State of Gujarat vs N.K. Jadhav

C.K. Thakkar, Actg. C.J.

All these applications are filed for condonation of delay in filing LPAs against the order passed by the learned Single Judge .When appeals were filed by the applicants-appellants , the registry raised an objection that they were barred by 333 days .These applications are,therefore, filed for condonation of delay.

When the matters came up for hearing, Rule was issued on April 6, 1998 and was made returnable on April 17, 1998. Opponents were served and affidavit in reply was filed on their behalf. Further affidavit was filed by Addl.DGP (Administration) on August 19, 1998.

We have heard Mr. S. N. Shelat, learned Addl.Advocate General instructed by Patel Associates for the applicant, Mr. J.P.Bhatt for respondent No.1 and Mr.B.R.Vaishanv for rest of the respondents.

The case of the applicant was that the learned Single Judge delivered the judgment on December 12, 1996. A copy thereof was received by the Home Department on January 22, 1997. On February 12, 1997, Home Department asked the DGP office to get opinion of the Addl.Govt. Pleader whether the Government should file an appeal against the order passed by the learned Single Judge. On February 22,1997 the office of Director General of Police requested the then Solicitor and Addl.Govt. Pleader to give his opinion. On April 29, 1997, a reminder was also sent to the then Solicitor. On April 30, 1997, the Home Department was intimated that on receipt of the said opinion, it will be sent to the department. On July 29, 1997, Home Department sent a reminder . On August 8, 1997, opinion was received. On August 11, 1997, office note was prepared and opinion was taken on record . On August 14, 1997, the then Director General of Police gave

his opinion that the decision of the learned Single Judge should be accepted. On August 16, 1997, draft letter was prepared to accept the judgment. On August 21, 1997, Home Department was requested to accept the decision of the learned Single Judge in view of the above opinion. On October 28, 1997, however, Home Department did not agree with the opinion expressed by the Addl. Govt. Pleader and decided to file appeal. It appears that thereafter files could not be moved for few days from October 30 to November 2, 1997 because of Diwali vacation. On November 4, 1997, a note was put up for preferring appeal. On November 12,1997, draft appeal memo was approved and the Solicitor to the Government was requested to prefer appeal. On November 17, certain queries were raised by the office of the Solicitor and necessary documents were furnished and on December 5, 1997, on the basis of material furnished, LPAs were prepared and on December 6, 1997, they were filed. Thus, there was delay of 333 days.

Mr. Shelat submitted that in the facts and circumstances of the case, it cannot be said that there was inaction, want of bona fides or negligence on the part of the department in preferring appeals. As soon as the judgment was pronounced by the learned Single Judge, a copy was applied which was received and the opinion was sought from the Solicitor and the Government Pleader concerned whether the case was fit to file LPA. It was opined that the case was not fit to carry the matter in appeal. To that effect, a draft was prepared. The final decision, however, could be taken only by the Home Department and the Home Department, in the light of facts and circumstances mentioned in the appeal memo as well as in the further affidavit of Addl. DGP (Administration), decided to file appeal and accordingly appeals were filed. He submitted that ultimately, connotation `sufficient cause'' u/s 5 of the Limitation Act must be liberally construed so as to advance the cause of justice. He also submitted that serious consequences would ensue in the light of the directions issued by the learned Single Judge. He submitted that in the light of these development and facts and circumstances, these are fit cases in which delay deserves to be condoned.

In this connection, our attention was invited to various decisions of the Supreme Court as well as of this Court.

In State of Haryana Vs. Chandra Mani and others, , the Supreme Court observed that when the State is an applicant, praying for condonation of delay, it is common knowledge that on account of impersonal machinery and inherited bureaucratic methodology imbused with the note making, file pushing, and passing on the buck ethos, delay on the part of the State is less difficult to approve. The Court also observed that it was axiomatic that decisions are taken by officers / agencies proverbially at slow pace and encumbered process of pushing the files from table to table and keeping it on table for considerable time causing delay intentional or otherwise is a routine. Delay of 109 days was, therefore, ordered to be condoned after considering various cases.

In the same volume, in State of U. P. and others Vs. Harish Chandra and others, distinguishing the decision of the Supreme Court in C.W.T. v. Amateur Riders Club , the Court observed :

"It is undoubtedly true that the applicant seeking for condonation of delay is duty bound to explain the reasons for the delay but as has been held by this Court in several cases, the very manner in which the bureaucratic process moves, if the case deserves merit, the court should consider the question of condonation from that perspective."

While disposing the matter, the Court also took into account merits of the matter.

In State of Bihar and others Vs. Subhash Singh, , the Court again stated:

"It is known fact that in transaction of the Government business, none would own personal responsibility and decisions are leisurely taken at various levels. It is not uncommon that delay would be deliberately caused in filing appeal or revision by Government to confer advantage to the opposite litigant; more so when stakes involved are high or persons are well connected/ influential or due to obvious considerations. The courts , therefore, do not adopt strict standard of proof of every day''s delay."

In Balakrishnan vs. M. Krishnamurthy, JT 1998 (6) SC 242, the Court reiterated the principles laid down in earlier cases and held that it is no doubt true that condonation of delay is a matter of discretion of the court, but Section 5 of the Limitation Act must be liberally construed so as to advance the cause of justice. The said section does not say that such discretion can be exercised only if the delay is within a certain limit. In the opinion of the court, length of delay is no matter, acceptability of the explanation is the only criterion.

The Court went on to observe :

"Rules of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life span for such legal remedy for the redress of the legal injury so suffered. Refusal to condone delay would result in foreclosing a suitor from putting forth his cause. There is no presumption that delay in approaching the court is always deliberate. That the words "sufficient cause" u/s 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice."

Mr Bhatt as well as Mr. Vaishnav , on the other hand, strongly opposed the applications for delay filed by the applicants. They submitted that there was no explanation whatsoever at the initial level. Drawing our attention to the applications filed initially, they submitted that a bald assertion was made that there was "some delay" in filing LPAs and delay may be condoned. They also contended that another ground pleaded should also be considered viz. that though LPAs were filed as early as on December 6, 1997, no CA for condonation of delay was filed at that stage. Such applications were filed after more than three months. According to the learned counsel, it was expected of the applicant-appellant to come immediately with necessary explanation so that Court can decide whether the grounds put forward in the applications were sufficient so as to invoke provisions of Section 5 of the Limitation Act. It was further contended that though the judgment was pronounced by the learned Single Judge in the presence of AGP, it was not complied with. The opponents had to approach this Court by filing contempt petitions in which certain directions were issued by the Division Bench taking up contempt matters and only thereafter, the matters were processed by the authorities.

In this connection, our attention was invited to a decision of the Supreme Court in P.K. Ramachandran Vs. State of Kerala and Another, . In that case, High court of Kerala condoned delay of 565 days in filing an appeal by passing the following order :

"This is an application to condone the delay of 565 days in filing an appeal. The petition is seriously opposed by the respondent. But taking into consideration the averments contained in the affidavit filed in support of the petition to condone the delay, we are inclined to allow the petition. The petition stands allowed."

In the opinion of the Supreme Court, the grounds put forward by the applicant in stating that at the time the Advocate General''s office was fed up with so many arbitration matters equally important to this case were pending for consideration as per the directions of the Advocate General on 2.9.1995", cannot be said to be sufficient . Thus, the High court, in the opinion of the Apex Court, did not examine the reply filed by the appellant and passed the order. The Supreme Court held that the order passed by the High Court was not sustainable. In the light of the facts, affidavit in reply and the order passed by the High Court, the Supreme Court observed:

"Law of limitation may harshly affect a particular party but it has to be applied with all its rigour 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, succeed 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."

Our attention was also invited by learned counsel to a decision of Division Bench of this Court in CA Nos. 6593 of 1998 and companion matters, decided on July 28, 1998. In those cases, there was delay of 171 days . The Division Bench considered the fact that at the time of filing LPAs, applications for condonation of delay were not filed and that time barred appeals were not accompanied by applications for condonation of delay and such applications were filed subsequently. The Court, therefore, observed that in such matters, delay did not deserve to be condoned and accordingly, applications were dismissed.

In our opinion, however, in the lights of the facts and circumstances put forward on record, it cannot be said that there was inaction , want of bona fides or negligence on the part of the applicant. From the record, it appears that copy of the judgment was received by the department on January 22, 1997 of the judgment which was pronounced on December 12, 1996. Opinion of the Solicitor and Addl. Govt. Pleader was sought and initially, it was opined to accept the judgment and not to file appeals, but thereafter, the Government considered the seriousness of the matter and it was decided to file appeals. No doubt, applications were filed after more than three months. But then, an affidavit was filed explaining the facts and circumstances. Mr. Shelat also invited our attention to the judgment of the learned Single Judge and contened that the directions are contrary to the provisions of Bombay State Reserved Police Force Act, 1951 and the petitioners were not entitled to claim benefits which have been granted to them. The learned Judge, according to him, was not right in invoking provisions of Articles 14 and 16 of the Constitution of India as the category for which certain benefits were granted was different than the category in question.

We may state that we are not expressing any opinion on merits of the matter. So far as the present applications are concerned , in the light of the facts and circumstances of the case, in our opinion, there is sufficient cause within the meaning of Section 5 of the Limitation Act. Delay, therefore, deserves to be condoned and we accordingly condone delay, but we direct that in all these applications, the applicant-State will pay an amount of Rs. 1,000/- per matter to the petitioners. It is stated that the statement which was made on behalf of the petitioner will continue till the matters will be placed for admission before an appropriate court.