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2014 DIGILAW 859 (HP)

Bharat Sanchar Nigam Limited v. Hoshiar Chand

2014-07-08

RAJIV SHARMA

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JUDGMENT Rajiv Sharma, J. 1. The applicant has filed the present application for codonation of delay of 6 years 4 months and 18 days in filing the review petition against the judgment dated 2.11.2007 rendered by this Court in CWP No. 959 of 2007. 2. Key facts necessary for the adjudication of this application are that the respondent filed a writ petition bearing CWP No. 959 of 2007 before this Court. In sequel to the direction of this Court, the applicants placed on record copy of letter dated 27.10.2007. Consequently, CWP No. 959 of 2007 was dismissed having become infructuous with the observations that the communication dated 27.10.2007 would be implemented in its entirety within a period of one month. According to the applicants, one Gopal Chand, Sr. TOA, filed representation on 4.4.2009 bringing to the notice of the authorities that after grant of OTBP, i.e. after 16 years of service, salary of the respondent was fixed at Rs. 8100/- and his salary was fixed at Rs. 7700/- as on 8.1.2007, despite the fact that he was senior to the respondent. Thereafter, Gopal Chand also made a representation on 16.2.2012. The judgment in CWP No. 959 of 2007 was pronounced on 2.11.2007. The delay in filing the review petition has not been explained satisfactorily. The reasons assigned in the application do not constitute any sufficient ground to condone the delay. It is settled law that that the Courts have to take a liberal approach while considering the application under Section 5 of the Limitation Act if the delay is of short duration, but the approach of the Courts should be strict in case there is an inordinate delay. The same cannot be condoned in a mechanical manner. The rights accrued to the other party have to be taken into consideration. 3. Their Lordships of Hon’ble Supreme Court in Oriental Aroma Chemical Industries Limited vs. Gujarat Industrial Development Corporation, (2010) 5 SCC 459 have held that there shall be liberal approach in condoning delay of short duration and stricter approach in cases of inordinate delay. Their Lordships have further held that same yardstick should be applied for deciding applications of private individuals and the State. However, certain amount of latitude is not impermissible with regard to the State. Their Lordships have held as under:- 14. We have considered the respective submissions. The law of limitation is founded on public policy. Their Lordships have further held that same yardstick should be applied for deciding applications of private individuals and the State. However, certain amount of latitude is not impermissible with regard to the State. Their Lordships have held as under:- 14. We have considered the respective submissions. The law of limitation is founded on public policy. The legislature does not prescribe limitation with the object of destroying the rights of the parties but to ensure that they do not resort to dilatory tactics and seek remedy without delay. The idea is that every legal remedy must be kept alive for a period fixed by the legislature. To put it differently, the law of limitation prescribes a period within which legal remedy can be availed for redress of the legal injury. At the same time, the courts are bestowed with the power to condone the delay, if sufficient cause is shown for not availing the remedy within the stipulated time. 15. The expression "sufficient cause" employed in Section 5 of the Indian Limitation Act, 1963 and similar other statutes is elastic enough to enable the courts to apply the law in a meaningful manner which sub serves the ends of justice. Although, no hard and fast rule can be laid down in dealing with the applications for condonation of delay, this Court has justifiably advocated adoption of a liberal approach in condoning the delay of short duration and a stricter approach where the delay is inordinate – Collector, Land Acquisition, Anantnag vs. Mst. Katiji, (1987) 2 SCC 107 , N. Balakrishnan vs. M. Krishnamurthy, (1998) 7 SCC 123 and Vedabai vs. Shantaram Baburao Patil, (2001) 9 SCC 106 . 16. In dealing with the applications for condonation of delay filed on behalf of the State and its agencies/instrumentalities this Court has, while emphasizing that same yardstick should be applied for deciding the applications for condonation of delay filed by private individuals and the State, observed that certain amount of latitude is not impermissible in the latter case because the State represents collective cause of the community and the decisions are taken by the officers/agencies at a slow pace and encumbered process of pushing the files from table to table consumes considerable time causing delay - G. Ramegowda vs. Spl. Land Acquisition Officer (1988) 2 SCC 142 , State of Haryana vs. Chandra Mani (1996) 3 SCC 132 , State of U.P. vs. Harish Chandra (1996) 9 SCC 309 , State of Bihar vs. Ratan Lal Sahu (1996) 10 SCC 635 , State of Nagaland vs. Lipok Ao (2005) 3 SCC 752 and State (NCT of Delhi) vs. Ahmed Jaan, (2008) 14 SCC 582 . 4. Their Lordships of Hon’ble Supreme Court in Lanka Venkateswarlu vs. State of Andhra Pradesh, (2011) 4 SCC 363 have held that liberal approach in considering sufficiency of cause for delay should not override substantial law of limitation, especially when court finds no justification for delay. Their Lordships have held as under:- “19. We have considered the submissions made by the learned counsel. At the outset, it needs to be stated that generally speaking, the courts in this country, including this Court, adopt a liberal approach in considering the application for condonation of delay on the ground of sufficient cause under Section 5 of the Limitation Act. This principle is well settled and has been set out succinctly in the case of Collector, Land Acquisition, Anantnag & other vs. Katiji & other, (1987) 2 SCC 107 . 23. The concepts of liberal approach and reasonableness in exercise of the discretion by the Courts in condoning delay, have been again stated by this Court in the case of Balwant Singh (supra), as follows:- "25. We may state that even if the term "sufficient cause" has to receive liberal construction, it must squarely fall within the concept of reasonable time and proper conduct of the party concerned. The purpose of introducing liberal construction normally is to introduce the concept of "reasonableness" as it is understood in its general connotation." "26. The law of limitation is a substantive law and has definite consequences on the right and obligation of party to arise. These principles should be adhered to and applied appropriately depending on the facts and circumstances of a given case. Once a valuable right has accrued in favour of one party as a result of the failure of the other party to explain the delay by showing sufficient cause and its own conduct, it will be unreasonable to take away that right on the mere asking of the applicant, particularly when the delay is directly a result of negligence, default or inaction of that party. Justice must be done to both parties equally. Then alone the ends of justice can be achieved. If a party has been thoroughly negligent in implementing its rights and remedies, it will be equally unfair to deprive the other party of a valuable right that has accrued to it in law as a result of his acting vigilantly." 26. Having recorded the aforesaid conclusions, the High Court proceeded to condone the delay. In our opinion, such a course was not open to the High Court, given the pathetic explanation offered by the respondents in the application seeking condonation of delay. 28. We are at a loss to fathom any logic or rationale, which could have impelled the High Court to condone the delay after holding the same to be unjustifiable. The concepts such as "liberal approach", "justice oriented approach", "substantial justice" can not be employed to jettison the substantial law of limitation. Especially, in cases where the Court concludes that there is no justification for the delay. In our opinion, the approach adopted by the High Court tends to show the absence of judicial balance and restraint, which a Judge is required to maintain whilst adjudicating any lis between the parties. We are rather pained to notice that in this case, not being satisfied with the use of mere intemperate language, the High Court resorted to blatant sarcasms. 29. The use of unduly strong intemperate or extravagant language in a judgment has been repeatedly disapproved by this Court in a number of cases. Whilst considering applications for condonation of delay under Section 5 of the Limitation Act, the Courts do not enjoy unlimited and unbridled discretionary powers. All discretionary powers, especially judicial powers, have to be exercised within reasonable bounds, known to the law. The discretion has to be exercised in a systematic manner informed by reason. Whims or fancies; prejudices or predilections can not and should not form the basis of exercising discretionary powers.” 5. All discretionary powers, especially judicial powers, have to be exercised within reasonable bounds, known to the law. The discretion has to be exercised in a systematic manner informed by reason. Whims or fancies; prejudices or predilections can not and should not form the basis of exercising discretionary powers.” 5. Their Lordships of Hon’ble Supreme Court in Maniben Devraj Shah vs. Municipal Corporation of Brihan Mumbai, (2012) 5 SCC 157 have held that even though a liberal and justice-oriented approach is required to be adopted in the exercise of power under Section 5 of the Limitation Act and other similar statutes, the courts can never become oblivious of the fact that the successful litigant has acquired certain rights on the basis of the judgment under challenge and a lot of time is consumed at various stages of litigation apart from the cost. Their Lordships have further held that a distinction must be made between a case where the delay is inordinate and a case where the delay is of few days and whereas in the former case the consideration of prejudice to the other side will be a relevant factor, in the latter case no such consideration arises. Their Lordships have held as under:- “20. In Vedabai vs. Shantaram Baburao Patil, (2001) 9 SCC 106 , the Court observed that a distinction must be made between a case where the delay is inordinate and a case where the delay is of few days and whereas in the former case the consideration of prejudice to the other side will be a relevant factor, in the latter case no such consideration arises. 23. What needs to be emphasised is that even though a liberal and justice oriented approach is required to be adopted in the exercise of power under Section 5 of the Limitation Act and other similar statutes, the Courts can neither become oblivious of the fact that the successful litigant has acquired certain rights on the basis of the judgment under challenge and a lot of time is consumed at various stages of litigation apart from the cost. 24. What colour the expression sufficient cause would get in the factual matrix of a given case would largely depend on bona fide nature of the explanation. 24. What colour the expression sufficient cause would get in the factual matrix of a given case would largely depend on bona fide nature of the explanation. If the Court finds that there has been no negligence on the part of the applicant and the cause shown for the delay does not lack bona fides, then it may condone the delay. If, on the other hand, the explanation given by the applicant is found to be concocted or he is thoroughly negligent in prosecuting his cause, then it would be a legitimate exercise of discretion not to condone the delay. 25. In cases involving the State and its agencies/instrumentalities, the Court can take note of the fact that sufficient time is taken in the decision making process but no premium can be given for total lethargy or utter negligence on the part of the officers of the State and /or its agencies/instrumentalities and the applications filed by them for condonation of delay cannot be allowed as a matter of course by accepting the plea that dismissal of the matter on the ground of bar of limitation will cause injury to the public interest. 29. Unfortunately, the learned Single Judge of the High Court altogether ignored the gapping holes in the story concocted by the Corporation about misplacement of the papers and total absence of any explanation as to why nobody even bothered to file applications for issue of certified copies of judgment for more than 7 years. In our considered view, the cause shown by the Corporation for delayed filing of the appeals was, to say the least, wholly unsatisfactory and the reasons assigned by the learned Single Judge for condoning more than 7 years delay cannot but be treated as poor apology for the exercise of discretion by the Court under Section 5 of the Limitation Act.” 6. The Court cannot oblivious to the fact that delay in filing the review petition is more than six years. It is not the case of the applicants that the communication dated 27.10.2007 was the result of any misrepresentation or fraud. A conscious decision has been taken by the applicants, which led to the communication dated 27.10.2007 and the same has been implemented. 7. Accordingly, in view of the observations and analysis, made hereinabove, there is no merit in the application and the same is dismissed. A conscious decision has been taken by the applicants, which led to the communication dated 27.10.2007 and the same has been implemented. 7. Accordingly, in view of the observations and analysis, made hereinabove, there is no merit in the application and the same is dismissed. In view of dismissal of the application for condonation of delay, the petition is dismissed. Pending application(s), if any, also dismissed. No order as to costs.