Mokshed Ali Sarkar vs State Of West Bengal & Ors
2022 Latest Caselaw 3074 Cal

07.06.2022 SL No.20 Court No.8 (gc)

MAT 547 of 2022 With CAN 1 of 2022 With CAN 2 of 2022

Mokshed Ali Sarkar Vs.

State of West Bengal & Ors.

Mr. Dilip Kumar Samanta, Mr. Sanat Kumar Roy, Mr. Abhishek Banerjee, ...for the Appellant.

Mr. Jahar Lal De, Ld. A.G.P., Mr. Shamim ul Bari, ...for the State.

The appeal is accompanied by an application for

condonation of delay. There is a delay of 1688 days in

preferring the mandamus appeal. The explanation for the

delay is stated in paragraph 18. The said paragraph is

reproduced below:-

"18. The petitioner states that in preferring the said Mandamus Appeal in this Hon'ble Court, there is a delay of 1688 days and the petitioner could not prefer the Mandamus Appeal in time mainly on the ground that after the dismissal of the Writ Petition by this Hon'ble Court on 27.07.2017, the petitioner became highly affected mentally and as the only source of livelihood having been lost, the petitioner had confined himself in his house and could not be able to seek for legal advice after such dismissal of the said Writ Petition. On 17.03.2022, the petitioner visited the chamber of Mr. Sanat Kumar Roy, Learned Advocate and sought for legal advice in the matter. After holding consultation with the Learned Advocate and after being satisfied with the legal advice of Mr. Sanat

Kumar Roy, Learned Advocate, the petitioner had instructed him to take appropriate legal measure for challenging the impugned judgment and order of the Learned Trial Judge dated 27.07.2017 passed in W.P.

No.15492(W) of 2017. Accordingly, the Memo of Appeal has been preferred with the application for Stay and Condonation of Delay on 11.04.2022. The delay so caused is wholly unintentional and beyond the control of the petitioner."

In an application for condonation of delay, the Court

is required to be satisfied that there has been no culpable

negligence on the part of the applicant and sufficient cause

exists for the Court to take a liberal view after taking into

consideration all the relevant circumstances. The

applicant is required to satisfy the Court that he had

sufficient cause for not preferring the appeal or making the

application within the period of limitation. The

appellant/petitioner does not say that he was misled by

any order or he was not aware of the consequences of the

order. There is a vague statement that the petitioner

became "highly affected mentally" as the only source of

livelihood was lost. The appellant has failed to substantiate

the kind of mental illness being suffered during the

aforesaid period or to produce any medical report with

regard to his mental incapacity for which he was unable to

approach the Court within the period of limitation or at

least within a reasonable period.

The learned Counsel for the petitioner has submitted

that having regard to the perversity of the findings of the

learned Trial Judge, the Court may take a liberal view and

should not hold that the application suffers from any

culpable negligence or want of bona fide.

We have gone through the impugned order in detail.

There was an allegation of anomalies and discrepancies in

maintaining the stock register, shortage of food-grains to

the tune of 3 quintals 31 kgs. 750 gms. of rice, 16 quintals

68 kgs. 100 gms of wheat and 1 quintal 25 kgs. of sugar

and non-supply of cash-memo to the ration-card holders.

The appellant admitted the discrepancies in maintaining

the stock registers in his reply to the show cause and he

gave reasons of illness for the said discrepancies. However,

as rightly observed by the learned Single Judge that no

cogent explanation was given by the appellant in his reply

to the show cause for huge shortage of food-grains detected

during inspection on February 26, 2013. Contrary to the

allegations made by the writ petitioner, there is nothing on

record to indicate that any register or Books of Accounts

were seized by the Inspector of Food and Supplies on

February 26, 2013. The non-supply of weighment chart

prepared at the time of inspection on February 26, 2013

was not even urged by the appellant in the show cause

notice submitted on March 18, 2013, nor there was any

material on record to indicate that the appellant was willing

to review the shortage of huge quantity of food-grains in

the stock of the petitioner. These are some of the factors

which weighed with the learned Single Jude to buttress the

argument made on behalf of the appellant/writ petitioner

that non-supply of important documents has completely

prejudiced his right to make an effective representation.

Curiously mental illness which forms the basis of the

appellant's failure to explain huge shortage of food-grains

has been taken refuge in trying to explain the delay in filing

the instant appeal. Even on the merits as we are invited to

consider, we do not find any reason to interfere with the

impugned order.

Accordingly, the application for condonation of delay

being CAN 1 of 2022 stands dismissed.

In view of the dismissal of the application for

condonation of delay, the appeal being MAT 547 of 2022

and the application being CAN 2 of 2022 also stand

dismissed.

However, there shall be no order as to costs.

Urgent Photostat certified copy of this order, if

applied for, be given to the parties on usual undertaking.

(Siddhartha Roy Chowdhury, J.) (Soumen Sen, J.)