The State Of Jharkhand vs Dilip Kumar Singh
2023 Latest Caselaw 1995 Jhar

                              1


   IN THE HIGH COURT OF JHARKHAND AT RANCHI
                L.P.A. No.43 of 2020
                                  ------

1. The State of Jharkhand, through the Principal Secretary, Human Resource Developement Department, having its office at Project Building, P.O.-Dhurwa, P.S. Jagarnathpur, Dist. Ranchi.

2. The Director, Primary Education, School Education and Literacy Department (HRD), having its office at Project Building, P.O.-Dhurwa, P.S.-Jagarnathpur, Dist Ranchi.

3. The District Superintendent of Educatin, Dhanbad, P.O.+P.S. & Dist. Dhanbad.

                    ....       .... Appellants/Respondents
                           Versus

Dilip Kumar Singh, S/O Sri Birendra Kumar Singh, resident of village + P.O.-Bhaur, P.S.-Khaira, Dist-Jamui, Bihar, presently residing at Station Road, Jharia, Near Head Post Office Jharia, P.O.+ P.S.-Jharia, Dist-Dhanbad.

                    ....     .... Respondent/Petitioner
                            -----
CORAM     : HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
              HON'BLE MR. JUSTICE SUBHASH CHAND
                     ------

For the Appellants : Mr. Gaurang Jajodia, AC to GP-II For the Respondent : Mr. Rupesh Singh, Advocate Mr. Jagdeesh, Advocate

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th Order No.09/Dated 9 May, 2023

Per Sujit Narayan Prasad, J.:

The instant intra-court appeal, under clause 10 of the

Letters Patent, is directed against the order/judgment dated

02.07.2019 passed by learned Single Judge of this Court in

W.P. (S) No. 2404 of 2014 whereby and whereunder the writ

petition has been allowed by quashing the impugned order

dated 17.12.2013 passed by the District Superintendent of

Education, Dhanbad by which he has rejected the proposal

for approval of the service of the petitioner.

I.A. No. 1218 of 2020

2. The instant appeal is admittedly barred by limitation

since there is delay of 188 days in preferring the appeal,

therefore, an application being I.A. No. 1218 of 2020 has been

filed for condoning such delay.

3. This Court, after taking into consideration the fact that

the instant intra-court appeal has been field after inordinate

delay of 188 days, deems it fit and proper, to first consider the

delay condonation application before going into the legality

and propriety of the impugned order on merit

4. Learned counsel for the applicant-petitioner has

submitted that delay in preferring the appeal may be

condoned by allowing the Interlocutory Application on the

basis of grounds shown therein treating the same to be

sufficient.

5. The grounds for condoning the delay in preferring the

appeal, as has been mentioned at paragraph 4 of the

interlocutory application is that after the order dated

02.07.2019 was passed, opinion for filing the instant LPA was

sought and on 11.10.2019 letter was forwarded to the

Director, Primary Education for getting approval for filing the

LPA. Since the dates for State Assembly Election, 2019 was

declared and the present appellants were allotted election

duty. It is only once the election was over in the month of

December, 2019, on 09.01.2020 the approval was received for

filing the LPA. Pursuant to getting approval the grounds for

filing the LPA was prepared and thereafter it could be filed

which resulted in delay.

6. We have heard the learned counsel for the appellants on

delay condonation application and before considering the

same, this Court, deems it fit and proper to refer certain legal

proposition as has been propounded by the Hon‟ble Apex

Court with respect to the approach of the Court in condoning

the inordinate delay.

7. There is no dispute about the fact that generally the lis is

not to be rejected on the technical ground of limitation but

certainly if the filing of appeal suffers from inordinate delay,

then the duty of the Court to consider the application to

condone the delay before entering into the merit of the lis.

8. It requires to refer herein that the Law of limitation is

enshrined in the legal maxim interest reipublicae ut sit finis

litium (it is for the general welfare that a period be put to

litigation). Rules of limitation are not meant to destroy the

rights of the parties, rather the idea is that every legal remedy

must be kept alive for a legislatively fixed period of time, as

has been held in the judgment rendered by the Hon‟ble Apex

Court in Brijesh Kumar & Ors. Vrs. State of Haryana &

Ors., (2014) 11 SCC 351.

The Privy Council in General Accident Fire and Life

Assurance Corpn. Ltd. v. Janmahomed Abdul Rahim,

(1939-40) 67 IA 416, relied upon the writings of Mr. Mitra in

Tagore Law Lecturers, 1932, wherein, it has been said that:

"A Law of limitation and prescription may appear to operate harshly and unjustly in a particular case, but if the law provides for a limitation, it is to be enforced even at the risk of hardship to a particular party as the Judge cannot, on equitable grounds, enlarge the time allowed by the law, postpone its operation, or introduce exceptions not recognized by law."

In P.K. Ramachandran v. State of Kerala, (1997) 7

SCC 556, the Apex Court while considering a case of

condonation of delay of 565 days, wherein no explanation

much less a reasonable or satisfactory explanation for

condonation of delay had been given, held at paragraph-6 as

under:

"6. Law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribes and the courts have no power to extend the period of limitation on equitable grounds."

While considering the similar issue, this Court in Esha

Bhattacharjee v. Raghunathpur Nafar Academy, (2013)

12 SCC 649, wherein, it has been held as under:

"21.5 (v) Lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact.

21.7. (vii) The concept of liberal approach has to encapsulate the conception of reasonableness and it

cannot be allowed a totally unfettered free play. 21.9. (ix) the conduct, behavior and attitude of a party relating to its inaction or negligence are relevant factors to be taken into 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.

22.4. (d) The increasing tendency to perceive delay as a non-serious matter and, hence, lackadaisical propensity can be exhibited in a nonchalant manner requires to be curbed, of course, within legal parameters."

9. It is settled position of Law that when a litigant does not

act with bona fide motive and at the same time, due to

inaction and laches on its part, the period of limitation for

filing the appeal expires, such lack of bona fide and gross

inaction and negligence are the vital factors which should be

taken into consideration while considering the question of

condonation of delay. Reference in this regard may be made to

the judgment rendered by the Division Bench of Gujarat High

Court in State of Gujarat through Secretary & Anr. Vrs.

Kanubhai Kantilal Rana, 2013 SCC Online Guj. 4202,

wherein, at pargraph-17, it has been held that "Law having

prescribed a fixed period of limitation of 30 days for preferring

the appeal, the Government cannot ignore the provisions of

the period of limitation as it was never the intention of the

legislature that there should be a different period of limitation

when the Government is the appellant."

In the case of Post Master General & Ors. Vrs. Living

Media India Limited & Anr., [(2012) 3 SCC 563], it has

been held by the Hon‟ble Apex Court at paragraphs 27 to 29

as under:

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

Likewise, the Hon‟ble Apex Court in State of Madhya

Pradesh & Anr. Vrs. Chaitram Maywade, [(2020) 10 SCC

667], after referring to the judgment rendered by the Hon‟ble

Apex Court in Post Master General & Ors. Vrs. Living

Media India Limited & Anr. (supra,) has held at paragraphs

1 to 5 as hereunder:

"1.The State of Madhya Pradesh continues to do the same thing again and again and the conduct seems to be incorrigible. The special leave petition has been filed after a delay of 588 days. We had an occasion to deal with such inordinately delayed filing of the appeal by the State of Madhya Pradesh in State of M.P. v. Bherulal [State of M.P. v. Bherulal, (2020) 10 SCC 654] in terms of our order dated 15-10-2020.

2. We have penned down a detailed order in that case and we see no purpose in repeating the same reasoning again except to record what are stated to be the facts on which the delay is sought to be condoned. On 5-1-2019, it is stated that the Government Advocate was approached in respect of the judgment delivered on 13-11-2018 [Chaitram Maywade v. State of M.P., [2018 SCC OnLine HP 1632] and the Law Department permitted filing of the SLP against the impugned order on 26-5-2020. Thus, the Law Department took almost about 17

months' time to decide whether the SLP had to be filed or not. What greater certificate of incompetence would there be for the Legal Department.

3. We consider it appropriate to direct the Chief Secretary of the State of Madhya Pradesh to look into the aspect of revamping the Legal Department as it appears that the Department is unable to file appeals within any reasonable period of time much less within limitation. These kinds of excuses, as already recorded in the aforesaid order, are no more admissible in view of the judgment in Postmaster General v. Living Media (India) Ltd. [Postmaster General v. Living Media (India) Ltd., (2012) 3 SCC 563]

4. We have also expressed our concern that these kinds of the cases are only "certificate cases" to obtain a certificate of dismissal from the Supreme Court to put a quietus to the issue. The object is to save the skin of officers who may be in default. We have also recorded the irony of the situation where no action is taken against the officers who sit on these files and do nothing.

5. Looking to the period of delay and the casual manner in which the application has been worded, the wastage of judicial time involved, we impose costs on the petitioner State of Rs 35,000 to be deposited with the Mediation and Conciliation Project Committee. The amount be deposited within four weeks. The amount be recovered from the officer(s) responsible for the delay in filing and sitting on the files and certificate of recovery of the said amount be also filed in this Court within the said period of time. We have put to Deputy Advocate General to caution that for any successive matters of this kind the costs will keep on going up."

The Hon‟ble Apex Court in Ramlal, Motilal and

Chhotelal Vrs. Rewa Coalfields Ltd., (1962) 2 SCR 762,

has held that merely because sufficient cause has been made

out in the facts of the given case, there is no right to the

appellant to have delay condoned. At paragraph-12, it has

been held as hereunder:-

"12. It is, however, necessary to emphasise that even after sufficient cause has been shown a party is not entitled to the condonation of delay in question as a matter of right. The proof of a sufficient cause is a condition precedent for the exercise of the discretionary jurisdiction vested in the court by Section 5. If sufficient cause is not proved nothing further has to be done; the application for condoning delay has to be dismissed on that ground alone. If sufficient cause is shown then the court has to enquire whether in its discretion it should condone the delay. This aspect of the matter naturally introduces the consideration of all relevant facts and it is at this stage that diligence of the party or its bona fides may fall for consideration; but the scope of the enquiry while exercising the discretionary power after sufficient cause is shown would naturally be limited only to such facts as the court may regard as relevant. It cannot justify an enquiry as to why the party was sitting idle during all the time available to it. In this connection we may point out that considerations of bona fides or due diligence are always material and relevant when the court is dealing with applications made under Section 14 of the Limitation Act. In dealing with such applications the court is called upon to consider the effect of the combined provisions of Sections 5 and 14. Therefore, in our opinion, considerations which have been expressly made material and relevant by the provisions of Section 14 cannot to the same extent and in the same manner be invoked in dealing with

applications which fall to be decided only under Section 5 without reference to Section 14. In the present case there is no difficulty in holding that the discretion should be exercised in favour of the appellant because apart from the general criticism made against the appellant's lack of diligence during the period of limitation no other fact had been adduced against it. Indeed, as we have already pointed out, the learned Judicial Commissioner rejected the appellant's application for condonation of delay only on the ground that it was appellant's duty to file the appeal as soon as possible within the period prescribed, and that, in our opinion, is not a valid ground.

Thus, it is evident that while considering the delay

condonation application, the Court of Law is required to

consider the sufficient cause for condonation of delay as also

the approach of the litigant as to whether it is bona fide or not

as because after expiry of the period of limitation, a right is

accrued in favour of the other side and as such, it is

necessary to look into the bona fide motive of the litigant and

at the same time, due to inaction and laches on its part.

It also requires to refer herein that what is the meaning

of „sufficient cause‟. The consideration of meaning of

„sufficient cause‟ has been made in Basawaraj & Anr. Vrs.

Spl. Land Acquisition Officer, [(2013) 14 SCC 81], wherein,

it has been held by the Hon‟ble Apex Court at paragraphs 9 to

15 hereunder:-

"9. Sufficient cause is the cause for which the defendant could not be blamed for his absence. The

meaning of the word "sufficient" is "adequate" or "enough", inasmuch as may be necessary to answer the purpose intended. Therefore, the word "sufficient" embraces no more than that which provides a platitude, which when the act done suffices to accomplish the purpose intended in the facts and circumstances existing in a case, duly examined from the viewpoint of a reasonable standard of a cautious man. In this context, "sufficient cause" means that the party should not have acted in a negligent manner or there was a want of bona fide on its part in view of the facts and circumstances of a case or it cannot be alleged that the party has "not acted diligently" or "remained inactive". However, the facts and circumstances of each case must afford sufficient ground to enable the court concerned to exercise discretion for the reason that whenever the court exercises discretion, it has to be exercised judiciously. The applicant must satisfy the court that he was prevented by any "sufficient cause" from prosecuting his case, and unless a satisfactory explanation is furnished, the court should not allow the application for condonation of delay. The court has to examine whether the mistake is bona fide or was merely a device to cover an ulterior purpose. (See Manindra Land and Building Corpn. Ltd. v. Bhutnath Banerjee [AIR 1964 SC 1336], Mata Din v. A. Narayanan [(1969) 2 SCC 770], Parimal v. Veena [(2011) 3 SCC 545] and Maniben Devraj Shah v. Municipal Corpn. of Brihan Mumbai [(2012) 5 SCC 157].)

10. In Arjun Singh v. Mohindra Kumar [AIR 1964 SC 993] this Court explained the difference between a "good cause" and a "sufficient cause" and observed that every "sufficient cause" is a good cause and vice versa. However, if any difference exists it can only be that the requirement of good cause is complied with on a lesser degree of proof

than that of "sufficient cause".

11. The expression "sufficient cause" should be given a liberal interpretation to ensure that substantial justice is done, but only so long as negligence, inaction or lack of bona fides cannot be imputed to the party concerned, whether or not sufficient cause has been furnished, can be decided on the facts of a particular case and no straitjacket formula is possible.

(Vide Madanlal v. Shyamlal [(2002) 1 SCC 535] and Ram Nath Sao v. Gobardhan Sao [(2002) 3 SCC 195] .)

12. It is a settled legal proposition that law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribes. The court has no power to extend the period of limitation on equitable grounds. "A result flowing from a statutory provision is never an evil. A court has no power to ignore that provision to relieve what it considers a distress resulting from its operation." The statutory provision may cause hardship or inconvenience to a particular party but the court has no choice but to enforce it giving full effect to the same. The legal maxim dura lex sed lex which means "the law is hard but it is the law", stands attracted in such a situation. It has consistently been held that, "inconvenience is not" a decisive factor to be considered while interpreting a statute.

13. The statute of limitation is founded on public policy, its aim being to secure peace in the community, to suppress fraud and perjury, to quicken diligence and to prevent oppression. It seeks to bury all acts of the past which have not been agitated unexplainably and have from lapse of time become stale. According to Halsbury's Laws of England, Vol. 28, p. 266:

"605. Policy of the Limitation Acts.--The courts have expressed at least three differing reasons

supporting the existence of statutes of limitations namely, (1) that long dormant claims have more of cruelty than justice in them, (2) that a defendant might have lost the evidence to disprove a stale claim, and (3) that persons with good causes of actions should pursue them with reasonable diligence."

An unlimited limitation would lead to a sense of insecurity and uncertainty, and therefore, limitation prevents disturbance or deprivation of what may have been acquired in equity and justice by long enjoyment or what may have been lost by a party's own inaction, negligence or laches. (See Popat and Kotecha Property v. SBI Staff Assn. [(2005) 7 SCC 510] , Rajender Singh v. Santa Singh [(1973) 2 SCC 705 : AIR 1973 SC 2537] and Pundlik Jalam Patil v. Jalgaon Medium Project [(2008) 17 SCC 448]

14. In P. Ramachandra Rao v. State of Karnataka [(2002) 4 SCC 578 ] this Court held that judicially engrafting principles of limitation amounts to legislating and would fly in the face of law laid down by the Constitution Bench in Abdul Rehman Antulay v. R.S. Nayak [(1992) 1 SCC 225].

15. The law on the issue can be summarised to the effect that where a case has been presented in the court beyond limitation, the applicant has to explain the court as to what was the "sufficient cause" which means an adequate and enough reason which prevented him to approach the court within limitation. In case a party is found to be negligent, or for want of bona fide on his part in the facts and circumstances of the case, or found to have not acted diligently or remained inactive, there cannot be a justified ground to condone the delay. No court could be justified in condoning such an inordinate delay by imposing any condition whatsoever. The application is to be decided only within the parameters laid down by this Court in

regard to the condonation of delay. In case there was no sufficient cause to prevent a litigant to approach the court on time condoning the delay without any justification, putting any condition whatsoever, amounts to passing an order in violation of the statutory provisions and it tantamounts to showing utter disregard to the legislature."

Thus, it is evident that the sufficient cause means that

the party should not have acted in a negligent manner or

there was a want of bona fide on its part in view of the facts

and circumstances of a case or it cannot be alleged that the

party has "not acted deliberately" or "remained inactive".

However, the facts and circumstances of each case must

afford sufficient ground to enable the Court concerned to

exercise discretion for the reason that whenever the Court

exercises discretion, it has to be exercised judiciously. The

applicant must satisfy the Court that he was prevented by

any "sufficient cause" from prosecuting his case, and unless a

satisfactory explanation is furnished, the Court should not

allow the application for condonation of delay. The Court has

to examine whether the mistake is bona fide or was merely a

device to cover the ulterior purpose as has been held in

Manindra Land and Building Corporation Ltd. Vrs.

Bhutnath Banerjee & Ors., AIR 1964 SC 1336, Lala

Matadin Vrs. A. Narayanan, (1969) 2 SCC 770, Parimal

Vrs. Veena @ Bharti, (2011) 3 SCC 545 and Maniben

Devraj Shah Vrs. Municipal Corporation of Brihan

Mumbai, (2012) 5 SCC 157.

It has further been held in the aforesaid judgments that

the expression „sufficient cause‟ should be given a liberal

interpretation to ensure that substantial justice is done, but

only so long as negligence, inaction or lack of bona fides

cannot be imputed to the party concerned, whether or not

sufficient cause has been furnished, can be decided on the

facts of a particular case and no straitjacket formula is

possible, reference in this regard may be made to the

judgment rendered by the Hon‟ble Apex Court in Ram Nath

Sao @ Ram Nath Sahu & Ors. Vrs. Gobardhan Sao &

Ors., (2002) 3 SCC 195, wherein, at paragraph-12, it has

been held as hereunder:-

"12. Thus it becomes plain that the expression "sufficient cause" within the meaning of Section 5 of the Act or Order 22 Rule 9 of the Code or any other similar provision should receive a liberal construction so as to advance substantial justice when no negligence or inaction or want of bona fides is imputable to a party. In a particular case whether explanation furnished would constitute "sufficient cause" or not will be dependent upon facts of each case. There cannot be a straitjacket formula for accepting or rejecting explanation furnished for the delay caused in taking steps. But one thing is clear that the courts should not proceed with the tendency of finding fault with the cause shown and reject the petition by a slipshod order in over-jubilation of disposal drive. Acceptance of explanation furnished should be the rule and refusal, an exception, more so when no

negligence or inaction or want of bona fides can be imputed to the defaulting party. On the other hand, while considering the matter the courts should not lose sight of the fact that by not taking steps within the time prescribed a valuable right has accrued to the other party which should not be lightly defeated by condoning delay in a routine-like manner. However, by taking a pedantic and hypertechnical view of the matter the explanation furnished should not be rejected when stakes are high and/or arguable points of facts and law are involved in the case, causing enormous loss and irreparable injury to the party against whom the lis terminates, either by default or inaction and defeating valuable right of such a party to have the decision on merit. While considering the matter, courts have to strike a balance between resultant effect of the order it is going to pass upon the parties either way."

10. This Court, after considering the aforesaid proposition

and the explanation furnished in the delay condonation

application to condone the inordinate delay of 348 days, is

proceeding to examine as to whether the explanation

furnished can be said to be sufficient explanation for

condoning the delay.

11. It is evident from the judgments referred hereinabove,

wherein, expression „sufficient cause‟ has been dealt with

which means that the party should not have acted in a

negligent manner or there was a want of bona fide on its part

in view of the facts and circumstances of a case or it cannot

be alleged that the party has "not acted deliberately" or

"remained inactive".

12. This Court, in order to assess as to whether the ground

as has been referred in paragraph 4 can be considered to be

sufficient cause for condoning the delay of 188 days in filing

the appeal, has scrutinized the record and found therefrom

that the order was passed on 02.07.2019 in presence of the

learned counsel for the State.

The requisition for obtaining certified copy of the order is

dated 17.01.2020 which was supplied on 29.01.2020.

However, the appeal has been filed on the basis of the web

copy but the explanation as has been furnished for not filing

the appeal in time is the date for State Assembly Election

since was declared and the appellants were allotted election

duty and it is only when the election was over in the month of

December, 2019, the approval was received for filing the

appeal on 09.01.2020, pursuance thereto the appeal was

filed.

This Court, after considering the aforesaid explanation,

is of the view that the declaration of election cannot be a

ground to condone the delay.

Further, the State Assembly Election, 2019 was said to

have been declared in November, 2019 and was over in the

month of December, 2019 but there is no explanation as to

why the appeal has not been filed before declaration of the

election which admittedly was declared in the month of

November, 2019 when the order dated 02.07.2019 was passed

in presence of learned State counsel, which means, that

election even considered to be a ground for condoning the

delay but in the facts of the given case, the election cannot be

said to be a ground considering it to be a sufficient ground to

condone the delay for the reason that the appeal has been

filed after the limitation to file appeal has already expired on

01.08.2019.

13. This Court, therefore, is of the view that the explanation

which has been furnished by the respondents-appellants in

the delay condonation application, cannot be said to be a

sufficient cause to condone the inordinate delay.

14. The coordinate Bench of this Court has passed an order

in L.P.A. No.86 of 2021 on 05.01.2022 rejecting the delay

condonation application since the appeal was filed after delay

of about 687 days without any sufficient cause to condone the

delay.

15. The reference of another case is required to be made

herein of an order passed by the coordinate Bench of this

Court in L.P.A. No.835 of 2019, wherein, the issue of

condoning the delay of 568 days was under consideration.

The coordinate Bench of this Court has not found the

reason furnished by the State appellants therein to be

sufficient cause on the ground of movement of file from one

table to another by putting reliance upon the judgment

rendered by the Hon‟ble Apex as referred hereinabove.

16. The State appellant has travelled to the Hon‟ble Apex

Court by filing the SLP being SLP No.7755 of 2022 and has

challenged the order passed in L.P.A. No.835 of 2019 but the

said SLP No.7755 of 2022 has been dismissed as would

appear from the order dated 13.05.2022.

17. This Court, after taking into consideration the ratio laid

by the Hon‟ble Apex Court in the judgments referred

hereinabove as also the explanation furnished in the delay

condonation application, is of the view that no sufficient

cause has been shown to condone inordinate delay of 348

days in filing the appeal.

18. Accordingly, the delay condonation application being

I. A. No.1281 of 2020 is hereby dismissed.

19. In consequence thereof, the instant appeal also stands

dismissed.

20. Pending interlocutory applications, if any, also stand

dismissed.

(Sujit Narayan Prasad, J.)

(Subhash Chand, J.)

Birendra/A.F.R.