State Of Odisha And Others vs Banamali Panigrahi And Others
2021 Latest Caselaw 10650 Ori

                     IN THE HIGH COURT OF ORISSA AT CUTTACK

                                   W.P. (C) No.19082 of 2017


            State of Odisha and others                    ....        Petitioners
                                                        Mr. M. K. Khuntia, AGA
                                      -versus-
            Banamali Panigrahi and others           .... Opposite Parties
              M/s. K. P. Dash and associates, Advocate for Opp. Party No.1


                        CORAM:
                        THE CHIEF JUSTICE
                        JUSTICE B. P. ROUTRAY

                                            ORDER

05.10.2021 Order No.

03. 1. The Petitioners-State of Odisha filed the present writ petition on 6th September, 2017 challenging an order dated 30th September, 2015 passed by the Odisha Administrative Tribunal, Principal Bench, Bhubaneswar (OAT) in O.A. No.1222 of 2013.

2. When asked about the delay of more than two years in approaching this Court, the only explanation offered is in para 13 of the writ petition. It is stated therien how a decision was taken by the Law Department to challenge the order of the OAT and after submission of necessary documents in 2017, a draft writ petition was prepared and filed the same accordingly. For ready reference, the said para 13 reads as under:

"13. That, the impugned Order dtd. 30.09.2015 was received by the Petitioners on 16.02.2016. Thereafter, vide letter No.2061(WE), dtd. 24.02.2016, the Petitioner No.3 was requested by the Petitioner No.4 for appropriate action in the matter. Accordingly, the superintending engineer vide letter No.3168, dtd. 30.03.2016 submitted a report to the Petitioner No.2 for necessary action in the matter. Thereafter, the Petitioner No.2 vide letter No.4119(WE), dtd. 27.04.2016 requested the Petitioner No.4 for submission of necessary clarifications. Accordingly, necessary clarifications were submitted to the Petitioner No.3 vide letter No.7628, dtd. 25.07.2016. Thereafter, the Petitioner No.2 vide letter No.29237, dtd. 12.08.2016 requested the Petitioner No.3 to submit necessary views to challenge the order of the learned Tribunal. Accordingly, the Petitioner No.3 vide letter No.10677, dtd. 14.12.2016 submitted necessary reply to the Petitioner No.2. After receipt of necessary informations from the Petitioner Nos.3 & 4, the Petitioner No.2 submitted the records to the Petitioner No.1 for necessary action in the matter. Thereafter, the matter was moved to the Law Department for necessary advice regarding the future course of action on the Order dtd. 30.09.2015 passed by the learned Tribunal. Thereafter the approval of the Law Department vide letter dtd. 12.05.2017 was received by the Water Resources Department on 12.05.2017. The government in Water Resources Department vide letter No.12304/WR, dtd. 23.05.2017 communicated to the Petitioner No.2 regarding sanction of Law Department for filing Writ Petition with a copy under Memo No.12306/WR, dtd. 23.05.2017. Thereafter, the Office of the learned Advocate General was contacted vide letter No.6142(WE), dtd. 30.05.2017 for filing of the Writ Petition. Thereafter, the Office of the learned Advocate General after perusal of the same, sought for some documents / instructions vide letter No.13490,

dtd. 13.06.2017. The documents were submitted to the Office of the learned Advocate General vide letter No.7091(WE), dtd. 01.07.2017 by the Executive Engineer, Main Dam Division, Burla. After submission of necessary documents, the draft Writ Petition was made ready. Accordingly, the Writ Petition is filed today, as a consequence thereof, there has been some delay in filing the Writ Petition. There are no deliberate latches on the part of the Petitioners in filing the Writ Petition. The delay is unintentional and bonafide."

3. The Supreme Court has in numerous decisions in the recent past taken a strict view of the State authorities failing to approach the Court in reasonable time against orders adverse to them. In The State of Madhya Pradesh v. Bherulal 2020 SCC OnLine SC 849, it was held by the Supreme Court as under:

"2. We are constrained to pen down a detailed order as it appears that all our counseling to Government and Government authorities have fallen on deaf ears i.e., the Supreme Court of India cannot be a place for the 2 Governments to walk in when they choose ignoring the period of limitation prescribed. We have raised the issue that if the Government machinery is so inefficient and incapable of filing appeals/petitions in time, the solution may lie in requesting the Legislature to expand the time period for filing limitation for Government authorities because of their gross incompetence. That is not so. Till the Statute subsists, the appeals/petitions have to be filed as per the Statues prescribed.

3. No doubt, some leeway is given for the Government inefficiencies but the sad part is that the authorities keep on relying on judicial

pronouncements for a period of time when technology had not advanced and a greater leeway was given to the Government (Collector, Land Acquisition, Anantnag & Anr vs. Mst. Katiji & Ors. (1987) 2 SCC 107). This position is more than elucidated by the judgment of this Court in Office of the Chief Post Master General & Ors. v.Living Media India Ltd. & Anr. (2012) 3 SCC 563 where the Court observed as under:

"12) 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 3 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. 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 bonafide, 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.

13) 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 bonafide effort, there is no need to accept the usual explanation that the file was kept pending for several months/years 4 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. Considering the fact that there was no proper explanation offered by the Department for the delay except mentioning of various dates, according to us, the Department has miserably failed to give any acceptable and cogent reasons sufficient to condone such a huge delay."

Eight years hence the judgment is still unheeded!

4. A reading of the aforesaid application shows that the reason for such an inordinate delay is stated to be only "due to unavailability of the documents and the process of arranging the documents". In paragraph 4 a reference has been made to "bureaucratic process works, it is inadvertent that delay occurs".

5. A preposterous proposition is sought to be propounded that if there is some merit in the case, the 5 period of delay is to be given a go-by. If a case is good on merits, it will succeed in any case. It is really a bar of limitation which can even shut out good cases. This does not, of course, take away the jurisdiction of the Court in an appropriate case to condone the delay.

6. We are also of the view that the aforesaid approach is being adopted in what we have categorized earlier as "certificate cases". The object appears to be to obtain a certificate of dismissal from the Supreme Court to put a quietus to the issue and thus, say that nothing could be done because the highest Court has dismissed the appeal. It is to complete this formality and save the skin of officers who may be at default that such a process is followed. We have on earlier occasions also strongly deprecated such a practice and process. There seems to be no improvement. The purpose of coming to this Court is not to obtain such certificates and if the Government suffers losses, it is time when the concerned officer responsible for the same bears the consequences. The irony is that in none of the cases any action is taken against the officers, who sit on the files and do nothing. It is presumed that this Court will condone the delay and even in making submissions, straight away counsels appear to 6 address on merits without referring even to the aspect of limitation as happened in this case till we pointed out to the counsel that he must first address us on the question of limitation.

7. We are thus, constrained to send a signal and we propose to do in all matters today, where there are such inordinate delays that the Government or State authorities coming before us must pay for wastage of judicial time which has its own value. Such costs can be recovered from the officers responsible.

8. Looking to the period of delay and the casual manner in which the application has been worded, we consider appropriate to impose costs on the petitioner-State of Rs.25,000/- (Rupees twenty five thousand) to be deposited with the Mediation and Conciliation Project Committee. The amount be deposited in four weeks. The amount be recovered

from the officers responsible for the delay in filing the special leave petition and a certificate of recovery of the said amount be also filed in this Court within the said period of time.

9. The special leave petition is dismissed as time barred in terms aforesaid."

4. The Supreme Court has recently in a series of matters reiterated that the explanation usually offered by the State and its entities for the delay on account of administrative exigencies should not be accepted unless they are shown to be justified. A sampling of such orders is as under:

(i) Order dated 13th January 2021 in SLP No.17559 of 2020 (State of Gujarat v. Tushar Jagdish Chandra Vyas & Anr.)

(ii) Order dated 22nd January 2021 in SLP No.11989 of 2020 (The Commissioner of Public Instruction & Ors. v. Shamshuddin)

(iii) Order dated 22nd January 2021 in SLP No.25743 of 2020 (State of Uttar Pradesh & Ors v. Sabha Narain & Ors.)

(iv) Order dated 4th February 2021 in SLP No.19846 of 2020 (Union of India v. Central Tibetan Schools Admin & Ors)

(v) Order dated 11th January 2021 in SLP No.22605 of 2020 (The State of Odisha & Ors v. Sunanda Mahakuda)

5. The Court is not satisfied that in the present case any satisfactory explanation has been offered by the State of Odisha for the inordinate delay in filing the present petition. Consequently, the writ petition is dismissed on the ground of delay and laches.

6. However, the question of law is kept open for consideration in another appropriate case.

(Dr. S. Muralidhar) Chief Justice

(B.P. Routray) Judge M. Panda