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2011 DIGILAW 985 (GAU)

State of Tripura v. Jiban Chandra Chakraborty

2011-12-15

SUBHASIS TALAPATRA, UTPALENDU BIKAS SAHA

body2011
JUDGMENT Saha, J. 1. The instant application is filed by the appellant-petitioners for condoning the delay of 106 days in filing the connected appeal against the judgment and order dated 05-04-2011 passed in WP(C) 357 of 2010 whereby and whereunder the learned Single Judge interfered with Clause 5 of the Memorandum dated 19-12-2002 and directed the appellant-petitioners to act upon the application made by the respondent No. 1 - who was the writ petitioner. Heard Ms. A.S. Lodh, learned Addl. GA for the Appellant-petitioners as well as Mr. S. Bhattacharjee, learned counsel for the respondent No. 1. None appears for the respondent No. 2, (who was the proforma respondent in the writ petition) even after receipt of notice. 2. Ms. Lodh in support of the application for condonation of delay referred to Paragraph 2 (b) of the Additional Affidavit dated 7th December, 2011 filed by the appellant-petitioners wherein the reasons for delay have been properly explained. She further submits that by this time it is settled that day-to-day explanation is not necessary but only requirement is to assign sufficient cause for such delay. She further submits that the expression 'sufficient cause' must receive a liberal construction so as to advance substantial justice and generally delay in preferring the appeals is required to be condoned in the interest of justice and in the instant case if the application for condonation of delay is not accepted by this Court then that would be denial of justice to the State appellants particularly, when the learned single Judge in his judgment did not consider as to how the respondent No. 1-writ petitioner will petition is affected by the impugned memorandum and what right of him has been taken away by the appellant. 3. She also submits that the State being an impersonal machinery and no individual in the State machinery is being affected by the judgment sought to be subjected to appeal and particularly, due to bureaucratic methodology and note making and file-pushing process, the delay is occasioned and the same is required to be condoned to protect the collective interest of the community as the State represents the collective interest of the community as a whole. 4. 4. In support of her aforesaid contention she placed reliance on the decision of the Apex Court in State of Haryana v. Chandra Mani, reported in (1996) 3 SCC 132 : ( AIR 1996 SC 1623 ) wherein the Apex Court while dealing with a condonation application preferred by the government noted inter alia, "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 1st for such default no person is individually affected but what in the ultimate analysis suffers, is public interest." 5. She also placed reliance on a subsequent decision of the Apex Court in State of Nagaland v. Lipok AO and others, (2005) 3 SCC 752 : ( AIR 2005 SC 2191 ) wherein the Apex Court considering all its earlier decisions also reiterated the principle laid down in Chandramani (supra), more particularly, explained the meaning of expression 'sufficient cause' and also held that "the expression 'sufficient cause' must receive a liberal construction so as to advance substantial justice and generally delays in preferring the appeals are required to be condoned in the interest of justice where no gross negligence or deliberate inaction or lack of bona fides is imputable to the party seeking condonation of delay". 6. 6. She further placed reliance on the case of State, NCT of Delhi v. Ahmed Jaan, (2008) 14 SCC 582 : (AIR 2009 SC (Supp) 695) wherein the Apex Court considered the case of Chandramani, ( AIR 1996 SC 1623 ) (supra) as well as Lipok AO (supra) and held that adoption of strict standard of proof sometimes fails to protect public justice, and it would result in public mischief by skilful management of delay in the process of filing an appeal and ultimately condoned inordinate delay in filing of the revision petition setting aside the impugned order of the High Court challenged before it. 7. Mr. Bhattacharjee, while resisting the contention of Ms. Lodh would contend that delay of number of days is not the matter but that has to be explained properly and the applicant is bound to show that the delay which was caused for filing an appeal is not intentional. It Ex facie lacks bona fide. The explanation has to be reasonable and plausible, so as to persuade the Court to believe that the explanation rendered is not only true, but is worthy of exercising judicial discretion in favour of the applicant. 8. In support of his aforesaid contention he placed reliance on the decision of the Apex Court in Balwant Singh (Dead) v. Jagdish Singh and others, (2010) 8 SCC 685 : ( AIR 2010 SC 3043 ) particularly, Paragraph 27 wherein the Apex Court noted that, "The application filed by the applicants lacks in details. Even the averments made are not correct and ex facie lack bona fide. The explanation has to be reasonable or plausible, so as to persuade the Court to believe that the explanation rendered is not only true, but is worthy of exercising judicial discretion in favour of the applicant. If it does not specify any of the enunciated ingredients of judicial pronouncements, then the application should be dismissed. On the other hand, if the application is bona fide and based upon true and plausible explanations, as well as reflects normal behavior of a common prudent person on the person on the part of the applicant, the Court would normally tilt the judicial discretion in favour of such an applicant. Liberal construction cannot be equated with doing injustice to the other party." 9. Liberal construction cannot be equated with doing injustice to the other party." 9. He also referred to Paragraph 29 of the said report wherein the Apex Court took note of its earlier decision in Ramlal v. Rewa Coalfields Ltd., AIR 1962 SC 361 . He also placed reliance on a decision of the Apex Court in Commissioner of Wealth Tax, Bombay v. Amateur Riders Club, Bombay, 1994 Supp (2) SCC 603 particularly Paragraph 3 of the said Report wherein the Apex Court while dealing with an application for condonation of delay stated, inter alia, that "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 again one of the stereotyped affidavits making it susceptible to criticism that the Revenue does not seem to attach any importance to the need for promptitude even where it affects its own interest." 10. He also placed reliance on a decision of this Court in Indian Oil Corporation Ltd. and Ors. v. Subrata Borah Chowlek, (2010) 3 GLR 312 wherein a co-ordinate Bench of this Court noted that, "there is no straitjacket formula to adjudge a sufficient cause, an appraisal whereof has to be logically individualistic contingent on the attendant facts and circumstances. By no means, if sufficient cause in wanting, delay can be condoned merely on equitable on sympathetic considerations. Though, a liberal approach in analyzing the cause is generally adopted, it cannot displace the imperative essentiality of convincing the rational explanation to avail the discretionary relief." 11. We have given anxious thought to the submission of the learned counsel for the parties and also have gone through the various decisions cited by them as well as the contentions made in Paragraph 2(b) of the Additional Affidavit filed by the appellant-petitioners. We have given anxious thought to the submission of the learned counsel for the parties and also have gone through the various decisions cited by them as well as the contentions made in Paragraph 2(b) of the Additional Affidavit filed by the appellant-petitioners. Admittedly, the respondent-writ petitioner did not file any objection by way of affidavit to the contentions made in Paragraph 2(b) of the Additional Affidavit though an opportunity was provided to him. 12. The reasons for delay have been explained with better particulars in Paragraph 2(b) of the additional affidavit wherein it is mentioned that the judgment and order dated 05-04-2011 was received by the authority on 06-04-2011 and thereafter the said judgment was placed to the concerned Section of the Directorate of Health and Family Welfare Department for making comments as to whether an appeal can be preferred or not. The concerned Section of the Health and Family Welfare Department gave its views to file appeal against the judgment in question on 28-04-2011 and accordingly the file was directed to be placed before the Deputy Drug Controller and Legal Affairs Unit of the Directorate on 01-05-2011. The legal cell of the Directorate of Health and Family Welfare Department through the appellant-petitioner No. 2 placed the file before the Deputy Secretary and the Secretary, Law on 13-05-2011. After obtaining opinion from the Law department the file was placed before the Principal Secretary, Health and Family Welfare Department through the Director, Health and Family Welfare Department to the Deputy Drug controller and on 02-06-2011 the said file was placed before the learned Addl. GA for comments as to whether an appeal can be preferred or not in terms of the opinion of the Law Department. On 06-06-2011 the learned Addl. GA gave her views in favour of preferring an appeal and ultimately on 18-06-2011 the Secretary, Law Department suggested for preferring an appeal. Thereafter, the file was again placed before the Administrative Department on 21-06-2011 and subsequent thereto on 30-06-2011 the file was placed before the learned Addl. On 06-06-2011 the learned Addl. GA gave her views in favour of preferring an appeal and ultimately on 18-06-2011 the Secretary, Law Department suggested for preferring an appeal. Thereafter, the file was again placed before the Administrative Department on 21-06-2011 and subsequent thereto on 30-06-2011 the file was placed before the learned Addl. GA for preparation of the memo of appeal along with an application for condonation of delay and the said file reached the learned Advocate on 02-07-2011 and thereafter the memo of appeal as well as the application for condonation of delay were prepared and the same were sent to the Deputy Drug Controller, Directorate of Health Services on 19-07-2011 and after completion of the other official procedures the file was placed before the learned Advocate on 07-12-2011. 13. There is no quarrel with the proposition laid down by the Apex Court in Commissioner of Wealth Tax, Bombay (supra) as well as Balwant Singh, ( AIR 2010 SC 3043 ) (Dead) (supra) as in both the decisions, the Apex Court noted that the Government should not be treated as any other private litigant and there should be some explanation and the explanation offered in the appeal should be a reasonable one and that should not be on an ex facie lack of bona fide. In none of the decisions referred by the learned counsel for the respondent - writ petitioner the Apex Court diluted the law laid down in Lipok AO, ( AIR 2005 SC 2191 ) (supra) wherein the Apex Court culled down the law relating to condonation of delay on an application preferred by the government. 14. In paragraph 27 of Balwant Singh (Dead) (supra) their Lordships of the Apex Court reiterated its earlier view in several decisions and noted that explanation has to be reasonable and plausible as well as reflecting normal behaviour of a common prudent person, the Court would normally tilt the judicial discretion in favour of such an applicant and if the application is bona fide and based upon true and plausible explanation and the Court is satisfied with such explanation then the Court would exercise its judicial discretion. 15. We have also considered the decision in Indian Oil Corporation Ltd. and Ors. 15. We have also considered the decision in Indian Oil Corporation Ltd. and Ors. (supra) wherein their lordships in a Division Bench very rightly said that there is no strait-jacket formula to adjudge a sufficient cause, an appraisal whereof has to be logically individualistic contingent on the attendant facts and circumstances. Sufficient cause depends on the facts of a particular case and explanation given for condonation of the delay by an applicant also depends on the functioning of the applicant. As the Apex Court in Lipok AO (supra) reiterated that the expression "every day's delay" has to be considered in a pragmatic manner and not in a pedantic way and the substantial justice and technical considerations should be pitted against each other, so that substantial justice is not frustrated in any manner when justice seeker is really entitled to the substantial justice from a Court of law. There is no doubt that a Court should not presume each and every case that the delay is occasioned deliberately or on account of culpable negligence or on account of mala fides. Duty of the Court is to consider the fact of each case as the whole and we are also of the view that always it is not necessary for an applicant of a condonation of delay application to explain the every day's delay. Requirement is already laid down by the Apex Court that the delay should be explained properly, and the sufficient cause should get a liberal construction so as to advance substantial justice to a justice seeker. 16. The case of Lipok AO, ( AIR 2005 SC 2191 ) (supra) has also been taken into note by a Division Bench of this Court in State of Manipur and Ors. v. Khumanlambam Nilaroton Singh, 2007 (3) GLT 650 : (2007 Lab IC 2754) (Gau) wherein this Court considered the decisions of the Apex Court in State of Bihar and Ors. v. Kameshwar Prasad Singh and Anr., AIR 2000 SC 2306 : (2000 AIR SCW 2389) and Special Tehsildar, Land Acquisition, Kerala v. K.V. Ayisumma, AIR 1996 SC 2750 : (1996 AIR SCW 3445) as well as Chandramani (supra) and ultimately condoned the delay of 54 days in preferring appeal by the State of Manipur. 17. v. Kameshwar Prasad Singh and Anr., AIR 2000 SC 2306 : (2000 AIR SCW 2389) and Special Tehsildar, Land Acquisition, Kerala v. K.V. Ayisumma, AIR 1996 SC 2750 : (1996 AIR SCW 3445) as well as Chandramani (supra) and ultimately condoned the delay of 54 days in preferring appeal by the State of Manipur. 17. In the instant case also, according to us, the time which has been taken for preparation of the Memo of Appeal as well as application for condonation of delay was only for the latitude of the bureaucratic methodology and note-making and file pushing from one department to other department which occurs almost in a routine manner as the government is a machinery impersonal and no individual can take decision at an early stage in any particular case. But an individual can take a decision immediately as he is not supposed to follow any procedure but the State being machinery impersonal has to follow certain prescribed procedure while taking a decision. 18. In view of the above, according to us, certain amount of latitude should be granted to the State while the State is coming up with an application for condonation of delay but that does not mean that when the delay is not properly explained then also the Court has to grant the prayer for condonation of delay. In the instant case, though the day-today delay has not been explained but substantial explanations are there. Therefore, according to us, it would be proper to condone the delay of 106 days in preferring the appeal. Accordingly, the delay of 106 days in preferring appeal against the judgment and order dated 05-04-2011 in WP(C) 357 of 2010 is hereby condoned. CM application stands allowed. Application allowed.