Kerala High Court
State Of Kerala vs Shamsudeen Kunju on 4 August, 2021
WA No.878/2021 1/7
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
Wednesday, the 4th day of August 2021 / 13th Sravana, 1943
CM.APPL.NO.1/2021 IN WA NO. 878 OF 2021
AGAINST JUDGMENT DATED 27.09.2017 IN WP(C) 26626/2010 OF THIS COURT .
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APPLICANTS/APPELLANTS/RESPONDENTS 1 TO 4 IN THE W.P(C):
1.STATE OF KERALA,REPRESENTED BY THE SECRETARY TO GOVERNMENT,
IRRIGATION DEPARTMENT,THIRUVANANTHAPURAM.
2.THE CHIEF ENGINEER,KALLADA IRRIGATION PROJECT,
IRRIGATION CELL,MUSEUM,THIRUVANANTHAPURAM.
3.THE EXECUTIVE ENGINEER,KALLADA IRRIGATION PROJECT,
NEAR ASRAMAM ROAD,KOLLAM.
4.THE ASSISTANT EXECUTIVE ENGINEER,
KALLADA IRRIGATION PROJECT,CIVIL STATION,
KARUNAGAPPALLY,KOLLAM.
RESPONDENTS/RESPONDENTS/PETITIONERS AND 5TH RESPONDENT IN W.P.(C):
1.SHAMSUDEEN KUNJU,S/O.IBRAHIMKUTTY,'SHA' MANZIL,
KULASEKHARAPURAM,KARUNAGAPPALLY,KOLLAM-690 544.
2.THANKAPPAN,PULLAMPLAYIL,KADATHOOR,KULASEKHARAPURAM,
KARUNAGAPPALLY,KOLLAM-690 544.
3.THE KULASEKHARAPURAM GRAMA PANCHAYAT,ADINATH,
NORTH QUILON-690 542. REPRESENTED BY ITS SECRETARY.
Application praying that in the circumstances stated in the
affidavit filed therewith the High Court be pleased to condone the delay
of 862 days in filing the writ appeal.
This Application coming on for orders on 04.08.2021 upon perusing
the application and the affidavit filed in support thereof, and upon
hearing the arguments of GOVERNMENT PLEADER for the Applicants and of
SRI.T.GOPALAKRISHNAN Advocate for the first respondent, the court passed
the following:
P.T.O.
WA No.878/2021 2/7
S. MANIKUMAR, CJ
&
SHAJI P. CHALY, J
-----------------------------------------------
C.M.Appl. No. 1 of 2021
in
W.A. No. 878 of 2021
----------------------------------------------
Dated this the 4th day of August, 2021
ORDER
S. Manikumar, CJ.
Instant writ appeal is directed against the judgment in W.P.
(C).No.26626 of 2010 dated 27.9.2017, by which writ court directed that
appropriate action be taken to cover the distributary in the area in
question, namely KIP Canal at CH 4900 to NH Puliyinkulangara. Writ
appeal is filed with a delay of 862 days. Hence C.M.Appl. .No.1 of 2021
is filed for condonation of delay.
2. Reasons assigned in the supporting affidavit are that the writ
court disposed of the matter on 27.9.2017. Copy application was made
on 30.5.2018. Copy was made ready on 31.5.2018 and the same was
delivered on 11.6.2018. Instant appeal is stated to have been filed on
9.4.2021. Except to say that the delay is attributable due to
administrative reasons, no specific reasons are assigned in the
supporting affidavit to C.M.Appln. No.1 of 2021. There is a delay of 8
months in filing copy application and thereafter, 646 days delay in filing
the writ appeal, after receiving the certified copy of the judgment.
WA No.878/2021 3/7
W.A.878/21
3. On the aspect of citing administrative reasons for condonation
of delay, let us consider few decisions:
(i) In United India Insurance Co. Ltd., Divisional Office v. Pravin Paul and
Others reported in (1993) 1 LW 68 : (1993) 2 MLJ 174, a Hon'ble Division
Bench of the Madras High Court held as under:
"The averment that the administrative delay cannot be
avoided in Government undertaking for more reason than
one be accepted and that it is not a valid reason to
condone the delay. The petitioner has filed to come forward
as to how the delay has occurred. He must give fuller
details with dates as to when the papers were sent to the
Regional Office, when the managers concerned were
deputed to attend policy matters of importance, when they
advised petitioner to fill appeal and why such delay has
occurred. The affidavit is bereft of details. It well
established that every day's has to be explained properly
and there must be reasonable and acceptable explanation
for the delay. In this case except the averment that the
administrative delay cannot be avoided, there is no
acceptable reason for the delay with all particulars. We are
not happy with the reasoning given in para 5 of the affidavit
wherein it is stated 'I most respectfully submit is a
Government undertaking like the petitioner, administrative
delay cannot for the delay. The Government undertaking
cannot be equated with the Government and they are
expected to give details with regard to the delay. We
cannot condone the delay if it is simply stated,
'administrative delay'."
(ii) In Municipal Corporation of Ahmedabad v. Voltas Limited and Others [AIR
1995 Guj 29], a Hon'ble Full Bench of the Gujarat High Court held as under.
"The plea on the part on the applicants that the delay was
caused by 'administrative delay/administrative reasons/
administrative procedure' (and analogous expressions) is
merely an averment in the nature of a plea which by itself
and ipso facto does not establish sufficiency of the cause
for condition. Precise factual reasons for the delay within
the general ambit of the said phrase must be established
and that too the satisfaction of the court. Hence, it cannot
be held that, because the applicant is a Municipal
WA No.878/2021 4/7
W.A.878/21
Corporation or a statutory authority, delay should be
condoned even if no reason or cause for delay in filing
appeal is mentioned in the application, mere mention of the
phrase "administrative delay." In the application for
condonation of delay is not sufficient cause by any
standard."
In the above said decision while delivering the judgment, His Lordship
Justice Y. B. Bhatt further held as under:
"......... the cause referred to variously as 'administrative
delay/administrative reasons/administrative procedure'
cannot by itself be a sufficient cause, irrespective of the
facts of the case. 'Administrative delay/administrative
reasons/administrative procedure is merely a reason set
out for condonation of delay. Setting out such a reason is
merely in the nature of a plea or an averment, and this can
only be made good by establishing the same on the basis
of this appropriate facts brought on record, which would
assist the applicant in satisfying the court as regards
sufficiency of the cause. When an applicant sets out that
the delay was on account of 'administrative reasons', it is
certainly a cause for the delay, i.e., it is the reason behind
the delay. This by itself does not necessarily make it
'sufficient cause' within the meaning of the provision. What
may be 'sufficient' for condoning the delay must necessarily
be established from the facts, both averred and such facts
would necessarily differ from case to case. Clearly
therefore, merely pleading or even asserting that the cause
for delay was 'administrative delay reasons/administrative
procedure' would not established the sufficiency of the
cause."
(iii) In State (NCT of Delhi) v. Ahmed Jaan reported in (2008) 14 SCC 582, the
Hon'ble Supreme Court held as under:
"7. The proof by sufficient cause is a condition precedent
for exercise of the extraordinary discretion vested in the
court. What counts is not the length of the delay but the
sufficiency of the cause and shortness of the delay is one
of the circumstances to be taken into account in using the
discretion. In N. Balakrishnan v. M. Krishnamurthy [2008
(228) ELT 162(SC)], it was held by this Court that Section 5
is to be construed liberally so as to do substantial justice to
the parties. The provision contemplates that the Court has
to go in the position of the person concerned and to find out
WA No.878/2021 5/7
W.A.878/21
if the delay can be said to have been resulted from the
cause which he had adduced and whether the cause can
be recorded in the peculiar circumstances of the case is
sufficient. Although no special indulgence can be shown to
the Government which, in similar circumstances, is not
shown to an individual suitor, one cannot but take a
practical view of the working of the Government without
being unduly indulgent to the slow motion of its wheels.
8. What constitutes sufficient cause cannot be laid down by
hard and fast rules. In New India Insurance Co. Ltd. v.
Shanti Misra [1976] 2 SCR 266, this Court held that
discretion given by Section 5 should not be defined or
crystallised so as to convert a discretionary matter into a
rigid rule of law. The expression "sufficient cause" should
receive a liberal construction. In Brij Indar Singh v. Kanshi
Ram [ILR (1918) 45 Cal 94 (PC)], it was observed that true
guide for a court to exercise the discretion under Section 5
is whether the appellant acted with reasonable diligence in
prosecuting the appeal. In Shakuntala Devi Jain v. Kuntal
Kumari [1969] 1 SCR 1006, a Bench of three Judges had
held that unless want of bona fides of such inaction or
negligence as would deprive a party of the protection of
Section 5 is proved, the application must not be thrown out
or any delay cannot be refused to be condoned.
9. In Concord of India Insurance Co. Ltd. v. Nirmala Devi
[1979]118 ITR 507(SC) which is a case of negligence of the
counsel which misled a litigant into delayed pursuit of his
remedy, the default in delay was condoned. In Lala Mata
Din v. A. Narayanan [1969 (2) SCC 770], this Court had
held that there is no general proposition that mistake of
counsel by itself is always sufficient cause for condonation
of delay. It is always a question whether the mistake was
bona fide or was merely a device to cover an ulterior
purpose. In that case it was held that the mistake
committed by the counsel was bona fide and it was not
tainted by any mala fide motive.
10. In State of Kerala v. E. K. Kuriyipe [1981 Supp SCC
72], it was held that whether or not there is sufficient cause
for condonation of delay is a question of fact dependant
upon the facts and circumstances of the particular case. In
Milavi Devi v. Dina Nath (1982) 3 SCC 366, it was held that
the appellant had sufficient cause for not filing the appeal
within the period of limitation. This Court under Article 136
WA No.878/2021 6/7
W.A.878/21
can reassess the ground and in appropriate case set aside
the order made by the High Court or the Tribunal and remit
the matter for hearing on merits. It was accordingly allowed,
delay was condoned and the case was remitted for
decision on merits.
11. In O.P. Kathpalia v. Lakhmir Singh [AIR 1984 SC 1744],
a Bench of three Judges had held that if the refusal to
condone the delay results in grave miscarriage of justice, it
would be a ground to condone the delay. Delay was
accordingly condoned. In Collector Land Acquisition v.
Katiji (1987) ILLJ 500 SC, a Bench of two Judges
considered the question of the limitation in an appeal filed
by the State and held that Section 5 was enacted in order
to enable the court to do substantial justice to the parties by
disposing of matters on merits. The expression "sufficient
cause" is adequately elastic to enable the court to apply the
law in a meaningful manner which subserves the ends of
justice - that being the life-purpose for the existence of the
institution of courts. It is common knowledge that this Court
has been making a justifiably liberal approach in matters
instituted in this Court. But the message does not appear to
have percolated down to all the other courts in the
hierarchy. This Court reiterated that the expression "every
day's delay must be explained" does not mean that a
pedantic approach should be made. The doctrine must be
applied in a rational common sense pragmatic manner.
When substantial justice and technical considerations are
pitted against each other, cause of substantial justice
deserves to be preferred for the other side cannot claim to
have vested right in injustice being done because of a non-
deliberate delay. There is no presumption that delay is
occasioned deliberately, or on account of culpable
negligence, or on account of mala fides. A litigant does not
stand to benefit by resorting to delay. In fact he runs a
serious risk. Judiciary is not respected on account of its
power to legalise injustice on technical grounds but
because it is capable of removing injustice and is expected
to do so. Making a justice-oriented approach from this
perspective, there was sufficient cause for condoning the
delay in the institution of the appeal. The fact that it was the
State which was seeking condonation and not a private
party was altogether irrelevant. The doctrine of equality
before law demands that all litigants, including the State as
a litigant, are accorded the same treatment and the law is
WA No.878/2021 7/7
W.A.878/21
administered in an even-handed manner. There is no
warrant for according a step-motherly treatment when the
State is the applicant. The delay was accordingly
condoned."
4. However, having regard to the contentions raised that KIP
Canals are passing through three districts having 60000 Ha and above
ayacut areas and above 90% of the canals are open canals having
depth of 1 to 10 meters and above and all are passing through highly
inhabitated and residential areas and if the distributary is covered, then
it would cause inconvenience in cleaning the canal and also cause
hardship to the inhabitants, we are inclined to condone the delay, on
payment of cost of Rs.5,000/-, to be paid to the respondents through the
learned counsel for the respondents, within three weeks from today,
failing which C.M.Appln. No.1 of 2021 would stand dismissed.
On payment of cost and filing of cost memo, Registry is directed
to list the matter for admission.
Sd/-
S. Manikumar,
Chief Justice
Sd/-
Shaji P. Chaly,
Judge
sou.
04-08-2021 /True Copy/ Assistant Registrar
