Gujarat High Court
State Of Gujarat vs Shah Samir Bharatbhai on 1 November, 2023
Bench: N.V.Anjaria
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C/CA/1684/2023 JUDGMENT DATED: 01/11/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL APPLICATION (FOR CONDONATION OF DELAY) NO. 1684 of
2023
In F/LETTERS PATENT APPEAL NO. 30526 of 2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE N.V.ANJARIA
and
HONOURABLE MS. JUSTICE NISHA M. THAKORE
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1 Whether Reporters of Local Papers may be allowed Yes
to see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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STATE OF GUJARAT
Versus
SHAH SAMIR BHARATBHAI
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Appearance:
MS MANISHA LAVKUMAR, GP with MANAN MEHTA, AGP for the
Applicant(s) No. 1,2
MS NAMRATA CHAUHAN, DS AFF.NOT FILED (R) for the Respondent(s)
No. 1,10,11,12,13,14,15,16,17,18,2,3,4,5,6,7,8,9
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CORAM:HONOURABLE MR. JUSTICE N.V.ANJARIA
and
HONOURABLE MS. JUSTICE NISHA M. THAKORE
Page 1 of 8
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Date : 01/11/2023
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE N.V.ANJARIA)
The present is an application filed by the State seeking to
condone the delay of 49 days, which has occurred in preferring
Letters Patent Appeal.
2. Learned Government Pleader Ms.Manisha Lavkumar
assisted by learned Assistant Government Pleader Mr.Manan
Mehta while pressing for condonation of delay, highlighted the
averments in the application setting out the events which took
place and the process which was undergone before the appeal
could be filed.
2.1 On the other hand, learned advocate Ms.Namrata Chauhan
for the respondent submitted that though the ground of
administrative delay is advanced, in the facts of the case, the
State and its officials were negligent in proposing to file the
Letters Patent Appeal.
2.2 Learned advocate for the respondent herein relied on the
contents of the affidavit-in-reply. She further pressed into
service the decision of the Supreme Court in Post Master
General & Others Vs. Living Media India Limited &
Another [(2012) 3 SCC 563] as also the decision in State of
Gujarat Vs. Dahyabhai Nyalchand Vora which was Civil
Application for condonation of delay No.9331 of 2012 in Second
Appeal No.161 of 2012 decided on 19.6.2014. Yet another
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decision of this court in Ahmedabad Municipal Corporation
Vs. Kusum Bibi Mohammadbhai, which was Civil Appeal
No.13217 of 2001 decided on 26.2.2002 was relied on to submit
that in the facts of the case, delay is not liable to be condoned.
2.3 It was sought to be emphasized by learned advocate for the
respondent was that learned single Judge delivered the
judgment and order on 5.7.2023. For the purpose of preferring
the Letters Patent Appeal thereagainst, it was submitted, the
last date was 5.8.2023, however certified copy of the order was
applied on 18.9.2023, which was after expiry of 30 days period.
2.4 Referring to the decision in Ahmedabad Municipal
Corporation (supra) it was stressed that in that case the
certified copy was applied after period of 86 days and that the
court in that case, relying on the decision of the Supreme Court
in Ajit Singh Thakur Singh & Another Vs. State of Gujarat
[AIR 1981 SC 733] come to the conclusion that there was an
abandonment of intention on part of the State authorities to
prefer the appeal looking to the conduct. It was submitted that
similar situation is reflected in the present case requiring the
dismissal of the application.
3. If the averments in the Civil Application seeking to explain
the passage of time is looked at, the following sequence of
events has been highlighted.
(i) Judgment and order of learned single Judge came to be
delivered on 5.7.2023. Thereafter promptly on 19.7.2023 the
Commissionerate of Technical Education, Government of Gujarat
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put up a proposal for obtaining legal opinion of the Assistant
Government Pleader.
(ii) The opinion was given on 1.8.2023. Once the department
concerned received the opinion, steps were made afoot for filing
the Letters Patent Appeal.
(iii) The Commissionerate of Technical Education sought
necessary approval on 13.9.2023 from the Education
Department, for challenging the judgment and order of learned
single Judge.
(iv) The Education Department sent proposal to the Legal
Department on 15.9.2023 seeking approval of the Legal
Department. The Legal Department granted the approval by
communication dated 29.9.2023.
(v) It was thereafter that the case papers were handed over to
the office of the Government Pleader in the High Court to
prepare the draft which came to be finalized on 3.10.2023 and
the appeal was filed.
4. It was submitted that there was no inordinate delay and
that the department had made every attempt to avoid the
unnecessary passing of time.
5. The movement of the files for seeking of the opinion to
prefer the Letters Patent Appeal were routed through the
hierarchy of the departments both vertically and horizontally
which is the process in the State Departments before a decision
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could be arrived at. The consumption of time is explained to be
administrative in nature.
5.1 The feature that was sought to be projected by the
respondent to vehemently oppose the condonation, in the facts
of the case, is belated applying of certified copy. Belated in the
sense that the certified copy was applied after 14 days after the
expiry of period of limitation of 30 days for preferring the
appeal. It is true that applying certified copy beyond a period of
limitation is an aspect and in a given case may become a weighty
aspect to be considered for declining the condonation. However,
when the question of condonation of delay ultimately is
considered in light of the principle of allowing a party to contest
its case on merits and thereby navigating to substantial justice,
the belated applying of certified copy may not in all cases
become decisive to refuse to condone the delay.
5.2 The facts of each case have to be minutely and attentively
examined to ascertain whether the litigant has abandoned the
cause or had given intention. What is essential is to be seen is
the intention on part of the party whether it is State or a private
party to litigate and whether in that sense party could be said to
be indolent in preferring the appeal or lodging a challenge to the
judgment or order.
5.3 Seen in the above context, in the facts of the present case
clearly suggest that once the judgment and order of learned
single Judge was delivered, the department was swift to seek
legal opinion, it was done within 14 days. The files thereafter
travelled through different departments and the decision making
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process culminated. The immediate action to seek legal opinion
signified that there as an intention to proceed in the matter of
preferring the appeal.
5.4 It may be true that certified copy was not applied but the
intention on part of the State and its departments was clearly
evinced from the conduct of activating themselves with moving
of files and seeking the opinion of the legal department by
processing the case. It could hardly be said that there was
lethargy or negligence at any stage, more particularly when the
intention to prefer the appeal was evident from the sequence of
events.
5.5 It could not be said that there was an abandonment of
intention to prefer the appeal. In such circumstances, when the
State authorities and the department were otherwise vigilant in
processing the files, the mere delay of 14 days in applying for
certified copy may not be an outweighing or decisive aspect to
undo the substantial justice by not permitting the State to
contest the appeal on merits.
5.6 The recent decision of the Supreme Court in Sheo Raj
Singh (Deceased) Vs. Union of India & Another, which is
Civil Appeal No.5867 of 2015 decided on 9.10.2023, witnessed a
similar situation, where certified copy of the Reference Court's
order was applied on 22.4.2009, whereas the order was passed
almost six months before on 31.10.2008. The certified copy was
received on 30.7.2009 and on 10.8.2009, the Deputy Legal
Advisor (Land and Building), in that case, advised the
respondent to file appeal before the High Court. The delay in
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applying for certified copy was large.
5.6.1 The Supreme Court in Sheo Raj Singh (Deceased)
(supra) emphasized that when in particular the element of
indolence could be said to be absent, a justice oriented approach
was necessary to view the aspect of condonation of delay.
"Having bestowed serious consideration to the
rival contentions, we feel that the High Court's
decision to condone the delay on account of the
first respondent's inability to present the appeal
within time, for the reasons assigned therein,
does not suffer from any error warranting
interference. As the aforementioned judgments
have shown, such an exercise of discretion does,
at times, call for a liberal and justice-oriented
approach by the Courts, where certain leeway
could be provided to the State. (para 37)
5.6.2 It was stated further by the Apex Court,
"The hidden forces that are at work in
preventing an appeal by the State being
presented within the prescribed period of
limitation so as not to allow a higher court to
pronounce upon the legality and validity of an
order of a lower court and thereby secure
unholy gains, can hardly be ignored.
Impediments in the working of the grand
scheme of governmental functions have to be
removed by taking a pragmatic view on
balancing of the competing interests." (para 37)
6. Recollecting the facts of the case, at the cost of repetition,
the State was not at fault to be considered as negligent or
uninterested in preferring the appeal. The steps were taken
immediately after deliverance of the judgment and order of
learned single Judge. The decision making process was
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immediately commenced. The movements of files had started.
The government machinery had activated itself evincing its
intentions to go for approaching the case.
6.1 Taking all the facts and events in the case cumulatively,
the court is not inclined to accept the submission of learned
advocate for the respondent that merely because there was
delay of 14 days in applying the certified copy, delay of 49 days
could be refused to be condoned. What matters is the intention
of the parties to litigate and prefer the appeal. There was no
forsaking of or abandonment of cause to prefer the appeal in
part of the applicant State.
6.2 For all the aforesaid reasons taken together, the court is of
the view that sufficient cause is made out to condone the delay
of 49 days. Accordingly, delay is condoned.
7. The present application is allowed. Rule is made absolute.
Since delay is condoned, the Registry is at liberty to list the
Letters Patent Appeal of the State at the earliest.
(N.V.ANJARIA, J)
(NISHA M. THAKORE,J)
Manshi
