Gujarat High Court
State Of Gujarat vs Mahaswetaben M Joshi on 4 February, 2021
Bench: Sangeeta K. Vishen
C/CA/3132/2019 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL APPLICATION NO. 3132 of 2019
In
F/LETTERS PATENT APPEAL NO. 28340 of 2019
With
R/CIVIL APPLICATION NO. 3183 of 2019
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STATE OF GUJARAT
Versus
MAHASWETABEN M JOSHI
==========================================================
Appearance:
MR. JAYNEEL PARIKH, ASSISTANT GOVERNMENT PLEADER for the
Applicant(s) No. 1
GOVERNMENT PLEADER(1) for the Applicant(s) No. 2,3
MR AJ YAGNIK(1372) for the Respondent(s) No. 2,3,4
NOTICE SERVED BY DS(5) for the Respondent(s) No. 1,5,6
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CORAM: HONOURABLE MS. JUSTICE SONIA GOKANI
and
HONOURABLE MS. JUSTICE SANGEETA K. VISHEN
Date : 04/02/2021
COMMON ORAL ORDER
(PER : HONOURABLE MS. JUSTICE SONIA GOKANI)
1. These applications are preferred under Section 5 of
the Limitation Act seeking the condonation of delay of
824 days in filing the Letters Patent Appeal. The
appellants are the original respondent Nos.1 to 3, who
were aggrieved by the judgment and order passed in
Special Civil Application 10209 of 2014 and other allied
matters on 02.05.2017.
2. It is urged that the order impugned was
received by the authority on 04.07.2017 and
thereafter, the opinion in this regard was sought
for by the applicant authorities from the office
of Government Pleader on 10.07.2017, which was
sent on 24.07.2017. Considering the financial
burden such opinion was given and thereafter, the
original petitioners were transferred to the
Department of Women and Child Development. Hence,
the opinion of the concerned department with
C/CA/3132/2019 ORDER
regard to the payment was also sought on
15.09.2017. The same was given on 25.09.2017. The
office of the applicant authority also called for
further details for payment from respective
departments on 27.12.2017 and then the proposal
was sent to the Finance Department on 20.02.2018.
The file had been sent by the Finance Department
to the respective branches on 01.03.2018, and
06.03.2018 where it sought the opinion of the
Legal Department on 14.03.2018, the probable date
of payment also was sought from Social Welfare
Department on 20.03.2018 which was sent on
10.04.2018 and the proposal in this regard was
sent to the Finance Department on 16.04.2018.
This was sent back by the Finance Department on
19.04.2018.
3. On 28.05.2018, a decision was taken to
challenge the order of learned Single judge by
filing appropriate Letters Patent Appeal and
therefore, the proposal in this regard has been
sent on 13.06.2018. The proposal for filing the
Letters Patent Appeal was once again called for
on 28.08.2018 and the opinion in this regard was
sought from the office of Government Pleader on
30.08.2018. The files were thereafter called for
by the Legal Department on 29.10.2018 and a
proposal was received to make the payment to the
petitioners from the date of their joining the
department on 01.01.2019. Thus, initially, the
decision was to accept the oral judgment of the
learned Single Judge. However, as the applicant
C/CA/3132/2019 ORDER
State was determined to challenge the judgment,
permission was sought from the office of the
Hon'ble the Chief Minister and permission was
finally obtained on 05.07.2019. It is, therefore,
urged by the petitioners that there had been a
delay as the papers were sent to the office of
the Government Pleader on 15.07.2019 and the
draft was prepared and the same was accordingly
filed.
4. It is therefore urged that whenever there is
Government as a party in the litigation, that
aspect cannot be overlooked by the Court. It is
not an individual who has been affected, but it
is the public interest which has been
jeopardized. The decision of the Government being
collective, Institutional decision cannot partake
the colour of the decision of the private
individuals and therefore, in assessing what
constitutes the sufficient cause for the purpose
of Section 5 of the Limitation Act, it would be
unrealistic to exclude from the consideration
those factors which are peculiar to the
functioning of the Government. The decision would
be slow and the pace of decision making also will
be comparatively slow.
5. Reliance is placed on the decisions of
G.Ramegowda, Major, Etc vs. Special Land
Acquisition Officer, Banglore, reported in AIR
1988 SC 897, N.Balakrishnan vs. M.Krishnamurthy,
reported in AIR 1998 SC 3222 and the decision of
C/CA/3132/2019 ORDER
the State of Haryana vs. Chndra Mani & Ors,
reported in (1996) 3 SCC 132.
6. The applicants, therefore, before this Court
seek apology for the delay caused and have urged
to condone the delay of 824 days.
7. Affidavitinreply is filed by the President
of Kasturba Stree Vikash Gruh, who has contended
that the pronouncement was on 02.05.2017; they
have objected to the grant of condonation of
delay, which is unsatisfactorily explained.
8. The affidavitinrejoinder is filed by the
State giving further chronological details as to
why there had been a decision to challenge the
order passed by the learned Single Judge.
9. The surrejoinder is being filed by the
original petitioneropponent giving the brief
time line of events, which were as follows:
"4.
a.05.05.2017
That, the Common Oral Judgment was passed extending retirement
and other benefits to the petitioners herein.
Four month's time was given by the Hon'ble Court to comply with
the direction.
b. Inter departmental communications after the date of
pronouncement of the judgment:
Many inter departmental communications were exchanged on
several occasions with regard to non-compliance of the judgment.
Moreover, the opponents herein have also many times followed up
with the authorities and orally requested them to comply.
c.10.12.2018:
First Contempt Notice was issued to the authorities to comply with
C/CA/3132/2019 ORDER
the directions.
d. Inter Departmental Communications dated 01.01.2019 &
21.01.2019:
Again Inter Departmental Communications dated 01.01.2019 &
21.01.2019 were exchanged to follow up and to comply with the
directions of this Hon'ble Court.
e. 12.03.2019
Second Contempt Notice was issued to the authorities to comply
with the directions.
f. May, 2019:
A Contempt Petition was filed being MCA NO.495 of 2019 by Samaj
Suraksha Khata Manya Swaichhik Sanstha Employees Mahamandal.
g. 08.05.2019:
Notice was issued by this Hon'ble Court in MCA No.495 of 2019.
h. 05.08.2019:
This Hon'ble Court passed an order that if no decision as directed by
the learned Single Judge is taken and/or the order of which contempt
is alleged is not complied with within three weeks, appropriate order
shall be passed including awarding payment of interest at
appropriate rate.
i. September, 2019:
The applicants herein filed Letters Patent Appeal challenging the
Order of Learned Single Judge."
10. It is the grievance on the part of the
opponent that in spite of having raised
grievances before the authorities, there is no
initiation on their part for compliance of the
order or to challenge the same and seek extension
of time to comply.
10.1 Reliance is also placed on the decision
of the Apex Court in Special Leave Petition
C/CA/3132/2019 ORDER
(Diary) No.9217 of 2020 between The State of
Madhya Pradesh & others vs. Bherulal, which was a
case of delay of 663 days, where the explanation
was given for condonation of delay. Relevant
paragraphs Nos.2 to 8 of the said judgment read
thus:
"2. we are constrained to pen down a detailed order as it appears that
all our counseling to Government and Government authorities have
fallen on deaf ears i.e., the Supreme Court of India cannot be a place
for the Governments to walk in when they choose ignoring the period
of limitation prescribed. We have raised the issue that if the
Government machinery is so inefficient and incapable of filing
appeals/petitions in time, the solution may lie in requesting the
Legislature to expand the time period for filing limitation for
Government authorities because of their gross incompetence. That is
not so. Till the Statute subsists, the appeals/petitions have to be filed
as per the Statues prescribed.
3. No doubt, some leeway is given for the Government inefficiencies
but the sad part is that the authorities keep on relying on judicial
pronouncements for a period of time when technology had not
advanced and a greater leeway was given to the Government
(Collector, Land Acquisition, Anantnag & Anr vs. Mst. Katiji & Ors.
(1987) 2 SCC 107). This position is more than elucidated by the
judgment of this Court in Office of the Chief Post Master General & Ors.
v. Living Media India Ltd. & Anr. (2012) 3 SCC 563 where the Court
observed 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.
13) 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
bonafide effort, there is no need to accept the usual explanation that
the file was kept pending for several months/years due to considerable
C/CA/3132/2019 ORDER
degree of procedural redtape 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 government departments. The law shelters everyone under the
same light and should not be swirled for the benefit of a few.
Considering the fact that there was no proper explanation offered by
the Department for the delay except mentioning of various dates,
according to us, the Department has miserably failed to give any
acceptable and cogent reasons sufficient to condone such a huge
delay." Eight years hence the judgment is still unheeded!
4. A reading of the aforesaid application shows that the reason for
such an inordinate delay is stated to be only "due to unavailability of
the documents and the process of arranging the documents". In
paragraph 4 a reference has been made to "bureaucratic process
works, it is inadvertent that delay occurs".
5. A preposterous proposition is sought to be propounded that if there
is some merit in the case, the period of delay is to be given a go-by. If
a case is
good on merits, it will succeed in any case. It is really a bar of
limitation which can even shut out good cases.
This does not, of course, take away the jurisdiction of the Court in an
appropriate case to condone the delay.
6. We are also of the view that the aforesaid approach is being
adopted in what we have categorized earlier as "certificate cases".
The object appears to be to obtain a certificate of dismissal from the
Supreme Court to put a quietus to the issue and thus, say that nothing
could be done because the highest Court has dismissed the appeal. It
is to complete this formality and save the skin of officers who may be
at default that such a process is followed. We have on earlier
occasions also strongly deprecated such a practice and process. There
seems to be no improvement. The purpose of coming to this Court is
not to obtain such certificates and if the Government suffers losses, it
is time when the concerned officer responsible for the same bears the
consequences. The irony is that in none of the cases any action is
taken against the officers, who sit on the files and do nothing. It is
presumed that this Court will condone the delay and even in making
submissions, straight away counsels appear to address on merits
without referring even to the aspect of limitation as happened in this
case till we pointed out to the counsel that he must first address us on
the question of limitation.
7. We are thus, constrained to send a signal and we propose to do in
all matters today, where there are such inordinate delays that the
Government or State authorities coming before us must pay for
wastage of judicial time which has its own value. Such costs can be
recovered from the officers responsible.
8.Looking to the period of delay and the casual manner in which the
application has been worded, we consider appropriate to impose costs
on the petitioner- State of Rs.25,000/- (Rupees twenty five thousand)
to be deposited with the Mediation and Conciliation Project Committee.
The amount be deposited in four weeks. The amount be recovered
from the officers responsible for the delay in filing the special leave
petition and a certificate of recovery of the said amount be also filed in
this Court within the said period of time."
C/CA/3132/2019 ORDER
11. This Court in case of The State of Gujarat
vs. Shree Ashok Saw Mill And Wood Works, reported
in 2013(0) AIJELHC230880 was considering the
application for condonation of delay of 1226 days
in preferring the Tax Appeals by the State, where
reliance was placed on the decision of
N.Balakrishnan (supra) wherein the Supreme Court
has held that the rules of limitation are not to
jeopardize the right and interest of the parties
and the court is to ensure that no dilatory
tactics are adopted and if the large amount of
tax revenue is at stake, the court should be slow
in dismissing plea of condonation of delay. Yet
another decision for liberal approach of the Apex
Court was sought to be relied upon was Haryana
vs. Chndra Mani & Ors (supra). This Court did not
entertain the petition with the following
reasons:
"8. We are conscious that ordinarily the courts have liberally
condoned the delay and are also expected to adopt "justice oriented
approach" rather than giving any undue importance to the
technicalities. We are also not oblivious of the fact that the delay is
not to be explained by the litigant on literal sense on day-to-day basis.
However, we cannot disregard the vital requirement of law that when
there is no justification for delay, the substantial law of limitation
cannot be marred advancing the cause of liberal approach.
9. It will not be out of place to refer to the judgment of the apex court
rendered in case of Lanka Venkateswarlu (D) by L.Rs. Vs. State of A.P.
and Others, wherein the delay was caused and there was insufficient
explanation. The apex court set aside the order of the High Court in
condoning the delay, by holding that the concept of liberal approach
and justice oriented approach cannot be employed to jettison the
substantial law of limitation. In the words of the apex court:
26. We are at a loss to fathom any logic or rationale, which could have
impelled the High Court to condone the delay after holding the same
to be unjustifiable. The concepts such as 'liberal approach', 'justice
oriented approach', 'substantial justice' cannot be employed to jettison
the substantial law of limitation. Especially, in cases where the court
concludes that there is no justification for the delay. In our opinion,
the approach adopted by the High Court tends to show the absence of
C/CA/3132/2019 ORDER
judicial balance and restraint, which a Judge is required to maintain
whilst adjudicating any lis between the parties. We are rather pained
to notice that in this case, not being satisfied with the use of mere
intemperate language, the High Court resorted to blatant sarcasms.
The use of unduly strong intemperate or extravagant language in a
judgment has been repeatedly disapproved by this court in a number
of cases. Whilst considering applications for condonation of delay u/s
5 of the Limitation Act, the courts do not enjoy unlimited and
unbridled discretionary powers. All discretionary powers, especially
judicial powers, have to be exercised within reasonable bounds,
known to the law. The discretion has to be exercised in a systematic
manner informed by reason. Whims or fancies; prejudices or
predilections cannot and should not form the basis of exercising
discretionary powers.
10. The apex court in a decision, rendered in case of Balwant Singh
(Dead) Vs. Jagdish Singh and Others, has given the test for a sufficient
cause and what is to be seen is as to whether the party by the exercise
of due care and attention could have avoided the delay. It reiterated
that sufficient powers and discretion is available with the courts for
applying this law in a meaningful manner but sufficient cause would
mean presence of legal and adequate reasons.
11. It would be profitable to reproduce the relevant observations of
the apex court in this case:
14. In the case of Tata Yodogawa Limited and Another Vs. Union of
India(UOI) and Others, , this court while granting some latitude to the
Government in relation to condonation of delay, still held that there
must be some way or attempt to explain the cause for such delay and
as there was no whisper to explain what legal problems occurred in
filing the special leave petition, the application for condonation of
delay was dismissed. Similarly, in the case of Collector of Central
Excise, Madras Vs. A. Md. Bilal and Co., , the Supreme Court declined
to condone the delay of 502 days in filing the appeal because there
was no satisfactory or reasonable explanation rendered for
condonation of delay. The provisions of Order 22, rule 9, CPC has
been the subject-matter of judicial scrutiny for considerable time now.
Sometimes the courts have taken a view that delay should be
condoned with a liberal attitude, while on certain occasions the courts
have taken a stricter view and wherever the explanation was not
satisfactory, have dismissed the application for condonation of delay.
Thus, it is evident that it is difficult to state any straight-jacket
formula which can uniformly be applied to all cases without reference
to the peculiar facts and circumstances of a given case. It must be
kept in mind that whenever a law is enacted by the Legislature, it is
intended to be enforced in its proper perspective. It is an equally
settled principle of law that the provisions of a statute, including every
word, have to be given full effect, keeping the legislative intent in
mind, in order to ensure that the projected object is achieved. In other
words, no provisions can be treated to have been enacted
purposelessly. Furthermore, it is also a well-settled canon of
interpretative jurisprudence that the court should not give such an
interpretation to provisions which would render the provision
ineffective or odious. Once the Legislature has enacted the provisions
of Order 22, with particular reference to rule 9, and the provisions of
the Limitation Act are applied to the entertainment of such an
application, all these provisions have to be given their true and
correct meaning and must be applied wherever called for. If we
C/CA/3132/2019 ORDER
accept the contention of the learned counsel appearing for the
applicant that the court should take a very liberal approach and
interpret these provisions (Order 22, rule 9 of the CPC and section 5
of the Limitation Act) in such a manner and so liberally, irrespective of
the period of delay, it would amount to practically rendering all these
provisions redundant and inoperative. Such approach or
interpretation would hardly be permissible in law. Liberal
construction of the expression 'sufficient cause' is intended to advance
substantial justice which itself presupposes no negligence or inaction
on the part of the applicant, to whom want of bona fide is imputable.
There can be instances where the court should condone the delay;
equally there would be cases where the court must exercise its
discretion against the applicant for want of any of these ingredients or
where it does not reflect "sufficient cause" as understood in law.
(Advanced Law Lexicon, P. Ramanatha Aiyar, Second Edition, 1997).
The expression 'sufficient cause' implies the presence of legal and
adequate reasons. The word 'sufficient' means adequate enough, as
much as may be necessary to answer the purpose intended. It
embraces no more than that which provides a plenitude which, when
done, suffices to accomplish the purpose intended in the light of
existing circumstances and when viewed from the reasonable
standard of practical and cautious men. The sufficient cause should be
such as it would persuade the court, in exercise of its judicial
discretion, to treat the delay as an excusable one. These provisions
give the courts enough power and discretion to apply a law in a
meaningful manner, while assuring that the purpose of enacting such
a law does not stand frustrated. We find it unnecessary to discuss the
instances which would fall under either of these classes of cases. The
party should show that besides acting bona fide, it had taken all
possible steps within its power and control and had approached the
court without any unnecessary delay. The test is whether or not a
cause is sufficient to see whether it could have been avoided by the
party by the exercise of due care and attention. (Advanced Law
Lexicon, P. Ramanatha Aiyar, Third Edition, 2005).
12. In yet another recent decision of the apex court rendered in case
of Office of The Chief Post Master General and Others Vs. Living
Media India Ltd. and Another, , in absence of plausible and acceptable
explanation, the court refused to condone the delay mechanically only
because it was a Government Wing, by observing thus (pages 200 &
201 in 54 VST):
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 SLP 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 . . ."
12. From the decisions, which have been discussed
herein above, we could notice that, emphatically
in the said decisions, the court has expected the
State to adhere to the period of limitation as
C/CA/3132/2019 ORDER
there is no separate period of limitation for the
State. The explanation also should be plausible
and acceptable explanation. The Courts are not
expected to condone the delay mechanically merely
because the Government or the wing of the
Government are party before it. Even while taking
a very liberal approach, which requires of the
Court and a liberal concession if is given, in
absence of any lack of bona fide or deliberate
inaction, the Court cannot be oblivious of the
modern technological advancement, which would not
now take the time for transfer of the files or
the consultation which could be also through the
video conferencing.
13. Noticing the explanations which have been
given here, we find that there is no substantial
justice to be subserved as the department itself
was convinced and therefore, the Legal Department
had chosen to give an opinion to accept the
decision of the learned Single Judge. However,
the State on being deterred by the financial
implication, had chosen to question the decision
knowing fully well that the question of law had
attained the finality as the entire decision of
the learned Single Judge is based on Letters
Patent Appeal No.1315 of 2006 in Special Civil
Application No.3570 of 1993, Letters Patent
Appeal No.1913 of 2007 in Special Civil
Application No.10483 of 1999 and Special Civil
Application No.5787 of 1996 & the same has
attained finality on 06.07.2017. The order of the
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Apex Court is as follows:
" Heard learned counsel for the parties.
Delay condoned.
We do not find any ground to interfere with the impugned order.
The special leave petitions are, accordingly, dismissed.
Pending application (s), if any, shall also stand disposed of."
14. Not only we are not at all satisfied with the
explanation which have been tendered for seeking
the condonation of delay, even if we go by the
merit of the matter, the outcome is quite
shocking. As noted, the decision of the Apex
Court is dated 06.07.2017 and thus, the legal
issue which is sought to be challenged in the
Letters Patent Appeals has already attained the
finality. Admittedly, there is no review pending
nor is any manner it is the case of the State
that the case of the present opponents are
different than the one which has been finalised
by the Apex Court in Special Leave Petition
Nos.17107 of 2014 to 17109 of 2014. Therefore,
this appears to be as held by the Apex Court in
case of the The State of Madhya Pradesh &
others vs.Bherulal "to obtain a certificate of
dismissal from the Supreme Court to put a
quietus to the issue" and thus "say that nothing
could be done because the highest Court has
dismissed the appeal. It is to complete this
formality and save the skin of officers who may
be at default that such a process is followed."
15. It is also quite clear and apparent from
C/CA/3132/2019 ORDER
explanation which is sought to be given that the
purpose is only not to shoulder the
responsibility and instead approach this Court so
that the certificate of the Court can be obtained
in an individual case. When the very issue in
other matters has attained finality, this
practice of approaching the Court in the month of
August, 2019 when the decision of the Apex Court
is of July, 2017, deserves strong disapproval of
this Court and also would necessiate imposing of
cost of Rs.25,000/ (Rupees Twenty Five Thousand
Only), which is to be borne by the State
Government.
16. Earnest request is made on the part of the
learned Assistant Government Pleader not to
impose the cost on the ground that the
substantial amount has already been deposited in
the contempt petition. According to us, both the
causes are separate & there is no disbursement so
far of the said amount. His fervent request has
not weighed with us in reconsidering what has
been ordered.
17. With the above observations, present
applications are dismissed.
Sd/
(MS SONIA GOKANI, J)
Sd/
(MS SANGEETA K. VISHEN,J)
M.M.MIRZA
