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2016 DIGILAW 3165 (ALL)

STATE OF U. P. v. RAM

2016-09-16

KRISHNA MURARI, PRASHANT KUMAR

body2016
JUDGMENT By the Court.—This defective first appeal has been filed by the State of U.P. challenging the judgment and decree dated 28.3.2009/9.4.2009 passed by the Additional District Judge, Court No. 2, Bulandshahar in L.A. R. No. 387 of 1991.The Stamp Reporter has reported delay and laches of 7 years and 58 days in filing the appeal. A delay condonation application under Section 5 of the Limitation Act supported by the affidavit has also been moved. 2. The case set up by the appellant in the affidavit filed in support of the delay condonation application states as under : “That in reference No. 387 of 1991 the Additional District Judge, Court No. 2, Bulandshahar has finally allowed the reference vide order dated 28.3.2009. It is not clear from the available records of the department that as to why the then Jiledar Court case, Madhya Ganga Canal Construction Division-10, Bulandshahar Mr. Banni Singh, has not taken appropriate steps for filing the appeals. During the execution proceedings having No. 13 of 2009 when it transpired that no appeal has been preferred by the Jiledar, as such, an explanation was sought from him on 29.10.2015. For kind perusal of this Hon’ble Court a copy of show-cause dated 29.10.2015 issued to the then Jiledar is being filed herewith and marked as Annexure No. 1 to this affidavit.” 3. In rest of the paragraphs of the affidavit, the appellant has tried to explain the delay after 29.10.2015. From a perusal of the pleadings, we do not find any justifiable and acceptable explanation for the period 2009 to 29.10.2015 when the alleged notice to the then Jiledar Court case, Madhya Ganga Canal Construction Division-10, Bulandshahar has been issued requiring him to show-cause why the appeal was not preferred within time and he was required to submit explanation within a week. Even though almost one year has passed but there is not even a whisper with respect to any reply submitted by him nor there is any averment in respect of any proceedings having been initiated against him for alleged lapses. The appellant has not even cared to disclose the present status of the then Jiledar as to whether he is still in employment or has retired and in what manner the notice was served upon him. The appellant has not even cared to disclose the present status of the then Jiledar as to whether he is still in employment or has retired and in what manner the notice was served upon him. In the absence of these allegations, it is hard to place reliance on the veracity of the said notice and it appears that after discovering the fact that no appeal has been preferred, a simple notice was issued mechanically for the purpose of initiating the process of filing the appeal and explaining the delay. 4. It is well-settled that the law of limitation is based on public policy to ensure that the litigants approach the Court without any unreasonable delay. At the same time, the Courts have been vested with the power to condone the delay on showing sufficient cause. The Court has to maintain balance while adopting liberal justice oriented approach. It is to be borne in mind that the successful litigant has acquired rights on the basis of the judgment under challenge and has spent time in pursuing the litigation. The view taken by us finds support from the judgment of the Hon’ble Apex Court in the case of Maniben Devraj Shah v. Municipal Corporation of Brihan Mumbai, JT 2012 (4) SC 55. 5. Reference may also be made to the decision of the Hon’ble Apex Court in the case of Office of the Chief Post Master General and others v. Living Media India Ltd. and another, JT 2012(2) SC 483, laying down the principles to be taken into account while considering the delay condonation application filed on behalf of the Government bodies and its instrumentalities. The Hon’ble Apex Court while noticing the fact that a mechanical explanation is given that the file was kept pending for several months due to considerable degree of procedural requirements and such an explanation would not constitute a proper explanation for condoning the delay. After considering a series of earlier decisions rendered in the case of Collector, Land Acquisition, Anantnag and another v. Mst. Katigi and others, 1987(2) SCC 107 , G. Ramegowda v. Spl. Land Acquisition Office, JT 1988(1) SC 524, State of Haryana v. Chandra Mani and others, JT 1996(3) SC 371, laying down that certain amount of latitude within a reasonable limit is permissible having regard to impersonal bureaucratic set up and red tapism, held as under : “12. Katigi and others, 1987(2) SCC 107 , G. Ramegowda v. Spl. Land Acquisition Office, JT 1988(1) SC 524, State of Haryana v. Chandra Mani and others, JT 1996(3) SC 371, laying down that certain amount of latitude within a reasonable limit is permissible having regard to impersonal bureaucratic set up and red tapism, held as under : “12. ................The law of limitation undoubtedly binds everybody including the Government. 13. In our view, it is the right time to inform all the Government bodies, their agencies and instrumentalities that unless they have reasonable and acceptable explanation for the delay and there was bona fide effort, there is no need to accept the usual explanation that the file was kept pending for several months/years due to considerable degree of procedural red-tape in the prices. The Government departments are under a special obligation to ensure that they perform their duties with diligence and commitment. Condonation of delay is an exception and should not be used as an anticipated benefit for Government departments. The law shelters everyone under the same light and should not be swirled for the benefit of a few. Considering the fact that there was no proper explanation offered by the Department for the delay except mentioning of various dates, according to us, the Department has miserably failed to give any acceptable and cogent reasons sufficient to condone such a huge delay. Accordingly, the appeals are liable to be dismissed on the ground of delay” 6. In this reference, it may also be relevant to refer to another decision of the Hon’ble Apex Court in the case of Pundlik Jalam Patil (dead) by Lrs. v. Executive Engineer, Jalgaon Medium Project and another, 2008(17) SC 448. The issue was in respect of condonation of delay of 1724 days in filing appeal before the High Court. The Hon’ble Apex Court observed as under : “.........The evidence on record suggests neglect of its own right for long time in preferring appeals. The Court cannot enquire into belated and stale claims on the ground of equity. Delay defeats equity. The Court helps those who are vigilant and “do not slumber over their rights”. 7. After referring various earlier decisions, taking very lenient view in condoning the delay, particularly, on the part of the Government and Government undertaking, it was observed as under: “29. Delay defeats equity. The Court helps those who are vigilant and “do not slumber over their rights”. 7. After referring various earlier decisions, taking very lenient view in condoning the delay, particularly, on the part of the Government and Government undertaking, it was observed as under: “29. It needs no restatement at our hands that the object for fixing time-limit for litigation is based on public policy fixing a life-span for legal remedy for the purpose of general welfare. They are meant to see that the parties do not resort to dilatory tactics but avail their legal remedies promptly. Salmond in his jurisprudence states that the laws come to the assistance of the vigilant and not of the sleepy. 30. Public interest undoubtedly is a paramount consideration in exercising the Courts’ discretion wherever conferred upon it by the relevant statues. Pursuing stale claims and multiplicity of proceedings in no manner subserves public interest. Prompt and timely payment of compensation to the land-losers facilitating their rehabilitation/resettlement is equally an integral part of public policy. Public interest demands that the State or the beneficiary of acquisition, as the case may be, should not be allowed to indulge in any act to unsettle the settled legal rights accrued in law by resorting to avoidable litigation unless the claimants are guilty of deriving benefit to which they are otherwise not entitled, in any fraudulent manner. One should not forget the basic fact that what is required is not the land but the livelihood of the land-losers. These public interest parameters ought to be kept in mind by the Courts while exercising the discretion dealing with the application filed under Section 5 of the Limitation Act. Dragging the land-losers to Courts of law years after the termination of legal proceedings would not serve any public interest. Settled rights cannot be lightly interfered with by condoning inordinate delay without there being any proper explanation of such delay on the ground of involvement of public revenue. It serves no public interest.” 8. Applying the above principles laid down by the Hon’ble Apex Court to the facts of the present case we find that from the date of the order passed by the reference Court i.e. March, 2009 till the alleged explanation sought from Jiledar on 29.10.2015, there is absolutely no explanation of delay for this considerable long period. Applying the above principles laid down by the Hon’ble Apex Court to the facts of the present case we find that from the date of the order passed by the reference Court i.e. March, 2009 till the alleged explanation sought from Jiledar on 29.10.2015, there is absolutely no explanation of delay for this considerable long period. Even thereafter, the period of one year has been tried to be explained by referring various communications between different wings of the department for filing the appeal. We are not at all satisfied that merely by calling for an explanation from the then Jiledar and without disclosing what further proceedings were undertaken against the said person for the lapses, mechanically issuance of notice without any indication as to whether the same was even served on the person concerned or not would not constitute sufficient cause to condone the delay of more than seven years in filing the appeal. The right vested in the respondents under the impugned reference order cannot be taken away so lightly and inordinate delay of more than seven years is not liable to be condoned on such vague and relevant consideration. The delay condonation application accordingly stands dismissed. 9. In the end, we cannot refrain from expressing our anguish over wasteful expenditure of public money in filing the appeal. Only the Court fees component is Rs. 59,202/-. The appellants having a huge army of legal experts to aid and advise them cannot be expected to approach this Court in such a casual manner by filing the appeal without offering any proper explanation for long delay of more than 7 years. The matter thus requires imposition of exemplary cost to deter the appellant from taking such a casual approach in future. However, the issue which arises for consideration at this stage is whether imposition of cost on the appellant namely, State of U.P. will act as deterrent for the officers involved in decision making process of filing such appeals. The issue came up for consideration before the Hon’ble Apex Court in the case of Punjab State Power Corporation Ltd. v. Atma Singh Grewal, (2014) 13 SCC 666 and has been answered as under: “However, the moot question is as to whether imposition of costs alone will prove to be deterrent ? We do not think so. The issue came up for consideration before the Hon’ble Apex Court in the case of Punjab State Power Corporation Ltd. v. Atma Singh Grewal, (2014) 13 SCC 666 and has been answered as under: “However, the moot question is as to whether imposition of costs alone will prove to be deterrent ? We do not think so. We are of the firm opinion that imposition of cost on the State/PSUs alone is not going to make much difference as the officers taking such irresponsible decisions to file appeals are not personally affected because of the reason that costs, if imposed, comes from the Government’s coffers. Time has, therefore, come to take next step vis. recovery of costs from such officers who take such frivolous decisions of filing appeals, even after knowing well that these are totally vexatious and uncalled for appeals. We clarify that such an order of recovery of costs from the officer concerned be passed only in those cases where appeal is found to be ex facie frivolus and the decision to file the appeal is also found to be palpably irrational and uncalled for.” 10. The above principles laid down by the Hon’ble Apex Court for imposition of costs and its recovery from the officers who took decision to file frivolous appeals clearly stands attracted in the facts and circumstance present case. 11. In view of what has been discussed above, delay condonation application is liable to be rejected and consequently the appeal also stands dismissed with cost of Rs. 50,000/-. The cost is liable to be recovered by the State Government from the officers, after fixing liability, who took decision to file this appeal without offering any plausible explanation for inordinate delay of more than seven years. 12. The State Government shall identify and fix the liability of officers for recovery of costs within three months from today and the same shall be recovered from them within further period of two months. The cost so recovered shall be deposited with the Legal Services Authority of this Court. A compliance report shall be sent to the Registrar General of this Court, who shall place it before the Court. 13. A copy of this order be sent to the Chief Secretary, Government of Uttar Pradesh, Lucknow by the Registrar General for necessary compliance.