Meghalaya High Court
State Of Meghalaya vs Cmj Foundation on 17 April, 2017
Author: Dinesh Maheshwari
Bench: Dinesh Maheshwari
1
MC (WA) No.98 of 2016
State of Meghalaya v. CMJ Foundation
IN THE HIGH COURT OF MEGHALAYA AT
SHILLONG
: ORDER :
MC (WA) No.98 of 2016 State of Meghalaya and another ..... Applicants
-Versus-
CMJ Foundation and others ..... Respondents
Date of Order: :: 17.04.2017
PRESENT
HON'BLE SHRI JUSTICE DINESH MAHESHWARI, CHIEF JUSTICE HON'BLE SHRI JUSTICE VED PRAKASH VAISH Shri HS Thangkhiew, with Philemon Nongbri, for the applicants Shri S.N. Singh, with Shri A Singh, for the respondents No.1, 2 and 3 BY THE COURT: (per Hon'ble the Chief Justice) (Oral) The applicants/appellants seek to maintain an intra-court appeal against the order dated 16.07.2015 as passed by the learned Single Judge of this Court in WP (C) No.177 of 2014.
The appeal, as filed on 13.12.2016, is reportedly time barred by a period of about 485 days. The applicants/appellants have moved an application seeking condonation of delay, essentially with the submissions that in the peculiar circumstances where one of the Hon'ble Judges of this Court, who was otherwise a member available for Division Bench to consider the intra-court appeal had, after passing of the impugned order dated 16.07.2015, dealt with a criminal petition bearing No.32 of 2014 making certain observations as relating to the issues involved in this appeal while relying on the impugned order dated 16.07.2015. It is submitted that in the peculiar situation, the State Government, instead of availing the remedy of intra-court appeal, 2 MC (WA) No.98 of 2016 State of Meghalaya v. CMJ Foundation preferred a Petition for Special Leave to Appeal ['SLP'] before the Hon'ble Supreme Court. It is further submitted that some more time was consumed for curing the defects in the said SLP and only thereafter, the same was listed before the Court but in the meantime, with the availability of new Judges, a Bench for hearing intra-court appeal became available in this Court; and in the changed scenario, the applicants/appellants sought permission to withdraw from the SLP so as to approach the Division Bench of this Court. It is pointed out that the applicants/appellants were permitted to withdraw with liberty to take appropriate steps and the SLP was dismissed as withdrawn but, the Hon'ble Supreme Court observed that upon the applicants/appellants taking appropriate steps before the appropriate forum, the matter would be decided on merits. The applicants/appellants have, inter alia, averred in the application as under:-
"3. That upon receipt of the certified copy of the common judgment and final order dated 16.07.2015 by learned single judge in W.P. (C) No.177 of 2014, the State Government consulted private senior lawyer in the matter for advice and consultation. That the process of consulting private senior lawyer took some time. That during the process of preparing the appeal, a member of the available division bench for intra court appeal then, had in the meantime, while sitting in a single bench had vide order dated 12.08.2015 passed in Crl. Petn. No.32 of 2014, disposed of a criminal petition, by allowing the petition, by relying upon the impugned judgment dated 16.07.2015, challenged herein, since, the said single bench had further gone ahead and made observations on the civil issues involved in the instant appeal.
4. That in view of the peculiar situation before the State Government, it was as such compelled to directly approach the Hon'ble Supreme Court, instead of availing and filing an intra court appeal.
5. That upon the special Leave Petition being filed before the Hon'ble Supreme Court, the matter took some to be listed before the Hon'ble Court, as there were many defects in the matter and that it took some time to cure the defects before the same was listed before the Hon'ble Court.
6. That in the meantime, in view of the retirement of the Former Chief Justice of this Hon'ble High Court and upon the present Chief Justice being sworn in as a new judge of this Hon'ble High Court, as such, the bench for intra court appeal became available.3 MC (WA) No.98 of 2016
State of Meghalaya v. CMJ Foundation
7. That upon the matter being taken by the Hon'ble Supreme Court on 21.10.2016, the Appellants withdrew the Special Leave Petition before the Hon'ble Supreme Court, in light of the availability of Division Bench upon retirement of the former Chief Justice of High Court of Meghalaya, as such, the Appellants is approaching this Hon'ble Division Bench. That vide order dated 21.10.2016, the Hon'ble Supreme Court was pleased to allow the Appellants to withdraw the Special Leave Petition with liberty to approach this Hon'ble Court and directed that the matter be decided on merits. That the directions passed by the Hon'ble Supreme court were as follows:-
"Mr. Maninder Singh, learned ASG appearing for the petitioner
(s) seeks permission to withdraw the Special Leave Petition with liberty to take appropriate steps, as may be advised, before the appropriate forum.
In view thereof, the Special Leave Petition is dismissed as withdrawn with liberty to take appropriate steps, as may be advised, before the appropriate forum, which would decide the same on merits."
8. That it is pertinent to point out that while allowing the prayer of the State Appellants to withdraw the said special leave petition, the Hon'ble Supreme Court was also pleased to grant the State Appellants liberty to approach the appropriate Appellate Court and directed the appropriate Appellate court to decide the matter on merits."
An affidavit-in-opposition has been filed taking exception against the averments in the application and while also indicating several aspects relating with the merits of the case. The contesting respondents have, inter alia, opposed the application while submitting that,-
"64. Thereafter, the petitioners have filed the Writ Appeal before this Hon'ble Court along with the misc. Case number for seeking condonation of delay of 485 days in filing the Writ Appeal against the impugned judgment dated 16.07.2016 on the ground that the delay in preferring the present appeal had arisen as one of the Hon'ble Member of the Division Bench for hearing the intra court appeal have also decided a Criminal Petition No.32/2014 vide order dated 12.08.2015 and allowed the said petition by relying upon the impugned judgment herein. And this peculiar position had prevented the petitioner from approaching this Hon'ble Court directly. This ground is not only contemptuous but also not called for and on this ground alone the present appeal deserve to be dismissed."
The learned counsel for the applicants/appellants has strenuously argued that there had not been any negligence or deliberate delay on the part of the applicants/appellants and the matter 4 MC (WA) No.98 of 2016 State of Meghalaya v. CMJ Foundation was earlier sought to be prosecuted before the Hon'ble Supreme Court in the given set of peculiar circumstances but, now, this appeal has been filed as permitted by the Hon'ble Supreme Court and the matter deserves to be examined on merits.
Per contra, learned counsel for the respondents has vehemently opposed the prayer for condonation of delay with the submissions that there was no justification that the applicants/appellant earlier attempted to by-pass the remedy of intra-court appeal in the matter and then, the applicants/appellants, at every stage, have made unnecessary and uncalled for remarks and comments on the Hon'ble Judge of the Court. Learned counsel has, particularly, drawn the attention of this Court towards paragraph 6.23 of the memo of appeal wherein, the impugned order dated 16.07.2015 has been questioned as if that of judicial indiscipline, for the Hon'ble Judge having returned a different finding while sitting in a Division Bench. It is also submitted that the applicants/appellants have not proceeded with the matter with due diligence and even the SLP was kept pending for long with defects; and the excessive delay in this matter is attributable only to the negligence on the part of the applicants/appellants.
Having given thoughtful consideration to the rival submissions and having examined the record, we are inclined to grant this application for condonation of delay and to consider the appeal on merits.
True it is that the appeal is delayed by an excessive period of about 485 days but then, the circumstances leading to such a delay in filing of the appeal, as noticed from the submissions made in the application, cannot be ignored. With the lesser number of Judges 5 MC (WA) No.98 of 2016 State of Meghalaya v. CMJ Foundation available in this Court, if one of the Hon'ble Judge likely to be a member of Division Bench to hear the appeal had expressed an opinion in the order dated 12.08.2015 as passed in Criminal Petition No.32 of 2014, on the basis of the impugned order dated 16.07.2015, the applicants/appellants cannot be faulted in adopting the course of approaching the Hon'ble Supreme Court instead of filing an intra-court appeal at that stage. Though it is alleged on behalf of the respondent that the said SLP was also kept pending for a long length of time unnecessarily but then, we do not consider it proper to make any comment in that regard because the Hon'ble Supreme Court has ultimately allowed the applicants/appellants to withdraw and has also granted liberty to them to take appropriate steps before the appropriate forum. While concluding on the matter, the Hon'ble Supreme Court has also expected that in the appellate forum, the matter be decided on merits. After passing of the order dated 21.10.2016 by the Hon'ble Supreme Court, the appeal was filed on 13.12.2016.
In an overall view of the matter, where the appellants do not appear to be guilty of causing the delay deliberately and then, looking to the observations made by the Hon'ble Supreme Court, it appears just and proper that the delay in filing the appeal be condoned and the matter be considered on merits.
So far the contents of paragraph 6.23 of the memo of appeal are concerned, the learned counsel for the respondents appear right in taking exception against the same but then, the learned counsel for the applicants/appellants has frankly submitted that he would not be relying on such a ground taken in memo of appeal and the same may be expunged.
6MC (WA) No.98 of 2016
State of Meghalaya v. CMJ Foundation Accordingly, MC (WA) No.98 of 2016 is allowed; the delay in filing the appeal is condoned; the appeal is taken on the regular side but with the observations that the contents of paragraph 6.23 of the memo of appeal shall be treated as expunged.
As prayed for and agreed to by the learned counsel for the parties, list the appeal for Admission hearing on 22.05.2017 along with the connected matters.
Service in relation to the proforma respondent No.4 is dispensed with at this stage.
Having regard to the circumstances and subject to just and all exceptions, it is observed that the appeal may be finally heard at the admission stage itself.
MC (WA) No.98 of 2016 stands disposed of.
Caveat Petition No.132 of 2016 also stands disposed of.
JUDGE CHIEF JUSTICE Lam Item No.4