Gujarat High Court
State Of Gujarat vs Rupsangji Modji on 21 June, 2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 12494 of 2020
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE J. C. DOSHI
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1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? No
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 & ORS.
Versus
RUPSANGJI MODJI & ORS.
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Appearance:
MR ROHAN RAVAL, AGP for the Petitioner(s) No. 1,2,3,4
MR SK PATEL(654) for the Respondent(s) No.
1,10,11,12,13,14,15,16,17,18,19,2,20,21,22,23,24,25,26,27,28,29,3,30,31,32,
32.1,32.2,33,34,35,36,37,38,39,39.1,4,5,6,7,8,9
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 21/06/2024
ORAL JUDGMENT
1. By way of this petition under Article 227 of the
Constitution of India, the petitioner - State has prayed for
following reliefs :-
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"(A) Your Lordships may be pleased to issue a writ of
certiorari or any other appropriate writ, order or direction
to quash and set aside the judgment and order dated
21.04.2016 passed by the 2nd Joint Civil Judge (Senior
Division), Bhuj, Kutch in Civil Misc. Application no. 29 of
2016, in the interest of justice.
(B) Pending admission and hearing of the present
proceeding, Your Lordships may be pleased stay the
execution, implementation of the judgment and order
dated 21.04.2016 passed by the 2nd Joint Civil Judge
(Senior Division), Bhuj, Kutch in Civil Misc. Application no.
29 of 2016, in the interest of justice.
(C) Your Lordships may be pleased to grant any other and
further relief as think fit and proper in the facts and
circumstances of the case and in the interest of justice."
2. Facts leading to filing of this petition are as under :-
2.1. That the original plaintiffs ie. the private respondents
herein had instituted Regular Civil Suit No. 417 of 1984 before
the Court of learned Civil Judge, Senior Division, Kutch at Bhuj
for declaration and permanent injunction to the effect that the
orders passed by the revenue authorities under the provisions of
Gujarat Agricultural Land Ceiling Act are erroneous, illegal
beyond the time limit and therefore they may not be enforced
and be declared illegal null and void. That, the petitioners had
appeared before the learned Civil Court and had submitted the
written statement at Exhibit 31. The learned Civil Court was
pleased to frame issues at Exhibit 36. At the end of Trial, the
learned 2nd Joint Civil Judge (Senior Division), Bhuj Kutch vide
judgement dated 11/08/1997 was pleased to allow the suit by
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permanently injuncting to the petitioners not to
encroach/interfere with the possession of the original plaintiffs
and further the orders passed by the revenue authorities were
declared null and void and ineffective and the decree was also
drawn and accordingly. That, the original plaintiffs have
instituted execution petition before the learned Civil Court for
executing the above referred judgement and decree dated
11/08/1997 passed in the proceedings of Regular Civil Suit No.
417 of 1984. When, such fact was came to the notice of the state
authorities, the necessary documents are requested and after
administrative process, the decision was taken to challenge the
judgement and decree dated 11/08/1997 passed in the
proceedings of Regular Civil Suit No. 417 of 1984. However, due
to administrative reasons, some time has been consumed and
the Regular Civil Appeal could have been filed on 31/03/2016
along with an application for condonation of delay. That, being
aggrieved and dissatisfied with the judgement and decree dated
11/08/1997 passed by the learned Civil Court, the petitioners
herein had preferred Regular Civil Appeal before the learned
District Court on 31.03.2016. Since there was delay, the Civil
Misc. Application No. 29 of 2016 was submitted for condonation
of delay in preferring the appeal. It is submitted that the detailed
reasons have been submitted for delay occurred in filing the
Appeal by the petitioners. The learned District Court, Kutch vide
order dated 21.04.2016 was pleased to dismiss the Civil Misc.
Application No. 29 of 2016, for condonation of delay. It is also
submitted that learned District Court failed to appreciate that
though there is delay of 6807 days, however, same is not
intentional and deliberate. Hence, present petition is filed.
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3. Heard learned AGP Mr.Raval for the petitioner - State and
learned advocate Mr.Patel for the respondents.
4. Learned AGP for the petitioner - State would submit that
learned Appellate Court has committed serious error in not
granting delay in preferring appeal against judgment and decree
delivered in Regular civil Suit No.417 of 1984 only on
considering length of delay. He would submit that due to
administrative procedure which is required to be followed by the
Government, when lis is to be preferred against impugned
judgment, it took long time to Government to file appeal and
same has been pleaded in CMA No.29 of 2016 filed under section
5 of the Limitation Act. Therefore, he would submit that learned
Appellate Court was required to take liberal view and permit the
Government to plead in first appeal.
4.1. Learned AGP for the petitioner State would further submit
that so far as merit is concerned, respondents preferred suit
before the learned Trial Court seeking cancellation of order
passed by SSRD, which was not maintainable before the Civil
Court and therefore, there was serious error on the part of the
Civil Court to grant decree in favour of the respondents. This
issue was required to be considered by the learned Appellate
Court. It is submitted that since Government was appellant,
some liberal view was required to be taken in favour of the
Government and laxity of the Government to proceed lis has to
be condoned by taking liberal approach.
4.2. Upon above submissions, it is submitted to allow the
petition.
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5. Strongly, objecting present petition, learned advocate
Mr.Patel for the respondent would submit that even this petition
is filed after four years, after learned appellate Court has denied
relief of the petitioner - State to condone delay. It is further
submitted that if we go by application being CMA No.29 of 2016
preferred before learned Appellate Court, there is no reasons
stated by the Government to explain huge delay of 6807 days
which is nearly 18 years in preferring appeal. Learned Appellate
Court has given cogent reasons in rejecting delay application.
Right which was decided by the learned Civil Court in favor of
the respondents has been protracted by passage of time and
therefore, Government which remained not vigilant should not
be given leverage by applying principle of liberal approach.
5.1. Upon above submissions, it is submitted to dismiss the
petition.
6. Having heard learned advocate for the parties, let refer
reasons pleaded by the petitioner - State before the learned
Appellate Court in CMA No.29 of 2016 seeking to condone delay
of 6807 days caused in preferring appeal against judgment in
Regular Civil Suit No.417 of 1984. Reasons are in Gujarati, but
for better understanding they are translated in in English. They
are as under :-
"(1) The order was passed by Ld. Trial Court on
11/08/1997. The application was submitted on
11/03/2016 to obtain a true copy of the aforesaid order. I
received the aforesaid true copy on 11/03/2016 after it
was prepared on 11/03/2016. Meantime, present
respondent filed Regular Civil Execution Petition No.
02/2009 for the execution of the order passed in Regular
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Civil Suit No. 417/1984. The aforesaid Execution Petition
is pending before Ld. Court. As notice was served at the
concerned office in connection with aforesaid execution
petition, aforesaid impugned order came to be known.
Thereafter, necessary legal opinion in respect of preferring
appeal against the order passed in Regular Civil Suit No.
417/1984 was forwarded to the concerned administrative
office for obtaining necessary sanction. Thereafter,
concerned administrative office, having completed
necessary procedure and done detailed study of my
opinion and the order of Ld. Court, accorded sanction to
prefer appeal. Meantime, the time has also lapsed due to
other Government duties in the administrative office. The
time has lapsed in all these procedures, administrative
procedure of the Government and in the cases before daily
Sessions Courts, District Consumer Disputes Redressal
Forum and Labour Court. A delay of 6807 days has been
caused in preferring appeal after completion of all these
procedures. As aforesaid delay has been caused due to
administrative procedure of the Government only,
aforesaid delay be condoned in view of established
principles and objects of justice and without going into
hyper technicality since it is indispensable to prefer this
appeal."
7. What appears that except reason of administrative
procedure, nothing has been pleaded by the Government to
explain delay of 18 years. In fact, if we see reasons pleaded by
the petitioner, it is bereft and even before learned first appellate
Court, District Government Pleader did not take any pain to
explain single day delay but made some general statements that
because of administrative reasons, delay took place. Learned
Appellate Court to met with above, gave reasons in para 6 of the
impugned judgment. Reasons are in Gujarati, but for better
understanding they are translated in English. They are as
under :-
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"(6) The submissions advanced by Mr. H.B. Jadeja, Ld.
Add.P.P. for the Government/applicants and Mr. N.K.
Mehta, Ld. Advocate for the respondents were taken into
account, and entire record was perused. The present
application has been filed under section 5 of the Limitation
Act on behalf of the Government to condone the delay. Ld.
Second Senior Civil Judge, Bhuj, passed order in Regular
Civil Suit No. 417/1984 on 11/08/1997. Upon perusal of
true copy of aforesaid order, it becomes clear that D.G.P.
office,Bhuj was intimated about aforesaid order on
11/08/1997. Therefore, there is a reason to believe that
Government was intimated about aforesaid order on
11/08/1997. Total time of 18 years and 6 months has
lapsed from 11/08/1997 to 11/04/2016. Even if period of
12 years of adverse possession is deducted, application for
condonation of delay cannot be granted. Further, if
reasons assigned on behalf of the Government are
considered, delay of 6807 (Six Thousand Eight Hundred
and Seven) days i.e. 18 years from 11/09/1997 has been
caused in preferring appeal due to administrative
procedure for obtaining sanction. Upon perusal of the
record of the case, it appears that Regular Civil Execution
Petition No. 02/2009 has been filed for the execution of the
order passed in Regular Civil Suit No. 417/1984, and the
said Execution Petition is pending before this Court. Under
such circumstances, delay of 18 years and 6 months on
behalf of the Government cannot be condoned u/s 5 of the
Limitation Act. Without going into technicality regarding
application for condonation of delay by Ld. Court and in
view of principles of the justice, present application cannot
be granted due to lapse of more than 18 years and
inactivity of the Government. I pass the following order.
- :: O R D E R ::-
The present application for the condonation of delay
on behalf of the applicants/Government is rejected.
Pronounced in the open Court on 21st April, 2016."
8. At this stage, I may refer to judgment of Hon'ble Apex
Court in the case of Union of India v/s. Jahangir Byramji
Jeejeebhoy [2024 (2) GLH 217]. Hon'ble Apex Court after
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surveying earlier judgments in para 33 and 35 has held as under
:-
"33. In the case of Esha Bhattacharjee v/s. Managing
committee of Raghunathpur Nagar Academy (2013) 12 SCC
649, this Court made the following observations :-
21. From the aforesaid authorities the principles that can
broadly be culled out are:
21.1. (i) There should be a liberal, pragmatic, justice-
oriented, non-pedantic approach while dealing with an
application for condonation of delay, for the courts are not
supposed to legalise injustice but are obliged to remove
injustice.
21.2. (ii) The terms sufficient cause should be understood
in their proper spirit, philosophy and purpose regard being
had to the fact that these terms are basically elastic and
are to be applied in proper perspective to the obtaining
fact-situation.
21.3. (iii) Substantial justice being paramount and pivotal
the technical considerations should not be given undue
and uncalled for emphasis.
21.4. (iv) No presumption can be attached to deliberate
causation of delay but, gross negligence on the part of the
counsel or litigant is to be taken note of.
21.5. (v) Lack of bona fides imputable to a party seeking
condonation of delay is a significant and relevant fact.
21.6. (vi) It is to be kept in mind that adherence to strict
proof should not affect public justice and cause public
mischief because the courts are required to be vigilant so
that in the ultimate eventuate there is no real failure of
justice.
21.7. (vii) The concept of liberal approach has to
encapsulate the conception of reasonableness and it
cannot be allowed a totally unfettered free play.
21.8. (viii) There is a distinction between inordinate delay
and a delay of short duration or few days, for to the former
doctrine of prejudice is attracted whereas to the latter it
may not be attracted. That apart, the first one warrants
strict approach whereas the second calls for a liberal
delineation.
21.9. (ix) The conduct, behaviour and attitude of a party
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relating to its inaction or negligence are relevant factors to
be taken into consideration. It is so as the fundamental
principle is that the courts are required to weigh the scale
of balance of justice in respect of both parties and the said
principle cannot be given a total go by in the name of
liberal approach.
21.10. (x) If the explanation offered is concocted or the
grounds urged in the application are fanciful, the courts
should be vigilant not to expose the other side
unnecessarily to face such a litigation.
21.11. (xi) It is to be borne in mind that no one gets away
with fraud, misrepresentation or interpolation by taking
recourse to the technicalities of law of limitation.
21.12. (xii) The entire gamut of facts are to be carefully
scrutinised and the approach should be based on the
paradigm of judicial discretion which is founded on
objective reasoning and not on individual perception.
21.13. (xiii) The State or a public body or an entity
representing a collective cause should be given some
acceptable latitude.
22. To the aforesaid principles we may add some more
guidelines taking note of the present day scenario. They
are:
22.1. (a) An application for condonation of delay should be
drafted with careful concern and not in a haphazard
manner harbouring the notion that the courts are required
to condone delay on the bedrock of the principle that
adjudication of a lis on merits is seminal to justice
dispensation system.
22.2. (b) An application for condonation of delay should not
be dealt with in a routine manner on the base of individual
philosophy which is basically subjective.
22.3. (c) Though no precise formula can be laid down
regard being had to the concept of judicial discretion, yet a
conscious effort for achieving consistency and collegiality of
the adjudicatory system should be made as that is the
ultimate institutional motto.
22.4. (d) The increasing tendency to perceive delay as a
non-serious matter and, hence, lackadaisical propensity
can be exhibited in a nonchalant manner requires to be
curbed, of course, within legal parameters.
35. In a plethora of decisions of this Court, it has been said
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that delay should not be excused as a matter of generosity.
Rendering substantial justice is not to cause prejudice to
the opposite party. The appellants have failed to prove that
they were reasonably diligent in prosecuting the matter
and this vital test for condoning the delay is not satisfied in
this case.
9. Here, it is classic case where gross delay of 18 years is
caused in preferring appeal. Gross delay is not explained by even
single line, reasons or pleadings. It is unfortunate that further
time of four years has taken by the petitioner - State to challenge
the order passed by the learned Appellate Court in CMA No.29 of
2016. In absence of any satisfactory explanation or reasons
explaining huge and gross delay of 18 years, this Court do not
find any reason to interfere with impugned judgment, more
particularly, considering limited scope of petition under Article
227 of the Constitution of India.
10. For the foregoing reasons, the petition is dismissed.
(J. C. DOSHI,J)
SATISH
