State Of Gujarat Through Deputy ... vs Kasiben Ratanjibhai Gamit
2021 Latest Caselaw 1248 Guj

        C/CA/3761/2019                                        JUDGMENT




          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                  R/CIVIL APPLICATION NO. 3761 of 2019
                   In F/FIRST APPEAL NO. 23319 of 2019
                                  With
                  R/CIVIL APPLICATION NO. 3762 of 2019
                                  With
                  R/CIVIL APPLICATION NO. 3764 of 2019
                                  With
                  R/CIVIL APPLICATION NO. 3765 of 2019
                                  With
                  R/CIVIL APPLICATION NO. 3766 of 2019

FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE N.V.ANJARIA
and
HONOURABLE MR. JUSTICE A.S. SUPEHIA
==========================================================

1   Whether Reporters of Local Papers may be allowed to
    see the judgment ?                                                   Yes

2   To be referred to the Reporter or not ?                              Yes

3   Whether their Lordships wish to see the fair copy of the
    judgment ?                                                           No

4   Whether this case involves a substantial question of law
    as to the interpretation of the Constitution of India or any         No
    order made thereunder ?

==========================================================
        STATE OF GUJARAT THROUGH DEPUTY SECRETARY
                            Versus
                  KASIBEN RATANJIBHAI GAMIT
==========================================================
Appearance:
MR ROHAN SHAH, AGP (1) for the Applicant(s) No. 1,2,3
MS DHWANI TRIPATHI, AGP (1) for the Applicant(s) No. 1,2,3
MR VIDIT SHARMA, ADVOCATE for the Respondent(s) No.
MR NIKUNT RAVAL, ADVOCATE for the Respondent(s) No.
UNSERVED EXPIRED (R)(69) for the Respondent(s) No. 1
==========================================================




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         C/CA/3761/2019                                             JUDGMENT



 CORAM: HONOURABLE MR. JUSTICE N.V.ANJARIA
        and
        HONOURABLE MR. JUSTICE A.S. SUPEHIA
                             Date : 28/01/2021

                     ORAL JUDGMENT

(PER : HONOURABLE MR. JUSTICE N.V.ANJARIA)

In The State of Madhya Pradesh v. Bherulal [IA No.62372 of 2020 in Special Leave Petition (C) No.9217 of 2020] order came to be passed by the Honourable Supreme Court refusing to condone the delay of 663 days with the following prefacing observations.

".... 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." (Para 2)

1.1 We are at pains to state, as the five captioned Civil Applications preferred by the State seeking to condone the delay of 1569 days, comes up for consideration before us, that the message in observations of the Apex Court would apply.

2. These Civil Applications are filed seeking condonation of delay occasioned in preferring the respective First Appeals which arise from common judgment and award in Land Reference Case Nos.231-236 of 2012 passed by learned Principal Senior Civil Judge at Vyara, District Tapi, whereby the Reference Court awarded additional compensation at the rate of

C/CA/3761/2019 JUDGMENT

Rs.270/- per sq. mtrs. in respect of land situated in Village Veldha, Taluka Vyara which was situated near the municipal limits of the City of Vyara and acquired for the purpose of construction of Ukai High Level Cantor Canal.

2.1 Heard learned Assistant Government Pleaders Mr.Rohan Shah and Ms.Dhwani Tripathi for the applicant-State in the respective Civil Applications in which they have filed their appearance, learned advocate Mr.Vidit Sharma who appear in Civil Application No.3726 of 2019 and learned advocate Mr.Nikunt Raval appearing in Civil Application No.3765 of 2019.

3. The judgment and award by the Reference Court was delivered on 05th November, 2014 in all cases. The certified copy came to be applied on 25th June, 2015 which was stated to be ready on 21st July, 2015. Explaining the delay, it was stated that thereafter the District Government Pleader submitted opinion regarding preferring of appeal on 21st October, 2015. This opinion was received by the office of the Superintending Engineer. The file was then put up before the State Government. It was then forwarded to the Budget Branch of the Finance Department, it was stated; a committee of the Finance Department was constituted to which the proposal was submitted on 01st February, 2016. It is then stated that now opinion of the Superintending Engineer was received; the check-list was prepared and the file was again put up before the State Government. It was

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considered by yet another committee known as Land Acquisition Committee.

3.1 The averments to explain the delay in the Civil Applications, raising common facts and grounds, proceeded to state further that the Revenue Department and Legal Department granted their approval. Instructions were received to approach the office of the Government Pleader in the High Court. It was then stated that the office of Ukai Veir Project Sub-division Office No.1 was closed which was the office handling the case and that the entire record in the Department was shifted to another place in the month of August, 2018. It was next stated that office of the Government Pleader in the High Court was approached. It was thereafter claimed that at that stage some discrepancies in the certified copy of the judgment and award were noticed and the certified copy was applied again on 12th December, 2018 by the District Government Pleader, which was received on 27th February, 2019. The reasons for delay were furnished to the office of Assistant Government Pleader who was to draft the appeal. Finally, the appeals could be preferred with delay of 1569 days.

4. Learned Assistant Government Pleaders detailing the stages in the consideration of the matter briefly stated herein, submitted that the delay was procedural. It was submitted that the applicant is State and some leeway deserves to be granted in viewing the delay. It was also sought to be submitted that there was no negligence or inaction

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on part of any of the Departments of the Government.

4.1 On the other hand, learned advocates for the respondent in the respective applications opposing the prayer for condonation, submitted that delay is too large to be overlooked. It was submitted that the inaction noticed at every stage of the decision making process in the departments of the applicant- State travelled upto almost five years. It was submitted that there was no reason to condone such lethargy.

5. Before proceeding to appreciate the stage- wise explanation put-forth in respect of occurrence of delay, in the present case, there exists a factor which would alone render the prayer for condonation of delay liable to be rejected. As noted above, the judgment and award of the Reference Court was pronounced on 05th November, 2014. The application for getting certified copy was filed after a passage of more than eight months, that is, on 25th June, 2015. This time gap is not explained at all by the applicant-State. Not making application for getting certified copy reasonably soon after deliverance of the judgment and award is the most relevant conduct on part of the State when it seeks to condone delay. By the time the certified copy was applied, the limitation period to prefer appeal had already expired.

5.1 It is to be observed that the Limitation Act is a statute which bars a cause-of-action in court of

C/CA/3761/2019 JUDGMENT

law which would have been, but for passage of time, lawful and valid. The principle of non-entertainment of challenge to judgment or oder by higher court of law after undesirable lapse of time as contained in the Limitation Act is based on well accepted norms of public policy and jurisprudence.

5.2 In the present case, in addition to the aspect that the certified copy was applied after a yawning gap as above, even in the subsequent stages, passage of unreasonable time writs large. While the certified copy was made available on 21st July, 2015, the District Government Pleader submitted his opinion on 21st October, 2015 after lapse of four months. The file thereafter moved at snail's speed before different departments, tables and the committees, resulting into only whiling away of time.

5.3 It is unbelievable that such process could take 1569 days, that is nearly five years. One is afraid whether the stock plea of adhering to the procedure could be raised in such circumstance to justify this much extent of delay. Indolence was evident. The indolence and resultant delay of such magnitude partook the negligence. It is true that some leeway can be given to the governmental authorities in processing the decision but in the times when technology has advanced, extending leniency in the matter of expanding time has to see a limit.

5.4 In Office of the Chief Post Master General v. Living Media India Limited [(2012) 3 SCC 563], the

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Supreme Court seriously disapproved the lack of diligence on part of Post and Telegraph Department in prosecuting the matter. The delay of 427 days in filing Special Leave Petition was not condoned observing that the law of limitation binds everyone equally including the government. It was observed that the defence by the government of impersonal machinery and inherited bureaucratic methodology cannot be accepted in view of modern technology used and available.

5.4.1 The Supreme Court stated,

"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 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 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 not 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!"                                                (Para 13)

5.4.2            In that case, the non-availability of the

documents and the process for arranging the documents was advanced as ground and it was pleaded that the bureaucratic process as it works, it is inadvertent that the delay occurs. The Supreme Court refused to countenance such a plea observing thus,

C/CA/3761/2019 JUDGMENT

"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."

(Para 12)

5.5 In State of U.P. v. Amar Nath Yadav [AIR 2014 SCW 1074], the Supreme Court did not condone the delay of 481 days in filing the Special Leave Petition. In this case, delay was attributed to movement of file from one-department-to-another. It was held to be not sufficient cause for condonation of delay relying on what is observed and held in Living Media India Limited (supra).

5.6 It is well settled that though Section 5 of the Limitation Act permits exercise of discretion to condone the delay, condonation of delay should not be so routine which may destroy the settled and substantial rights of the other side which may have crystalised on account of passage of limitation period. In the legislative prescription of limitation

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period, there is also another purpose, which is not to permit a stale litigation to continue. The condonation of delay has to be acted upon on the existence of sufficient cause to be culled out from the facts of each case.

5.7 In Basawaraj v. Special Land Acquisition Officer [(2013) 12 SCC 81], the Apex Court highlighted the concept of sufficient cause in the following words.

"Sufficient cause is the cause for which the defendant could not be blamed for his absence. The meaning of the word "sufficient" is "adequate" or "enough", inasmuch as may be necessary to answer the purpose intended. Therefore, the word "sufficient" embraces no more than that which provides a platutide, which when the act done suffices to accomplish the purpose intended in the facts and circumstances existing in a case, duly examined from the viewpoint of a reasonable standard of a cautious man. In this context, "sufficient cause" means that the party should not have acted in a negligent manner or there was a want of bona fide on its part in view of the facts and circumstances of a case or it cannot be alleged that the party has "not acted diligently" or "remained inactive". However, the facts and circumstances of each case must afford sufficient ground to enable the court concerned to exercise discretion for the reason that whenever the court exercises discretion, it has to be exercised judiciously. The applicant must satisfy the court that he was prevented by any "sufficient cause" from prosecuting this case, and unless a satisfactory explanation is furnished, the court should not allow the application for condonation of delay. The court has to examine whether the mistake is bona fide or was merely a device to cover an ulterior purpose." (Para 9)

6. Reverting back to the facts of the case, not only the certified copy was not applied within the limitation period, the file was lethargically kept on moving from one authority to another and for one purpose to another. Opining officer as well as the

C/CA/3761/2019 JUDGMENT

processing authorities, all acted in dealing with the files for the purpose of preferring appeal as if there is nothing like time-bound period, much less a limitation prescribed. Sufficient cause should be given liberal interpretation to ensure that the substantial justice is done, but only so long as the negligence, inaction or lack of bona fide cannot be infused, as observed by the Supreme Court in Madanlal v. Shyamlal [(2002) 1 SCC 535].

6.1 In the facts of the present case, there was hardly any ground which may persuade the Court to take a view to hold that sufficient cause is made out. The delay has been attributable to complete lack of diligence and to gross negligence on part of those authorities which dealt with the case. It was a story of sorry state of affairs noticed in the functioning of departments of the applicant-State.

7. As a result of the above discussion and reasons, the delay of 1569 days could not be condoned. All the applications are hereby dismissed. As the delay is not condoned, Registry shall refuse registration of the respective appeals of the State. Rule stands discharged in all.

(N.V.ANJARIA, J)

(A. S. SUPEHIA, J) ANUP