Himachal Pradesh High Court

The State Of Himachal Pradesh & Another vs Of on 1 December, 2023

Bench: M.S. Ramachandra Rao, Jyotsna Rewal Dua

IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

CMP(M) No.960 of 2023

Reserved on: 09.11.2023 Pronounced on:01.12.2023____

The State of Himachal Pradesh & Another ......Appellants Versus

of Rakesh Kumar & Others ...Respondents _____________________________________________________ Coram:

Hon'ble Mr. Justice M.S. Ramachandra Rao, Chief Justice.

rt Hon'ble Ms. Justice Jyotsna Rewal Dua, Judge.

Whether approved for reporting?

For the appellants : Mr. Rakesh Dhaulta & Mr. Pranay Pratap Singh, Additional Advocate Generals and

Mr. Arsh Rattan & Mr. Sidharth Jalta, Deputy Advocate Generals.

For the respondents : Mr. Dilip Sharma, Sr. Advocate with Mr.

Manish Sharma, Advocate.

M.S. Ramachandra Rao, Chief Justice.

This application is filed under Section 5 of the Limitation Act,

1963, to condone delay of 253 days in challenging the judgment dt.

13.10.2022 passed by the learned Single Judge in CWPOA no.3096 of

2019.

2) In the application filed for seeking condonation of delay in filing the

Letters Patent Appeal, it is the contention of the applicants-

appellants that the copy of the judgment of the learned Single Judge

was received in the office of applicant no.2 on 19.12.2002, that it

was examined at various levels in the office of applicant no.2 and

then it was sent to the Government.

3) According to applicants, the file was sent to the Law Department for

their opinion on 09.12.2022; that the Law Department then gave rt opinion on 23.12.2022 seeking certain information from the Director

of Higher Education (applicant no.2) ; thereafter the information was

sent to the Law Department on 03.01.2023; that the Law Department

again opined on 25.02.2023 that the judgment of the learned Single

Judge should be challenged; and ultimately, the appeal came to be

filed on 07.07.2023, after the Government wrote a letter on

22.06.2023 to file Letters Patent Appeal.

4) The Additional Advocate General appearing for the applicants,

contended that it is a fit case for condonation of the period of delay,

as the applicants has a strong case on merits.

5) The respondents filed a reply, opposing the application for

condonation of delay and contending that no satisfactory explanation

has been offered for condoning the said period of delay of 253 days

in filing the Letters Patent Appeal, and the application for

condonation of delay be dismissed.

6) We have noted the contentions of the parties.

7) The Supreme Court, in Postmaster General and others vs. Living

Media India Limited and another1 held :

of "26. In spite of affording another opportunity to file better affidavit by placing adequate material, neither the Department nor the person in-charge has filed any explanation for not applying the rt certified copy within the prescribed period. The other dates mentioned in the affidavit which we have already extracted, clearly

show that there was delay at every stage and except mentioning the dates of receipt of the file and the decision taken, there is no explanation as to why such delay had occasioned. Though it was

stated by the Department that the delay was due to unavoidable circumstances and genuine difficulties, the fact remains that from day

one the Department or the person/persons concerned have not evinced diligence in prosecuting the matter to this Court by taking

appropriate steps.

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 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

(2012) 3 SCC 563

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.

28. 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 bona fides, 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 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 rt used and available. The law of limitation undoubtedly binds everybody, including the Government.

29. 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 the government departments. The law shelters everyone under the same light and should not be swirled for the benefit of a few.

30. 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. Accordingly, the appeals are liable to be dismissed on the ground of delay."

8) The said judgment has been followed by the Supreme Court in

several cases such as Commissioner of Customs Chennai vs. M/s

Volex Interconnect (India) Pvt. Ltd.2; Pr. Commissioner Central

Excise Delhi-1 vs. Design Dialogues India Pvt. Ltd.3; Union of

of India vs. Central Tibetan Schools Administration & others4; Union

of India & others vs. Vishnu Aroma Pouching Private Limited and rt another5; and State of Uttar Pradesh & others vs. Sabha Narain &

others6.

9) Learned Additional Advocate General relied on the recent judgment

of the Supreme Court rendered on 09.10.2023 in Civil Appeal no.

5867 of 2015, titled as Sheo Raj Singh (deceased) through LRs &

others Vs. Union of India & another.

10) In Sheo Raj Singh, the High Court had condoned the delay of 479

days in filing a Land Acquisition Appeal in the High Court and the

explanation offered found favour with the Supreme Court.

(2022) 3 SCC 159

(2022) 2 SCC 327

(2021) 11 SCC 557

(2022) 9 SCC 263

(2022) 9 SCC 266

In that case, the Supreme Court observed that it was not hearing

an application for condonation of delay, but was sitting in appeal over

discretionary exercise of the High Court granting the prayer for

condonation of delay; in the case of the former, whether to condone or

not, would be the only question, whereas in the latter, whether there has

been proper exercise of discretion in favour of grant of prayer for

of condonation, would be the question; and the law was well settled that a

Court of appeal should not ordinarily interfere with the discretionary rt exercise by the Courts below, and that the appellate power should be

exercised only when the order of appeal is clearly wrong and not when

it is merely not right.

11) The said decision therefore cannot help the applicants since in the

instant application, this Court has to consider the question whether

sufficient cause has been shown to condone the period of delay.

12) Assuming for the sake of argument as pleaded in the application for

condonation of delay that copy of the judgment was received in the

office of applicant no.2 on 19.12.2022 and legal opinion was taken

from the Law Department on 25.02.2023, why the applicants waited

till 07.07.2023, is not properly explained.

13) In fact the certified copy of the impugned order dt.13.10.2022 in

CWPOA No.3096 of 2019 filed along with the Letters Patent Appeal

was applied in the instant case on 20.06.2023 and it was made ready

on 23.06.2023 and was taken delivery on 13.07.2023.

14) In the instant case, we are of the opinion that the applicants have not

shown sufficient cause for condoning the inordinately long period of

of delay of 253 days in filing the instant appeal and have exhibited a

negligent attitude.

15) rt Therefore, this application is dismissed.

LPA no. 217 of 2023.

16) Consequently, the appeal is also dismissed.

17) Pending miscellaneous application(s), if any, shall also stand

disposed of.







                                           (M.S. Ramachandra Rao)
                                                Chief Justice





                                            (Jyotsna Rewal Dua)
  December 01, 2023                               Judge
      (Yashwant)