Research › Search › Judgment

Jharkhand High Court · body

2011 DIGILAW 736 (JHR)

State of Jharkhand through Excise Commissioner, Government of Jharkhand, Ranchi. v. Member, Board of Revenue, Jharkhand, Ranchi

2011-07-27

H.C.MISHRA, PRAKASH TATIA

body2011
ORDER 1. This L.PA has been preferred after a delay of 183 days. However, after going through the impugned judgment, we are of the considered opinion that the State is not serious about its own litigation policy which is apparent from the facts of this case. 2. The present writ petition of the State was disposed of by following the judgment passed by this Court in W.P.(C) No. 6650 of 2006, in the case of State of Jharkhand VS. Member Board of Revenue, Jharkhand, Ranchi and Another with analogous cases vide order dated 9.7.2009. When it was pointed out before the Single Bench that controversy has already been decided by the said decision dated 9.7.2009, the counsel for the State could not dispute this position and there fore, the writ petition of the State was disposed of by following the judgment delivered in W.P.(C) No. 6650 of 2006. 3. The State has now preferred the appeal against the said order dated 2.8.2010. It appears that since there is a decision given in the writ petition preferred by the State by a Single Bench of this Court and since such order is appealable in the High Court before the Division Bench, therefore, only it appears that this L.PA has been preferred and that has been done without application of mind. 4. It appears that State is under the impression that still they can afford to prefer an appeal against the judgment passed by a Single Bench of this Court simply because there is an appealable judgment, without knowing whether the judgment is in fact against the State or not and whether the judgment has been obtained by the State itself or not, and whether the State has already accepted the earlier decision given by the High Court and even without knowing whether the judgment delivered by the High Court on earlier litigations has attained the finality because of not challenging the said judgment and without knowing whether the L.P.A. against the decision of the Single Bench of this Court has been preferred and that was dismissed by the Division Bench and whether the Hon'ble Supreme Court also upheld the said decision. 5. 5. The appeal has been preferred assailing the order dated 2.8.2010 (impugned) without mentioning a single fact about the steps taken after the decision dated 9.7.2009 given in W.P.(C) No. 6650 of 2006 and further without even annexing the copy of the said judgment and without mentioning that how the judgment of this Court which according to the appellant themselves are not known whether that has attained finality or not and without disclosing that whether the State has accepted it or not, have preferred this L.P.A.. The order dated 9.7.2009 passed in W.P.(C) No. 6650 of 2006 also has not been annexed with the L.P.A. probably because, the officer who advised to prefer L.P.A. has not even read this order dated 9.7.2009 before preferring this L.PA and more shocking fact is that in the grounds taken by the appellant in the L.P.A., it is not stated that the judgment dated 9.7.2009 is illegal, contrary to the statutory provisions of law or per incurium and virtually the State in this L.PA has not challenged the correctness of the order dated 9.7.2009 passed by the Single Bench on the basis of which the Coordinate Bench who was bound by the decision of the Coordinate Bench decided the writ petition on acceptance of the legal position on behalf of the State. 6. Furthermore, the State has not stated that its counsel has wrongly accepted the legal position to be correct as laid down in order dated 9.7.2009 passed in W.P.(C) No. 6650 of 2006. 7. It is further important that the L.P.A. has not been preferred in hot haste so that any ground can be taken that unless State would have obtained any interim order against the impugned judgment from this Court in L.PA, the State would have suffered heavily and, therefore, they could not look into the correctness, legality, validity of the order dated 9.7.2009 passed in W.P.(C) No. 6650 of 2006. Contrary to it, L.PA has been preferred after inordinate delay of 183 days whereas the period for preferring appeal is only 30 days. 8. Contrary to it, L.PA has been preferred after inordinate delay of 183 days whereas the period for preferring appeal is only 30 days. 8. It is expected from the litigants to prefer appeal within the limitation and as per Section 3 of the Limitation Act, the Court is bound to dismiss the petition, if it is barred by limitation even in a case where no defence has been taken by the respondent subject to exception of condonation of delay by Court. Therefore, we may summarise that:- (i) The L.P.A. has been preferred against the order passed by a Single Bench which even in the opinion of the State was passed on the basis of the earlier judgment or Coordinate Bench laying down the correct legal position, as is apparent from the admission of counsel for the State recorded in the impugned order. (ii) Without challenging the consent made by the counsel on behalf of the State before the same Bench who decided the writ petition of the State, the State has prefered L.P.A. (iii) L.PA has been preferred without finding out whether the order dated 9.7.2009 has attained the finality because of non-challenging of the said judgment or if challenged, then because the Appellate Court has upheld the order dated 9.7.2009 or not. (iv) No ground has been raised against the order dated 9.7.2009 in this appeal, which could have been taken in accordance with law. (v) The time was consumed more than required, yet the appeal has been preferred without application of mind and with frivolous and vague ground that delay was caused in "official formalities" and we have seen their formalities. (vi) The State even after framing of the litigation policy have not issued. instructions to their Law Officers in a matter of preferring appeal much less to the giving of instructions with respect to the initiating of the legal proceedings in Court of law in original side. (vii) Further, it appears that no care was taken for getting the similar case decided as the present writ petition which was also of the same year 2006 and the judgment in earlier similar case of the year 2006 being W.P.(C) No. 6650 of 2006 was delivered on 9.7.2009. (vii) Further, it appears that no care was taken for getting the similar case decided as the present writ petition which was also of the same year 2006 and the judgment in earlier similar case of the year 2006 being W.P.(C) No. 6650 of 2006 was delivered on 9.7.2009. Then the State should have pointed out on 9.7.2009 or when the W.P.(C) No. 6650 of 2006 was heard by the Bench that similar matters like present two writ petitions may also be taken together and if that fact escaped the notice of the arguing counsel of W.P.(C) No. 6650 of 2006, then it was the duty of the Law Officers of the State Government to immediately examine how many similar matters are pending in the High Court which could have been decided in the year 2009 itself so as to lessen the burden of the High Court from unnecessary litigation. 9. Since the impugned judgment is delivered in W.P.(C) No. 6650 of 2006 and it is not stated that the judgment has not attained finality nor it is stated that it has not been accepted by the State Government we are of the view, the learned Single Judge was bound by the decision of Coordinate Bench rightly followed the decision rendered by the Coordinate Bench. In the circumstances, the Interlocutory Application for condonation of delay giving no satisfactory reasons for delay as well as the L.P.A., both are dismissed. 10. In the circumstances, the Interlocutory Application for condonation of delay giving no satisfactory reasons for delay as well as the L.P.A., both are dismissed. 10. A copy of this order be sent to the Law Secretary, Government of Jharkhand, Ranchi who will direct to issue instructions to all the Law Officers in the State Government in all departments so as to see that before filing of L.P.A., they shall take care of at least looking into the aspect whether the judgment if it is based on an earlier judgment of the High Court, what happened to that earlier judgment and whether that judgment was accepted by the Government or not and ask them to follow the instructions and look into the observations referred above, in the matter of preferring L.PA with a clear warning to the Law Officers that in case, such lapse would be found by the Court in future, the Court itself may take stern action against such Law Officers and in addition, to direct the Government to take action against such Law Officer's who may be saddled with heavy cost even when no notice is issued to the other party. They may be warned against unnecessary burdening the Court and to be careful in preferring the L.P.A. 11. Since it is a first case, we are passing order after framing of the State Litigation Policy, therefore, We are not imposing any heavy cost upon the Law Officers who opined for preferring the appeal. 12. A copy of this order be also sent to the Learned Advocate General, who may in turn circulate a copy of this order to all learned Advocates working for the Government and local bodies.