Rajasthan High Court

The State Of Rajasthan Through ... vs Om Prakash Singh S/O Shri ... on 29 August, 2023

Bench: Mahendar Kumar Goyal

[2023:RJ-JP:19903]

        HIGH COURT OF JUDICATURE FOR RAJASTHAN
                    BENCH AT JAIPUR

                 S.B. Civil Second Appeal No. 71/2019

1.       The    State     Of       Rajasthan      Through           District   Collector,
         Bharatpur
2.       Divisional Forest Officer Department Of Forest, Bharatpur
3.       Principal Chief Conservator Of Forests, (Department Of
         Forests) Rajasthan Jaipur
4.       Dy. Conservator Of Forests, Departmental Division Jaipur
                                                        ----Appellants/Defendant
                                       Versus
Om Prakash Singh S/o Shri Banshidhar, R/o 231 Krishna Nagar
Bharatpur.
                                                                       ----Respondent

For Appellant(s) : Mr. Zakir Hussain, AGC For Respondent(s) : Ms. Ashish Joshi

HON'BLE MR. JUSTICE MAHENDAR KUMAR GOYAL

Judgment / Order

29/08/2023

This civil second appeal, which is reported to be time barred

by 400 days, is accompanied with an application (343/2019)

under Section 5 of the Limitation Act, 1963 (for brevity "the Act of

1963") seeking condonation of delay.

Reiterating the averments made in the application and the

additional affidavit dated 01.10.2019, learned counsel for the

appellants submits that the delay in preferring the appeal occurred

on account of decisions taken at various levels of administrative

hierarchy and is bonafide. He, therefore, prays that the application

filed under Section 5 of the Act of 1963 be allowed and delay in

preferring the appeal be condoned.

[2023:RJ-JP:19903] (2 of 7) [CSA-71/2019]

Per contra, learned counsel for the respondent submits that

as already observed by this Court that the application filed under

Section 5 of the Act of 1963 does not contain any satisfactory

reason and the additional affidavit filed in pursuance of the order

dated 29.08.2019, is also not specific as to the reasons for

inordinate delay in preferring the civil second appeal. She,

therefore, prays for dismissal of the application seeking

condonation of delay.

Heard. Considered.

It is stated in the Section 5 application that delay in

preferring the application occurred on account of time taken at

various levels in the administrative hierarchy. Being dissatisfied

with the reasons stated in the application, this Court has, on

29.08.2019, passed following order:-

"Application bearing No.343//2019 filed under Section 5 of the Limitation Act seeking condonation of delay in filing the appeal is totally vague. No explanation whatsoever has been given therein. It is merely narrates the manner of functioning of the department concerned. Application appears to be drafted in a very casual manner.

Therefore, learned counsel for the appellants is directed to place on record the facts and material pertaining to present case on affidavit along with photostat copies of relevant note sheets wherein the present case was dealt with.

List this appeal after two weeks."

[2023:RJ-JP:19903] (3 of 7) [CSA-71/2019]

In pursuance thereof, an additional affidavit dated

01.10.2019 of Shri Jogendra Singh, ACF, Bharatpur has been filed

wherein, it is stated that the Deputy Conservator of Forests,

Division Bharatpur has sent the matter on 05.10.2017 to the

Additional Principal Chief Conservator of Forests, Labour & Law,

Rajasthan, Jaipur for taking a decision in the matter whereupon,

the Principal Chief Conservator of Forests, Rajasthan, Jaipur sent

the matter with a note sheet on 19.12.2017 to the Administrative

Department, Government of Rajasthan for taking a decision for

filing appeal or not. Vide letter dated 25.04.2018, the State

Government took a decision to assail the judgment and decree

dated 12.09.2017 and thereupon, the Principal Chief Conservator

of Forests vide order dated 11.05.2018 appointed the deponent as

officer in-charge to file the appeal. Thereafter, some time took

place in collection of the record and relevant documents.

Thus, it is apparent that, so far as the reason(s) assigned in

the application under Section 5 of the Act of 1963 is concerned,

this Court has already held that no explanation whatsoever has

been given therein and the reasons are totally vague. However,

despite categorical direction of this Court to the appellants to

submit an additional affidavit alongwith photostat copies of the

relevant note sheets; except filing the aforesaid affidavit dated

01.10.2019, no note sheet has been placed on record. Neither any

explanation has been offered as to why copies of the relevant note

sheets have not filed nor, the reasons assigned in the additional

affidavit are satisfactory. Nothing has been stated as to why the

inordinate delay occurred in the Administrative Department when

the file was remitted to it by the Principal Chief Conservator of

[2023:RJ-JP:19903] (4 of 7) [CSA-71/2019]

Forests on 19.12.2017 for taking a decision to prefer the appeal

which was taken as late as on 25.04.2018. Further, the additional

affidavit reveals that the officer in-charge was appointed vide

order dated 11.05.2018 to prefer this appeal; but, it has been

preferred as late as on 17.01.2019, i.e., about eight months

thereafter, without a whisper of averment offering any explanation

for this delay much less satisfactory.

Their Lordships have, in the case of State of Madhya

Pradesh & Ors. Vs. Bherulal: 2020 SCC Online SC 849, held

as under:

"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.

[2023:RJ-JP:19903] (5 of 7) [CSA-71/2019]

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

[2023:RJ-JP:19903] (6 of 7) [CSA-71/2019]

cogent reasons sufficient to condone such a huge delay." Eight years hence the judgment is still unheeded!"

In the case of Government of Maharashtra (Water

Resources Department) Vs. M/s. Borse Brothers Engineers

and Contractors Pvt. Ltd.: 2021 SCC Online 233, it was held

as under:

"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 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

[2023:RJ-JP:19903] (7 of 7) [CSA-71/2019]

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."

Since, the application as also the additional affidavit are

bereft of any satisfactory explanation seeking condonation of

inordinate delay of 400 days in preferring the civil second appeal,

the application deserves to be rejected in the backdrop of

aforesaid precedential law.