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2010 DIGILAW 524 (JK)

State Of J&K v. Roshan Lal Bhat

2010-10-11

Aftab H.Saikia, Sunil Hali

body2010
Dr. Saikia, CJ. 1. Heard Mr. Gagan Basotra, learned Additional Advocate General (AAG), for the applicants. 2. This is an application filed by the State-applicants seeking condonation of delay of 790 days in preferring the related Letters Patent Appeal against the judgment and order dated 28.5.2008, passed by the Writ Court in SWP no. 1903/2001. 3. In explaining such inordinate delay, the State-applicants made the following averments and statements in the instant application. "1. That the applicants have filed the above titled appeal against the judgment dated 28.05.2008 in SWP no. 1903/2001 passed by Learned Single Judge, which is sure to succeed on merits; 2. That after the judgement was received by the applicants the same was considered by various agencies of the appellants. The judgement was also referred to the Law Department for its opinion. The Law Department has granted sanction for filing the accompanying appeal; 3. That the delay in filing the said appeal has accrued due to the inter departmental correspondence and other administrative exigencies which is neither intentional nor deliberate but to the aforesaid reasons which were beyond the control of the applicants. 4. That initially the appeal was to be filed by the earlier Government Counsel for the Home Department but with the change of the Counsel of the Home Department it took some more time for filing the appeal as all the necessary files and papers were handed over to the new Government Counsel which contributed to the delay in filing the said appeal; 5. That the present application be allowed in the interest of justice equity and fair play otherwise an irreparable loss will accrue to the applicants; 6. That delay in filling the accompanying appeal is 790 days." 4. In support of the above averments and contentions, Mr. Basotra, learned AAG, has submitted that the delay in question was neither intentional nor deliberate and the same was accrued due to the inter departmental correspondences and the other administrative exigencies. Moreso, the applicants, being the Government, it would not be possible to explain the day to day delay and some leniency needs to be given in order to avoid grave miscarriage of public justice. Accordingly, it is submitted that adopting a pragmatic approach, the delay in question may be condoned. 5. Moreso, the applicants, being the Government, it would not be possible to explain the day to day delay and some leniency needs to be given in order to avoid grave miscarriage of public justice. Accordingly, it is submitted that adopting a pragmatic approach, the delay in question may be condoned. 5. It is correct that the Government or the private parties cannot be put on the same footing in the matter of condonation of delay and peculiar characteristics of functioning of the governmental conditions require adoption of pragmatic approach and hence certain amount of latitude is not impermissible. 6. However, it is experienced that despite numerous directions, observations and orders rendered by the Court, the decisions to file appeal, petition or application on behalf of the Government, whether State or Central, are taken by the authorities/officers as a routine manner at slow pace and through an encumbered process of pushing the files from table to table and also by keeping them on the table for a considerable time at the cost of adversaries and to the great prejudice to the public interest. Even in spite of pointing out the delay, no expeditious action for ultimate decision in filing the petition or the appeal is forthcoming. This is basically the matter that concerns. The officers of the State and its instrumentalities carry an impression that with each and every case, the delay caused in filing an appeal or petition is bound to be condoned. However, there is limit for every thing. 7. A Division Bench of this Court, while dealing with the question of condonation of delay, on being sought by the State, in a case of State of Jammu and Kashmir and ors v. Dr. Showkat Ali Mufti and ors in COD no. 03/2010 in LPA no. 3/201, disposed of on June 2, 2010, declined to condone the delay in question, observing as under:- "5. It is established that law of limitation has to be applied with all its rigour prescribed by the Statute. Although Section 5 of the Jammu and Kashmir Limitation Act Smvt. Showkat Ali Mufti and ors in COD no. 03/2010 in LPA no. 3/201, disposed of on June 2, 2010, declined to condone the delay in question, observing as under:- "5. It is established that law of limitation has to be applied with all its rigour prescribed by the Statute. Although Section 5 of the Jammu and Kashmir Limitation Act Smvt. 1995 (for short `the Act') provides for extension of the period of limitation in certain cases, the applicant or appellant seeking such extension under the said provision of law is required to satisfy the Court that he has "sufficient cause" for not preferring the appeal or making the application within such period as is prescribed by law. 6. Under the concept of welfare State, in order to promote social justice, it is the bounden duty of the State to protect and preserve public interest and public fund. Since public exchequer is incurring heavy expenses on different departments of the State and its instrumentalities, it is incumbent upon them to be fast and prompt in discharging their duties and in carrying their responsibilities with due diligence. If there is a good case on merit and the application for condonation of delay, unintentional or otherwise, filed by the State is not allowed, it is certain that damage will be caused to the public interest and public fund. Unfortunately, the officers of the State and its instrumentalities carry an impression that with each and every case, the delay caused in filing an appeal is bound to be condoned taking it for granted on the basis of a few decisions where the delay has been condoned considering the facts of those cases where sufficient causes were shown and proved. 7. In the case of P. K. Ramachandran v. State of Kerala, reported in AIR 1998 SC 2276 , the Apex Court, at paragraph 6 ruled as under:- "Law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribe and the Courts have no power to extend the period of limitation on equitable grounds. The discretion exercised by the High Court was, thus, neither proper nor judicious. The order condoning the delay cannot be sustained. This appeal, therefore, succeeds and the impugned order is set aside. The discretion exercised by the High Court was, thus, neither proper nor judicious. The order condoning the delay cannot be sustained. This appeal, therefore, succeeds and the impugned order is set aside. Consequently, the application for condonation of delay filed in the High Court would stand rejected and the Miscellaneous First Appeal shall stand dismissed as barred by time. No costs." 8. The Supreme Court, while deliberating upon the question of condonation of an inordinate delay of 264 days, on an application preferred by the Government, in a case entitled Commissioner of Wealth Taxes v. Amateur Riders Club, reported in 1994 SCC Supl. (2) 603 at paragraphs 2 & 3 opined as follows:- "2. This special leave petition filed on November 16, 1993 is delayed by 264 days. For quite some time in the past, this Court has been making observations as to the grave prejudice caused to public interest by appeals brought on behalf of the Government being lost on the point of limitation. Such observations have been made for over a few years in the past. But there seems to be no conspicuous improvement as is apparent in the present petition which is filed in November 1993. The explanation for the delay, had better be set out in petitioner's own words: "(g) The Advocate-on-Record got the special leave petition drafted from the drafting Advocate and sent the same for approval to the Board on June 24, 1993 alongwith the case file. (h) The Board returned the case file to the Advocate-on-Record on July 9, 1993 who re-sent the same to the Board on September 20,1993 requesting that draft SLP was not approved by the Board. The Board after approving the draft SLP sent this file to CAS on October 1, 1993. "3. This explanation is incapable of furnishing a judicially acceptable ground for condonation of delay. After the earlier observations of this Court made in several cases in the past, we hoped that the matters might improve. There seems to be no visible support for this optimism. There is a point beyond which even the courts cannot help a litigant even if the litigant is Government which is itself under the shackles of bureaucratic indifference. Having regard to the law of limitation which binds everybody, we cannot find any way of granting relief. There seems to be no visible support for this optimism. There is a point beyond which even the courts cannot help a litigant even if the litigant is Government which is itself under the shackles of bureaucratic indifference. Having regard to the law of limitation which binds everybody, we cannot find any way of granting relief. It is true that Government should not be treated as any other private litigant as, indeed, in the case of the former the decisions to present and prosecute appeals are not individual but are institutional decisions necessarily bogged down by the proverbial red-tape. But there are limits to this also. Even with all this latitude, the explanation offered for the delay in this case merely serves to aggravate the attitude of indifference of the Revenue in protecting its common interests. The affidavit is gain one of the stereotyped affidavits making it susceptible to the criticism that the Revenue does not seem to attach any importance to the need for promptitude even where it affects its own interest." 9. In the above cited case in paragraph 2, the Apex Court clearly commented that despite the observations made by the Supreme Court for quite some time in the past as to the grave prejudice caused to the public interest by the appeals brought on behalf of the Government after the expiry of the limitation period, no conspicuous improvement did take place. 10. In the instant case, there is an inordinate delay of 790 days. From a close perusal of the averments made in this application, as quoted hereinabove, would manifestly go to show that the application has been filed in a very casual and cryptic manner without explaining the inordinate delay, as required under the Law of Limitation. 11. We hardly find any acceptable explanation from the above averments to constitute `sufficient cause' for condoning the delay in question. An attempt has been made in this application on behalf of the applicants to impress upon the Court that in condoning the delay on an application filed by the State, the expression "sufficient cause" occurred in the relevant provisions of law, as already dealt in Dr. Showkat Ali Mufti's case (supra) in paragraph 5, as quoted above, should receive a liberal concession in favour of the State so as to advance the cause of substantial justice. 12. Showkat Ali Mufti's case (supra) in paragraph 5, as quoted above, should receive a liberal concession in favour of the State so as to advance the cause of substantial justice. 12. It is settled law that the Courts are neither to travel beyond the provisions of the Act nor can grant exemption from limitation or equitable consideration or on the ground of hardship. 13. Having carefully scrutinized the averments and submissions made in the Court and keeping in view the judicial pronouncement abovementioned, we are of the view that delay in question has not been satisfactorily and sufficiently explained. 14. In view of what has been stated, observed and discussed hereinabove, we find no valid reason to accept the explanation so put forward to be `sufficient cause'. 15. Accordingly, we are disinclined to condone the delay in preferring the appeal. 16. Application for condonation of delay is, accordingly, dismissed.