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2021 DIGILAW 314 (GAU)

Husheli Achum v. State of Nagaland

2021-03-24

S.HUKATO SWU, SOUMITRA SAIKIA

body2021
ORDER : Soumitra Saikia, J. 1. Heard Mr. Sentiyanger, learned counsel for the applicant and Ms. Livika, learned Government Advocate for the respondents. 2. This IA has been filed by the applicant seeking condonation of the delay of 747 days in filing the accompanying writ appeal. The applicant's late husband, namely, Khevishe Sema was working as Work Charged Khalasi in the Office of the Project Engineer, Police Engineering Project, Alichen Division, Mokokchung district, Nagaland. He served in the Department as Work Charged Khalasi for 22 years and 4 months without any break in service till his release from employment on attaining the age of superannuation. The applicant's late husband after his retirement filed a representation dated 21.08.2017 to the Chief Engineer, Police Engineering Project, Kohima praying for regularization under the "scheme for regularization of services of Work Charged Employees". He represented that his services be regularized making him entitled for pension and other pensionary benefits as per the scheme. Since, the representation was not disposed of, he approached this Court by filing W.P(C) No. 282(K)/2017. The writ petition filed was dismissed by order dated 24.11.2017. 3. Pursuant to the dismissal of the writ petition, the petitioner also expired. His wife, namely, Smti. Husheli Achumi, the present applicant, is the legal heir of the petitioner who being aggrieved has approached this Court by filing a writ appeal against by the Judgment dated 24.11.2017. However, while filing the writ appeal, a delay of 747 days has occurred and therefore, the present application has been filed seeking condonation of the delay of 747 days. 4. The applicant explained the delay in her application as under: "2. That the applicant's husband expired on 18.09.2018. Thereafter, the funeral rites and rituals were completed during which the widow spent whatever little amount her late husband and herself saved. Following the dead of her husband, the applicant is forced to live in penury and debt. Also, being 79 years of age she is unable to work and earn anything. The applicant was oblivious of the outcome of W.P.(C) No. 282(K)/2017 and was under the impression that the case is still pending as her husband did not tell her about the dismissal of the case vide impugned Order, dated 24.11.2017 during his lifetime for reasons best known to the deceased. The applicant was oblivious of the outcome of W.P.(C) No. 282(K)/2017 and was under the impression that the case is still pending as her husband did not tell her about the dismissal of the case vide impugned Order, dated 24.11.2017 during his lifetime for reasons best known to the deceased. Since no news arrived on the outcome of the case the applicant called the present counsel on 30.01.2019 for making inquiries on the status of the case, only then she came to know that the case filed by her late husband has been dismissed. Thereafter, she made plans to come to Kohima in February to meet her counsel. However, due to her aging frail health she was unable to do so. As such since there was no improvement in her health despite the lapse of time in June, 2019 she requested the counsel to kindly visit her at her residence at Shitsumi village, Zunheboto, Nagaland as she was in no condition to travel. Subsequently, the counsel travelled to her place on 12.07.2019 during the summer break and had a discussion with her regarding the case during which the counsel was advised to pursue her case before this Hon'ble Court as she is financially troubled and needs atleast a minimum income to give herself medical attention. Noticing her poor condition the counsel told her that he will be handling her case free of cost. Thereafter, the present counsel took the legal advice of some senior counsels so in order to take further steps in the case which was completed by 2nd week of August, 2019. Subsequently, by September, 2019 the counsel completed drafting the Writ Appeal against impugned Order, dated 24.11.2017 passed by the Learned Single Judge in W.P.(C) No. 282(K)/2017 and told the applicant to come and sign the appeal memo as and when the next Division Bench of this Hon'ble Court is constituted. Thereafter, Division Bench of this Hon'ble Court was constituted from 9.10.2019 to 18.10.2019 and accordingly Writ Appeal No. 16 (K)/2019 was filed before this Hon'ble Court. However, the same was disposed with liberty to file afresh vide Order, dated 18.10.2019 passed by this Hon'ble Court. Thereafter, Division Bench of this Hon'ble Court was constituted from 9.10.2019 to 18.10.2019 and accordingly Writ Appeal No. 16 (K)/2019 was filed before this Hon'ble Court. However, the same was disposed with liberty to file afresh vide Order, dated 18.10.2019 passed by this Hon'ble Court. As such thereafter after having obtained the CTC of the Order, dated 18.10.2019 on 01.11.2019 present counsel began to draft the accompanying Writ Appeal and completed the same by 15.11.2019 upon which the counsel informed the client to come to Kohima and sign the relevant documents. However, due to ill health owing to old age it was only 12.12.2019 the appellant could travel to Kohima and swear the affidavit. Thereafter, the accompanying Writ Appeal alongwith the present application has been promptly filed praying for Your Lordships kind indulgence." 5. On these grounds, the applicant submits that the delay be condoned and the appeal be heard on merits. 6. The opposite parties/respondents have contested this application by filing an objection opposing the grounds seeking condonation of delay of 747 days by the applicant. The objection raised by the respondents in the objection filed are extracted as under: "3. That in regard to the statement made in paragraph 2 of the application the deponent seeks to raise objection on the explanation given by the petitioner on the 747 days delay occasioned in filing the writ appeal. The writ petition No. 282(K)/2017 was filed by the petitioner for regularization for the purpose of pension and pensionary benefits. The writ petition was however dismissed on 24.11.2017 on delay and latches. It is averred in the instant application that the petitioner's husband expired on 18.09.2018 making it ample clear that the writ petition was dismissed more than 9 (nine) months prior to the demise of the petitioner's husband. There was sufficient time for the petitioner's deceased husband to file appeal against the order dated 24.11.2017 if at all aggrieved however it was not done so during his lifetime which goes on to show that the petitioner's deceased husband accepted the said order passed by the Ld. Single Judge and which obviously is well within the knowledge of the Ld. Counsel of the petitioner's deceased husband. Moreover both the writ petition No. 282 (K)/2017 as well as the instant application arising out of the writ appeal No. 33/2019 is taken up by the same Ld. Single Judge and which obviously is well within the knowledge of the Ld. Counsel of the petitioner's deceased husband. Moreover both the writ petition No. 282 (K)/2017 as well as the instant application arising out of the writ appeal No. 33/2019 is taken up by the same Ld. Counsel therefore it would be misleading to aver that the petitioner is under the impression that the case was still pending as her deceased husband did not disclose to her about the dismissal of the case. The reasons/grounds taken by the petitioner for condoning the delay are baseless/unfounded and therefore it should be outrightly rejected. 4. That the statements made in paragraph 4 of the petition is admitted being the settled position of law. 5. That in regard to the statement made in paragraph 5, 6 and 7 of the petition the deponent states that the writ petition No. 282 (K)/2017 was filed by petitioner's deceased husband 11 (eleven) years after his release from work charge khalasi service and in view of which the Ld. Single Judge has rightly dismissed the writ petition on delay and laches. Therefore no grave or irreparable damage will be occasion in the event of not condoning the instant petition." The opposite parties/respondents have contended that the applicant has not been able to sufficiently explain, the delay of 747 days that had occurred in filing the accompanying appeal. 7. Upon hearing the learned counsels for the parties, we find that the grounds urged by the applicant are that she was unaware about the dismissal of the case by order dated 24.11.2017 as her husband never informed her during his lifetime about the writ petition and that subsequently, her husband also expired. Although, these contentions are objected to by the respondents, the same are not supported by any evidences to suggest that the contentions of the applicant supported by affidavit are false and/or are misleading/or unfounded. The applicant has also contended that she is aged about 79 years old and of ill health and is resident of Shitsumi village, P.O. Akuluto, Zunheboto, which area is in a very remote part of the State. The learned counsel, therefore, submits that this Court should show leniency toward the applicant and condone the delay to permit her to contest the accompanying appeal against the Judgment dated 24.11.2017 on merits. 8. The learned counsel, therefore, submits that this Court should show leniency toward the applicant and condone the delay to permit her to contest the accompanying appeal against the Judgment dated 24.11.2017 on merits. 8. In support of the contentions, learned counsel has relied upon the Judgment of the Apex Court in Collector, Land Acquisition, Anantanag & Anr. Vs. MST. Katiji & Ors., reported in (1987) 2 SCC 107 to submit that the explanation of everyday's delay does not mean that a pedantic approach should be made. The doctrine must be applied in a rational/common sense and in a pragmatic manner. He also relies on Senior Bhosak Estate (HUF) Vs. The Assistant Commissioner of Income Tax reported in (2020) 16 SCC 613 to contend that where the person aggrieved did not have knowledge about passing of the order, unless that fact is refuted, the question of disbelieving the stand taken by the appellant(s) on affidavit, cannot arise. In that case, there was a delay of 1754 days, which although was rejected by the High Court, was overturned by the Apex Court in the Judgment. He further relies on the Judgment of the Apex Court in the case of N. Balakrishnan Vs. M. Krishnamurthy reported in (1998) 7 SCC 123 to contend that there is no presumption that delay in approaching the Court is always deliberate. In this case the Apex Court by referring to earlier Judgments of the Supreme Court on this aspect held that "sufficient cause" under Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice. 9. It is seen from the pleadings that grounds for condonation of delay as submitted by the applicant is on account of ignorance about the dismissal of the W.P.(C) No. 282(K)/2017 filed by her late husband who subsequently expired after the delivery of the Judgment. She also contends that her late husband never disclosed the fact of approaching the High Court by filing the writ petition after expiry of her husband and she also suffered a bout of illness thereafter. All these contentions made are duly supported by the affidavit. Although, the objections have been raised by the State disputing the contentions urged, they have not been able to support their objections by any evidence to the contrary. 10. All these contentions made are duly supported by the affidavit. Although, the objections have been raised by the State disputing the contentions urged, they have not been able to support their objections by any evidence to the contrary. 10. As held by the Judgment referred above the "definition of sufficient cause" has not been explained and has been left to the discretion of the Court. In this context, a recent Judgment of the Apex Court, while examining, the aspect of delay under Section 16 of the NGT Act has laid down the position in law in respect of what will constitute "sufficient cause" enabling any applicant to satisfy the same in order to seek condonation of the delay that may have occurred. In the case of Sridevi Datla Vs. Union of India & Ors. The apex Court has held as under: "22. What constitutes "sufficient cause" in terms of Section 16 of the NGT Act? While it is unexceptionable for the Project Applicant to argue that the Limitation Act is per se inapplicable to proceedings under the NGT Act, given that the basic, and outer period of limitation for filing an appeal have been enacted, nevertheless, what constitutes sufficient cause, is left to the discretion of the tribunal. Here, the court discerns a surfeit of authority on what the term denotes, and the general approach of the court, in dealing with delay. 23. In G. Ramegowda v. Land Acquisition Officer speaking for this court, Venkatachaliah, J summarized the position in the following terms: "14. The contours of the area of discretion of the courts in the matter of condonation of delays in filing appeals are set out in a number of pronouncements of this Court. See Ramlal v. Rewa Coalfields Ltd., AIR 1962 SC 361 : (1962) 2 SCR 762 , Shakuntala Devi Jain v. Kuntal Kumari, AIR 1969 SC 575 : (1969) 1 SCR 1006 , Concord of India Insurance Co. Ltd. v. Nirmala Devi (1979)4 SCC 365 : 1979 SCC (Cri) 996: (1979) 3 SCR 694 , Mata Din v. A. Narayanan, (1969) 2 SCC 770 : (1970)2 SCR 90 and Collector (LA) v. Katiji, (1987)2 SCC 107 : 1989 SCC (Tax) 172], etc. There is, it is true, no general principle saving the party from all mistakes of its counsel. There is, it is true, no general principle saving the party from all mistakes of its counsel. If there is negligence, deliberate or gross inaction or lack of bona fides on the part of the party or its counsel there is no reason why the opposite side should be exposed to a time-barred appeal. Each case will have to be considered on the particularities of its own special facts. However, the expression 'sufficient cause' in Section 5 must receive a liberal construction so as to advance substantial justice and generally delays in preferring appeals are required to be condoned in the interest of justice where no gross negligence or deliberate inaction or lack of bona fides is imputable to the party seeking condonation of the delay." 24. Much later, in Esha Bhattacharjee v. Raghunathpur Nafar Academy this court referred to a large number of previous judgments, and observed that adoption of a strict standard of proof sometimes fails to protect public justice and it may result in public mischief. Other decisions have highlighted that there cannot be a universal formula to judge whether sufficient cause has, or has not been shown and the exercise is necessarily fact specific; in Improvement Trust v. Ujagar Singh, the court held: "16. While considering [an] application for condonation of delay no straitjacket formula is prescribed to come to the conclusion if sufficient and good grounds have been made out or not." 25. The court also emphasized that each case has to be balanced on the basis of its facts and the surrounding circumstances in which the parties act and behave. 26. Yet another dimension to the issue was highlighted in Maniben Devraj Shah v. Municipal Corpn. of Brihan Mumbai, where the court underlined a distinction between a case where the delay is inordinate, and a case where the delay is of few days and that 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. After noticing that a liberal and justice-oriented approach needs to be taken, it was stated that the court, equally should be sensitive to 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." The court then held that: "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." 27. It is evident that the term sufficient cause is relative, fact dependant, and has many hues, largely deriving colour from the facts of each case, and the behaviour of the litigant who seeks condonation of delay (in approaching the court). However, what can broadly be said to be universally accepted is that in principle, the applicant must display bona fides, should not have been negligent, and the delay occasioned should not be such that condoning it would seriously prejudice the other party." 11. Keeping in view the principles discussed above, we are inclined to condone the delay of 747 days that has occurred in filing the accompanying writ appeal. 12. The delay of 747 days is condoned. The Interlocutory Application is allowed and disposed of. 13. Registry is directed to register the accompanying Writ Appeal and post it before the next available Division Bench.