State of Jammu and Kashmir another vs Bashir Ahmed Bhat and others

Qawoosa, J.—This order will dispose of the application seeking condonation of delay caused in filing the Letters Patent Appeal against the

judgment dated 10.9.1998 passed by the learned Single Judge in SWP No. 570/86 titled Bashir Ahmad Bhat versus State of J and K others.

Fortyseven days delay in total has been caused in filing the appeal. The justification given by the petitioners in the application for condonation of

delay is that the Department came to know about this judgment on 12.11.1998 when notice bearing No.l/BA/95 dated 12.11.1998 was sent by

Mr. M.A. Qayoom, Advocate, accompanied by a copy of the judgment, for implementation thereof. On receipt of this notice, the Deputy Director

maked it as ""immediate"" and a report was sought. It took some time in tracing the record in the Direction Office. The file was put up before the

Deputy Director on 24.11.1998 who marked it to the legal cell for its examination on 25.11.1998. At official level, a detailed report was prepared

on 30.11.1998. The matter was considered on 2nd and 3rd December 1998. The decision to file the appeal was taken on 7.12.1998. However,

thereafter, it took some more time for obtaining a report from the field staff and the concerned Block Development Officer. Ultimately, the appeal

was prepared on 24.12.1998. It is further stated that the date of judgment mentioned in the photo copy of the judgment received from the counsel

of the writ petitioner alongwith the notice was not legible. It was bonafide believed that the judgment was announced on 9th October, 1998.

However, after obtaining the certified copy of the judgment from the Registry of this court, it was found that the judgment had actually been

delivered on 10th September, 1998. On account of this confusion about the date of judgment, and official wranglings, the delay in filing the Letters

Patent Appeal was caused.

Objections have been filed by the otherwise in which the respondent has controverted the pleas taken by the petitioners both on facts and on

law.

Head learned counsel for the parties.

Learned counsel for the respondent, Mr. Qayoom, has vehemently argued that the explanation tendered by the petitioners on facts is totally

bereft of ground realities. According to him, the judgment was delivered in the presence of the counsel for respondents in the writ petition.

Therefore, it cannot lie in the mouth of petitioners that they were not aware of the judgment delivered on 10th September, 1998. According to him,

the delay has been caused deliberately and the law does not permit to condone the delay on flimsy grounds which will otherwise effect the right

occurring to the respondent (writpetitioner). He has placed reliance on the judgment of the Apex Court in case "" P.K. Ramachandran Vs. State of

Karala"" (AIR 1998 SC 2276) in which it has been held:

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 (Sic) thus, a (Sic) proper nor

judicious. The order condoning the delay cannot be sustained. It needs a mention here that in the above said case, the Apex Court found that the

High Court had not recorded any satisfaction that the explanation for the delay was either reasonable or satisfactory which was "" essential

prerequisites to condonation of delay "".

Learned counsel for the petitioners across has argued that the courts are taking a liberal view in matters regarding justification tendered for

condonation of delay and in this case also such view is solicited to be taken in view of the official wranglings which has caused some delay in filing

the appeal. Mr. Attar, AAG has relied on "" State of Haryana Vs. Chandra Mani and others"" (1996 (3) SCC 132), a three bench judgment of the

Apex Court. In this authority, the Apex Court has held as under.

Section 5 of the limitation Act gives power to the court to admit the appeal or application after the prescribed period. The Supreme Court

generally adopts a liberal approach in condonation of delay finding some what sufficient cause to decide the appeal on merits. When the State is an

applicant, praying for condonation of delay, it is common knowledge that on account of impersonal machinery and the inherited bureaucratic

methology imbued with the notemaking, filepushing, and passing on the buck ethos, delay on the part of the State is less difficult to understand

though more difficult to approve, but the state represents collective cause of the community. 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 delayintentional

or otherwise is a routine. Considerable delay of procedural redtape in the process of their making decision is a common feature. Therefore, certain

amount of latitude is not impermissible. If the appeals brought by the state are lost for such default no person is individually affected but what in the

ultimate analysis suffers, is public interest. The expression ""sufficient cause"" should, therefore, be considered with pragmatism in justiceoriented

approach rather than the technical detention of sufficient cause for explaining everdays delay......The Court should decide the matters on merits

unless the case is hopelessly without merit........

After considering the rival arguments of the learned counsel for the parties, we are of the view that notwithstanding the Government also stands

on the same footing as a private individual while the Courts indulgence is sought for condonation of delay under Section 5 of the Limitation Act,

but, at the same time, a pragmatic approach, not a pedantic one, is to be adopted while dealing with such matter. State represents a community

cause and we can not ignore the bureaucratic methodology inbued with the notemaking process and bucking the file from one table to another. A

slight lenient approach requires to be taken in such matters. However, that does not mean that a reasonable justification and explanation for the

delay caused is totally to be waived off.

The explanation tenders is twofold; first, that the petitioner No 2 was not aware of the judgment till it was made known to him through notice

received from Mr. M. A.Qayoom, Advocate for implementation of the judgment, and second, after receiving this information, it took some time in

preparing the notes and getting legal advice.

So far as the first point is concerned, we have mentioned supra that in the judgment of the learned Single Judge the name of the counsel, for the

present petitioner is given, so the explanation of the petitioners is not acceptable. The plea that the date of the judgment given in the copy of

judgment accompanying the notice was not legible is also not acceptable. Copy of the notice placed on record shows that Mr. Qayoom had given

the date of judgment in his notice viz 1091998. Therefore, there was no question of any confusion about the date of judgment. The explanation

sought to be .made out is not borne out by the record.

Even if it is presumed that the petitioner No. 2 was not aware of the judgment till he received a notice from Mr.M.A.Qayoom, there is no

plausible explanation as to why the appeal was not filed immediately thereafter. In the application it is stated that they came to know about the

judgment on 12111998. The appeal was filed on 29121998 i.e. after about forty seven days. They have not dealt with the matter with a

responsible dispatch. Even after the copy of the judgment and notice was received from the counsel for the writ petitioner, much delay has been

caused which is not justified.

Thirdly, the court to see as to what is the subjectmatter involved in the case. In case the matter is such which has a great stake on the Public

exchequer, reflects upon the Public interest, or huge property is involved, then the matter would be different. The writ petitioner (respondent

herein) was initially appointed as Village Level Worker for three months against a clear vacancy. The condition made in the order was that the

appointment shall last for three months or till the selection was made. Whichever would fall earlier. In order to adjust some blue eyed boy against

the post, the writ petitioner was appointed in a leave arrangement, as alleged. However, the final relief granted in the judgment by the learned

Single Judge is that the writ petitioner be allowed to join till a regularly selection candidate joins. Therefore, in these circumstance, we do not see

that this order is of such a nature as would warrants liberal view in favour of the petitioners. The Apex Court has time and again in a catena of

authorities held that liberal view should be given to the words ""sufficient cause"" mentioned in Section 5 of the

Limitation Act but, at the same time, the criteria for the acceptability of the explanation should beadhered to. In case "" N. Balakrishnan Vs. Mr.

Krishnamurthy"" (AIR 1998 SC 3222) the Apex Court no doubt has held that length of delay is no matter, but the acceptability of the explanation is

the only criterian for considering the request for condonation of delay.

Since the justification and explanation tenders is not tenable, being insufficient, the application for condonation of delay is rejected.

Consequently, the Letters Patent Appeal is dismissed as time barred.