Jammu & Kashmir High Court - Srinagar Bench
State Of J&K; And Ors vs Shabir Ahmad Hajam & Ors on 22 August, 2017
HIGH COURT OF JAMMU AND KASHMIR-
SRINAGAR
Case No: COD(LPA) 86/2017 Dated : 22nd of Aug. 2017
STATE OF J&K AND ORS VERSUS SHABIR AHMAD HAJAM & ORS
ORDER SHEET
CORAM:
HON'BLE MR. JUSTICE RAMALINGAM SUDHAKAR- JUDGE
HON'BLE MR. JUSTICE M.K.HANJURA- JUDGE
i. Whether to be approved for
reporting in NET : Yes/No.
ii. Whether to be approved for
reporting in Digest/Journal : Yes/No
FOR THE APPLICANT/s : MR. IRFAN ANDLEB, Dy.AG
FOR THE RESPONDENT/s: . NONE
(PER HANJURA-J)
01/ The State of J&K, through Commissioner Secretary to
Government, Department of Higher Education, Civil Secretariat, has
filed an application seeking the indulgence of this Court in condoning
the delay of 380 days in filing the Appeal, inter alia, on the grounds
that as soon as the applicants - appellants came to know about
passing of the orders dated 18th of November, 2015 & 16th of
December, 2015 of this Court, issued in SWP 281/2015 & in CMP
02/2015, the process for filing an appeal was initiated by the
Administrative Department and the matter remained under their active
consideration. Thereafter the matter was referred to the Law
Department for opinion/sanction. The Law Department finally
accorded sanction for filing of Appeal vide Government order No.
LD(Lit)2015/306-Hr.Edu. dated 19-01-2017. It is further submitted
that due to the compelling situation and unrest in the valley in the
year 2016, there was delay in filing the appeal. Learned counsel
proceeds to state that since the examination of the matter and
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consideration of the question of filing of Appeal at various levels led
to consumption of time, as such, the delay caused was neither
intentional nor deliberate.
02/ Learned counsel for the applicant - Appellant has further
stated that after the sanction for filing the Appeal was received from
the Law Department, immediate steps were taken in the matter and
the entire record pertaining to the case was collected and the LPA
prepared for its institution. It has also been pleaded that the delay in
filing the appeal occasioned due to the administrative exigencies. The
Appeal has an important bearing as far as the interests of the
Appellant are concerned and in case the delay in filing the Appeal is
not condoned, it will cause great prejudice to the State. It has been
further averred that the settled position of law is that since the
decisions at the Government level are taken at a slow pace, therefore,
some amount of latitude has to be given to it and the Government
cannot be equated and treated on par with the private parties in the
matter of condonation of delay. The application is buttressed with an
affidavit.
03/ Notice was directed to be issued to the respondents on
24-05-2017 & 05-07-2017 but the applicants did not take any steps
for the service of notice on them, and, accordingly the learned counsel
for the applicants was heard in the matter. The material on record has
also been perused.
04/ It cannot be disputed that the Law of Limitation has to be
applied with all its vigor and rigor as prescribed by the Statute. One
cannot escape the consequences of section 5 of the J&K Limitation
Act Samvat 1995, which provides that for the extension of the period
of limitation in a given case, the condition precedent is that the
applicant or the appellant has to satisfy the Court that he/she has
COD(LPA) 181/2017 Page 2 of 7
carved out a sufficient cause in seeking the indulgence of the Court
for not preferring the Appeal or Application within the stipulated
time. The State cannot, as a matter of rule, take umbrage under the
plea that it has to be treated on a different pedestal in the matter of the
extension of time for filing the Appeal/Application. No doubt, some
latitude may be warranted to be given to the State promoting social
justice but it cannot escape the liability of satisfying the Court that the
Appeal was filed with due diligence. The Courts cannot come to the
aid and rescue of the State where the application for condonation of
delay does not spell out sufficient cause and the approach of the State,
in making such application, is casual and cryptic.
05/ In order to find out whether or not the appellant - State has
been remiss and callous in seeking the condonation of delay in filing
the LPA, it is reiterated here that the appellant has stated in the
Application that the copy of the order/judgement was perused at
various levels to satisfy itself whether the Appeal has or has not to be
filed. It has also been stated that the matter was referred to the
Department of Law and the said Department accorded sanction to the
filing of such Appeal.
06/ Testing the application of the Applicant on the touch stone of
the law, governing the subject, it will be profitable to quote
paragraphs 7&8 of the law laid down in 2010(4) JKJ 638 (HC),
herein below, in verbatim :
"7. In the case P.K. Ramachandran v. State of Kerala, reported in AIR
1998 SC 2276, the Apex Court, at paragraph 6 ruled as under:
"Law of limitation may harshly affect a particular party
but it has to be applied with all its rigor when the statute
so prescribe and the Courts have no power to extend the
period of limitation on equitable grounds. The discretion
exercised by the High Court was, thus, neither proper nor
judicious. The order condoning the delay cannot be
sustained. This appeal, therefore, succeeds and the
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impugned order is set aside. Consequently, the
application for condonation of delay filed in the High
Court would stand rejected and the Miscellaneous First
Appeal shall stand dismissed as barred by time. No
costs."
8. In another case, the Hon'ble Supreme Court, while deliberating
upon the question of condonation of an inordinate delay of 264 days on
an application preferred by the Government, has observed as under:
"2. This special leave petition filed on November 16,
1993 is delayed by 264 days. For quite some time in the
past this Court has been making observations as to the
grave prejudice caused to public interest by appeals
brought on behalf of the Government being lost on the
point of limitation. Such observations have been made for
over a few years in the past. But there seems to be no
conspicuous improvement as is apparent in the present
petition which is filed in November 1993. The explanation
for the delay, had better bet set out in petitioner's own
words:
..........................................
..........................................
3. This explanation is incapable of furnishing a judicially acceptable ground for condonation of delay. After the earlier observations of this Court made in several cases in the past, we hoped that the matters might improve. There seems to be no visible support of this optimism. There is a point beyond which even the courts cannot help a litigant even if the litigant is Government which is itself under the shackles of bureaucratic indifference. Having regard to the law of limitation which binds everybody, we cannot find any way of granting relief. It is true that Government should not be treated as any other private litigant, as indeed, in the case of the former the decisions to present and prosecute appeals are not individual but are institutional decisions necessarily bogged down by the proverbial red-tape. But there are limits to this also. Even with all this latitude, the explanation offered for the delay in this case merely serves to aggravate the attitude of indifference of the Revenue in protecting its common Interests. The affidavit is again one of the stereotyped affidavits making it susceptible to the criticism that the Revenue does not seem to attach any importance to the need for promptitude even where it affects its own interest."
COD(LPA) 181/2017 Page 4 of 707/ Applying the ratio of the law laid down above to the instant case, there has been a reckless delay of 380 days in filing the LPA and no satisfactory explanation has come forward on that count except for routine words and phrases. No doubt, a liberal approach has to be adopted in the matter of condonation of delay when there is no gross negligence or deliberate inaction or lack of bona fides on the part of the State but in the instant case the appellant took his own time to formulate an opinion that the Appeal has to be filed. The law laid down in AIR 2011 SC 1237 enunciates this principle and it lays down as follows :
"........3/ This appeal emanates from the judgement of the Division Bench of the Guahati High Court (High Court of Assam, Nagaland, Meghalaya, Manipur, Tripura, Mizoram and Arunachal Pradesh) in Misc. Case No. 1569 of 2007 in W.A.No. 72020 of 2006. The appeal filed by the Union of India was dismissed by the High Court because of inordinate delay of 239 days. The Division Bench of the High Court, while dismissing the appeal, has observed as under :
"We have gone through the contents of the petition. The delay occurred because of the respondents took their own sweet time to reach the conclusion whether the judgement should be appealed or not. It is not that they were prevented by any reason which is beyond their control to take such a decision in time. Even otherwise, on merits of the case also it does not appear to have any tenable ground of appeal. In the circumstances, we do not see any merits in this petition."
4/ We have also gone through the condonation of delay application which was filed in the High Court. In our considered view, the High Court was fully justified in dismissing the appeal on the ground of delay because no sufficient cause was shown for condoning the delay.
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6/ The Union of India ought to have been careful particularly in filing this Civil Appeal because the Division Bench, by the impugned order, has dismissed the appeal before it on the ground of delay. It is a matter of deep anguish and distress that majority of the matters filed by the Union of India are hopelessly barred COD(LPA) 181/2017 Page 5 of 7 by limitation and no satisfactory explanations exist for condoning inordinate delay in filing those cases."
08/ Resort can also be had to an elaborate and a lucid judgement of Hon'ble the Supreme Court, reported in (2013) 12 SCC 649, the relevant excerpts of which are as under :
"...........21.2. (ii) The terms "sufficient cause" should be understood in their proper spirit, philosophy and purpose regard being had to the fact that these terms are basically elastic and are to be applied in proper perspective to the obtaining fact-situation.
21.9. (ix) The conduct, behavior and attitude of a party relating to its inaction or negligence are relevant factors to be taken into consideration. It is so as the fundamental principle is that the courts are required to weigh the scale of balance of justice in respect of both parties and the said principle cannot be given a total go by in the name of liberal approach.
21.10. (x) If the explanation offered is concocted or the grounds urged in the application are fanciful, the courts should be vigilant not to expose the other side unnecessarily to face such a litigation.
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21.12. (xii) The entire gamut of facts are to be carefully scrutinized and the approach should be based on the paradigm of judicial discretion which is founded on objective reasoning and not on individual perception.
21.13. (xiii) The State or a public body or an entity representing a collective cause should be given some acceptable latitude. 22.1 (a) An application for condonation of delay should be drafted with careful concern and not in a haphazard manner harboring the notion that the courts are required to condone delay on the bedrock of the principle that adjudication of a lis on merits is seminal to justice dispensation system. ....................
31. Neither leisure nor pleasure has any room while one moves an application seeking condonation of delay of almost seven years on the ground of lack of knowledge or failure of justice."
09/ Risking repetition, what is stated here is that the State has been negligent in prosecuting its claim within time and the explanation offered for the delay in filing the Appeal is neither plausible nor reasonable. The application appears to have been drafted COD(LPA) 181/2017 Page 6 of 7 recklessly without giving a proper account of the dates and details of the grounds agitated in it and to cap it all, recourse has been had to the leisure and pleasure in moving the application and to cap it all, the State has not knocked the doors of the Court with clean hands. 10/ To substantiate this contention further, a cue can be had from the law laid down by the Division Bench of this Court in COD No. 237/2016 (LPA 06/2016), wherein it has been held as follows :
"1. There is a delay of 310 days in filing the accompanying appeal. The COD application which is under consideration is vague and without any specific details explaining the day to day delay in filing the appeal. The only explanation that has been given is that after receipt of the judgement, the appellant examined the judgement which took, "sometime" and thereafter, the judgement was sent to the State Law & Parliamentary Affairs, Ministry for further action. It is further stated that the Law & Parliamentary Affairs, Ministry examined the judgement and after examining the same, it was decided that an LPA should be filed and this also took "considerable time" and ultimately sanction for filing of the appeal was granted by the Law Department.
2. No reasons have been indicated as to why in the first instance examination of the judgement took time and why in the second instance, the Law Department took considerable time in deciding to file an appeal.
3. Sufficient cause for the delay clearly has not been shown by the applicants/appellants. Consequently, the COD application is dismissed. The accompanying appeal also stands dismissed."
11/ Viewed in the context of what has been said and done above, we are of the considered opinion that the State has failed to explain the delay of 380 days in filing the Appeal. Consequently, the application for Condonation of Delay, in filing the Appeal, is rejected and the Letters Patent Appeal (LPA) shall stand dismissed as barred by time.
(M.K. HANJURA) (RAMALINGAM SUDHAKAR)
JUDGE JUDGE
Tariq MOTA
SRINAGAR.
22 -08-2017
COD(LPA) 181/2017 Page 7 of 7
COD(LPA) 181/2017 Page 8 of 7
HIGH COURT OF JAMMU AND KASHMIR
SRINAGAR
CASE NO. : LPA 133/2008
STATE OF J AND K. VERSUS M
MR. FOR THE APPELLANT
NONE FOR THE RESPONDENT/s.
List this case b
TARIQ Mota
SRINAGAR.
26-04-2017 ( M.K.HANJURA ) (RAMALINGAM SUDHAKAR)
JUDGE JUDGE
COD(LPA) 181/2017 Page 9 of 7