State Of Jk And Ors vs Shamima Bano & Ors
2021 Latest Caselaw 800 j&K/2

S.No. 218
A.N


             HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                             AT SRINAGAR
                                  ...
                            CONC No. 44/2019
                             CM No. 120/2019

       State of JK and ors.                                        ....... Petitioner(s)

                                 Through: None

                                           Versus
       Shamima Bano & Ors.                                     .........Respondent(s)


                                        Through: Mr. M.R. Thoker, Advocate.


       CORAM:        HON'BLE MR JUSTICE TASHI RABSTAN, JUDGE

                                         ORDER

27.07.2021

This is an application to condone delay of 104 days in filing of appeal

against the judgment and decree dated 15.09.2018.

Before going into the merits of the case it is appropriate to refer to the

observations made by the Supreme Court vis-à-vis delay in preferring the

appeals.

The Supreme Court in the case of Office of the Chief Post Master

General V.s Living Media India Ltd, reported in AIR 2012 SC 1506, has

observed that though 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, yet the

department cannot take advantage of various earlier decisions and the claim

on account of impersonal machinery and inherited bureaucratic methodology

of making several notes cannot be accepted, given that the modern technologies being used and available and that law of limitation undoubtly

binds every body including government. The Supreme Court has further

gone to say that it is right time to inform all government bodies, their

agencies and instrumentalities that unless they have reasonable and

acceptable explanation for delay and there was genuine effort, there is no

need to accept usual explanation that the file was kept pending for several

months due to considerable degree of procedural red-tape in the process. The

government departments are under special obligation to ensure that they

perform their duties with diligence and should not be used as an anticipated

benefit for government department. The law shelters everyone under the

same right and should not be swirled for the benefit of a few. In one of the

decisions, the Supreme Court in Amalendu Kumar Bera & Ors. V/S State of

West Bengal (2013) 4 SCC 52, has held that

"Merely because the respondent is the state delay

in filing the appeal or revisions cannot and shall

not be mechanically considerable and in absence

of sufficient cause delay shall not be condoned".

In the present case, the judgment has been passed on 15.09.2018,

however, the applicant has not mentioned about the date of receipt of the

judgment and thereafter referring the same to the higher authority. Though

in para 3 of the application, sanction for filing appeal has been granted by

the Department of Law and Justice on 2nd January 2019, that too after more

than 4 months from the date of passing of the judgment. The applicant has

not mentioned and explained the delay in filing the appeal thereafter,

whereas the appeal has been presented on 05.04.2019, that too again after delay of 4 months from the date of sanction accorded by the government for

filing an appeal.

In this view of the matter, the application in hand has been drafted in a

vague and casual manner, and no sufficient cause has been shown/explained

for condoning the delay.

In view of the above, the application is dismissed and consequently

the appeal attached with the condonation application is also dismissed.

Copy be sent down.

(TashiRabstan) Judge Srinagar 27.07.2021 "Nuzhat Shafi"