistant nor brought the matter to the notice of the S.D.M., Dalhousie, the acts of negligence for which he is stated to have been charge-sheeted. The record subsequently was sent to the Financial Commissioner-cum-Secretary (Rev.) vide letter dated 3.12.1999, was received by the Collector on 6.12.1999 and was sent to the S.D.M. on 7.12.1999. Thereafter on 3.1.2000 a Naib Tehsildar was deputed to the office of the Advocate General, Himachal Pradesh where certain objections were raised and were required to be removed before filing the appeal. The Naib Tehsildar then returned along with the record on 7.1.2000. It is further claimed that from 7.1.2000 to 21.2.2000 there were winter vacations in the High Court and the S.D.M. Dalhousie was under the bona fide belief that winter vacations are also observed in the office of the Advocate General, therefore the time from 7.1.2000 to 5.3.2000 was utilized for removing the objections raised by the Advocate General. Then on 7.3.2000 one official was deputed to take the record to the Advocate General and the record was again returned for observing certain formalities before filing the appeal. Office of the District Attorney was then contacted by the S.D.M. Dalhousie on 18.3.2000 but he was not available, therefore, a private lawyer was consulted who prepared the affidavit which was ultimately signed by the Collector on 5.4.2000 and the paper were then again taken to the office of the Advocate General on 8.4.2000 and were again returned on 11.4.2000 with certain objections. Papers were again taken back for removal of the objections and were received by the S.D.M. Dalhousie on 17.4.2000. Such objections were removed between 17.4.2000 to 25.4.2000 and the papers were then again sent to the office of the Advocate General and the appeal was then filed on 29.4.2000. 9. As per the contents of supplementary/additional affidavt of som Nishpakshi, working as Under Secretary (Revenue), the case was despatched by the Collector, Chamba to Home Department where it was received on 16.8.1999. The case was received from the Home Department on 17.8.1999 and was sent to Law Department for opinion on 17.8.1999 and was received back on 13.9.1999 (presumably in the Revenue Branch). The file remained under submission between 13.9.1999 to 21.9.1999 for filing appeal along with the opinion of the Law Department. The case was received from the Home Department on 17.8.1999 and was sent to Law Department for opinion on 17.8.1999 and was received back on 13.9.1999 (presumably in the Revenue Branch). The file remained under submission between 13.9.1999 to 21.9.1999 for filing appeal along with the opinion of the Law Department. The file was again received back from the District Collector, Chamba on 22.10.1999 and remained under submission upto 28.10.1999. The District Collector was requested by telex message dated 29.10.1999 to depute an officer/official to collect the papers and file appeal but no officer/official came to receive the file, therefore, the record was sent to him on 1-2.1999 through Speed Post. 10. In the counter affidavits filed by respondent No.l it has been contended that even the supplementary/additional affidavits do not disclose any sufficient cause for want of explaining the delay of various intervals when the matter remained pending. 11. I have heard the learned Assistant Advocate General for the applicants and the learned counsel for the respondent and have also perused the material on record. 12. In view of he provisions of section 5 of the Act, delay in filing an appeal can be condoned if the appellant shows sufficient cause for such condonation. The expression sufficient cause has not been defined in the Act and thus, in the ordinary course, it must mean a cause which is beyond the control of the party seeking to invoke the aid of Section 5 of the Act. In other words, to constitute sufficient cause it must be established that some event(s) or circumstance(s) prevented the party seeking condonation of delay from filings the appeal within the prescribed period of limitation. The Act does not create p any distinction regarding applicaton of the provisions of the Act to a private person and the State The settled position in law, however, is that the expression sufficient cause must be construed liberally so as to advance the cause of justice on merits. It has also repeatedly been held by the Apex Court that when delay is caused at the behest of the Government, the Court should not insist on explanation of each days delay but there must be some way or attempt to explain the delay. 13. In State of Haryana v. Chandra Mani & Ors. It has also repeatedly been held by the Apex Court that when delay is caused at the behest of the Government, the Court should not insist on explanation of each days delay but there must be some way or attempt to explain the delay. 13. In State of Haryana v. Chandra Mani & Ors. 1996(3) SCC 132, the Honble Supreme court held as under: "When the state is an applicant, praying for condonation of delay, it is common knowledge that on account of impersonal machinery and the inherited bureaucratic methodology imbued with the note making, file pushing, and passing-on-the-buck ethos, delay on the part of the State is less difficult to understand though more difficult to approve, but the State represents collective cause of the community. It is axiomatic that decisions are taken by officers/agencies proverbially at slow pace and encumbered process of pushing the files from table to table and keeping it on table for considerable time causing delay - intentional or otherwise - is a routine. Considerable delay of procedural red tape in the process of their making decision is a common feature. Therefore, certain amount of latitude is not impermissible. If the appeals brought by the State are lost for such default no person is individually affected but what in the ultimate analysis suffers, is public interest. The expression sufficient cause should, therefore, be considered with pragmatism in justice oriented approach rather than the technical detection of sufficient cause for explaining days delay. The factors which are peculiar to and characteristic of the functioning of a governmental conditions would be cognizant to and requires adoption of pragmatic approach in justice oriented process. The court should decide the matters on merits unless the case is hopelessly without merit. No separate standards to determine the cause laid by the State vis a vis private litigant could be laid to prove strict standards of sufficient cause. The government at appropriate level should constitute legal cells to examine the cases whether any legal principles are involved for decision by the courts or whether cases require adjustment and should authorise the officers to take a decision or give appropriate permission for settlement. In the event of decision to file appeal needed prompt action should be pursued by the officer responsible to file the appeal and he should be made personally responsible for lapses, if any. In the event of decision to file appeal needed prompt action should be pursued by the officer responsible to file the appeal and he should be made personally responsible for lapses, if any. Equally, the State cannot be put on the same footing as an individual. The individual would always be quick in taking the decision whether he would pursue the remedy by way of an appeal or application since he is a person legally injured while State is an impersonal machinery working through its officers or servants." 14. In Special Tehsildar, Land Acquisition, Kerala v. K.V. Ayisumma AIR 1996 SC 2750, the Honble Supreme Court held as under: "It is now settled law that when the delay was occasioned at the behest of the Government, it would be very difficult to explain the day to day delay. The transaction of the business of the Government being done leisurely by officers who had no or evince no personal interest at different levels. No one takes personal responsibility. As a fact, at several stages, they take their own time to reach a decision. Even in spite of pointing at the delay, they do not take expeditious action for ultimate decision in filing the appeal. This case is one of such instances. It is true that Section 5 of the Limitaiton Act envisages explanation of the delay to the satisfaction of the Court and in matter of Limitation Act made no distinction between the State and the citizen. Nonetheless, adoption of strict standard of proof leads to grave miscarriage of public justice, it would result in public mischief by skilful management of delay in the process of filing the appeal. The approach of the Court would be pragmatic but not pedandic." 15. In view of the above settled position, though the State cannot be treated differently from any other litigant but the Court must take into consideration the following factors: (1) Red tapism in Government. (2) Delays in correspondence". (3) Habitual indifference of government functionaries and officials. (4) Collusion or favouritism or negligence by the Government function-artes and officials. (5) Loss to the public exchequer. (6) Damage to the larger interest of public and the State. (7) Need to render substantial justice on mertis (8) Lack of supervision. (9) Non application of mind by the concerned functionaries. 16. (3) Habitual indifference of government functionaries and officials. (4) Collusion or favouritism or negligence by the Government function-artes and officials. (5) Loss to the public exchequer. (6) Damage to the larger interest of public and the State. (7) Need to render substantial justice on mertis (8) Lack of supervision. (9) Non application of mind by the concerned functionaries. 16. In the case in hand, indifference, negligence, lack of supervision and non application of mind on the part of the functionaries and officials of the State are writ large and further attempts have been made to shift the responsibility from one quarter to another as is evident from the contents of the application supported by affidavit dated 5.4.2000 of the then Collector, Chamba and the supplementary affidavit dated 26.3.200rof the then Under Secretary (Revenue). As per the contents of the applicaton supported by affidavit of the then Collector, Chamba he sent the proposed appeal to the Joint Secretary (Home) on 9.8.1999 who sent the same to the Advocate General on 21.9.1999. The Advocate General sent the proposed appeal papers to Collector, Chamba on 4.10.1999 and the Collector, Chamba then sent those papers to the Financial Commissioner (Revenue) on 15.10.1999. The papers were returned by the Financial Commissioner to the Collector, Chamba on 3.12.1999. Contrary to those averments, the version of the Under Secretary (Revenue) is that the papers were received by the Home Department on 16.8.1999 and were set to Law Department on 27.8.1999. The Revenue Department received papers back on 13.9.1999 and thereafter the file remained under submission (to whom? not explained). On 21.9.1999, the papers were sent to Collector, Chamba. The latter affidavit thus shows that the papers were not sent to the Advocate General on 21.9.1999 nor were sent by the Advocate General to the Collector on 4.10.1999. Instead, those were directly sent to Collector, Chamba. It clearly shows that either the averments in the application duly supported by the affidavit of Collector, Chamba are incorrect or the averments in the supplementary affidavit of the Under Secretary are incorrect rendering it not possible to find out as to where the papers actually remained during the period 21.9.1999 to-4.10.1959. 17. As per the contents of the application supported by the affidavit of Collector, Chamba the papers were (finally) returned to him by the Financial Commissioner on 3.12.1999 and the detailed Naib Tehsildar, Chamba, Dalhousie for filing the appeal. 17. As per the contents of the application supported by the affidavit of Collector, Chamba the papers were (finally) returned to him by the Financial Commissioner on 3.12.1999 and the detailed Naib Tehsildar, Chamba, Dalhousie for filing the appeal. The Advocate General, however, directed to observe certain formalities. In the meanwhile, High Court closed for winter vacation. There is nothing in the application and the affidavit dated 5.4.2000 of the Collector, Chamba as to what led to the non filing of the appeal after the reopening of the High Court in the last week of February 2000 till the signing of the affidavit by the said Collector on 5.4.2000. This lapse, in itself, clearly shows the indifference and non application of mind to the facts of the case and the averments in the application to condone the dela in filing the appeal which in fact was filed on 29.4.2000. Had the Collector applied his mind to the situation, he would have explained the reasons for non filing of the appeal in the application at least till 5.4.2000 when he signed the affidavit. 18. The present Collector in his affidavit has salvaged the position of the State; he has in his supplementary affidavit taken care to state the facts meticulously and thereby explained the delay in filing the appeal after 29.10.1999. His affidavit discloses that one official of the office of S.D.M. Dalhousie slept over the fax message of the Secretary (Revenue) from 1.11.1999 onward. There being no compliance of the directions in the fax message, the records were ultimately sent by the Revenue Department to the Collector, Chamba on 3.12.1999. The official is stated to have been charge sheeted now for dereliction of duty. It is lack of follow up action and supervision that none in the Revenue Department cared for about a month that in a time bound matter, its message sent by fax on 29.10.1999 was not cared for inasmuch as none came to collect the record as disired and ultimately, it had to send the records of its own on 3.12.1999. 19. Thereafter the facts as emerge from supplementary affidavit dated 24.3.2000 of the present Collector, Chamba are that after 3.1.2000 draft appeal papers were sent to the office of Advocate General, H.P. thrice but to be returned with objections like affidavit being incomplete, want of opening sheet, index form and application for condonation of delay. etc. 19. Thereafter the facts as emerge from supplementary affidavit dated 24.3.2000 of the present Collector, Chamba are that after 3.1.2000 draft appeal papers were sent to the office of Advocate General, H.P. thrice but to be returned with objections like affidavit being incomplete, want of opening sheet, index form and application for condonation of delay. etc. It was only on fourth time that the appeal was finally through for being filed. This is stark example of non applicaton of mind and inefficiency at the concerned levels. In view of the above conclusions, the delay in filing the appeal is attributable to indifference, negligence, lack of supervision and non application of mind by the concerned functionaries and officials of the State. 20. In view of the law already referred to hereinabove, these lapses resulting in delay in filing the appeal, have to be taken in to account to condone the delay in case the dispute between the parties involve the question regarding larger interest of the public and the State wherein substantial justice on merits is required to be done. 21. Without commenting on the merits and demerits of the appeal, at this stage, I am of the view that the cause of the State as involved in the appeal should not be defeated at the threshold on the technical ground of limitaiton in view of the aforesaid reasons resulting in delay in filing the appeal. In the facts and circumstances of the case, awarding of costs to the respondent No. l will meet the ends of justice. 22. In view of the above findings, this application is allowed and the delay in filing the appeal is condoned subject to payment of costs of Rs. 1500/- by the applicant to respondent No. l within 15 days of the passing of this order. The costs be deposited in the Registry of this Court within the aforesaid period and shall be refundable to respondent No. 1. In case the costs are deposited within the aforesaid period, the appeal be registered and listed for admission. In the event of the applicant failing to deposit the costs within the stipulated period, the application shall stand dismissed and the appeal shall not be registered and listed for admission as aforesaid.