Madhya Pradesh High Court
The State Of Madhya Pradesh vs Jaipuri Cooperative Housing ... on 28 February, 2023
Author: Sushrut Arvind Dharmadhikari
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE SUSHRUT ARVIND DHARMADHIKARI
&
HON'BLE SHRI JUSTICE PRAKASH CHANDRA GUPTA
ON THE 28 th OF FEBRUARY, 2023
WRIT APPEAL No. 35 of 2022
BETWEEN:-
1. THE STATE OF MADHYA PRADESH THROUGH
SECRETARY REVENUE DEPARTMENT VALLABH
BHAWAN BHOPAL (MADHYA PRADESH)
2. COMPETENT AUTHORITY URBAN LAND (CEILING
AND REGULATIONS) ACT 1976 INDORE (MADHYA
PRADESH)
3. COMMISSIONER INDORE DIVISION (MADHYA
PRADESH)
.....APPELLANTS
( SHRI AAKASH SHARMA , GOVT. ADVOCATE FOR THE
APPELLANTS/STATE)
AND
JAIPURI COOPERATIVE HOUSING SOCIETY LIMITED
THROUGH ITS PRESIDENT NASRUDDIN S/O
MOHAMMED, KHAJRANA (MADHYA PRADESH)
.....RESPONDENTS
(SHRI VEER KUMAR JAIN , SR. ADVOCATE WITH SHRI VAIBHAV JAIN,
LEARNED COUNSEL FOR THE RESPONDENT [R-1].
This appeal coming on for admission this day, JUSTICE SUSHRUT
ARVIND DHARMADHIKARI passed the following:
ORDER
This writ appeal under Section 2(1) of the Madhya Pradesh Uccha
Nyayalaya (Khand Nyaypeeth Ko Appeal) Adhiniyam, 2005 has been filed being
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aggrieved by the order dated 23.02.2017 passed by learned Single Judge in Writ
Petition No.4099/2009.
2. I.A. No. 283/2022, an application for condonation of delay in filing
the present writ appeal is taken up.
3. The present writ appeal is barred by 1692 days.
4. Learned counsel for the appellants/State submitted that after passing
of the impugned order dated 23.02.2017, the same was sent for seeking legal
opinion on 27.03.2017. The legal opinion was received on 04.04.2017.
Thereafter, the file was forwarded to the higher authorities on 11.04.2017 which
was subsequently forwarded to the Law Department on 03.05.2017. The Law
Department in turn granted requisite permission to file the writ appeal vide
communication dated 22.03.2017. The Officer Incharge of the case was also
appointed on 11.07.2017. Thereafter, the Officer Incharge contacted the Office
of the Advocate General and the file was marked to the concerned Govt.
Advocate on 08.02.2018. Thereafter, the Government Advocate demanded
certain documents. Efforts were made to correct the requisite record for
preparation of the appeal. In the meanwhile, vide notification dated 28.12.2018,
the State Government structurally re-organized the Tehsil area Vijay Nagar,
Indore which was earlier falling under Tehsil Vijay Nagar area and after
restructuring, it was shifted under the Tehsildar Juni, Indore. As a result of
which, the file got misplaced. Therefore, the file could not be traced for a long
time. As soon as the file was traced, present writ appeal was filed without any
further delay.
5. The learned counsel for appellants/State also took a plea of Covid-19
on the ground that the entire machinery was deployed in Covid-19 operations
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and smooth functioning of the administration was affected to a great extent. As
a result of which timely action could not be taken. It is further contended that
the Collector, Indore granted permission to file the appeal on 09.12.2021.
Thereafter again, the Officer Incharge was appointed who contacted the
Advocate General Office on 13.12.2021. Accordingly, the writ appeal was filed.
6. Learned counsel for the appellant further contended that the delay is
genuine which has been caused due to procedural formalities and the same is
being bonafide on the part of the appellants. Therefore, delay in filing the
appeal deserves to be condoned.
7. Learned counsel for the appellants/State in support of his contentions
has placed reliance on the judgment passed in the case of State of Haryana
Vs. Chandramani and Others reported in 1996 (3) SCC 132 wherein it has
been held thus:
"When the State is an applicant, praying for condonation of
delay, it is common knowledge that on account of impersonal machinery
and the inherited bureaucratic methodology imbued with the note-
making, file-pushing, and passing-on-the-buck ethos, delay on the part
of the State is less difficult to understand though more difficult to
approve, but the State represents collective cause of the community. It is
axiomatic that decisions are taken by officers/agencies proverbially at
slow pace and encumbered process of pushing the files from table to
table and keeping it on table for considerable time causing delay
intentional or otherwise - is a routine. Considerable delay of procedural
red tape in the process of their making decision is a common feature.
Therefore, certain amount of latitude is not impermissible. If the appeals
brought by the State are lost for such default no person is individually
affected but what in the ultimate analysis suffers, is public interest. The
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expression "sufficient cause" should, therefore, be considered with
pragmatism in justice-oriented approach rather than the technical
detection of sufficient cause for explaining every day's delay. "
8 . Per contra, learned counsel appearing for the respondent by filing
reply to the application for condonation of delay (I.A. No. 283/2022)(Doc. No.
0031/2022) contended that it is not disputed that the order passed by the
learned writ Court was not in the knowledge of the appellant since inception. In
compliance of the order of learned writ Court, the respondents have initiated
several proceedings before the authorities and several orders were also passed.
Since there was utter defiance of the order passed by the learned writ Court, the
petitioner filed writ appeal and thereafter as a counter blast, this writ appeal has
been filed wholly on untenable grounds. With a view to overcome the statutory
bar, the present application seeking condonation of delay has been filed.
9. The appellants have not been able to explain the day to day delay/put
forth reasons for condoning the delay. In fact, the permission to file writ appeal
was granted on 22.05.2017. The OIC was also appointed, but appellants did
not chose to file writ appeal for more than five years.
10. In view of the settled legal principles of law when the delay and
latches in filing the writ petitions/appeals cannot be brushed aside, otherwise,
the same would amount to reviewing a dead/stale claim. Hence, the present
appeal deserves to be dismissed on the ground of delay and latches.
11. Learned counsel for the respondent in support of his above
contentions relied on various judgements of the Apex Court which are as
follows:
In the case of Postmaster General & Ors. Vs. Living
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Media India Ltd. & Anr(2012) 3 SCC 563, it is held that merely
because the Government is involved, different yardsticks cannot be
laid down for condoning the delay. The SLPs dismissed due to delay
of 427 days.
In the case of State of Madhya Pradesh And Others Vs.
Bherulal reported in (2020)10 SCC 654, the Apex Court held that
unavailability of documents and the process of arranging the
documents and bureaucratic process works cannot be a ground to
condone the delay in filing of an appeal by the State. The delay of
663 days was not condoned and the SLP was dismissed with a cost
of Rs. 25,000/-.
In the case of State of M.P. & Anr. Vs. Chaitram
Maywade reported in (2020)10 SCC 667, it was held that the
Law Department took 17 months in permitting filing of SLP.
Officers responsible cannot just sit on the files and delay its filing.
The SLP was dismissed with a cost of Rs. 35,000/- as delay of 588
days has occurred.
In the case of Govt. of India Vs. Md Wasim Akram in SLP
(Cri) Diary No. 10760/2020, although it was a good case on
merits, the threshold bar of delay and latches cannot be ignored. SLP
was dismissed with a cost of Rs. 25,000/- for a delay of 254 days.
12. Heard, learned counsel for the parties and perused the record.
13. In the present appeal, there is a delay of 1692 days in filing the writ
appeal. In the application seeking condonation of delay, no plausible
explanation has been put forth by the appellants/State for such delay, therefore,
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the present appeal suffers from inordinate delay and latches and the same is
liable to be dismissed.
1 4 . Whilst, it is true that limitation does not strictly apply to the
proceedings under Article 32 or 226 of the Constitution of India, nevertheless
such rights cannot be enforced after an unreasonable lapse of time.
Consideration of unexplained delays and inordinate latches would always be
relevant in writ actions and writ Courts naturally ought to be reluctant in
exercising their discretionary jurisdiction to protect those who have slept over
wrongs and allowed illegalities to fester. Fence sitters cannot be allowed to
barge into Courts and cry for their rights at their convenience and vigilant
citizens ought not to be treated alike with mere opportunists. On multiple
occasions, it has been restated by the Apex Court for there are implicit
limitations of time within which writ remedies can be enforced.
15. In the case of S.S. Balu Vs. State of Kerela, the Apex Court has
observed that " it is also well-settled principle of law that "delay defeats
equity"..... It is now a trite law that where the writ petitioner approaches the
High Court after a long delay, reliefs prayed for may be denied to them on the
ground of delay and latches.
16. In view of the aforesaid pronunciation of law and the fact that the
delay has not been properly explained, I.A. No. 283/2022 seeking condonation
of delay is hereby rejected.
17. Consequently, writ appeal also stands dismissed.
(S. A. DHARMADHIKARI) (PRAKASH CHANDRA GUPTA)
JUDGE JUDGE
sh
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Signed by: SEHAR HASEEN
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