Himachal Pradesh High Court
State Of H.P. And Others vs Maya Devi on 30 November, 2023
Bench: Mamidanna Satya Ratna Sri Ramachandra Rao, Jyotsna Rewal Dua
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
CMP(M) No.1605 of 2023
Decided on: 30th November, 2023
______________________________________________________
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State of H.P. and others .....Applicants
Versus
Maya Devi ...Respondent
_______________________________________________________
Coram
The Hon'ble Mr. Justice M. S. Ramachandra Rao, Chief Justice
of
The Hon'ble Ms. Justice Jyotsna Rewal Dua, Judge
Whether approved for reporting?
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_____________________________________________________
For the applicants: Mr. Anup Rattan, Advocate General with
Mr. Rakesh Dhaulta & Mr. Pranay Pratap
Singh, Additional Advocates General and
Mr. Arsh Rattan & Mr. Sidharth Jalta,
Deputy Advocates General.
For the respondent: None.
M.S.Ramachandra Rao, Chief Justice (Oral)
This application is filed by the applicants-appellants
seeking condonation of delay of 364 days in filing the Letters Patent
Appeal, challenging the judgment dt. 29.07.2022 passed by learned
Single Judge in CWP No. 1701 of 2021.
2) In the application seeking condonation of delay, it is
stated that application for certified copy of the said judgment was
made on 04.08.2022, the same was issued on 29.09.2022, and
thereafter, office of the learned Advocate General forwarded the same
to appellant no.2 on 18.10.2022. Appellant no.2 then forwarded it to
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the Law Department for its opinion on 02.11.2022 and decision was
taken to file LPA on 16.12.2022. Thereafter, apparently, opinion of the
Government was sent to the Junior Engineer on 27.01.2023, but it was
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lost in transmission and despite sincere efforts, could not be located in
the office.
3)
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It is stated that on account of natural calamity in the
months of June to September, 2023, the matter could not be attended
to and the matter came to the notice of the applicants-appellants when
Execution petition was filed by the respondent, at which point of time
efforts were made to trace out the record and then this appeal was
filed on 22.09.2023.
4) According to the applicants, legal opinion was given on
16.12.2022 by the Law Department for challenging the impugned
judgment dt. 29.07.2022. In our opinion, steps should have been taken
immediately to file the appeal.
5) We are surprised that even opinion of the Government
was forwarded to the Junior Engineer on 27.01.2023 was stated to be
got lost in transmission. The Assistant Engineer, who forwarded the
said opinion to the Junior Engineer, should have inquired from the
Junior Engineer about what was to be done in regard to filing of the
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appeal shortly after it was forwarded to the latter, and if the legal
opinion is lost, it could have obtained another copy of the same and
then proceeded to file the appeal.
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6) The appellants cannot take advantage of the natural
calamity in the months of June to September, 2023 because the said
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calamity occurred for two days in July and for 2 days in August,2023
only and much time had been wasted by appellants before the said
events.
7) In Postmaster General and others Versus Living Media
India Limited and another1 the Hon'ble Supreme Court had
observed as under:-
"25. We have already extracted the reasons as mentioned in the
"better affidavit" sworn by Mr. Aparajeet Pattanayak, SSRM,
Air Mail Sorting Division, New Delhi. It is relevant to note that
in the said affidavit, the Department has itself mentioned and is
aware of the date of the judgment of the Division Bench of the
High Court in Office of the Chief Postmaster v. Living Media
India Ltd. as 11.09.2009. Even according to the deponent,
their counsel had applied for the certified copy of the said
(2012) SCC 563
judgment only on 08.01.2010 and the same was received by the
Department on the very same day. There is no explanation for
not applying for certified copy of the impugned judgment on
11.09.2009 or at least within a reasonable time. The fact
.
remains that the certified copy was applied only on 08.01.2010,
i.e. after a period of nearly four months.
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
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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
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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 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 bonafide, a liberal concession
has to be adopted to advance substantial justice, we are of the
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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
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available. The law of limitation undoubtedly binds everybody
including the Government."
8)
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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
India vs. Central Tibetan Schools Administration & others4; Union
of India & others vs. Vishnu Aroma Pouching Private Limited and
another5; and State of Uttar Pradesh & others vs. Sabha Narain &
others6.
(2022) 3 SCC 159
(2022) 2 SCC 327
(2021) 11 SCC 557
(2022) 9 SCC 263
(2022) 9 SCC 266
9) Learned Additional Advocate General has relied upon the
judgment of Hon'ble Supreme Court in Esha Bhattacharjee Vs.
Managing Committee of Ragunathpur Nafar Academy and others7.
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In the said judgment in para-21, following principles have been culled
out for application to situations where condonation of delay is sought
in filing the appeals:-
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"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-
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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
(2013) 12 SCC 649
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 encapsule the
conception of reasonableness and it cannot be allowed a
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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
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whereas the second calls for a liberal delineation.
21.9(ix) The conduct, behaviour and attitude of a party relating to its
inaction or negligence are relevant factors to be taken into
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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 scrutinized 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."
10) We may point out that the said judgment did not consider
the judgment in Post Master General ( 1 supra), cited supra and the
aspect of delay on part of the State in challenging with considerable
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delay, the orders passed by learned Single Judge in LPAs.
11) In fact, in that case, it was a private dispute between the
parties and the issue was with regard to challenge of an interim order
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passed by learned Single Judge made after delay of 2449 days before
a Division Bench, which delay appears to have been condoned by the
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Division Bench.
12) The Supreme Court in Esha Bhattacharjee ( 7 supra) set-
aside the order of the Division Bench condoning the said inordinate
delay by holding that such period cannot be condoned and had given
the finding that the respondent had exhibited gross negligence and
also recklessness and had not availed legal remedy promptly.
13) We may also note about the caution contained in the said
judgment about the increasing tendency to perceive delay as a non-
serious matter and, hence, lackadaisical propensity is exhibited in a
nonchalant manner and this requires to be curbed within the legal
parameters.
14) The Additional Advocate General also placed reliance on
the decision of the Supreme Court of India in State of Manipur and
others v. Koting Lamking8.
.
In that case the State had filed an appeal on 15.6.2017
against a judgment and decree dt.18.7.2016 of a trial court in a civil
suit wrongly before the District Judge, Imphal who did not have the
of
pecuniary jurisdiction to entertain the said appeal. He dismissed the
said appeal on the ground of lack of pecuniary jurisdiction on
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28.7.2017. Thereafter the RFA was filed before the High Court with
an application to condone the delay of 312 days in filing the appeal.
The High dismissed the said RFA , but on appeal, the Supreme Court
reversed the judgment of the High Court. In that context the Supreme
Court held that there would be bureaucratic delays and also slow pace
in reaching a government decision. It also referred to the impersonal
nature of the government's functioning where individual officers may
fail to act responsibly.
15) Unlike in the said case where, by mistake, a wrong forum
was approached by the appellants-State, the situation in the instant
case is entirely different.
(2019) 10 SCC 408
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16) Also the attention of the Court in the above decision
was not drawn to the decision in Post Master General ( 1 supra)
where it had taken a different view of the Governmental delays in
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filing appeals set out by us above.
17) We are satisfied that in view of the ratio of the decision
of Post Master General ( 1 supra) and the other cases where the ratio
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laid down therein has been followed as mentioned above, and in the
facts and circumstances of this case set out above, sufficient case has
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not been shown by the applicants to condone the inordinate period of
delay of in filing this appeal.
18) Therefore, this application is dismissed.
19) Consequently, the appeal is also dismissed.
20) Pending miscellaneous application(s), if any, also stand
disposed of accordingly.
(M. S. Ramachandra Rao)
Chief Justice
(Jyotsna Rewal Dua)
November 30, 2023 Judge
R.Atal
