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2019 DIGILAW 542 (GAU)

State of Arunachal Pradesh v. Jumdo Jini

2019-05-03

HITESH KUMAR SARMA, SONGKHUPCHUNG SERTO

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ORDER : SONGKHUPCHUNG SERTO, J. 1. Heard Mr. S. Tapin, learned Sr. Govt. Advocate appearing on behalf of the applicants, State of Arunachal Pradesh and Mr. T.T. Tara, learned counsel for the sole respondent. 2. This is an application under Section 5 of the Limitation Act, read with Rule 2(2) and R-3-A of Order XLI, of the Code of Civil Procedure and Chapter V of the Gauhati High Court Rules praying for condonation of delay of 1164 days in filing an appeal against the judgment and order dated 4.08.2015 passed by the learned Singe Judge in W.P.(C) No. 123 (AP) 2015. 3. Mr. Tapin, learned Sr. Govt. Advocate in is endeavour to explain the delay of 1164 days in filing the appeal has read paragraph-2 of the application and submitted that the delay has occurred due to the involvement of 3 (three) departments in the decision making process. The contents of the paragraph-2 of the appeal are reproduced herein below: "2. That the applicants states that against the Judgment and Order dated 04.08.2015 passed in W.P.(C) No. 123 (AP) 2015 the applicants ought to have been filed the appeal within 30 (thirty) days. However, there is delay of 1106 in filing the appeal due to the following grounds as stated here in below:- (a) That the applicant state that the copy of the Judgment and Order dated 04.08.2015 passed in W.P.(C) No. 123(AP)2015 was received on 15.08.2015 and thereafter confirmation was taken from the office of the Sr. Govt. Advocate later on. (b) That after receiving the judgment the matter was routed as well as discussed with the concerned departments namely; Office of the Deputy Commissioner, Itanagar Capital Complex, Department of Education and the Department of Audit and Pension. After consulted all the concerned departments the decision were taken to file an appropriate appeal against the Judgment and Order dated 4.8.2015. (c) Thereafter the matter was discussed with the Govt. Advocate and finally vide letter dated 20.7.2018 the office of the Senior Govt. Advocate was requested to prepare a necessary appeal against the judgment. And after preparation of the appeal the same has been filed." 4. Mr. Tara, learned counsel appearing for the respondent strongly objected the prayer of the applicants and submitted that no reasonable cause has been shown in the application for the delay, therefore, the application deserves to be dismissed. Advocate was requested to prepare a necessary appeal against the judgment. And after preparation of the appeal the same has been filed." 4. Mr. Tara, learned counsel appearing for the respondent strongly objected the prayer of the applicants and submitted that no reasonable cause has been shown in the application for the delay, therefore, the application deserves to be dismissed. The learned counsel also submitted that the respondent has retired from service after serving the Government for 32 years and he has not been given his pension since his retirement on 31.10.2014, therefore, he should not be made to suffer any more. In support of his submission the learned counsel cited the judgment of this Court dated 02.11.2016 passed in the case of Union of India & Ors. Vs. Hussain Ahmed (MD) reported in 2016 (5) GLT 124. The relevant paragraph of the judgment is reproduced herein below: "The decision of Supreme Court in Office of Chief Post Master General Vs. Living Media India Ltd. AIR 2012 SC 1506 is directly on the point. In this case there was a delay of 427 days in filing the appeal before the Supreme Court against the judgment of the High Court. The Supreme Court after examining other dates mentioned in the affidavit of the person-in-charge of the case to justify the delay found that there was delay at every stage with no explanation for the cause of delay. The Supreme Court also took serious note of the casual manner in which the Government departments are functioning showing virtually no respect to the law of limitation. And, while dismissing the appeal on the ground of delay, the Supreme Court has made the following observation: "The claim on account of impersonal machinery and inherited bureaucratic methodology of making several notes cannot be accepted in view of the modern technologies being used and available. The law of limitation undoubtedly binds everybody including the Government. 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 process. 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 department. The law shelters everyone under the same light and should not be swirled for the benefit of a few." In yet another decision, the Supreme Court in Maniben Devraj Shah Vs. Municipal Corporation of Brihan Mumbai AIR 2012 SC 1629 has held that 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. Admittedly, judgment and order dated 30.1.2014 under challenge was passed in the presence of the learned counsel for the applicants and its certified copy was made available on the next date itself. And yet in the application, no particulars whatsoever have been given for such a huge delay in filing the appeal. The application also does not say when the matter was examined by the appellate authority and on which date it was sent for legal opinion and thereafter, on what date legal opinion was received. The application is apparently vague. Though it is stated that the delay in filing the appeal is bona fide, the fact remains that from day one the authorities concerned have not evinced diligence in pursuing the matter by taking appropriate steps. The applicants have miserably failed to give any acceptable and cogent reason to condone the delay in filing the writ appeal required to be filed in the same High Court building. Having regard to the above referred decisions of the Supreme Court in the fact situation of the present case, we find no sufficient cause to condone the delay of 232 days. The application is, accordingly, dismissed. In the result, the appeal also fails and is dismissed on the same ground of delay." 5. We have considered the submissions of both the learned counsels and the law involved. The application is, accordingly, dismissed. In the result, the appeal also fails and is dismissed on the same ground of delay." 5. We have considered the submissions of both the learned counsels and the law involved. The respondent on his retirement was not given his pension and pensionary benefits on the ground that he has not been issued NOC by the concerned authorities that too in spite of his repeated request to the authority concerned. Being aggrieved he filed the W.P.(C) 123 (AP) 2015 praying for issuance of appropriate writ or direction directing the respondents to issue necessary NOC so as to enable him to get his pension and pensionary benefits. The writ petition was disposed of on 04.08.2015 with the following observation and directions: "21. The petitioner has retired form Government service on 31.10.2014 and the said NOC in question is required for due process of his pension paper. 22. After hearing the learned counsel for the parties and considering the entire aspect of the matter the respondents, more particularly, the respondent No. 3, the Deputy Commissioner, Capital Complex, Itanagar is directed to issue the required 'No Objection Certificate' (NOC) to the petitioner as applied by him within a period of 45 (forty five days) from the date of receipt of the certified copy of this order. 23. However, it is up to the respondents to take appropriate action in accordance with law and/or Act & Rules in force against any unauthorized occupants of public premises or builder/owner of building/house constructed in violation of any Building Rules or any other Acts/Rules in force. 24. With the aforesaid direction and observation, this petition stands disposed of." 6. The State Government, after the lapse of 1164 has preferred to file an appeal against the said judgment and order and filed the present application for condonation of delay. On going through the explanation for the delay given at paragraph-2 of the application, (contents of which has already been reproduced above) we failed to see any explanation for the cause of delay, all that we see is that the applicants were looking at the anticipated benefit without even making any serious effort to hasten the process of decision making and preparation of the appeal. We have serious doubt if they are really serious about the appeal. We have serious doubt if they are really serious about the appeal. Condonation of delay is an exception in law therefore; any applicant desiring to avail that benefit must show his or her bona fide and as repeatedly stated sufficient cause for the delay. 7. As submitted by the learned Sr. Govt. Advocate it may be true that 3 (three) departments were involved in the decision making process or filing the appeal but that does not mean that they should sleep over it and wake up when they want. As stated earlier, the respondent is a retired Government Servant, it is difficult to imagine how he and his family would have continued on in life without receiving the pension and pensionary benefits to which he is entitled. 8. Therefore, taking into account the law laid down by the Apex Court which has been followed consistently by this Court including in the case cited above, we are of the view that the present application has no merit. Accordingly, this Interlocutory Application is dismissed 9. In the result, the appeal also fails and is dismissed.