Himachal Pradesh High Court
State Of Himachal Pradesh And Others vs Ram Krishan on 8 March, 2021
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
CMP(M) No. 1278 of 2018
Decided on: March 8, 2021
.
_______________________________________________________________
State of Himachal Pradesh and others ...........Applicants
Versus
Ram Krishan ....Respondent
_______________________________________________________________
Coram:
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting? 1 yes
For the applicants : Mr. Sudhir Bhatnagar and Mr.
Arvind Sharma, Additional
Advocates General with Mr.
Kunal Thakur, Deputy Advocate
r General.
For the respondent : Mr. Romesh Verma, Advocate.
_______________________________________________________________
Sandeep Sharma, Judge (oral):
Since there is a delay of two years, ten months and eight days in maintaining the accompanying appeal, whereby applicants/appellants intend to lay challenge to Award dated 7.8.2015, passed by learned District Judge (Forests), Shimla in Land Reference No. 36-S/4 of 2013/12, instant application has been filed, seeking therein condonation of delay in maintaining the appeal.
2. By way of detailed reply to the application, aforesaid prayer made on behalf of the applicants/appellants has been seriously opposed by the non-applicant/respondent, who has categorically stated in the reply that the delay of more that 1042 days has not been explained properly and no plausible 1 Whether the reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 09/03/2021 20:17:09 :::HCHP 2explanation qua inordinate delay in filing the appeal has been rendered on record.
.
3. Before proceeding further to decide the application at hand on its merit, it may be noticed that, having taken note of aforesaid objection raised by the non-
applicant/respondent, this Court, with a view to afford an opportunity to the applicants/appellants to explain the delay, granted time to file a supplementary affidavit and also summoned the record with regard to the legal opinion rendered by the Law Department to file appeal in this Court.
On 5.7.2019, this Court, having carefully perused the record, vis-à-vis explanation rendered in the application, concluded that the applicants/appellants have not approached this Court with clean hands, rather, an attempt has been made to hoodwink the court by placing on record wrong facts, as such, this Court directed Shri Jitender Dhiman, Superintending Engineer, 14th Circle, Himachal Pradesh Public Works Department, Rohroo, to remain present in the court. Though, on 26.7.2019, aforesaid officer came present in the court, but this Court, on the vehement request of learned Additional Advocate General, granted time to file the supplementary affidavit, explaining therein the delay.
4. I have heard learned counsel for the parties and perused the material available on record.
::: Downloaded on - 09/03/2021 20:17:09 :::HCHP 35. Careful perusal of the pleadings adduced on record by the applicants qua the delay in filing the accompanying .
appeal, clearly reveals that the Award sought to be laid challenge by way of accompanying appeal was pronounced by learned District Judge (Forests) on 7.8.2015 and an application for procuring certified copy thereof was made on 20.8.2015. Though the certified copy of the Award was delivered on 31.8.2015 to the office of applicant/appellant No.4, but since the file was misplaced in the office of applicant/appellant No.4, same could not be processed further for r obtaining the opinion/advice of the Law Department. As per applicants/appellants, factum with regard to passing of Award dated 7.8.2015 by learned District Judge (Forests) came to the notice of the Department, at the time when case file pertaining to another case titled Yadvender vs. State and another was received with the advice of the Government to file appeal in that matter. Since aforesaid file in Yadvender's case was received in the month of March, 2018 and file of the case at hand was wrongly tagged with the aforesaid file, appeal could not be filed within the prescribed period of limitation.
6. Interestingly, in the application at hand, it has been averred that on 1.5.2018, Government, in consultation with the Law Department, advised the Department to file an appeal, whereas, record reveals that the factum with regard ::: Downloaded on - 09/03/2021 20:17:09 :::HCHP 4 to passing of Award, sought to be laid challenge, by way of accompanying appeal was very much in the knowledge of the .
Department, because, District Attorney (Forests) had been regularly putting in appearance in the execution petition filed by the non-applicant/respondent in the executing court.
7. Mr. Jitender Dhiman, Superintending Engineer, 14th Circle, Himachal Pradesh Public Works Department, Rohroo, in his supplementary affidavit, dated 14.8.2019, stated that after passing of Award by learned District Judge (Forests), office of District Attorney (Forests), applied for the certified copy vide application dated 20.8.2015 and a certified copy of the Award was supplied by the Copying Agency on 31.8.2015, whereafter, District Attorney (Forests) examined the Award and, vide letter dated 13.9.2015, forwarded the Award with case file to the office of Executive Engineer, Himachal Pradesh Public Works Department, Rohroo. He has further stated that the case file was not diarized in the office of Executive Engineer, Himachal Pradesh Public Works Department, but was misplaced somewhere and, as such, no steps for filing the appeal in the case at hand, could be taken within the stipulated time. However, if said facts placed on record by way of supplementary affidavit are read juxtaposing the initial facts placed before this Court by way of application under S.5 of the Limitation Act, it can be safely inferred that the applicants, while filing application for condonation of ::: Downloaded on - 09/03/2021 20:17:09 :::HCHP 5 delay, have not approached this Court with clean hands, rather, have made an effort to hoodwink this Court by .
twisting the facts. The plea taken in the supplementary affidavit was never taken in the main application, rather, there is no mention, if any, with regard to opinion rendered by District Attorney (Forests) qua the Award passed by the reference court.
8. Reply to the application filed on behalf of the non-
applicant/respondent reveals that on 2.4.2018, District Attorney (Forests), representing the applicants before learned Court below, stated that the amount shall be deposited and, at no point of time, apprised learned Court below with regard to the appeal proposed to be filed in the superior court of law laying therein challenge to the Award passed by the reference court. It has been further averred in the reply filed by the non-applicant/respondent that in the execution petition filed by him, a substantial amount of Rs.13,36,697/- stands released to him and, as of today, only a sum of Rs.1,50,987/-
is recoverable. Since the factum with regard to the opinion, if any, rendered by District Attorney (Forests) was in the knowledge of the applicants, it is not understood that on that on what basis, the applicants permitted learned Court below to release the substantial amount of Rs.13,36,697/-. Since no specific rejoinder qua aforesaid aspect of the matter has been filed on behalf of the applicants, averments contained in ::: Downloaded on - 09/03/2021 20:17:09 :::HCHP 6 the reply deserver to be accepted. It has been stated in the rejoinder that substantial amount came to be released in .
favour of the non-applicant/respondent on account of misconception of facts, but the facts, which led to such 'misconception', have not been placed on record. Though, the applicants have taken a stand that the file was misplaced in the office of applicant No.4 and the same was not traceable till the time, file of connected matter was received alongwith the advice rendered by Law Department, but there is no denial qua the factum with regard to pendency of the execution petition filed by the non-applicant/respondent before the executing Court. Pleadings adduced on record clearly reveal that learned District Attorney (Forests) kept on representing the Department in execution petition filed by the non-applicant/respondent and matter repeatedly came to be adjourned on the request of learned District Attorney (Forests) for depositing the award amount. For the reasons stated herein above, appeal intended to be filed against Award dated 7.8.2015 in Land Reference No. 36-S/4 of 2013/12 is hopelessly time barred. Since no cogent and convincing reasons have been rendered on record, there appears to be no justification for this Court to condone the delay.
::: Downloaded on - 09/03/2021 20:17:09 :::HCHP 79. Their Lordships of the Hon'ble Supreme Court in Oriental Aroma Chemical Industries Ltd. V. Gujarat Industrial .
Development Corporation and another, (2010) 5 SCC 459 have held that the liberal approach should be adopted in condoning the delay of short duration and stricter approach in cases of inordinate delay. Their Lordships have held as under:
"14. We have considered the respective submissions. The law of limitation is founded on public policy. The legislature does not prescribe limitation with the object of destroying the rights of the parties but to ensure that they do not resort to dilatory tactics and seek remedy without delay. The idea is that every legal remedy must be kept alive for a period fixed by the legislature. To put it differently, the law of limitation prescribes a period within which legal remedy can be availed for redress of the legal injury. At the same time, the courts are bestowed with the power to condone the delay, if sufficient cause is shown for not availing the remedy within the stipulated time.
29. The expression "sufficient cause" employed in Section 5 of the Indian Limitation Act, 1963 and similar other statutes is elastic enough to enable the courts to apply the law in a meaningful manner which sub serves the ends of justice. Although, no hard and fast rule can be laid down in dealing with the applications for condonation of delay, this Court has justifiably advocated adoption of a liberal approach in condoning the delay of short duration and a stricter approach where the delay is inordinate - Collector, Land Acquisition, Anantnag v. Mst. Katiji (1987) 2 SCC 107, N. Balakrishnan v. M. Krishnamurthy (1998) 7 SCC 123 and Vedabai v. Shantaram Baburao Patil (2001) 9 SCC 106. In dealing with the applications for condonation of delay filed on behalf of the State and its ::: Downloaded on - 09/03/2021 20:17:09 :::HCHP 8 agencies/instrumentalities this Court has, while emphasizing that same yardstick should be applied for deciding the applications for condonation of .
delay filed by private individuals and the State, observed that certain amount of latitude is not impermissible in the latter case because the State represents collective cause of the community and the decisions are taken by the officers/agencies at a slow pace and encumbered process of pushing the files from table to table consumes considerable time causing delay - G. Ramegowda v. Spl. Land Acquisition Officer (1988) 2 SCC 142, State of Haryana v. Chandra Mani (1996) 3 SCC 132, State of U.P. v. Harish Chandra (1996) 9 SCC 309, State of Bihar v. Ratan Lal Sahu (1996) 10 SCC 635, State r of Nagaland v. Lipok Ao (2005) 3 SCC 752, and State (NCT of Delhi) v. Ahmed Jaan (2008) 14 SCC 582.
10. Their Lordships of the Hon'ble Supreme Court in Lanka Venkateshwarlu Vs. State of Andhra Pradesh and others (2011) 4 SCC 363 have held that liberal approach in considering sufficiency of cause for delay should not override substantial law of limitation, especially when court finds no justification for delay.
Their Lordships have held as under:
"19. We have considered the submissions made by the learned counsel. At the outset, it needs to be stated that generally speaking, the courts in this country, including this Court, adopt a liberal approach in considering the application for condonation of delay on the ground of sufficient cause under Section 5 of the Limitation Act. This principle is well settled and has been set out succinctly in the case of Collector, Land Acquisition, Anantnag & Ors. Vs. Katiji & Ors. ((1987) 2 SCC 107).::: Downloaded on - 09/03/2021 20:17:09 :::HCHP 9
29. The concepts of liberal approach and reasonableness in exercise of the discretion by the Courts in condoning delay, have been again stated by this Court in the case of Balwant .
Singh (supra), as follows:-
"25. We may state that even if the term "sufficient cause"
has to receive liberal construction, it must squarely fall within the concept of reasonable time and proper conduct of the party concerned. The purpose of introducing liberal construction normally is to introduce the concept of "reasonableness" as it is understood in its general connotation."
"26. The law of limitation is a substantive law and has definite consequences on the right and obligation of party to arise. These principles should be adhered to r and applied appropriately depending on the facts and circumstances of a given case. Once a valuable right has accrued in favour of one party as a result of the failure of the other party to explain the delay by showing sufficient cause and its own conduct, it will be unreasonable to take away that right on the mere asking of the applicant, particularly when the delay is directly a result of negligence, default or inaction of that party. Justice must be done to both parties equally. Then alone the ends of justice can be achieved. If a party has been thoroughly negligent in implementing its rights and remedies, it will be equally unfair to deprive the other party of a valuable right that has accrued to it in law as a result of his acting vigilantly."
26. Having recorded the aforesaid conclusions, the High Court proceeded to condone the delay. In our opinion, such a course was not open to the High Court, given the pathetic explanation offered by the respondents in the application seeking condonation of delay.
27. This is especially so in view of the remarks made by the High Court about the delay being caused by the ::: Downloaded on - 09/03/2021 20:17:09 :::HCHP 10 inefficiency and ineptitude of the government pleaders.
28. We are at a loss to fathom any logic or rationale, .
which could have impelled the High Court to condone the delay after holding the same to be unjustifiable. The concepts such as "liberal approach", "justice oriented approach", "substantial justice" can not be employed to jettison the substantial law of limitation. Especially, in cases where the Court concludes that there is no justification for the delay. In our opinion, the approach adopted by the High Court tends to show the absence of judicial balance and restraint, which a Judge is required to maintain whilst adjudicating any lis between the parties. We are rather pained to notice that in this case, not being r satisfied with the use of mere intemperate language, the High Court resorted to blatant sarcasms.
29. The use of unduly strong intemperate or extravagant language in a judgment has been repeatedly disapproved by this Court in a number of cases.
Whilst considering applications for condonation of delay under Section 5 of the Limitation Act, the Courts do not enjoy unlimited and unbridled discretionary powers. All discretionary powers, especially judicial powers, have to be exercised within reasonable bounds, known to the law. The discretion has to be exercised in a systematic manner informed by reason. Whims or fancies; prejudices or predilections can not and should not form the basis of exercising discretionary powers."
11. Recently, Hon'ble Apex Court in The State of Madhya Pradesh & Os. Vs. Bherulal, Special Leave to Petition (C) diary No. 9217 of 2020, decided on 15.10.2020, has reiterated that in the absence of plausible and acceptable ::: Downloaded on - 09/03/2021 20:17:09 :::HCHP 11 explanation, delay cannot be condoned mechanically merely because the Government or its wing is seeking condonation of .
delay. It has further been held by Hon'ble Apex Court in the judgment (supra) 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 but, if there is reason to believe that the officials manning the posts have not performed their duties with diligence or commitment, delay, if any, in filing an appeal, cannot be condoned. Hon'ble Apex Court has 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 ::: Downloaded on - 09/03/2021 20:17:09 :::HCHP 12 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 red- tape 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!
12. In the case at hand, substantial amount already stands released in favour of the respondent in the presence of learned District Attorney (Forests), as such, it can be safely presumed that the present application seeking therein condonation of delay in filing the accompanying appeal is only filed to protect these officers, who remained negligent ::: Downloaded on - 09/03/2021 20:17:09 :::HCHP 13 while discharging their duties. While dealing with similar facts in the judgment (supra), Hon'ble Apex Court has .
deprecated this practice and has observed as under:
"6. We are also of the view that the aforesaid approach is being adopted in what we have categorized earlier as "certificate cases". The object appears to be to obtain a certificate of dismissal from the Supreme Court to put a quietus to the issue and thus, say that nothing could be done because the highest Court has dismissed the appeal. It is to complete this formality and save the skin of officers who may be at default that such a process is followed. We have on earlier occasions also strongly deprecated such a practice and process. There seems to be no improvement. The purpose of coming to this Court is not to obtain such certificates and if the Government suffers losses, it is time when the concerned officer responsible for the same bears the consequences. The irony is that in none of the cases any action is taken against the officers, who sit on the files and do nothing. It is presumed that this Court will condone the delay and even in making submissions, straight away counsels appear to address on merits without referring even to the aspect of limitation as happened in this case till we pointed out to the counsel that he must first address us on the question of limitation."
13. In the past, this court, having taken note of the lengthy administrative process involved in filing appeals, had been taking a lenient view, while condoning the delay but, it appears that such liberal approach of this Court has emboldened the officials of the Department, who, at the first instance take no steps to obtain certified copies of the ::: Downloaded on - 09/03/2021 20:17:09 :::HCHP 14 verdicts within the prescribed period and then keep on sitting over the file for long periods, for no reason.
.
14. The reasons for delay in maintaining accompanying appeal as rendered by the applicants in the case at hand, are not plausible, rather, despite repeated opportunities, applicants have chosen not to place the true facts before this Court, while filing appeal within the stipulated period.
15. Interestingly, the application filed for condonation of delay reveals that some action was initiated against the personnel responsible for misplacing the file, but, till date, nothing has been placed on record, suggestive of the fact that any disciplinary action has been taken against the erring personnel, rather, applicants, by way of supplementary affidavit and counter affidavit, have again made an attempt to justify their action, by concealing material facts. Otherwise also, law cannot come to the rescue of those, who were not diligent in pursuing their remedies. The long and short of the matter is very well expressed by the maxim, vigilantibus non dormientibus jura subveniunt, that is to say, the law assists those who are vigilant with their rights, and not those that sleep thereupon.
16. Though, having taken note of the aforesaid conduct of the applicants, this Court would have proceeded to order an enquiry into the matter, but on the vehement request of Mr. ::: Downloaded on - 09/03/2021 20:17:09 :::HCHP 15 Sudhir Bhatnagar, learned Additional Advocate General, it refrains from doing so.
.
17. In view of detailed discussion made herein above, this Court does not find any reason to condone the delay, in result, the application is dismissed being devoid of merit.
(Sandeep Sharma) Judge March 8, 2021 (vikrant) ::: Downloaded on - 09/03/2021 20:17:09 :::HCHP