Urmila Devi Tiwri vs State Of Madhya Pradesh And Others

Deepak Khot, J

The present petition has been filed by the petitioner seeking the following reliefs :-

"(I) To call for the entire record of the petitioner's case.

(II) To issue a writ in appropriate nature to quash the impugned order dtd. 09-042013 (Annexure P-6) and further be direct to respondent no. 2 decide the petitioner's case on merit, in the interest of justice.

(III) To issue an appropriate writ(s)/ direction(s) to set aside the order dated 20-08-2010 passed by the respondent no. 4(Annexure P-3), order dated 09-08-2011 passed by the respondent no. 3 (Annexure P-4) and order dated 09-04-2013 be direct the respondent no, 4 to decide the petitioner’s case afresh with considering the all facts of the case, in the interest of justice.

(IV) Any other relief which this Hon'ble court deems fit and proper looking to the facts and circumstances of the case, may also be given to the petitioner."

It has been contended by learned counsel for the petitioner that the second appeal filed against the order of the Collector has been dismissed by the Commissioner, Sagar vide order dated 09.04.2013 on the ground of delay. It is submitted that the petitioner had filed the memo of appeal along with an application for condonation of delay (Annexure-P/5). It is submitted that in the application filed for condonation of delay, it has been stated that as the appellant is a lady, she was not aware of the impugned order and she came to know about the fact of dismissal of the appeal from her husband and immediately thereafter, she applied for the certified copy of the order which she obtained on 21.03.2012 and immediately on 22.03.2012, she had preferred the appeal before the Second Appellate Authority. It is submitted by learned counsel for the petitioner that the delay in filing the appeal is near about four months which was bonafide and deserves to be condoned in the interest of justice.

From perusal of the impugned order, it is found by this Court that the order is a non-speaking order and by a single line, the Appellate Authority has dismissed the application stating that the grounds are not sufficient to condone the delay in filing the appeal. It is a trite law that a litigant should not be deprived of their litigating rights only on the question of delay. Once the application has been filed along with the reasons supported by an affidavit, the authority ought to have dwelt upon the application objectively and passed the order.

The Hon'ble Apex Court in the case of Kranti Associates (P) Ltd. v. Masood Ahmed Khan, (2010) 9 SCC 496, has held that the reasons of the order are heartbeat of the decision and have virtually become as indispensable a component of decision-making process as observing principles of natural justice by judicial, quasi-judicial and even by administrative bodies. Insistence on recording of reasons is meant to serve the wider principle that justice must not only be done it must also appear to be done. It has been observed in paragraph - 47 as under :-

“47. Summarizing the above discussion, this Court holds:-

(a) In India the judicial trend has always been to record reasons, even in administrative decisions, if such decisions affect anyone prejudicially.

(b) A quasi-judicial authority must record reasons in support of its conclusions.

(c) Insistence on recording of reasons is meant to serve the wider principle of justice that justice must not only be done it must also appear to be done as well.

(d) Recording of reasons also operates as a valid restraint on any possible arbitrary exercise of judicial and quasi-judicial or even administrative power.

(e) Reasons reassure that discretion has been exercised by the decision maker on relevant grounds and by disregarding extraneous considerations.

(f) Reasons have virtually become as indispensable a component of a decision making process as observing principles of natural justice by judicial, quasi-judicial and even by administrative bodies.

(g) Reasons facilitate the process of judicial review by superior Courts.

(h) The ongoing judicial trend in all countries committed to rule of law and constitutional governance is in favour of reasoned decisions based on relevant facts. This is virtually the life blood of judicial decision making justifying the principle that reason is the soul of justice.

(i) Judicial or even quasi-judicial opinions these days can be as different as the judges and authorities who deliver them. All these decisions serve one common purpose which is to demonstrate by reason that the relevant factors have been objectively considered. This is important for sustaining the litigants' faith in the justice delivery system.

(j) Insistence on reason is a requirement for both judicial accountability and transparency.

(k) If a Judge or a quasi-judicial authority is not candid enough about his/her decision making process then it is impossible to know whether the person deciding is faithful to the doctrine of precedent or to principles of incrementalism.

(l) Reasons in support of decisions must be cogent, clear and succinct. A pretence of reasons or `rubber-stamp reasons' is not to be equated with a valid decision making process.

(m) It cannot be doubted that transparency is the sine qua non of restraint on abuse of judicial powers. Transparency in decision making not only makes the judges and decision makers less prone to errors but also makes them subject to broader scrutiny. (See David Shapiro in Defence of Judicial Candor (1987) 100 Harward Law Review 731-737).

(n) Since the requirement to record reasons emanates from the broad doctrine of fairness in decision making, the said requirement is now virtually a component of human rights and was considered part of Strasbourg Jurisprudence. See (1994) 19 EHRR 553, at 562 para 29 and Anya vs. University of Oxford, 2001 EWCA Civ 405, wherein the Court referred to Article 6 of European Convention of Human Rights which requires,

"adequate and intelligent reasons must be given for judicial decisions".

(o) In all common law jurisdictions judgments play a vital role in setting up precedents for the future. Therefore, for development of law, requirement of giving reasons for the decision is of the essence and is virtually a part of "Due Process".

On the question of delay, t he Hon'ble Apex Court in the case of Esha Bhattacharjee vs. Managing Committee of Raghunathpur Nagar Academy & Others reported in (2013) 12 SCC 649 has laid down the following guidelines in paragraphs - 21 & 22 as under :-

"21. From the aforesaid authorities the principles that can broadly be culled out are:

21.1. (i) There should be a liberal, pragmatic, justice-oriented, non-pedantic approach while dealing with an application for condonation of delay, for the courts are not supposed to legalise injustice but are obliged to remove injustice.

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.

21.3. (iii) Substantial justice being paramount and pivotal the technical d considerations should not be given undue and uncalled for emphasis.

21.4. (iv) No presumption can be attached to deliberate causation of delay but, gross negligence on the part of the counsel or litigant is to be taken note of.

21.5. (v) Lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact.

21.6. (vi) It is to be kept in mind that adherence to strict proof should not affect public justice and cause public mischief because the courts are required to be vigilant so that in the ultimate eventuate there is no real failure of justice.

21.7. (vii) The concept of liberal approach has to encapsulate the conception of reasonableness and it cannot be allowed a totally unfettered free play.

21.8. (viii) There is a distinction between inordinate delay and a delay of short duration or few days, for to the former doctrine of prejudice is attracted whereas to the latter it may not be attracted. That apart, the first one warrants strict approach whereas the second calls for a liberal delineation.

21.9. (ix) The conduct, behaviour 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.

21.11. (xi) It is to be borne in mind that no one gets away with fraud, misrepresentation or interpolation by taking recourse to the technicalities of law of limitation.

21.12. (xii) The entire gamut of facts are to be carefully scrutinised 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.

To the aforesaid principles we may add some more guidelines taking note of the present day scenario. They are:

22.1. (a) An application for condonation of delay should be drafted with careful concern and not in a haphazard manner harbouring 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.

22.2. (b) An application for condonation of delay should not be dealt with in a routine manner on the base of individual philosophy which is basically subjective.

22.3. (c) Though no precise formula can be laid down regard being had to the concept of judicial discretion, yet a conscious effort for achieving consistency and collegiality of the adjudicatory system should be made as that is the ultimate institutional motto.

22.4. (d) The increasing tendency to perceive delay as a non-serious matter and, hence, lackadaisical propensity can be exhibited in a nonchalant manner requires to be curbed, of course, within legal parameters."

Since the impugned order dated 09.04.2013 is a non-speaking order and has been passed in a cursory manner therefore, the order being non-speaking is violative of the principles of natural justice deserves to be quashed and is hereby quashed. Accordingly, the matter is remanded back to the Appellate Authority to decide the application for condonation of delay in an objective manner considering the fact of delay mentioned in the application. It is further directed to the petitioner to file an additional affidavit before the respondent/authority explaining the delay of each and every day within a period of 15 days from today. If such an affidavit is filed by the petitioner then the same shall also be considered by the authority expeditiously after giving opportunity of hearing to the parties.

With the aforesaid the petition stands disposed of. Certified copy as per rules.