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2016 DIGILAW 915 (CAL)

State of West Bengal v. Borjora Ashar Alo

2016-11-23

MIR DARA SHEKO, RAKESH TIWARI

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JUDGMENT : Heard Ms. Chaitali Bhattacharya, Learned Advocate for the appellant, the State of West Bengal preferring the appeal being MAT 2062 of 2014 which is accompanied with CAN No. 11563 of 2014 under Section 5 of the Limitation Act, 1963 for condonation of delay along with another application being CAN No. 11564 of 2014 for staying operation of the order dated 14th December, 2012 passed by learned Trial Judge in W.P. No. 5142(W) of 2011 (State of West Bengal & Ors. v. Borjora Ashar Alo & Ors.) Ms. Bhattacharya, submitted that delay in preferring the appeal should be condoned otherwise the State would suffer irreparable loss and injury since the delay as taken place was beyond control. She further submitted that since before preferring the appeal the file would have to move to different tables and ultimately without the approval of the Legal Remembrancer, the appeal would not be preferred, the delay, as took place, should be condoned leniently. 2. On taking justice oriented approach instead of asking the State to explain the delay on day to day basis, Ms. Bhattacharya relied upon the following cases:- 1. State of Assam & Ors. v. Susrita Holdings Pvt. Ltd. AIR (2014) 3 Supreme Court 2307 2. (2014) 14 Supreme Court Cases 133. 3. Mr. Mahapatra, learned Advocate for the respondent, opposing the application under Section 5 of the Limitation Act submitted that the application suffered from vagueness, and, save and except putting some dates in the application the delay was not explained and therefore the appeal is hopelessly time barred and the application under Section 5 should be rejected. Our attention was also drawn to the observations of the Supreme Court in the case of Post Master General and Others v. Living Media India Limited and Another reported in (2012) 3 Supreme Court Cases 563. 4. We have gone through the decisions cited at the Bar. It is redundant to say, as we have noticed during day to day Court's proceedings that pendency of cases or appeals by or against the State or the several wings of the State are in a bulk. 4. We have gone through the decisions cited at the Bar. It is redundant to say, as we have noticed during day to day Court's proceedings that pendency of cases or appeals by or against the State or the several wings of the State are in a bulk. But any appeal with applications are presented before the Court on behalf of the State usually much after the stipulated period of limitation, although there is well set machinery headed by the Principle Secretary, Law and the Legal Remembrancer with the set of other Officers and dealing assistants to look after specially on the Court's proceedings including appointment of Advocate to sue or be sued on behalf of the Government. 5. It is also the bounden duty of the learned Advocates deputed by the Government to look after the concerned case, to participate in the hearing and also obviously to communicate instantly the order of the Court immediately to the department so that the department may be aware of the result of the proceeding and to take further steps if any would be required. 6. Plea is taken before us that as a matter of practise concerned Government advocate even is not in a position to take steps for applying certified copy of the order impugned until approval is coming from the Legal Remembrancer. The plea is neither plausible nor acceptable since after the final order being signed by the learned Trial Judge it would come in the server wherefrom anybody can download. We could not be apprised of with any explanation as to when the order under challenge was delivered on 14th December, 2012 then why it was not communicated to the state promptly by the learned deputed Advocate. It is also matter of practise that upon submission at the Bar and taking note of exigency the appellant is denied by the Court to file appeal even without certified copy or simply by accompanying server copy on an usual undertaking that certified copy would be attached later on. 7. It is also matter of practise that upon submission at the Bar and taking note of exigency the appellant is denied by the Court to file appeal even without certified copy or simply by accompanying server copy on an usual undertaking that certified copy would be attached later on. 7. It is obvious that offering explanation for condonation of delay or its consideration by the Court is within the provision laid down under Section 5 of the Limitation Act, 1963 which is set out as follows :- Extension of prescribed period in certain cases-Any appeal or any application, other than an application under any of the provisions of Order 21 of the Code of Civil Procedure, 1908 (5 of 1908), may be admitted after the prescribed period, if the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period. 8. So the provision so long exists in the Act the applicant, causing delay, more loudly to say in the matter of causing unusual delay, is under statutory obligation to satisfy the Court about having sufficient cause for not preferring the appeal within the stipulated period. Acceptance of the term "satisfaction" of course is discretionary, which is equally judiciously considerable, and, ought to be maintained with parity following the constitutional mandate under Article 14 of the Constitution of India the principle of "equality before law" as far as practicable. 9. No doubt about it that in the event of any Court proceedings the State has to undergo with some official paraphernalias in the matter of providing approval but the Court cannot accept that the State or its wings concerned involved in the process is ignorant about respective stipulated period for preferring appeal, revision etc. before the appropriate forum. It is redundant to say that final order whether it is good, bad or indifferent recorded by any forum within its jurisdiction, stands good so long it is not set aside or modified by any higher forum, meaning thereby, by virtue of such order impugned some right has been accrued in favour of the opposite party against whom Section 5 of the Limitation Act is proposed to invoke to take away such accrued right. Therefore, until and unless, the petitioner be it state or individual cannot satisfy the Court explaining sufficient cause in causing the delay in not preferring the appeal within he stipulated period, the Court ought to be slow in entertaining any such time barred appeal or application. In the case in hand the State/appellant is absolutely silent as to how many days delay in number took place in preferring the appeal. The impugned order in the case was delivered by the learned Trial Judge on 14th December, 2012 in W.P. No. 5142 (W) of 2011 upon hearing both sides including learned Advocate appeared for the State, and, disposing the writ petition learned Trial Judge has issued direction as follows:- "The writ petition is disposed of by directing the O.S.D. and E.O. Joint Secretary, Department of Mass Education Extension and Library Services, the respondent no.3, to dispose of the said application by passing a reasoned order in accordance with law to be communicated to the parties within four weeks from the date of presenting a copy of the certified copy of this order after giving an opportunity of hearing to the petitioner no.2 who shall represent the petitioner no.1 and the respondent no.6 or his representative and after verifying the records. It is made clear that such consideration shall be made on the basis of law and/or notifications prevalent on 9th December, 2009 and the notification dated 24th November, 2010 shall not be made applicable." 10. From the paragraph 2 of the application it appears that such impugned order was communicated to the State on 21st January, 2013 i.e. after about five weeks. Curiously, enough learned Advocate for the State admittedly did not make any communication informing the impugned order. Rather, we have been made to understand by Ms. Bhattacharya that such communication was made by Learned Advocate for the writ petitioner. Therefore, those days of about five weeks remain unexplained. Rather it is pleaded that after compliance with the direction of the order the file was sent to the Secretary of the concerned department from where it was sent to the Finance Department for concurrence, and, Finance Department advised to prefer appeal on 16th April, 2014 and ultimately one week thereafter i.e. on 23rd April, 2014, learned Legal Remembrancer agreed to the proposal in preferring appeal but again in preferring the appeal Advocate took time up to 27th November , 2014. In the application one story was incorporated that despite submission of application for certified copy on 15th May, 2014 the said application was cancelled and fresh application for certified copy was made on 14.9.2014 which again though was made ready on 29.10.2014 but the department was informed about the same in sometime in the 2nd week of November, 2014 and thus on preparation of memo of appeal through advocate by handing over the certified copy on 18th November, 2014, the appeal was filed on 27.11.2014. 11. Though it was contended that the matter was once mentioned before the Division Bench praying for leave for preferring appeal without certifying copy of the judgment and order which was declined for non-consideration of any urgency but said averment is without any details particulars and therefore we do not incline upon such an alibi. 12. In the case of State of Assam and Others v. Susrita Holdings Pvt. Ltd. AIR 2014 SC 2307 (supra) the appellants came in appeal before the Supreme Court mainly on two grounds which at set out from paragraph 24:- Firstly, the impugned Order is violative of the principles of natural justice. The appellants in the writ proceedings, have not been afforded an opportunity to file their affidavits on merits. Also, the Order in this perspective is unsafe to be acted upon since enormous amount of public revenue is involved in the matter. Secondly, the appellants claim that the transaction sought to be completed squarely within the realm of a contract. Therefore no direction in the nature of mandamus could have been issued to the appellants as the same is not permissible in law, and rendered the impugned decision void-ab-initio. 13. The High Court in that dismissed the case on the ground of delay upon hearing both parties. 14. Therefore in the case of the cited decision violation of the principle of natural justice and completion of transaction within the realm of contract were under consideration taking the lease of that case the Apex Court reiterated the observations already made in the case of G. Ramegowda, Major and Ors. v. Special Land Acquisition Officer, Bangalore, gist of which is decision of the Government is not individual one rather it is collective institutional and, therefore, "Governmental decisions are proverbially slow encumbered, as they are, by a considerable degree of procedural red tape in the process of their making". 15. v. Special Land Acquisition Officer, Bangalore, gist of which is decision of the Government is not individual one rather it is collective institutional and, therefore, "Governmental decisions are proverbially slow encumbered, as they are, by a considerable degree of procedural red tape in the process of their making". 15. In the other case Imrat Lal and Ors. v. Land Acquisition Collector and Ors. (supra) delay of 1110 days in filing the appeal was condoned by the Apex Court though the averments contained in the application for condoning the delay were extremely vague and did not provide satisfactory explanation, but in that case the Apex Court condoned such long delay with the following observations vide paras 10 and 11. "While we agree with Shri Narender Hooda that the averments contained in the application for condonation of delay were extremely vague and did not provide satisfactory explanation for the long delay of 1110 days, but it cannot be ignored that in identical matters the another learned Single Judge had granted relief to the landowners by enhancing the compensation and this factory should not have been overlooked by the learned Single Judge while deciding the application for condonation of delay. We can take judicial notice of the fact that the villagers in our country are by and large illiterate and are not conversant with the intricacies of law. They are usually guided by their co-villagers, who are familiar with the proceedings in the courts or the advocates with whom they get in touch for redressal of their grievance. Affidavits filed in support of the applications for condonation of delay are usually drafted by the advocates on the basis of half-baked information made available by the affected persons. Therefore, in the acquisition matters involving claim for award of just compensation, the court should adopt a liberal approach and either grant time to the party to file a better affidavit to explain delay or suo motu take cognizance of the fact that large number of other similarly situated persons who were affected by the termination of compensation by the Land Acquisition Officer or the Reference Court have been granted relief." 16. Thus we find that delay of 1110 days was condoned by the Apex Court though the application for condonation of delay was vagued for the simply reason that in identical other matters the other Learned Single Judge granted relief to the landowners for enhancing the compensation in the matter of acquisition of land by the Government so not only the facts and attending circumstances in both the case cited by Ms. Bhattacharya the delay was condoned leniently are absent in the instant case also as it is often cited by the Bar specially State Advocate i.e. Executive Office Antiyur Town Panchayat v. G. Arumugam (Dead) reported in 2015 (3) SCC 569 . 17. We observed on the face of the order under challenge as also quoted hereinbefore in Paragraph No. 7 of this order that learned Trial Judge directed the respondent No. 3 of the writ petition, namely, the O.S.D. and E.O. Joint Secretary, Department of Mass Education Extension and Library Services, Bikash Bhavan Salt Lake City, Kolkata -700 091, to dispose of the application referred to therein on the basis of law and notifications prevalent on 9th December, 2009 and not on 24th November, 2010. And learned Trial Judge in disposing of the writ petition in the occasion kept all points open to be dealt with and did not enter into the merits of the matter. So even if we go by prima facie merit of the order under challenge it is not attracting as opposition to any public policy or violation of natural justice because it would be heard in presence of all parties concerned. Therefore, either of the cases cited by Ms. Bhattacharya can be well-distinguished within the available facts and circumstances case on hand. 18. In other way while considering the application under Section 5 of the Limitation Act, which is noticed to be not self-contained with the number of days causing delay in presenting the appeal nonetheless the other dates as putting there was delay at every stage and except mention the dates of receipt of the file or the decision taken in the file no explanation is offered as to why the delay in between had not taken place, meaning thereby the delay in between the days remain unexplained, far to speak of to the satisfaction of the court. 19. Therefore Mr. 19. Therefore Mr. Mahapatra rightly put on record his objection as against the application for condonation of delay which suffers really from vagueness far to speak of giving sufficient causes to the satisfaction of the Court for its acceptance on taking to some extent lenient view when there is some procedural methods to be adopted by the State particularly in the matter of preferring appeal, although the laches on the part of the advocate stood to represent the State in not communicating the impugned order of the Court immediately after coming in the server is noticed to be unexplained laches. Further at the end when the certified copy as the alleged 2nd attempt was obtained on 22.9.2014 then delay in the matter of filing appeal on 27.11.2014 is not at all satisfactory. We have already pointed out that in the middle, save and except putting some dates of events in no way delay was explained as to for which cause or causes the intervening days were consumed, so that making departure from the principle of "equality before law" we could have taken some lenient view. 20. We are constrained to observe that the State machineries are bound to come out from such lethargic attitude in the matter of Court proceedings of which the State has a bulk share and the cases or appeals once admitted are being carried out by heaping pendency of course on the other hand, depriving the opponent, mostly the private individual from the right accrued, if any, by the order impugned. Upon such observations and the ratio of the cases discussed above being not applicable in this case, we refrained from giving unnecessary any extra latitude to the said appellant to enjoy of the unfettered liberty in the matter of preferring appeal by the state in accordance to their convenience or when they so chose to file remaining within its lethargic dimension. 21. Before departing from the matter we think it proper to bring it to the notice of the Chief Minister, Government of West Bengal as we have noticed that the Law Department including some of the learned advocates appointed to look after the cases on behalf of the Government are not functioning properly and most of the State appeals are being presented in Court beyond stipulated time, that too without explaining the reason with causes adequately. It is for the reason that this is to be attended by the Chief Administrator of the State to provide adequate directions to the concerned Secretaries including the Chief Secretary Government of West Bengal so that adequate and exemplary steps may be taken against the erring officer(s) or dealing assistant(s), whoever those may be responsible for causing delay due to non-placement of file or for not proceeding with the file within time to meet the limitation. 22. Upon such observations the application being CAN 11563 of 2014 under Section 5 of the Limitation Act, 1963 stands rejected. 23. As a consequence thereof the appeal being MAT 2062 of 2014, taking as on day's list is not admitted since time barred and accordingly the stay application being CAN No. 11564 of 2014 being redundant for consideration stands disposed of. 24. No order as to costs. 25. Urgent certified copy be supplied on priority basis if applied for. The learned Registrar General High Court, Calcutta is accordingly directed to forward a copy of this order to the Chief Secretary Government of West Bengal by name with request to lay the same before the Chief Minister, Government of West Bengal for bringing observation of this Court and for taking remedial measures as it deem fit and proper.