Ut Of J&K & Others vs Ghulam Mohi Ud Din Ahangar & Ors
2021 Latest Caselaw 1462 j&K/2

 IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                    AT SRINAGAR


                                              Reserved on: 11.11.2021
                                              Pronounced on:17.11.2020



                           CM No.233/2020
                               in
                          LPA No.05/2020
                          CM No.234/2020


UT of J&K & Others                ...APPELLANTS/PETITIONER(S)
Through: - Mr. B. A. Dar, Sr. AAG.

Vs.

Ghulam Mohi ud Din Ahangar & Ors.               ...RESPONDENT(S)
Through: - Mr. M. I. Qadiri, Sr. Advocate, with
           Mr. Mir Naveed Gul, Advocate.

CORAM:
HON'BLE MR. JUSTICE ALI MOHAMMAD MAGREY, JUDGE
HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE


                                JUDGMENT

Sanjay Dhar 'J'

1. Appellants/petitioners, Government of Union Territory of Jammu

and Kashmir and others, have challenged the judgment and order dated

20.03.2018 passed by the Writ Court in a writ petition filed by the

respondents herein bearing OWP No.152/2012. There is a delay of 590

days in filing the appeal and, as such, the appellants/petitioners have

moved the instant application seeking condonation of delay.

2. In the application for condonation of delay, appellants/petitioners

have submitted that after receiving the copy of the impugned judgment,

the matter was placed before the High-Level Committee . It came up for

consideration before the Committee on 03.05.2018, 14.05.2018 and

07.07.2018 and a decision was taken on 07.07.2018 that the impugned

judgment is required to be challenged. Thereafter the record was

collected from the subordinate offices and Department of Law, Justice

and Parliamentary Affairs was approached for legal advice. Sanction to

file the against the impugned judgment was accorded by the Law

Department on 20.09.2018 and the sanction order was forwarded by the

said Department in terms of its letter dated 17.05.2019. It is further

averred in the application that on 02.07.2019, a request was made to the

Collector Land Acquisition to depute his official along with relevant

record to the office of the counsel for drafting and filing the appeal.

Accordingly, the appeal was prepared by the counsel and it came to be

filed on 1st January, 2020. According to appellants/petitioners, there is

sufficient explanation for delayed filing of the appeal and the delay

deserves to be condoned.

3. The respondents have resisted the application by filing a reply

thereto. In their reply respondents have submitted that immediately after

passing of the impugned judgment, they had delivered a copy of the same

to the offices of Divisional Commissioner, Kashmir, Deputy

Commissioner, Srinagar, and the Collector as also in the office of Chief

Engineer, PWD. It is averred that there has been gross negligence on the

part of appellants in dealing with the instant case, inasmuch as the

officials of the appellants moved the files from one table to another

without actually doing anything substantial. It is further averred that

inaction of the appellants compelled the respondents to approach Chief

Minister's secretariat and thereafter grievance cell of the Governor when

the State was placed under Governor's rule. Instructions were issued to

the Divisional Commissioner, Kashmir, to look into the matter way back

in July, 2018 but even after deciding to challenge the impugned

judgment of the Writ Court, the appellants did not take any steps in this

regard with reasonable dispatch. Respondents have given details with

regard to the steps which they took for seeking implementation of the

impugned judgment and have placed on record copies of representations

and communications to substantiate their contentions. In short,

respondents have vehemently contended in their reply that there has been

deliberate, intentional and unexplained delay in filing the appeal which

cannot be condoned in any circumstances.

4. We have heard learned counsel for the parties and perused the

record.

5. While advancing arguments, learned counsel for the

appellants/petitioners has contended that the matter regarding

implementation of the impugned judgment and filing of appeal against

the said judgment has remained under active consideration of

appellant/petitioners throughout this period and at no stage there has

been any intentional delay on the part of the officials of the

appellant/petitioners. It is contended that on account of peculiar

characteristics of functioning of the Government offices, a lenient view

is required to be taken while considering the present application,

particularly keeping in view merits of the case. Learned Senior AAG has

contended that the respondents despite having received compensation in

terms of the final award passed by the Collector chose to file the writ

petition challenging the final award which is impermissible in law.

According to learned Senior AAG, in view of the fact that

appellant/petitioners have a very strong case on merits and the issues

involved in the appeal are of vital importance, it would be in the interests

of justice to decide the case on its merits after condoning the delay in

filing the appeal.

6. Learned senior counsel appearing for the respondents has

vehemently argued that the mere fact that the appellant/petitioners

happen to be the Government functionaries does not give them a license

to sit over the files and challenge the impugned judgment after a delay

of 590 days. It is contended that the explanation offered by the

appellants/petitioners is not reasonable and the same cannot be accepted.

It is further urged that the law of limitation binds everybody including

the Government functionaries. He has relied upon various judgments of

the Supreme Court as well as of this Court to support his contentions, the

details whereof are given as under:

(I) The State of Madhya Pradesh & Ors. V. Bherulal (Special Leave Petition (C) Diary No.9217 of 2020 decided on October 15, 2020);

(II) State of Uttar Pradesh & Ors. V. Sabha Narain & Ors. (Special Leave Petition (Civil) Diary No.25743/2020 decided on 22.01.2021);

(III) Union of India v. Central Tibetan Schools Admin & Ors. (Special Leave Petition (Civil) Diary No.19846/2020 decided on 04.02.2021);

(IV) State of J&K & Ors. V. Roshal Lal Bhat, 2011 (1) JKJ[HC[ 513;

(V) State of J&K and others v. Kulsooma Ara, 2020(1) JKLT 552(J&K);

(VI) Office of the Chief Post Master General & Ors. V.

Living Media India Ltd. & anr. AIR 2012 SC 1506;

7. Section 5 of the Limitation Act provides for extension of

prescribed period in certain cases. As per this provision, an appeal may

be admitted after the prescribed period of limitation if the appellant

satisfies the Court that he had a sufficient cause for not preferring the

appeal within such period. The expression "sufficient cause" has been

the subject matter of interpretation in several judgments and by now it is

well settled that the aforesaid expression must receive a liberal

construction so as to advance substantial justice and unless there is gross

negligence or deliberate inaction or lack of bonafides attributable to the

parties seeking condonation of delay, such a prayer should not be

declined.

8. In the instant case, the parties seeking condonation of delay in

filing the appeal are Government functionaries. It is correct that law of

limitation binds everybody including the Government but certain amount

of leniency and leeway has been given by the Courts in the matter of

condoning of delay when the party seeking condonation happens to be a

Government Department. This is so, because of the peculiar functioning

of Government departments where files move from one table to another

and the decision making by very nature of the functioning of the

bureaucracy takes a long time. The Supreme Court in the case of Special

Tehsildar Land Acquisition, Keral v. K. V. Ayisumma, (1996) 10 SCC

634, while dealing with a case where condonation of delay in filing of

appeal was sought by Government, discussed the manner in which

Government business is transacted and advocated liberal approach in the

matter of condonation of delay in such cases. The observations of the

Court which are relevant to the context are reproduced as under:

"It is now settled law that when the delay was occasioned at the behest of the Government, it would be very difficult to explain the day to day delay. The transaction of the business of the Government being done leisurely by officers who had no or evince no personal interest at different levels. No one takes personal responsibility in processing the matters expeditiously. As a fact at several stages, they take their own time to reach a decision. Even in spite of pointing at the delay, they do not take expeditious action for ultimate decision in filing the appeal. This case is one of such instances. It is true

that Section 5 of the Limitation Act envisages explanation of the delay to the satisfaction of the Court and in matters of Limitation Act made no distinction between the State and the citizen. Nonetheless adoption of strict standard of proof leads to grave miscarriage of public justice, it would result in public mischief by skillful management of delay in the process of filing the appeal. The approach of the Court would be pragmatic but not pedandic. Under those circumstances, the Subordinate Judge has rightly adopted correct approach and had condoned the delay without insisting upon explaining every day's delay in filing the review application in the light of the law laid down by this Court. The High Court was not right in setting aside the order. Delay was rightly condoned."

9. In G. Ramegowda Major and ors. Vs. Special Land Acquisition

officer, Bangalore, AIR 1988 SC 897, the Supreme Court, while noting

that Government and private individual cannot be equated in matters

relating to condonation of delay, observed as under:

no general principle saving the party from all mistakes of its counsel could be laid. The expression "sufficient cause" must receive a liberal construction so as to advance substantial justice and generally delays in preferring the appeals are required to be condoned in the interest of justice where no gross negligence or deliberate inaction or lack of bona fides is imputable to the party seeking condonation of delay. In litigations to which Government is a party, there is yet another aspect which, perhaps, cannot be ignored. If appeals brought by Government are lost for such defaults, no person is individually affected, but what, in the ultimate analysis, suffers is public interest. The decisions of Government are collective and institutional decisions and do not share the characteristics of decisions of private individuals. The law of limitation is, no doubt, the same for a private citizen as for governmental authorities. Government, like any other litigant must take responsibility for the acts, omissions of its officers. But a somewhat different complexion is imparted to the matter where Government makes out a case where public interest was shown to have suffered owing to acts of fraud or bad faith on the part of its officers or agents and where the officers were clearly at cross-purposes with it. It was, therefore, held

that in assessing what constitutes sufficient cause for purposes of Section 5, it might, perhaps, be somewhat unrealistic to exclude from the consideration that go into the judicial verdict, these factors which are peculiar to and characteristic of the functioning of the Government. Government decisions are proverbially slow encumbered, as they are, by a considerable degree of procedural red-tape in the process of their making. A certain amount of latitude is, therefore, not impermissible. It is rightly said that those who bear responsibility of Government must have "a little play at the joints". Due recognition of these limitations on governmental functioning - of course, within reasonable limits - is necessary if the judicial approach is not to be rendered unrealistic. It would, perhaps, be unfair and unrealistic to put Government and private parties on the same footing in all respects in such matters. Implicit in the very nature of Governmental functioning is procedural delay incidental to the decision-making process. The delay of over one year was accordingly condoned.

10. Again, in State of Nagaland v. Lipok AO and others, AIR 2005

SC 2191, the Supreme Court after noticing the manner in which the

Government offices function, advocated a justice oriented approach in

dealing with matters pertaining to condonation of delay. Para 15 of the

judgment is relevant to the context and the same is reproduced as under:

"15.Experience shows that on account of an impersonal machinery (no one in charge of the matter is directly hit or hurt by the judgment sought to be subjected to appeal) and the inherited bureaucratic methodology imbued with the note-making, file-pushing, and passing-on- the-buck ethos, delay on its part is less difficult to understand though more difficult to approve. The State which represents collective cause of the community, does not deserve a litigant-non-grate status. The courts, therefore, have to be informed with the spirit and philosophy of the provision in the course of the interpretation of the expression of sufficient cause. Merit is preferred to scuttle a decision on merits in turning down the case on technicalities of delay in presenting the appeal. Delay as accordingly condoned, the order was set aside and the matter was remitted to the High Court for disposal on

merits after affording opportunity of hearing to the parties. In Smt. Prabha v. Ram Parkash Kalra (1987 Supp SCC 339), this Court had held that the court should not adopt an injustice-oriented approach in rejecting the application for condonation of delay. The appeal was allowed, the delay was condoned and the matter was remitted for expeditious disposal in accordance with law."

11. Recently, the Supreme Court, in the case of State of Jammu and

Kashmir & Ors. v. Mohammad Rafiq Batt & ors. (Civil Appeal

No.2489/2021 decided on July 13, 2021), while finding that there was,

prima facie, merit in the appeal filed by the State of Jammu and Kashmir,

condoned the delay of 640 days and the matter was remanded to Division

Bench of this Court to be decided on merits.

12. From the foregoing analysis of the law on the subject, it becomes

manifest that expression "sufficient cause" has to be given liberal

construction and the Courts while considering the delay in filing appeal

have to avoid technicalities so that merit is preferred and scuttling of

decision on merits is avoided. The Courts have to adopt a justice-oriented

approach, particularly while dealing with the cases where delay is sought

to be condoned at the instance of Government functionaries. The Courts

have to be guided by spirit and philosophy that State represents collective

cause of the community and cannot be equated with an ordinary litigant.

Unless there is gross negligent approach of the Government

functionaries in dealing with a matter, the Courts would lean in favour

of condoning the delay without insisting upon explanation of each day's

delay.

13. Coming to the facts of the instant case, it appears from the record

that the appellants/petitioners immediately after the impugned judgment

was delivered by the Writ Court, placed the matter before the High-Level

Committee in terms of directions of the Writ Court. The matter was

discussed by the High-Level Committee in a number of its meetings and

ultimately it was decided that the judgment deserves to be challenged

before a higher forum. Thereafter the matter was taken up with the Law

Department for according sanction for filing of appeal and the sanction

was conveyed to the concerned Department on 17.05.2019. As it

generally happens in Government departments, it takes time to gather the

records relating to a case from various officials and in the instant case,

same thing has happened, as a result whereof the engaged counsel could

file the appeal only on 1st of January, 2020.

14. The aforesaid events do exhibit that there have been procedural

delays in making the decision for filing of appeal as also in actually filing

the appeal before this Court. Such delays are inherent in the Government

offices/agencies which function at a slow space. However, there is

nothing on record in the instant case that would even remotely suggest

that there has been intentional or deliberate inaction or lack of bonafides

attributable to the appellants/petitioners.

15. Apart from the above, the appeal raises important questions of law

and as such, interests of justice demand that these questions are gone into

and determined on merits. The judgments referred to and relied upon by

respondents are distinguishable on facts and the ratio laid down in those

judgments cannot be made applicable to the peculiar facts of the instant

case. Therefore, the delay that has occasioned in filing the instant appeal

deserves to be condoned.

16. For the foregoing reasons, we allow the application for

condonation of delay and, accordingly, the delay in filing the appeal is

condoned subject to payment of costs of Rs.10,000 (rupees ten thousand)

to be deposited by the appellants in the Advocates' Welfare Fund within

a period of two weeks from today. The main appeal be listed for

consideration on 1st of December, 2021.

                                                  (Sanjay Dhar)       (Ali Mohammad Magrey)
                                                     Judge                   Judge
                        Srinagar
                        17.11.2021
                        "Bhat Altaf, PS"


                                           Whether the order is speaking:     Yes/No
                                           Whether the order is reportable:   Yes/No







MOHAMMAD ALTAF BHAT
2021.11.17 12:52
I attest to the accuracy and
integrity of this document