Jaipur Development Authority vs Omprakash Poonia S/O Shri Baluram ...
2021 Latest Caselaw 7637 Raj/2

       HIGH COURT OF JUDICATURE FOR RAJASTHAN
                   BENCH AT JAIPUR

              D.B. Civil Special Appeal Writ No. 733/2019

                                           In

                   S.B. Civil Writ Petition No. 16519/2011

Jaipur Development Authority, Ramkishore Vyas Bhawan, Near
Indira Circle, JLN Marg, Jaipur, Through Secretary.
                                                                       ----Appellant

                                       Versus

1.        Omprakash Poonia S/o Shri Baluram Poonia, Aged About
          42 Years, Resident of A-56, Officers Colony Extension,
          Sirsi Road, Jaipur.
2.        Jaipur     Development            Authority         Appellate    Tribunal,
          Ramkishore Vyas Bhawan, Near Indira Circle, JLN Marg,
          Jaipur, Through Its Presiding Officer.
                                                                    ----Respondents

For Appellant(s) : Mr. Amit Kuri, Advocate For Respondent(s) : Mr. Prakash Chandra Jain, Advocate

HON'BLE MR. JUSTICE MANINDRA MOHAN SHRIVASTAVA HON'BLE MR. JUSTICE VINOD KUMAR BHARWANI

Judgment / Order

15/12/2021

Heard on application for condonation of delay in filing the

appeal.

This appeal is barred by 214 days.

The only explanation as offered in the application for

condonation of delay is as below:-

"(iii) That the impugned order was passed by the Hon'ble Single Judge on 7.8.2018. After passing the said order, certified copy of the order dated 7.8.2018 was applied on 3.1.2019 and the same was received on 3.1.2019. The delay in between of passing of the judgment

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and applying and receiving of the copy occurred on account of the Assembly elections and the winter brakes. The counsel representing the JDA on account of his personal difficulty was not able to collect the certified copy.

(iv) That in pursuance of the above said, the opinion along with the copy of Judgment was placed before the Deputy Commissioner, Zone- 7 on 7.1.2019 and thereafter the same was forwarded to the legal cell of JDA. In the aforesaid exercise, on account of movement of file at different levels it took some time.

(v) that in pursuance of the opinion of Counsel the matter was placed before the Committee, which on 12.02.2019 proposed for filing of the Appeal before the Hon'ble Division Bench.

(vi) That in pursuance of the aforesaid under the Order dated 25.2.2019 Amit Kuri (Adv.) was engaged as a Counsel to file the Appeal and the JDA wanted to engage the learned Senior Counsel Mr. Rajendra Prasad as a Senior Counsel in the matter, who was there in the Writ Petition as well, thus, the talks were going with him.

(vii) That finally the learned Senior Counsel Mr. Rajendra Prasad on 1.5.2019 denied to represent the JDA for his personal reasons.

(viii) That thereafter, after examination of the record made available to the counsel, the counsel, got prepared the appeal on 3.5.2019 and forwarded the same to the OIC, for purpose of vetting and approval. The OIC after examining the appeal found there to be some errors in dates and thus handed over the Draft to the counsel on 5.5.2019.

(ix) That after making the necessary corrections and on account of there being holidays in the Hon'ble Court the Counsel handed over the Appeal again to the OIC of the case on 8.5.2019, which after being getting approved and verified and approved at different levels was handed over to the Counsel."

The cause shown for delay, is far from being satisfactory and

only reflects indolence on the part of the JDA in prosecuting the

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matter and seeking to avail remedy of appeal under the law, if

aggrieved by the order passed by learned Single Judge.

Their Lordships of the Supreme Court in two recent judicial

pronouncements have deprecated this practice on the part of the

State Authority in sitting over the matter and filing appeals after

inordinate delay coming-forth with the only excuse of matter

having remained pending in the Office from one table to the other.

In the case of State of Madhya Pradesh & Ors. V.

Bherulal, 2020 SCC Online SC 849, it was found that the

appeal filed by the State was with delay of 663 days. The cause

shown for inordinate delay in that case was due to unavailability of

documents and the process of arranging documents and also a

reference to bureaucratic process works. In the aforesaid factual

context, Their Lordships of the Supreme Court, referring to its

earlier decision, observed as below-

"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 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.

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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 due to considerable degree of procedural redtape 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!"

In another decision, in the case of Government of

Maharashtra (Water Resources Department) V. M/s. Borse

Brothers Engineers and Contractors Pvt. Ltd., 2021 SCC

Online SC 233 also, in the factual context of long delay of 75

days, the explanation was found to be short of any sufficient

cause. The explanation in the aforesaid case was noted in para 65

of the said judgment as below -

"65. That apart, on the facts of this appeal, there is a long delay of 75 days beyond the period of 60 days provided by the Commercial Courts Act. Despite the fact that a certified copy of the District Court's judgment was obtained by the respondent on 27.04.2019, the appeal was filed only on 09.09.2019, the explanation for delay being:

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"2. That, the certified copy of the order dated 01/04/2013 was received by the appellant on 27/04/2019. Thereafter the matter was placed before the CGM purchase MPPKVVCL for the compliance of the order. The same was then sent to the law officer, MPPKVVCL for opinion.

3. That after taking opinion for appeal, and approval of the concerned authorities, the officer- in-charge was appointed vide order dated 23/07/2019.

4. That, thereafter due to bulky records of the case and for procurement of the necessary documents some delay has been caused however, the appeal has been prepared and filed to pursuant to the same and further delay.

5. That due to the aforesaid procedural approval and since the appellant is a public entity formed under the Energy department of the State Government, the delay caused in filing the appeal is bonafide and which deserve[s] to be condoned."

However, the Hon'ble Supreme Court was not satisfied

with the cause shown on the above lines and it was held as

below :

"66. This explanation falls woefully short of making out any sufficient cause. This appeal is therefore allowed and the condonation of delay is set aside on this score also."

Taking into consideration the cause shown in the condonation

application and in the light of the observations made by the

Hon'ble Supreme Court in two cases, we find ourselves unable to

condone the long delay which is bereft of any sufficient cause.

Accordingly, D.B. Civil Miscellaneous Application No.

500/2019 seeking condonation of delay is rejected.

Consequently, the appeal is also dismissed as barred by

limitation.

(VINOD KUMAR BHARWANI),J (MANINDRA MOHAN SHRIVASTAVA),J

Mohita /22

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