Ut Of J&K And Anr vs Mukesh Kumar
2021 Latest Caselaw 1503 j&K

                                                                  Sr. No. 23
         HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                         AT JAMMU

                                              LPA No. 29/2020
                                              CM No. 1093/2020

UT of J&K and Anr.                                  .....Appellant(s)/Petitioner(s)

                         Through: Mr. Raman Sharma, AAG.

                    Vs

Mukesh Kumar                                                  ..... Respondent(s)

                         Through: Mr. Sunil Sethi, Sr. Advocate with
                                  Ms. Veenu Gupta, Advocate
                                  Mr. Sumit Nayyar, Advocate.

Coram:
  HON'BLE MR. JUSTICE DHIRAJ SINGH THAKUR, JUDGE
  HON'BLE MR. JUSTICE MOHD AKRAM CHOWDHARY, JUDGE

                                     ORDER

22.11.2021 (OPEN COURT)

Per: Thakur-J

01. The present Letters Patent Appeal has been preferred against the

judgment and order dated 17.09.2019, whereby the learned Single Bench

has declined to condone the delay in filing the Review Petition against the

judgment and order dated 21.07.2016. With a view to understand the

controversy in its correct perspective, it is necessary to state briefly the

material facts: -

02. The writ petition bearing No. SWP No. 693/2005 filed by the

petitioner, respondent herein, came to be decided by virtue of judgment and

order dated 21.07.2016. A Letters Patent Appeal bearing No. 150/2017, was

preferred against the aforesaid judgment and order. During the course of

arguments before the Division Bench, the learned Additional Advocate

General appearing for the appellants made a statement that one of the

grounds raised before the learned Single Judge by the appellants was not

considered in view of the Apex Court judgment in "State of Maharashtra

Versus Ramdas Shrinivas Nayak & Anr.," reported in 1982 (2) SCC 463.

On the said submission having been made, the Division Bench granted liberty

to the appellants to file an application seeking review of the judgment and

order dated 21.07.2016. The appellants, thereafter, preferred a Review

Petition before the Writ Court on 07.05.2018, which was accompanied by an

application seeking condonation of delay.

03. The learned Single Bench by virtue of order impugned dated

17.09.2019, dismissed the application for condonation of delay on the ground

that the applicants had failed to satisfactorily explain the delay from

08.09.2017 to 06.05.2018. Learned counsel for the appellants states that the

view expressed by the learned Single Judge is untenable in law and that

sufficient explanation was given in the application which would justify

condonation of delay in the facts and circumstances of the case. It was also

urged that the applicants were not to explain each and every day's delay and

that the issue of condonation of delay has to be considered as a whole

considering the fact that the appellants herein had availed the remedy of

Letters Patent Appeal before the LPA Bench well within the time.

04. We have also gone through the application filed by the appellants

before the learned Single Bench. In fact, we find that there has been no

explanation with regard to the delay which was occasioned between the

actual filing of the Review Petition on 07.05.2018, and the receipt of the

formal sanction order dated 03.01.2018, granting sanction for filing the

Review Petition.

05. While it may not be necessary for appellants to explain each and

every day's delay, yet we find no explanation at all as to what the appellants

herein were doing between the date of receipt of sanction order on

03.01.2018 and the actual filing of the Review Petition on 07.05.2018. Not

only this, we are of the opinion that filing a review was an independent

remedy which was available to the appellants, which ought to have been filed

within the prescribed period after the judgment and order dated 17.09.2019

was rendered by the learned Single Bench. For filing a Review Petition, no

special permission or sanction or direction was required or necessary from

the Division Bench. In case the applicants/appellants were of the opinion that

an issue which has been raised, had not been considered by the Writ Court,

certainly a Review Petition could have been filed which was not done within

the time prescribed. Reliance can be placed on judgment of Apex Court

passed in "Post Master General and others Vs Living Media India

Limited & another" reported in (2012) 3 SCC 563, wherein in paragraph

29 held as under: -

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

06. In our opinion, in fact, filing of the Review Petition came as an

afterthought and despite the liberty granted by a Co-ordinate Bench, the

filing of the Review Petition was unduly delayed. Having considered the

matter in its entirety, we are of the opinion that the view expressed by the

learned Single Judge in his judgment and order dated 21.07.2016, cannot be

interfered with.

07. The present appeal is found to be without merit and is, accordingly,

dismissed.

               (Mohd Akram Chowdhary)               (Dhiraj Singh Thakur)
                        Judge                                Judge
Jammu
22.11.2021
Vishal