State Of U.P. & Others vs Fazal Ilahi
2013 Latest Caselaw 1985 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?AFR 
 
Court No. - 59
 
Civil Misc. Delay Condonation Application No.22807 of 1998
 
IN
 

 
Case :- FIRST APPEAL DEFECTIVE No. - 60 of 1998
 

 
Petitioner :- State Of U.P. & Others
 
Respondent :- Fazal Ilahi
 
Petitioner Counsel :- Krishna Prasad,S.C.
 
Respondent Counsel :- H.N. Sharma
 

 
Hon'ble Manoj Misra,J.

Heard the learned state counsel for the appellant on the delay condonation application.

By this application, condonation of 6 years and 23 days delay in filing the appeal against the judgment and award dated 14.11.1991 passed by the Special Additional District Judge, Saharanpur in Review Application No.23 of 1988, has been sought.

In the affidavit supporting the application, it has been stated that certified copy of the judgment and decree dated 14.11.1991 was received in the office of the Special Land Acquisition Officer (Joint Organisation) Saharanpur (the deponent of the affidavit), on 01.01.1992, thereafter, legal opinion of the District Government Counsel (Civil) was sought, which was received on 1.1.1992. Thereafter, on 10.2.1992, the matter was referred to the State Government for granting sanction to file appeal. After series of reminders, vide Government Order dated 14.09.1993, the State Government granted sanction to file the appeal. The department then, vide letter dated 24.12.1993, sought sanction for release of funds to meet the expenses/court fee in filing the appeal which, unfortunately, could not be disposed of in spite of several reminders between 23.12.1993 and 27.5.1995. The Government, thereafter, enquired about the court fee through its letter dated 03.01.1996 and again several reminders were sent, the last amongst them was sent on 12.8.1996, however, on 14.8.1996, the office was able to convince the Govt. about the court fee. The matter was, thereafter, referred to the finance department, on 05.11.1996, for sanction and, ultimately, the sanction was obtained and funds were received sometime in December, 1997 and, thereafter, an official was deputed for getting the appeal prepared.

The record of the appeal indicates that it was presented on 11.03.1998.

The claimant respondent filed a counter affidavit to the affidavit filed in support of the delay condonation application. In the counter affidavit it has been stated that there is no explanation, at all, as to why there was so much delay at the State Level in according sanction/ permission. In paragraphs 7 and 8 of the counter affidavit it has been stated that neither the copies of the letters/ reminders have been annexed nor the names / designation of the officers have been disclosed, therefore, no reliance can be placed on the bald explanation rendered in the affidavit. As a result, this Court, vide order dated 30.9.2010 allowed a month's time to the State Counsel to file rejoinder affidavit. Thereafter, vide order dated 27.2.2013, by way of last opportunity, three weeks time was granted to file rejoinder affidavit to explain the delay in filing the appeal. Again, on 9.4.2013, the Court, on great persuasion by the State Counsel, granted two weeks and no more time to file rejoinder affidavit. Despite the above indulgence, no rejoinder affidavit was filed nor any written application was filed seeking further extension of time.

Before the Court proceeds to examine as to whether sufficient cause has been shown for condonation of the delay in filing the appeal, it would be useful to examine the law in this regard. The apex court in the case of Pundlik Jalam Patil V. Jalgaon Medium Project (2008) 17 SCC 448, in para 17, observed as follows:

"17....The court cannot enquire into belated and stale claims on the ground of equity. Delay defeats equity. The court helps those who are vigilant and 'do not slumber over their rights'."

Thereafter, after referring to various earlier decisions, the apex court, in the aforesaid case, observed in paragraphs 29 and 30, as follows:-

"29. It needs no restatement at our hands that the object for fixing time-limit for litigation is based on public policy fixing a life span for legal remedy for the purpose of general welfare. They are meant to see that the parties do not resort to dilatory tactics but avail their legal remedies promptly. Salmond in his Jurisprudence states that the laws come to the assistance of the vigilant and not of the sleepy."

30. Public interest undoubtedly is a paramount consideration in exercising the court's discretion wherever conferred upon it by the relevant statutes. Pursuing stale claims and multiplicity of proceedings in no manner subserves public interest. Prompt and timely payment of compensation to the landlosers facilitating their rehabilitation/resettlement is equally an integral part of public policy. Public interest demands that the State or the beneficiary of acquisition, as the case may be, should not be allowed to indulge in any act to unsettle the settled legal rights accrued in law by resorting to avoidable litigation unless the claimants are guilty of deriving benefit to which they are otherwise not entitled, in any fraudulent manner. One should not forget the basic fact that what is acquired is not the land but the livelihood of the landlosers. These public interest parameters ought to be kept in mind by the courts while exercising the discretion dealing with the application filed under Section 5 of the Limitation Act. Dragging the landlosers to courts of law years after the termination of legal proceedings would not serve any public interest. Settled rights cannot be lightly interfered with by condoning inordinate delay without there being any proper explanation of such delay on the ground of involvement of public revenue. It serves no public interest."

Following the aforesaid observations, the apex court, in the case of Postmaster General V. Living Media India Ltd. (2012) 3 SCC 563 in paragraphs 26, 27, 28 and 29 of the report, while rejecting the delay condonation application, observed as follows:

"26. In spite of affording another opportunity to file better affidavit by placing adequate material, neither the Department nor the person-in-charge has filed any explanation for not applying the certified copy within the prescribed period. The other dates mentioned in the affidavit which we have already extracted, clearly show that there was delay at every stage and except mentioning the dates of receipt of the file and the decision taken, there is no explanation as to why such delay had occasioned. Though it was stated by the Department that the delay was due to unavoidable circumstances and genuine difficulties, the fact remains that from day one the Department or the person/persons concerned have not evinced diligence in prosecuting the matter to this Court by taking appropriate steps.

27. It is not in dispute that the person(s) concerned were well aware or conversant with the issues involved including the prescribed period of limitation for taking up the matter by way of filing a special leave petition in this Court. They cannot claim that they have a separate period of limitation when the Department was possessed with competent persons familiar with court proceedings. In the absence of plausible and acceptable explanation, we are posing a question why the delay is to be condoned mechanically merely because the Government or a wing of the Government is a party before us.

28. Though we are conscious of the fact that in a matter of condonation of delay when there was no gross negligence or deliberate inaction or lack of bona fides, a liberal concession has to be adopted to advance substantial justice, we are of the view that in the facts and circumstances, the Department cannot take advantage of various earlier decisions. 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.

29. 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 the government departments. The law shelters everyone under the same light and should not be swirled for the benefit of a few."

Likewise, in the case of Maniben Devraj Shah V. Municipal Corporation of Brihan, Mumbai (2012) 5 SCC 157, while rejecting the explanation offered for the delay, the apex court observed, in paragraphs 28 and 29 of the report, as follows:

"28. The application filed for condonation of delay and the affidavits of Shri Sirsikar are conspicuously silent on the following important points:

(a) The name of the person who was having custody of the record has not been disclosed.

(b) The date, month and year when the papers required for filing the first appeals are said to have been misplaced have not been disclosed.

(c) The date on which the papers were traced out or recovered and name of the person who found the same have not been disclosed.

(d) No explanation whatsoever has been given as to why the applications for certified copies of the judgments of the trial court were not filed till 23-8-2010 despite the fact that Shri Sirsikar had given intimation on 12-5-2003 about the judgments of the trial court.

(e) Even though the Corporation has engaged a battery of lawyers to conduct cases on its behalf, nothing has been said as to how the transfer of Shri Ranindra Y. Sirsikar operated as an impediment in the making of applications for certified copies of the judgments sought to be applealed against.

29. Unfortunately, the learned Single Judge of the High Court altogether ignored the gaping holes in the story concocted by the Corporation about misplacement of the papers and total absence of any explanation as to why nobody even bothered to file applications for issue of certified copies of the judgment for more than 7 years. In our considered view, the cause shown by the Corporation for delayed filing of the appeals was, to say the least, wholly unsatisfactory and the reasons assigned by the learned Single Judge for condoning more than 7 years' delay cannot but be treated as poor apology for the exercise of discretion by the court under Section 5 of the Limitation Act."

From the law laid down by the apex court, as noticed above, it is clear that settled rights cannot be lightly interfered with by condoning inordinate delay without there being any proper explanation of such delay. The government bodies, their agencies and instrumentalities cannot succeed in seeking condonation of delay by tendering usual explanation that the file was kept pending for several months/ years due to considerable degree of procedural red tape in the process. They must have reasonable and acceptable explanation. Condonation of delay is an exception and should not be used as an anticipated benefit for the government departments.

Coming to the instant case, the appellant was required to explain the delay occurring at various levels and plug the gaping holes left in the explanation offered in the affidavit. On perusal of the affidavit supporting the delay condonation application, the Court finds that except for giving the dates as to when the letters/ reminders were sent and the date when the State granted permission to file the appeal as also to meet the expenses, there is no explanation as to why there was such an inordinate delay in grant of such permission or sanction. There is no explanation for the delay at each level. Moreover, the delay is not of few days or few months, but of six long years. In such a situation, mere giving of dates of the various letters/ reminders/ sanctions will not suffice. There had to be a cogent explanation for such a delay, particularly when the explanation was challenged by the claimant respondent. In the instant case, despite several opportunities, the State did not file a rejoinder affidavit tendering explanation for the delay at the State level. In absence of any explanation as to why it took so long for the State to grant permission/ sanction, it cannot be said that there existed sufficient cause to condone the delay. Further, the Court finds that court fee that has been paid for the appeal is Rs.13,795/-, which cannot be said to be so high that sanction of the same would take nearly four years.

In the given circumstances, the Court does not find sufficient cause to condone the delay in filing the appeal. The delay condonation application is, therefore, rejected.

As the appeal is barred by time, the same is dismissed, as such.

Order Date :- 13.5.2013

AKShukla/-