Delhi High Court

Union Of India & Ors. vs Raman Kumar on 14 March, 2013

Author: V. K. Jain

$~16 to 19

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

%                      Judgment reserved on   : March 12, 2013
                       Judgment pronounced on : March 14,2013
+      LPA 531/2012
       UNION OF INDIA & ORS                         ..... Appellants
                       Through :   Mr. Baldev Malik, Adv.
                       versus
       KAMAL KUMAR                                  ..... Respondent
                       Through :   Mr. L.P.Dhir and Mr.Vikas
                                   Nautiyal, Advs.
+      LPA 532/2012
       UNION OF INDIA & ORS                         ..... Appellants
                       Through :   Mr. Baldev Malik, Adv.
                       versus
       KAMAL KUMAR                                  ..... Respondent
                       Through :   Mr. L.P.Dhir and Mr.Vikas
                                   Nautiyal, Advs.
+      LPA 534/2012
       UNION OF INDIA & ORS.                        .... Appellants
                       Through :   Mr. Baldev Malik, Adv.
                       versus
       RAMAN KUMAR                                  ..... Respondent
                       Through :   Mr. L.P.Dhir and Mr.Vikas
                                   Nautiyal, Advs.




LPA 531/2012                                        Page 1 of 14
 +      LPA 540/2012
       UNION OF INDIA & ORS                          ..... Appellants
                        Through :   Mr. Baldev Malik, Adv.


                        versus
       KAMAL KUMAR L.R.                              ..... Respondent
                        Through :   Mr. L.P.Dhir and Mr.Vikas
                                    Nautiyal, Advs.
       CORAM:
        HON'BLE THE CHIEF JUSTICE
        HON'BLE MR. JUSTICE V.K. JAIN
                ORDER

% 12.03.2013 CM 12463/2012(delay in filing the appeal for 136 days) CM 12469/2012(delay in filing the appeal for 136 days) CM 12481/2012(delay in filing the appeal for 136 days) CM 12763/2012(delay in filing the appeal for 136 days) CORAM:

HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE V.K. JAIN

V.K. JAIN, J.

1. Certain writ petitions being W.P.(C) Nos.2276/1996, 302/1996,

303/1996 and 260/1995 were filed challenging the order dated

28th November, 1994 passed under Sections 7(1) and 7(3) of Smugglers

And Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976

(SAFEMA), by the Competent Authority, the Appellate Tribunal's order

dated 8th March, 1996 and the rectification order dated 8th May, 1996.

The writ petitions were allowed vide common order dated 25th

November, 2011. LPA No.531/2012, 532/2012, 534/2012 and 540/2012

have been filed questioning the order passed in the writ petitions. Since

the appeals have been filed after expiry of the prescribed period of

limitation, the aforesaid applications have been filed seeking condonation

of delay of 139 days in filing the appeals.

2. Pursuant to our order dated February 22, 2013, the appellants have

filed a better affidavit explaining the delay in filing the appeals and the

delay is sought to be explained in paras 2 to 19 of the said affidavit.

3. A reply has been filed by the respondents, opposing the

applications, inter alia, on the ground that no action was taken by the

appellants for more than two months to file the appeals and no reasonable

and sufficient cause has been shown for condonation of delay in filing the

appeals. In support of their reply, the respondents have relied upon

certain documents obtained by them under RTI Act.

4. A perusal of the affidavit filed in support of the applications would

show that copy of the impugned order was received by the concerned

department after about four weeks, on 23rd December, 2011. Since, any

decision whether to accept the order passed by the learned Single Judge

or to challenge it by way of appeal could have been taken only after a

detailed analysis of the said order with the help of the relevant files

maintained in the concerned departments/Sections, the appellants cannot

be blamed for not initiating any action in the matter prior to 23rd

December, 2011. Since 24th December, 2011 and 25th December, 2011

were holidays, the order in question was received by the concerned

dealing officer on 26th December, 2011 and the file reached the

Competent Authority through proper channel, on 4th January, 2012.

Considering that the dealing officer could not have put up the file directly

to the Competent Authority and was, required to route the same through

his superior, it cannot be said that the appellants were inactive in taking

any action in the matter between 26th November, 2011 to 4th December,

2012. Immediately on the file being seen by the Competent Authority, a

legal opinion from the counsel who represented the appellants in the writ

petitions was sought vide letter dated 5th January, 2012. The appellants

were justified in seeking legal opinion before deciding whether to accept

the impugned order or to challenge it by way of appeal. The counsel also

took some time to give opinion sought by the Department, which was

received on 19th January, 2012. In the meanwhile, there was change of

Competent Authority and the previous Competent Authoirty Smt. Renu

Jauhri was replaced by Smt. Pragya S.Saxena. The opinion received from

the counsel was placed before the new Competent Authority on 18 th

January, 2012. The said opinion was received by the dealing officer on

27th January, 2012, on account of intervening holidays on 21 st, 22nd and

26th Januay, 2012. Since the office of the concerned department

remained closed on 21st January, 2012 and 29th January, 2012, the

approval to file appeal was sent to the counsel on 30th January, 2012.

Thus, within about one month and one week of receipt of the impugned

order, the concerned department had, obtained legal opinion from the

counsel and taken a decision to file the appeals. Upto this stage, we do

not find any laxity or inaction on the part of the appellants in processing

the matter.

5. The learned counsel for the respondents submitted that there is no

explanation for the delay for the whole of the month of February 2012.

This, however, was countered by the learned counsel for the appellants

referring to the letter dated 5th March, 2012 written by the Competent

Authority to the Under Secretary, Competent Authority Cell, Ministry of

Finance, which the respondents themselves have filed along with their

reply. A perusal of this document would show that the counsel took

about four weeks to draft the appeals and sent the same to the department

on 29th February, 2012. That explains the delay for the whole of the

month of February, 2012. This letter also shows that on 1 st March, 2012,

Shri Baldev Malik, counsel for the appellants, had telephonically

informed the concerned department that first he was required to get the

Brief Transmission Form(BTF) to be issued in his favour from Ministry

of Law & Justice, before the filing of LPA in this Court. It was because

of this requirement that a letter was sent by the Office of the Competent

Authority to the Ministry of Law & Justice seeking issue of requisite BTF

in favour of Shri Baldev Malik, Advocate, on priority basis. 3rd March,

2012 and 4th March, 2012 were holidays and on 5th March, 2012, the

abovereferred letter to the Under Secretary, Competent Authority was

sent seeking permission/advice at the earliest. A copy of the brief of the

case along with the LPA drafted by the counsel was enclosed to the said

letter. A perusal of the letter dated 28th March, 2012 written by Ministry

of Finance (Competent Authority Cell) to the Competent Authority would

show that on receipt of the letter dated 5th March, 2012 from him, the

matter was referred to Ministry of Law for the advice to file LPA against

the impugned order. It appears from the legal advice annexed to the letter

dated 28th March, 2012 that there was some delay on the part of the

Department of Revenue in seeking opinion of the Ministry of Law. The

opinion by the Law Ministry was sent on 26th March, 2012 and thereafter

there was no delay on the part of the Competent Authority Cell inasmuch

as the opinion of the Law Ministry was forwarded to the Competent

Authority on 28th March, 2012 itself, and was received by the said

Competent Authority on 29th March, 2012. The affidavit filed by the

appellants shows that on 30th March, 2012, a reply with brief facts and

ground for filing LPA was sent to the Ministry by FAX. 31st March,

2012 and 01st April, 2012 were holidays and on 02nd April, 2012, a letter

enclosing the brief note along with the grounds on which the impugned

order was considered to be bad in law and day-to-day reasons for the

delay in filing of the LPA, along with certified copy of the impugned

order, was sent by the Office of Competent Authority to the Competent

Authority Cell in the Ministry of Finance, with a request that Ministry of

Law & Justice may be requested for early approval for filing of the LPA.

It would thus be seen that once opinion from Law Ministry was received

by the Office of Competent Authority, there was no delay on its part in

processing the matters. The documents filed by the respondents would

show that about one week was taken by the Competent Authority Cell in

the Ministry of Finance in processing the file after receipt of letter dated

2nd April, 2012 from the Office of the Competent Authority and the

Deputy Legal Advisor gave his opinion on 26th April, 2012. The file was

sent to the Department of Revenue on 27th April, 2012 and from there it

was forwarded to the Office of the Competent Authority. The affidavit

filed by the appellants would show that the approval for filing the LPA

was received from the Ministry on 1st May, 2012 and it was put up to the

Competent Authority on the very next day. 5 th May, 2012 and 6th May,

2012 were holidays and on 7th May, 2012, a letter was sent to the counsel

conveying approval of the Competent Authority and the concerned

Ministry for filing the appeals. The appeals came to be filed on 9 th May,

2012.

6. Considering the detailed explanation given in the affidavit filed by

the appellants coupled with the documents comprising inter-departmental

correspondence and legal opinion filed by the respondents would show

that in the case before us, the concerned department has been diligently

pursuing the matters with the Competent Authority Cell of the Ministry

of Finance. We cannot be oblivious to the fact that under the procedure

of the Government, inter-Ministrial correspondence may not be

permissible below a particular level and that precisely seems to be the

reason why the Competent Authority instead of delaing directly with the

Ministry of Law & Justice had been routing the matter through the

Competent Authority Cell, the Ministry of Finance.

7. The learned counsel for the respondent, in support of his

contention, that the delay in filing the appeal ought not to be condoned,

has relied upon the decision of the Supreme Court in Office of The

Chief Post Master General and Ors. versus Living Media India Ltd. and

Anr., (2012)3 SCC 563, where the Apex Court after considering its

earlier decisions including the decisions in Collector, Land Acquisition,

Anantnag and Anr. v. Mst. Katiji and Ors. (1987) 2 SCC 107, G.

Ramegowda, Major and Ors. v. Special Land Acquisition Officer,

Bangalore (1988) 2 SCC 142, State of Haryana v. Chandra Mani and

Ors. (1996) 3 SCC 132, National Insurance Company Ltd. v. Giga Ram

and Ors. (2002) 10 SCC 176, State of Nagaland v. Lipok Ao and Ors.

(2005) 3 SCC 752, inter alia, held as under:-

"12) 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. 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 bonafide, 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."

It would thus be seen that the State and its agencies have to offer

reasonable and acceptable explanation for the delay and show a bonafide

effort on their part and the usual explanation that the file was kept

pending for several months/years due to procedural red-tape cannot be

accepted. The Apex Court, however, did acknowledge that if it is shown

that there was no gross negligence or deliberate inaction or lack of

bonafide, a liberal approach in the matter could be adopted. It is not as if

delay cannot be condoned in any case. What is necessary is a bona fide

effort on the part of the appellant and a plausible and genunine

explanation for the delay in coming to the Court. Though red tapism and

what is usually termed as beurocratic delays inherent in an insensitive

government machinery cannot be a good ground for the condonation of

delay, if it is shown that the concerned department has been vigilant in

persuing the matter, a somewhat liberal approach in the matter can be

adopted considering the constraints and limitations which are inherent in

the functioning of a government department, bound by its own rules of

business and procedure. As observed by Supreme Court in Maniben

Devraj Shah vs. Municipal Corporation of Brihan, (2012) 5 SCC 157, if

the Court finds that there has been no negligence on the part of the

applicant and the cause shown for the delay does not lack bona fides,

then it may condone the delay. Of course, if the explanation given by the

applicant is found to be concocted or he is found to be thoroughly

negligent in prosecuting his cause, there would be no scope for

condonation of delay in coming to the Court.

In S. Ganesharaju (D) Thr. L.Rs. and Anr. versus Narasamma

(D) Thr. L.Rs. and Ors., 2012 (4) SCALE 152, condoning the delay of

53 days in filing a review petition, Supreme Court, inter alia, held as

under:-

"14. The expression "sufficient cause" as appearing in Section 5 of the Indian Limitation Act. 1963, has to be given a liberal construction so as to advance substantial justice.

15. Unless Respondents are able to show malafide in not approaching the court within the period of limitation, generally as a normal rule, delay should be condoned. The trend of the courts while dealing with the matter with regard to condonation of delay has tilted more towards condoning delay and directing the parties to contest the matter on merits, meaning thereby that such technicalities have been given a go-by.

16. Rules of limitation are not meant to destroy or foreclose the right of parties. They are meant to see that

parties do not resort to dilatory tactics but seek their remedy promptly.

17. We are aware of the fact that refusal to condone delay would result in foreclosing the suitor from putting forth his cause. There is no presumption that delay in approaching the court is always deliberate.

18. In fact, it is always just, fair and appropriate that matters should be heard on merits rather than shutting the doors of justice at the threshold. Since sufficient cause has not been defined, thus, the courts are left to exercise a discretion to come to the conclusion whether circumstances exist establishing sufficient cause. The only guiding principle to be seen is whether a party has acted with reasonable diligence and had not been negligent and callous in the prosecution of the matter. In the instant case, we find that Appellants have shown sufficient cause seeking condonation of delay and same has been explained satisfactorily."

8. The learned counsel for the respondents has also relied upon

Charan Lal Sahu v. Giani Zail Singh and Anr., AIR (1984) SC 309 and

Pundlik Jalam Patil (D) by Lrs. versus Exe. Eng. Jalgaon Medium

Project (2009) 5 SCC (Civ) 907. However, we do not find any such

proposition of law in either of these cases which would disentitle the

appellants from condonation of delay in filing these appeals. The learned

counsel for the respondents referred to the observation made by Supreme

Court in Ajit Singh Thakur Singh And Another v. State Of Gujarat,

(1981) 1 SCC 495 to the effect that when a party allows allows limitation

to expire and pleads sufficient cause for not filing the appeal earlier, such

cause must establish that because of some event or circumstance arising

before limitation expired it was not possible to file the appeal within time