Rajasthan High Court - Jodhpur

State Of Rajasthan vs Aamina on 16 February, 2022

Bench: Manindra Mohan Shrivastava, Madan Gopal Vyas

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR D.B. Spl. Appl. Writ No. 47/2020

1. State Of Rajasthan, Through The Secretary, Department Of Rural Development And Panchayati Raj, Government Of Rajasthan, Jaipur (Raj.)

2. Chief Executive Officer, Zila Parishad, Barmer (Raj.)

----Appellants Versus Aamina D/o Mohammad Harun, Aged About 29 Years, Ward No.26 Near Pwd Rest House, Mominpura Mohalla, Noar District Hanumangarh (Raj.)

----Respondent

For Appellant(s) : Mr. Utkarsh S. Gurjar Mr. Sunil Beniwal, AAG For Respondent(s) :

HON'BLE MR. JUSTICE MANINDRA MOHAN SHRIVASTAVA HON'BLE MR. JUSTICE MADAN GOPAL VYAS

Judgment

16/02/2022

Though the case is listed for order we find that there is long and

unexplained delay of 310 days in filing the appeal. In order to

explain delay, all that has been stated in the application is as

below:-

2. "That the learned Single Judge decided the writ petition preferred by the Respondent-petitioner vide order dated 02.01.2018. It is submitted that there were large number of similar writ petition were allowed and some writ petition were dismissed and therefore deliberation was going on within department that what steps could be taken. It is submitted that in most of the cases the appeals were filed. However, inadvertently in the instant case the appeal could not be filed thereafter when this fact came into the knowledge of Respondents that no appeal could be filed in the present case than it was decided to prefer an appeal of the impungned order dated 02.01.2018. However, similar cases have been adjudicated by the Division Bench and looking to the

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identical controversy involved in the present matter it was decided to file an appeal of the impugned order passed by the Learned Single Judge. It is pertinent to mention here that if now the order passed by the Learned Single Judge is complied with and the appointment is given to the respondent/ petitioner or if any interim order is passed in favour of the respondent/petitioner than it would be against the verdict given by the Division Bench of Hon'ble Court in Sushil Sompura and Anil Kumar Trivedi.

3. That after issuance of sanction for filing the special appeal officer- in-charge contacted the Additional Advocate General on 22.09.2019 for filing the special appeal in the matter.

4. That the Additional Advocate General dictated the special appeal/stay petition as well as application under section 5 of the Limitation Act which was ready on 04.01.2018and therefore the same is being filed today 2 i.e. 16.10.2019 without any further delay in the 2 matter.

5. That with great respect, it is most respectfully submitted that the delay caused in filing the appeal is bonafide and due to official procedure and there is no intentional or deliberate delay on the part of the appellant and therefore, the delay caused in filing the special appeal deserves to be condoned and the special appeal deserves to be heard and decided on merit.

6. That it is respectfully submitted that this Hon'ble Court as also the Hon'ble Supreme Court of India from time to time held that looking to the official procedure lenient view should be taken in the matter of State/Union on the point of delay and therefore in view of the observations of the Hon'ble Court also, the delay caused in filing the special appeal is liable to be condoned.

In two recent judicial pronouncement Hon'ble Supreme Court has depricated the practice of the delay on the part of the state authority in filing appeal after long delay as a result of indifference and indolent attitude on the part of the state authorities in dealing with files in their offices.

In the case of State of Madhya Pradesh & Ors. V. Bherulal, 2020 SCC Online SC 849, it was found that the

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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.

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

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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:

"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 officerin- 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."

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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."

The cause shown in the application, if we may say so is

bereft of any sufficient cause for such a long delay. Only on the

ground of delay this appeal is liable to be dismissed and

accordingly dismissed.