State Of Gujarat Through ... vs Sagar Sarkari Karamchari ...
2023 Latest Caselaw 503 Guj

     C/LPA/23317/2018                            ORDER DATED: 17/01/2023




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

          F/LETTERS PATENT APPEAL NO. 23317 of 2018
                               In
          R/SPECIAL CIVIL APPLICATION NO. 3569 of 1996
                              With
 CIVIL APPLICATION (FOR CONDONATION OF DELAY) NO. 1 of 2018
                                In
          F/LETTERS PATENT APPEAL NO. 23317 of 2018
                              With
           CIVIL APPLICATION (FOR STAY) NO. 2 of 2018
                                In
          F/LETTERS PATENT APPEAL NO. 23317 of 2018
==========================================================
        STATE OF GUJARAT THROUGH SECRETARY & 2 other(s)
                            Versus
       SAGAR SARKARI KARAMCHARI COOP.HSG. SOCIETY LTD.
==========================================================
Appearance:
MR KM ANTANI, AGP for the Appellant(s) No. 1,2
for the Respondent(s) No. 1
==========================================================
 CORAM:HONOURABLE THE CHIEF JUSTICE MR. JUSTICE
       ARAVIND KUMAR
       and
       HONOURABLE MR. JUSTICE ASHUTOSH SHASTRI

                           Date : 17/01/2023

                            ORAL ORDER

(PER : HONOURABLE THE CHIEF JUSTICE MR. JUSTICE ARAVIND KUMAR)

1. There is delay of 6515 days in filing the accompanying

F/Letters Patent Appeal No.23317 of 2018. Since delay is

exorbitant, incidentally we have examined the appeal on merits

only for the purpose of ascertaining as to whether any fruitful

purpose would be served in condoning the delay and hearing

the appeal on merits and we find non for the reasons indicated

herein-below:

C/LPA/23317/2018 ORDER DATED: 17/01/2023

2. Firstly, while considering an application for condonation of

delay, it is not the length of delay but cause for delay which

would be of paramount consideration. If there is sufficient cause

which would satisfy the conscience of the Court, such delay in

spite of same being inordinate would be condoned. In other

words, if delay has been explained with sufficient cause for not

approaching the Court within the time prescribed for filing the

appeal, such delay would be condoned. However, where even in

case of delay being short, if cause shown does not indicate that

it is in the proximity of truth or same being contrary to facts or

such applicant has been indolent, exhibiting laxity and there

being no bonafides, in such circumstances delay would not be

condoned in spite of delay being short. Hon'ble the Apex Court

in the case of Collector, Land Acquisition, Anantnag and

Another Vs. Mst. Katiji and others reported in AIR 1987 SC

1353 has held to the following effect:-

3. The legislature has conferred the power to condone delay by enacting Section 5 [ Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period.] of the Indian Limitation Act of 1963 in order to enable the courts to do

C/LPA/23317/2018 ORDER DATED: 17/01/2023

substantial justice to parties by disposing of matters on "merits". The expression "sufficient cause" employed by the legislature is adequately elastic to enable the courts to apply the law in a meaningful manner which sub-serves the ends of justice -- that being the life-purpose for the existence of the institution of courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters instituted in this Court. But the message does not appear to have percolated down to all the other courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:

"1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.

2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.

3. "Every day's delay must be explained" does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay? The doctrine must be applied in a rational common sense pragmatic manner.

4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.

5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.

6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.

Making a justice-oriented approach from this perspective, there was sufficient cause for condoning the delay in the institution of the appeal. The fact that it was the "State"

C/LPA/23317/2018 ORDER DATED: 17/01/2023

which was seeking condonation and not a private party was altogether irrelevant. The doctrine of equality before law demands that all litigants, including the State as a litigant, are accorded the same treatment and the law is administered in an even-handed manner. There is no warrant for according a step-motherly treatment when the "State" is the applicant praying for condonation of delay. In fact experience shows that on account of an impersonal machinery (no one in charge of the matter is directly hit or hurt by the judgment sought to be subjected to appeal) and the inherited bureaucratic methodology imbued with the note-making, file-pushing and passing-on-the-buck ethos, delay on its part is less difficult to understand though more difficult to approve. In any event, the State which represents the collective cause of the community, does not deserve a litigant-non-grata status. The courts therefore have to be informed with the spirit and philosophy of the provision in the course of the interpretation of the expression "sufficient cause". So also the same approach has to be evidenced in its application to matters at hand with the end in view to do even-handed justice on merits in preference to the approach which scuttles a decision on merits. Turning to the facts of the matter giving rise to the present appeal, we are satisfied that sufficient cause exists for the delay. The order of the High Court dismissing the appeal before it as time-barred, is therefore, set aside. Delay is condoned. And the matter is remitted to the High Court. The High Court will now dispose of the appeal on merits after affording reasonable opportunity of hearing to both the sides."

3. A plain reading of the above contours laid down by the

Hon'ble Apex Court would indicate that a litigant is not

expected to explain every day's delay or every minute's delay.

However, if delay is explained, that would suffice. No litigant

would stand to benefit in approaching the Court belatedly. As

such when substantial justice is pitted against technicalities,

necessarily such technicalities will have to kneel before such

C/LPA/23317/2018 ORDER DATED: 17/01/2023

technicalities.

4. In the matters of appeals being filed by the State, which is

manned by impersonal machinery, like officials of the State,

there would be certain amount delay in procuring the files as

held by the Hon'ble Apex Court in State of Nagaland vs. Lipok

AO and others reported in AIR 2005 SC 2191. As such, we have

examined as to whether there is any fruitful purpose would be

served in entertaining this appeal on merits by condoning the

delay.

5. The short issue which had arisen before the learned Single

Judge which merited acceptance as revealed from the records is

that writ applicant, which is a registered Co-operative Housing

Society, had sought for allotment of land under Section 23 of

the Urban Land (Ceiling & Regulation) Act, 1976 by submitting

an application on 7.5.1990 indicating thereunder at to which

lands are available for allotment. For reasons best known, said

application was not considered and no order was passed either

accepting the said application or rejecting the same. It was kept

in cold storage for 4 years. After a period of 4 years, land came

C/LPA/23317/2018 ORDER DATED: 17/01/2023

to be allotted by deciding the application viz. on 1.10.1994,

where-under a demand of Rs.15,10,934/- has also been made for

the said land being allotted to the society. On the premise that

price fixed is higher and State ought to have fixed the price as

on the date application was filed and contending that if said

application had been decided earlier, price then prevailing at

the time of consideration of the application would have been

fixed, writ application was preferred by the Society by

approaching the learned Single Judge in Special Civil

Application No.3569 of 1996. Learned Single Judge after taking

note of rival contentions held to the following effect:-

5. Apart from the above aspects, it may be noted that the machinery has moved in a slow and sluggish manner. Delay is caused for allotment of land to the petitioner society. Such delay is tried to be explained away by taking shelter of procedural delays. But if dates are considered, the first application of the petitioner society made in May, 1990 was not responded to till 1992 and,therefore, after making inquiries, the petitioner society made supplementary demand on 18th June,1992 and thereafter only, allotment is made on 1st October, 1994.

6. The fixation of the price has to be made on the date of allotment.

However, in the instant case,the date of allotment will not have to be taken into consideration for the reason that there was inordinate delay in considering the petitioner's application. In this regard, the decision in the case of Ashutosh Sarkari Karmachari. Housing Society Ltd, vs. State of Gujarat and another, 1995 (2) GLR 1419, may be referred to. In that case, the petitioner society had applied for land for constructing houses of its members and the price fixed for the land to be allotted to that society was fixed at Rs. 800/- per sq.mt. It was found that the price at which the land was allotted to other

C/LPA/23317/2018 ORDER DATED: 17/01/2023

similarly situated societies around the time in which the petitioner society in that case made application was around Rs. 450/- per sq.mt. In light of that situation, the court set aside the fixation of price of the land to be allotted to the petitioner society at Rs. 800/- per sq.mt. and the matter was remanded to the State Government for its fresh decision according to law, in light of the aforesaid reported ruling. The said decision was followed by this court in Shivkrupa Co-operative Housing Society Ltd. vs. State of Gujarat in Special Civil Application No.308 of 1995, decided on August 30, 1996(coram: A. N.Divecha,J.) and again,in the case of H.P.Joshi,Secretary of proposed Banshari Sarkari Karmachari Co.op.Housing Society Ltd. vs,State of Gujarat in Special Civil Application No. 2459 of 1999, decided on June 29, 1999 (coram: Y.B.Bhatt, J.) .This court is informed that these decisions have not been challenged and hold the ground as on today. In this view of the matter,the petition deserves to be allowed to the extent of quashing and setting aside the demand in question for the land in question.

It is this order which has been assailed in the appeal by the

State contending inter alia price has to be fixed as on the date

of allotment and not any earlier date. Mr. K.M. Antani, learned

Assistant Government Pleader appearing for the State has also

vehemently contended that extant policy which was in existence

at the relevant point of time is also not in force or vogue by

virtue of ULC Act, 1976 having been repealed in 1999 and as

such writ issued by the learned Single Judge cannot be

implemented. On this ground, he has sought for the order of the

learned Single Judge being annulled or set aside.

6. Per contra, Mr. Siraj Gori learned counsel appearing for

writ applicant would support the impugned order.

C/LPA/23317/2018 ORDER DATED: 17/01/2023

7. A perusal of the order passed by the learned Single Judge

would indicate that similar Co-operative Housing Societies or

Housing Societies had approached the State for allotment of

land and society known as Ashutosh Sarkari Karamchari

Housing Society Ltd. had been allotted land and price had been

fixed at Rs.800/- per Sq. Mtr. This fixation was challenged

before this Court on similar grounds as was urged in the Special

Civil Application No.3569 of 1996 and this Court held that other

similarly placed Housing societies had submitted applications

and were allotted land and price had been fixed at Rs.450/- per

Sq. Mtrs. and it was directed that State should also fix the price

accordingly and quashed the price fixed by the State at Rs.800/-

per Sq. Mtr. Said decision came to be followed by subsequent

judgments, as noticed in paragraph 6 (extracted herein-above)

by the learned Single Judge. When repeated orders have been

passed by this Court and same has been followed or in other

words accepted by the State, it cannot pick and choose today

the benefit to other societies who are similarly placed like

petitioner herein and/or not extending similar benefits which

others have been extended.

C/LPA/23317/2018 ORDER DATED: 17/01/2023

8. It is necessary to observe that even before issuance of

notice on Civil Application as well as appeal, the Coordinate

Bench by order dated 6.10.2018 had directed the learned

Assistant Government Pleader to obtain instructions as to

whether the order passed in the year 2000 has been complied or

not. However, till date there is no material placed on record to

indicate the order of learned Single Judge having been

implemented.

9. As such we are of the considered view that entertaining of

appeal on merits would only be an exercise in futility or in other

words, ultimate decision would be the dismissal of appeal and as

such without going into cause for delay is to be accepted or not,

we are of the considered view that inordinate delay which has

occurred in instant case even if condoned would not serve any

purpose, as such we decline to condone the inordinate delay of

6515 days in filing the appeal. Consequently, we dismiss Civil

Application No.1 of 2018. As a result of this F/Letters Patent

Appeal No.23317 of 2018 also deserves to be dismissed.

Accordingly, it stands DISMISSED

C/LPA/23317/2018 ORDER DATED: 17/01/2023

By way affidavit, it has been stated by the State that said order

has not been implemented on account of the extant policy

having been got spent itself and not being in existence. It is

needless to state that when the policy in was in force, the price

as directed by the learned Single Judge was in vogue or force

and as such it is imperative for the State to implement the said

order. Hence, we direct the State to implement said order of the

learned Single Judge within an outer limit of SIX WEEKS from

the date of receipt of the copy of this order. Accordingly, appeal

stands DISPOSED OF.

All pending applications stands consigned to records.

Sd/-

(ARAVIND KUMAR,CJ)

Sd/-

(ASHUTOSH SHASTRI, J) OMKAR