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2018 DIGILAW 367 (JK)

STATE OF J&K v. NAZIR AHMAD SHAH

2018-06-01

ALOK ARADHE, M.K.HANJURA

body2018
ORDER : M.K. HANJURA, J. 1. The applicants – appellants have filed this application seeking the indulgence of this Court in condoning the delay of 315 days in filing the Appeal, against the judgment dated 17-11-2016 of this Court, passed in SWP 632/2014, inter alia, on the grounds that immediately after the copy of the said judgment was received by the applicants – appellants, the same was perused in the Head Officer along with the claim of the petitioner. The matter was taken up with the administrative department vide letter dated 14-12-2016. The administrative department took up the matter with the department of Law, Justice & Parliamentary Affairs for seeking instructions/advice. It is stated that the matter, thereafter, tossed from one table to the other and ultimately the department of Law, Justice & Parliamentary Affairs decided that the remedy of appeal be availed to assail the order/judgment of the Hon’ble Court. It is further stated that in terms of letter dated 26-07-2017, sanction was accorded for filing of the appeal against the judgment dated 17-11-2016 and the learned AAG was asked to file the appeal. The petitioner has proceeded to state that the learned AAG, took her own time in examining the judgment/order and vide letter dated 12-09-2017, informed the department of Law, Justice & Parliamentary Affairs, about her inability to deal with the case on the ground that she has appeared as a counsel for the respondent in a contempt petition, and accordingly, requested for engagement of some other counsel to pursue the appeal. 2. It is further stated that after considering the request of the learned AAG, the department of Law, Justice & Parliamentary Affairs, vide letter dated 16-10-2017 accorded sanction to the engagement of a Government Advocate (GA) to prepare the appeal in order to challenge the judgment dated 17-11-2016. The learned GA on receipt of the sanction, took up the matter with the Irrigation & Flood Control Department, vide his letter dated 21-10-2017 requesting them to provide the certified copy of the judgment dated 17-11-2016 along with the entire writ record. On receipt of the letter of the learned GA, the needful was done. However, after sifting the entire writ record, it was found that the reply/objections, filed in opposition to the writ petition by the respondents therein, were missing. On receipt of the letter of the learned GA, the needful was done. However, after sifting the entire writ record, it was found that the reply/objections, filed in opposition to the writ petition by the respondents therein, were missing. In terms of yet another communication, the matter was taken up with the Irrigation & Flood Control Department, who after taking their own time, came up with the said reply/objections, which were then examined and the Letters Patent Appeal was prepared. It is stated further that the entire procedure consumed a lot of time and in the process delay was caused. However, it is stated that the delay has neither been deliberate nor intentional and the same be condoned because of the reasons well explained in the application. In the end, it is prayed that the application for condoning the delay in filing the appeal against the order/judgment dated 17-11-2016, passed in SWP 632/2014 be allowed. 3. Learned counsel for the respondent has resisted and controverted the application of the Appellants, chiefly on the grounds that no reasonable ground has been pleaded in the application for the condonation of the delay in filing the appeal. It is stated that the order dated 17-11-2016 was served upon the respondents – applicants herein, by post and they were obliged to comply with the same within a period of four months from the date copy of the order was received by them. However, the order of the Court was not implemented and the applicants rendered themselves liable for contempt. In the contempt, the respondents – applicants, were put on notice and on 13-10-2017, Mr. Javed Sathoo, GA, appeared on behalf of the applicants and sought two weeks time to file the Statement of Facts. It is stated that despite opportunity, needful was not done. Therefore, the Hon’ble Court, in terms of order dated 16-11-2017, directed the respondent No.2 to appear in person. 4. It is further contended by the respondent that the applicants examined the order dated 17-11-2016 in the Head Office and the matter was taken up with the administrative department vide letter dated 14-12-2016 for further course of action. Therefore, the Hon’ble Court, in terms of order dated 16-11-2017, directed the respondent No.2 to appear in person. 4. It is further contended by the respondent that the applicants examined the order dated 17-11-2016 in the Head Office and the matter was taken up with the administrative department vide letter dated 14-12-2016 for further course of action. The administrative department took up the matter with the Law, Justice & Parliamentary Affairs Department, who gave its opinion that the appeal is the remedy and sanction was, accordingly, granted vide order dated 26-07-2017 to file the Letters Patent Appeal against the order dated 17-11-2016. However, it is not known as to why the decision for filing the appeal was not taken within the period of limitation. Regarding the assignment of the case to the learned AAG, it is stated that nothing is shown by the applicants as to why it took two months for the AAG, i.e. 26-07-2017 to 12-09-2017, to inform the Secretary to Govt., Law, Justice & Parliamentary Affairs Department, about her inability to appear in the case. It is stated further that such an approach on the part of the applicants portrays how casual they have been in filing the application. It is also stated that on receipt of letter dated 12-09-2017 from the AAG, it took another month for the applicants to appoint the Government Advocate (GA) to file the appeal and no explanation whatsoever is provided in the application to justify such a delay. It is also pleaded that it is not known as to why, in terms of the letter dated 21-10-2017, the learned GA, sought a certified copy of the judgment dated 17-11-2016 besides the entire writ record, when the fact remains that the copy of the judgment was already served on the applicants by the respondent – petitioner in the writ petition. The respondent has further stated that the law for seeking condonation of delay is well settled. The applicant/s have to give an account for each and every day’s delay in filing the appeal within the period prescribed by the law. In the premises it has been stated that in this view of the matter, the application seeking condonation of delay in filing the appeal, being legally untenable, deserves to be dismissed. 5. Heard and considered. 6. The applicant/s have to give an account for each and every day’s delay in filing the appeal within the period prescribed by the law. In the premises it has been stated that in this view of the matter, the application seeking condonation of delay in filing the appeal, being legally untenable, deserves to be dismissed. 5. Heard and considered. 6. It cannot be disputed that the Law of Limitation has to be applied with all its vigor and rigor as prescribed by the Statute. One cannot escape the consequences of section 5 of the J&K Limitation Act Samvat 1995, which provides that for the extension of the period of limitation in a given case, the condition precedent is that the applicant or the appellant has to satisfy the Court that he/she has carved out a sufficient cause in seeking the assistance of the Court for not preferring the Appeal or Application within the stipulated time. The Courts cannot come to the aid and rescue of the State where the application for condonation of delay does not spell out sufficient cause and the approach of the State, in making such application, is casual and cryptic. 7. Testing the application of the Applicants on the touch stone of the law, governing the subject, it will be profitable to quote paragraphs 7&8 of the law laid down in 2010(4) JKJ 638 (HC), herein below, in verbatim : “7. In the case P.K. Ramachandran v. State of Kerala, reported in AIR 1998 SC 2276 , the Apex Court, at paragraph 6 ruled as under: “Law of limitation may harshly affect a particular party but it has to be applied with all its rigor when the statute so prescribe and the Courts have no power to extend the period of limitation on equitable grounds. The discretion exercised by the High Court was, thus, neither proper nor judicious. The order condoning the delay cannot be sustained. This appeal, therefore, succeeds and the impugned order is set aside. Consequently, the application for condonation of delay filed in the High Court would stand rejected and the Miscellaneous First Appeal shall stand dismissed as barred by time. No costs.” 8. In another case, the Hon’ble Supreme Court, while deliberating upon the question of condonation of an inordinate delay of 264 days on an application preferred by the Government, has observed as under: “2. No costs.” 8. In another case, the Hon’ble Supreme Court, while deliberating upon the question of condonation of an inordinate delay of 264 days on an application preferred by the Government, has observed as under: “2. This special leave petition filed on November 16, 1993 is delayed by 264 days. For quite some time in the past this Court has been making observations as to the grave prejudice caused to public interest by appeals brought on behalf of the Government being lost on the point of limitation. Such observations have been made for over a few years in the past. But there seems to be no conspicuous improvement as is apparent in the present petition which is filed in November 1993. The explanation for the delay, had better bet set out in petitioner’s own words: …………………………………… …………………………………… 3. This explanation is incapable of furnishing a judicially acceptable ground for condonation of delay. After the earlier observations of this Court made in several cases in the past, we hoped that the matters might improve. There seems to be no visible support of this optimism. There is a point beyond which even the courts cannot help a litigant even if the litigant is Government which is itself under the shackles of bureaucratic indifference. 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 the criticism that the Revenue does not seem to attach any importance to the need for promptitude even where it affects its own interest.” 8. Applying the ratio of the law laid down above to the instant case, there has been a reckless delay of 315 days in filing the LPA and no satisfactory explanation has come forward on that count except for routine words and phrases. Applying the ratio of the law laid down above to the instant case, there has been a reckless delay of 315 days in filing the LPA and no satisfactory explanation has come forward on that count except for routine words and phrases. No doubt, a liberal approach has to be adopted in the matter of condonation of delay when there is no gross negligence or deliberate inaction or lack of bona fides on the part of the State but in the instant case the appellant took his own time to file the LPA. The law laid down in AIR 2011 SC 1237 enunciates this principle and it lays down as follows : “……..3/ This appeal emanates from the judgment of the Division Bench of the Guahati High Court (High Court of Assam, Nagaland, Meghalaya, Manipur, Tripura, Mizoram and Arunachal Pradesh) in Misc. Case No. 1569 of 2007 in W.A.No. 72020 of 2006. The appeal filed by the Union of India was dismissed by the High Court because of inordinate delay of 239 days. The Division Bench of the High Court, while dismissing the appeal, has observed as under : “We have gone through the contents of the petition. The delay occurred because of the respondents took their own sweet time to reach the conclusion whether the judgement should be appealed or not. It is not that they were prevented by any reason which is beyond their control to take such a decision in time. Even otherwise, on merits of the case also it does not appear to have any tenable ground of appeal. In the circumstances, we do not see any merits in this petition.” 4. We have also gone through the condonation of delay application which was filed in the High Court. In our considered view, the High Court was fully justified in dismissing the appeal on the ground of delay because no sufficient cause was shown for condoning the delay. ……………….. 6. The Union of India ought to have been careful particularly in filing this Civil Appeal because the Division Bench, by the impugned order, has dismissed the appeal before it on the ground of delay. It is a matter of deep anguish and distress that majority of the matters filed by the Union of India are hopelessly barred by limitation and no satisfactory explanations exist for condoning inordinate delay in filing those cases.” 9. It is a matter of deep anguish and distress that majority of the matters filed by the Union of India are hopelessly barred by limitation and no satisfactory explanations exist for condoning inordinate delay in filing those cases.” 9. Resort can also be had to an elaborate and a lucid judgment of Hon’ble the Supreme Court, reported in (2013) 12 SCC 649 , the relevant excerpts of which are as under : “………..21.2. (ii) The terms “sufficient cause” should be understood in their proper spirit, philosophy and purpose regard being had to the fact that these terms are basically elastic and are to be applied in proper perspective to the obtaining fact-situation. 21.9. (ix) The conduct, behavior and attitude of a party relating to its inaction or negligence are relevant factors to be taken into consideration. It is so as the fundamental principle is that the courts are required to weigh the scale of balance of justice in respect of both parties and the said principle cannot be given a total go by in the name of liberal approach. 21.10. (x) If the explanation offered is concocted or the grounds urged in the application are fanciful, the courts should be vigilant not to expose the other side unnecessarily to face such a litigation. ……………… 21.12. (xii) The entire gamut of facts are to be carefully scrutinized and the approach should be based on the paradigm of judicial discretion which is founded on objective reasoning and not on individual perception. 21.13. (xiii) The State or a public body or an entity representing a collective cause should be given some acceptable latitude. 22.1 (a) An application for condonation of delay should be drafted with careful concern and not in a haphazard manner harboring the notion that the courts are required to condone delay on the bedrock of the principle that adjudication of a lis on merits is seminal to justice dispensation system. ……………….. 31. Neither leisure nor pleasure has any room while one moves an application seeking condonation of delay of almost seven years on the ground of lack of knowledge or failure of justice.” 10. Risking repetition, what is stated here is that the State has been negligent in prosecuting its claim within time and the application appears to have been drafted recklessly without giving a proper account as to why such a delay was allowed to happen. Risking repetition, what is stated here is that the State has been negligent in prosecuting its claim within time and the application appears to have been drafted recklessly without giving a proper account as to why such a delay was allowed to happen. The sequence of the events followed by the dates that prompted the State to file the appeal after a long delay had to be accounted for to satisfy the Court that the delay in lodging of appeal was neither willful nor deliberate. This has not been done. The application projects a pretty dismal account. The dates and events portrayed in it reflect that the matter has been dealt with freedom and ease. What gets revealed further from the perusal of the objections of the respondent is that the application is a camouflage devised by the applicant – State to scuttle the contempt proceedings initiated by the respondent against it and that the State, after rising from a deep slumber, took resort to these proceedings simply to hoodwink the process of the law initiated against it to seek the implementation of the order of the Court in a contempt petition. 11. Viewed in the context of what has been said and done above, we are of the considered opinion that the State has failed to explain the delay of 315 days in filing the Appeal. Consequently, the application for Condonation of Delay, in filing the Appeal, is rejected and the Letters Patent Appeal (LPA) shall stand dismissed as barred by time.