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2009 DIGILAW 164 (AP)

State of Andhra Pradesh, rep. , by its Secretary to Government, Roads & Buildings Dept v. A. Murali Madhava Rao

2009-03-16

C.V.NAGARJUNA REDDY, T.MEENA KUMARI

body2009
Judgment :- C.V. Nagarjuna Reddy, J. This is an application to condone the delay of 920 days in filing petition to revive WA (SR).No.45015 of 2006. The State of Andhra Pradesh, the District Collector, Anantapur and the Executive Engineer, Roads and Buildings, Anantapur, are the applicants. The respondents filed WP.No.15957 of 1993 for a Mandamus to declare the inaction of the applicants herein in paying compensation to them in respect of Ac.9.56 cents in Sy.Nos.210/1, 211/1 and 212/1 of Narayanapuram, Anantapur District, as illegal, arbitrary and unconstitutional. The respondents also sought for a direction to the applicants to issue notification under Section 4(1) of the Land Acquisition Act, 1894 (for short, 'the Act') and pay compensation in accordance with the provisions of the Act. The learned Single Judge, by order dated 12.10.2004, allowed the writ petition and directed the applicants to pass award in accordance with law in respect of Ac.8.46 cents, within a period of six months from the date of receipt of a copy of the order. The applicants filed WA(SR).No.45015 of 2006 against the said order of the learned Single Judge. Along with the writ appeal, they also filed WAMP.No.1375 of 2006 seeking condonation of delay of 493 days in filing the writ appeal. A Division Bench of this Court dismissed the said application by order dated 18.07.2006, on the finding that the verification contained in the affidavit filed in support of the application for condonation of delay is not in conformity with the requirement of Order IX Rule 3 CPC and consequently WA(SR).No.45015 of 2006 was also dismissed as barred by time. The Bench, however, gave liberty to the applicants to file an application for revival of the appeal along with fresh application for condonation of delay duly supported by a proper affidavit. On 21.07.2006, the applicants filed WAMP.No.2175 of 2006 for recalling order dated 18.07.2006 on the ground that the deficiencies pointed out by the Division Bench were removed and the defects rectified. The applicants later withdrew the said application with the permission of the Court to file revival application. Accordingly, the revival application was filed with a delay of 920 days along with WAMP.No.477 of 2009 to condone the said delay in filing the revival application. The applicants later withdrew the said application with the permission of the Court to file revival application. Accordingly, the revival application was filed with a delay of 920 days along with WAMP.No.477 of 2009 to condone the said delay in filing the revival application. At the hearing, the learned Government Pleader for Land Acquisition submitted that the long delay of 920 days in filing the revival application occurred despite showing of due diligence by the applicants. He gave three reasons for the delay, namely; (i) that the delay of 493 days in filing the writ appeal occurred due to administrative reasons, (ii) that the applicants were pursuing the wrong remedy of seeking recalling of order dated 18.07.2006, instead of seeking revival of the writ appeal, and (iii) that the Government Pleader's Office was temporarily shifted to the City College buildings in the last week of April, 2007 due to undertaking of renovation work, that in the process of shifting, the case bundle was misplaced and that as the bundle could not be traced immediately, the Government Pleader could not take immediate steps to file revival application. We have carefully considered the submissions of the learned Government Pleader and perused the affidavit filed in support of the application for condonation of delay. Before analyzing the reasons contained in the affidavit, we would like to briefly refer to the settled legal position with regard to condonation of delay. The plethora of case law suggests seemingly divergent views on the approach the Courts needed to adopt in considering the applications for condonation of delay. The earliest view of insistence on explaining day to day delay has given way to a somewhat liberal approach by the Courts. Similarly, the view that in considering the delay, the Courts should not discriminate between the State and its instrumentalities and the private citizen yielded to the view that the Courts should recognize the inevitable delays occurring in bureaucratic process and that certain amount of latitude within reasonable limits deserves to be shown in favour of the State. (Collector, Land Acquisition, Anantnag and another v. Mst. (Collector, Land Acquisition, Anantnag and another v. Mst. Katiji and others (1987) 2 SCC 107 ), G. Ramegowda, Major and others v. Special Land Acquisition Officer, Bangalore (1988) 2 SCC 142 ), State of Haryana v. Chandra Mani and others (1996) 3 SCC 132 ) and State of U.P. and others v. Harish Chandra and others (1996) 9 SCC 309 ). In Vedabai Alias Vaijayanatabai Baburao Patil v. Shantaram Baburao Patil and others (2001) 9 SCC 106 ) and State of Nagaland v. Lipok Ao and others (2005) 3 SCC 752 ) the Apex Court made a delicate balance of the two extreme views, namely, strict approach and a too liberal attitude in considering the applications for condonation of delay. In the first mentioned case, it was held that a distinction must be made between the case where the delay is inordinate and a case where the delay is of a few days and that in the former case the consideration of prejudice to the other side is a relevant factor so that the case calls for a more cautious approach, but in the latter case, no such consideration may arise and the same deserves a liberal approach. The Supreme Court further held that while no hard and fast rule can be laid down, the Courts should exercise the discretion on the facts of each case keeping in mind that in construing the expression "sufficient cause", the principle of advancing substantial justice is of prime importance. The Supreme Court further observed that in exercising their discretion, the Courts should adopt a pragmatic approach. In State of Nagaland (6 supra) the Supreme Court held that "sufficient cause" is a pre-condition for condonation of delay and that in considering the application for condonation of delay what counts is not the length of the delay, but the sufficiency of cause occurring in Section 5 of the Limitation Act, 1963. Let us now examine the reasons put forth by the applicants in their affidavit keeping in view the settled parameters reflected in the case law discussed above. The huge delay of 920 days is stated to have occurred at three different stages. The first stage accounts for 493 days' delay in filing the writ appeal, the second one, during the pendency of WAMP.No.2175 of 2006 filed for recalling order dated 18.07.2006 and the third one pertains to post disposal of WAMP.No.2175 of 2006. The huge delay of 920 days is stated to have occurred at three different stages. The first stage accounts for 493 days' delay in filing the writ appeal, the second one, during the pendency of WAMP.No.2175 of 2006 filed for recalling order dated 18.07.2006 and the third one pertains to post disposal of WAMP.No.2175 of 2006. As regards the first stage, the applicants sought to explain the delay of 493 days by stating that the writ petition was disposed of by the learned Single Judge on 12.10.2004, that copy of the judgment was received by the office of applicant No.3 on 11.11.2004, that his office addressed letter dated 27.11.2004 to the Revenue Divisional Officer, Anantapur requesting him to intimate the exact amount of compensation payable for the lands in question, that a copy of the said letter was also sent to applicant No.2, that his office has sent reminder requests to the Revenue Divisional Officer, Anantapur on 13.12.2004, 01.01.2005, 10.02.2005, 20.06.2005, 18.07.2005 and 17.08.2005, the Revenue Divisional Officer, Anantapur, vide his letter dated 15.10.2005 requested the office of applicant No.3 to deposit provisional amount of Rs.3.33 crores, while enclosing the said letter, his office addressed letter dated 20.10.2005 to the Chief Engineer, R&B, National Highways, Hyderabad to release LOC for the abovementioned amount and in turn the Chief Engineer addressed letter dated 10.11.2005 to the Secretary to Government, Transport, Roads and Buildings, Hyderabad for release of LOC amount. It is further explained that the Engineer-in-Chief, R&B, Administration and National Highways issued instructions to the office of applicant No.3 vide his letter dated 18.11.2005 to obtain legal opinion from the Government Pleader of High Court, pursuant to which his office deputed one officer concerned to the Government Pleader on 27.12.2005 and thereupon the Government Pleader opined that it is a fit case to file writ appeal and requested for supply of certified copy, that as the certified copy was received by the Collector's Office from the Government Pleader's Office, the office of applicant No.3 addressed letter dated 30.12.2005 to the Revenue Divisional Officer, Anantapur requesting him to file writ appeal duly obtaining certified copy of the judgment from the District Collector's Office, that a reminder in that regard was sent on 16.02.2006 with copies marked to applicant No.2 and on 12.04.2006, the office of applicant No.2 sent the certified copy, which was immediately handed over to the Government Pleader for filing writ appeal. With regard to the second stage delay, as noted hereinabove, within a few days of dismissal of the application by the Division Bench, the applicants filed application to recall the said order. The said application was permitted to be withdrawn by order dated 13.04.2007. Thus, the earlier application filed for recalling the order was pending for nearly one year. Coming to the third stage, the applicants sought to explain the delay by stating that in the process of shifting of Government Pleader's Office to the City College buildings due to renovation work, the bundle was misplaced. It is further stated that as a contempt case was filed, the Transport, Roads and Buildings department issued G.O.Ms.No.12 dated 22.01.2008 sanctioning compensation amount of Rs.3.33 crores to the respondents - writ petitioners. When on the basis of the further internal departmental correspondence, the writ petitioners filed contempt case No.985 of 2008, the Government issued G.O.Rt.No.1263 dated 21.08.2008 modifying G.O.Ms.No.12 dated 22.01.2008 and issued memo dated 01.04.2008 to the Revenue Divisional Officer, Anantapur to submit his explanation for providing incorrect calculations regarding the value of the land and that as no explanation was submitted, the District Collector, Anantapur, with the permission of the Chief Commissioner of Land Administration, issued charge sheet to the then Revenue Divisional Officer, Anantapur and thereafter the learned Advocate General opined to take steps for revival of the writ appeal. A close examination of the explanation offered by the applicants reveals that they have not shown due diligence at any of the three stages. The lethargy, indifference and indolence on the part of the applicants at every stage is writ large. Indeed, a perusal of the order of the learned Single Judge shows that as the applicants failed to file counter affidavit for nearly 9 years, applicant Nos.2 and 3 were summoned to appear before the learned Single Judge on 29.09.2004. It is only thereafter that a counter affidavit was filed in the writ petition. Despite having been sensitized by this Court, the applicants continued their laid back approach in taking measures to file a writ appeal. The contents of the affidavit filed in support of WAMP.No.1375 of 2006, discussed above, show that exactly for one year from the date of receipt of a copy of the order, the applicants intended to comply with the orders of the learned Single Judge. Steps were being taken to release the LOC for a sum of Rs.3.33 crores. At that stage, on the instructions of Engineer-in-Chief, R&B Administration, National Highways, legal opinion was sought from the Government Pleader. We are indeed dismayed at the departure made by the applicants from the ordinary procedure being followed by any Government department, namely; to take the legal opinion immediately after the judgment is rendered. Be that as it may, even after the Government Pleader has given his opinion on 27.12.2005, the writ appeal was not filed untill 25.04.2006 on the ground that certified copy, which was lying in the office of applicant No.2, was not made available to applicant No.3. More than three and a half months time was consumed in securing the certified copy, which was admittedly available in the office of applicant No.2. Thus, the applicants miserably failed to show sufficient cause in causing delay of 493 days in filing the writ appeal. Regarding the second stage delay, the Division Bench, as noted supra, dismissed the application for condonation of delay and consequently the writ appeal too, on the ground that the affidavit filed in support of the application was not in conformity with Order IX Rule 3 CPC. While doing so, the Bench gave liberty to the applicants in the following terms. Regarding the second stage delay, the Division Bench, as noted supra, dismissed the application for condonation of delay and consequently the writ appeal too, on the ground that the affidavit filed in support of the application was not in conformity with Order IX Rule 3 CPC. While doing so, the Bench gave liberty to the applicants in the following terms. "However, liberty is given to the appellants to file an application for revival of the appeal along with fresh application for condonation of delay duly supported by a proper affidavit." When the Bench has in unambiguous terms given liberty to the applicants to seek revival of the appeal by filing a fresh application for condonation of delay, it is incomprehensible that the applicants were advised to file WAMP.No.2175 of 2006 for recalling the said order. No person of ordinary prudence and basic legal knowledge would have taken recourse to such a needless procedure when the Division Bench in clearest possible terms permitted the applicants to file a fresh application supported by a proper affidavit. By no means, can the time spent in pursuing the said application be treated as the time spent in bona fide prosecution of a wrong application. There appears to be total non-application of mind and utter lack of diligence in pursuing the said application, resulting in further addition to the long delay, which occurred in filing the writ appeal. As observed earlier, the applicants have not indicated as to when the said application was dismissed as withdrawn with liberty to file the application for revival of the writ appeal. The explanation for the third stage delay is equally nebulous and consequently meritless. Here also, the negligence of the persons concerned with this case is apparent. As noted earlier, while the application for revival of the writ appeal was dismissed as withdrawn on 13.04.2007, the present application was filed on 25.02.2009. The delay of nearly one year and eleven months in filing this application after withdrawal of WAMP.No.2175 of 2006 is sought to be explained by taking shelter under the purported renovation of the Government Pleader's Office. Evidently, filing of two contempt cases seemed to have forced these persons to file the revival application along with the present application for condonation of delay. Evidently, filing of two contempt cases seemed to have forced these persons to file the revival application along with the present application for condonation of delay. The required details as to when and where the bundle was misplaced, the person, who was responsible for misplacing it, when and where the bundle was re-traced and the person who re-traced the bundle, are conspicuously absent in the affidavit. While we are conscious of the dicta of the Apex Court reflected in the case law that the Court should not adopt hyper technical approach, we are equally duty bound to see that the make believe explanations of the State and its officers with a view to camouflage their utter lack of diligence, accountability and responsibility in pursuing the adversarial litigation are not passed off. Such an approach would only place premium on the negligence and inefficiency of the officers discharging the sovereign functions of the State. In the guise of protecting the public revenue, the bureaucratic apparatus cannot seek indulgence of this Court to cover up their lackadaisical approach, keeping the opposite parties in tenterhooks and make damocles sword hanging on their heads for years on end. The intendment of law in prescribing limitation is to see that persons are not vexed with the litigation for unduly long periods and their legitimate expectation of receiving the fruits of success in litigation is not defeated after a certain period by dragging him to a further round of litigation. This legislative object based on public policy cannot therefore be frustrated by the officers at the helm of affairs by taking their sweet time and move at a pace which may put the proverbial snail to shame. Having given our earnest consideration and adopting the most pragmatic approach, we are of the considered view that the reasons put-forth by the applicants for condonation of enormous delay of 920 days in filing the revival application do not satisfy the precondition of showing "sufficient cause" and therefore we are constrained to dismiss this application. Before parting with this case, we place it on record our concern for the loss likely to be caused to the public exchequer on account of the lethargy of the officers in pursuing the litigation on behalf of the State. Before parting with this case, we place it on record our concern for the loss likely to be caused to the public exchequer on account of the lethargy of the officers in pursuing the litigation on behalf of the State. We are very much aware that the State in the instant case has taken the stand that the estimate of compensation made by the subordinate revenue officials does not reflect the compensation legally payable to the respondents. It is needless to observe that the applicants are not precluded from passing an appropriate award reflecting the correct market value. If it is found that dismissal of this application and the writ appeal resulted in loss of public money, applicant No.1 shall identify the officers and the persons concerned with this case, who are responsible for the enormous delay, and recover the loss from them to the extent possible, apart from initiating disciplinary proceedings against them. As a sequel to dismissal of this application, WA(SR).No.45015 of 2006 is dismissed as barred by limitation.