Gujarat High Court
Range Forest Officer & vs Muliyabhai Virjibhai Bhil on 3 May, 2016
Author: S.G.Shah
Bench: S.G.Shah
C/CA/6487/2015 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL APPLICATION (FOR CONDONATION OF DELAY) NO. 6487 of 2015
In FIRST APPEAL (STAMP NUMBER) NO. 1048 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE S.G.SHAH
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of
the judgment ?
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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RANGE FOREST OFFICER & 1....Applicant(s)
Versus
MULIYABHAI VIRJIBHAI BHIL....Respondent(s)
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Appearance:
MR JANAK RAVAL, ASST. GOVERNMENT PLEADER for the Applicant(s) No.
1-2
UNSERVED-EXPIRED (R) for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE S.G.SHAH
Date : 03/05/2016
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C/CA/6487/2015 CAV JUDGMENT
CAV JUDGMENT
1. Heard learned AGP Mr. Janak Raval for the applicants and learned advocate Mr. B. K. Raj for the respondent.
2. Applicants are original opponents, whereas respondent herein is original applicant before the Commissioner under Employees Compensation Act in W. C. Application No. 78 of 1995. The Commissioner under Employees Compensation Act has allowed such application by its judgment and award dated 15.02.1999 and directed the present applicants to pay Rs.84,036.75/- to the opponent as compensation, with 30% of such amount i.e. Rs.25,211.05/- as penalty, with 10% interest on amount of compensation and Rs.5000/- towards cost of such litigation. Copy of such judgment is annexed with proposed First Appeal memo, which shows that present applicants being respondents before the Commissioner have not appeared at all before the Commissioner and they have not filed their reply. Para 4 of the judgment discloses that when notice was sent upon present applicant No.1 as opponent No.1 by RPAD, the letter has returned back with endorsement that owner has refused to accept RPAD whereas notice upon respondent No.2 was served through Collector, Vadodara but there was no reply filed by the respondents, so also no evidence is adduced. Thereby though, both the opponents were ex-parte, the Commissioner has framed issues and applicant has adduced relevant evidence to prove his case. The Commissioner Page 2 of 10 HC-NIC Page 2 of 10 Created On Thu May 05 02:47:31 IST 2016 C/CA/6487/2015 CAV JUDGMENT had have appreciated the evidence on record and considering the facts and circumstances, law and evidence on record, awarded compensation as aforesaid.
3. It seems that when present applicants have not appeared before the Court and failed to protest the claim application as opponent, they have preferred one W. C. (Kirkol) Application No. 20/1999 on 28.07.1999 i.e. after the prescribed period of limitation for preferring such an application to set aside the ex-parte order is over, requesting the Commissioner under Employees Compensation Act and Labour Court, Vadodara to set aside the ex-parte award contending that they are not responsible to compensate the claimant and that, they have replied to the advocate of the claimant on 19.04.1995 disclosing the name and address of concerned officer but applicant has intentionally filed such claim petition against them and they came to know about such award on receipt of notice of Execution Petition No. 16 of 1999 on 17.07.1999. Thereafter, they have prayed for Certified copy of the award and filed such application contending that application for compensation is filed against wrong opponent by fraud and that, if they were aware about application, there would certainly have appeared and contested the same. However, such application was dismissed again for non-prosecution by the Commissioner under the Employees Compensation Act and Labour Court of Vadodara by an order dated 07.05.2001, wherein it is recorded that after receipt of Page 3 of 10 HC-NIC Page 3 of 10 Created On Thu May 05 02:47:31 IST 2016 C/CA/6487/2015 CAV JUDGMENT reply by the original claimant, so many dates were fixed for hearing, but nobody has appeared on behalf of the applicant and, therefore, it is to be presumed that applicant is not interested in proceeding further and, thereby, because of continuous absence, an application of the applicant has been dismissed. 3.1 It seems that such application was thereafter restored. However, again on 08.08.2007 i.e. after 6 years it receives the same fate i.e. dismissal for want of prosecution, because applicants have never appeared before the Commissioner to prove their case for setting aside the ex-parte award.
4. Thereby, after remaining absent before the Commissioner for setting aside the ex-parte order from 1999 till 2007 and after dismissal of their application for the purpose by an order dated 08.08.2007, again after the gap of 8 years, and all of a sudden, applicants have instead of proceedings further to get the ex-parte order quashed and set aside; as provided under the law, for which, they have already filed an application before the same Court; preferred a First Appeal (Stamp) No. 1048/2005, now directly challenging the judgment and order dated 15.02.1999 i.e. original award by the Commissioner under Employees Compensation Act in W. C. Application No. 78 of 1995. Therefore, now the award for an incident of 1994 has been first time challenged before this Court in the year 2015 i.e. after more than 20 years.
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5. Considering the delay in filing such appeal, this application under Section 5 of the Limitation Act is preferred requesting to condone the delay of 2770 days in filing the appeal. Therefore, though original award is under challenge in First Appeal, instead of calculating the period of limitation from the date of award being 15.02.1999, the applicants have prayed to condone the delay only from the date of dismissal of their application to set aside their ex- parte award dated 08.08.2007.
6. Therefore, application itself is misconceived and needs to be dismissed on such factual details itself. However, if we peruse the application, it becomes clear that to explain the delay, applicant as only contended that "as the earlier the judgment was passed ex- parte the State Authorities had decided to prefer appeal and application for stay before the Hon'ble High Court of Gujarat and on 31.08.2013 the opinion of the Legal Department was received by the Deputy Conservator of Forest, Chhota Udaipur and the same was forwarded on 13.01.2014 to the Chief Conservator of Forest, Vadodara; and that "on 30.12.2013 the Legal Department had instructed to the Forest & Environment Department, Gandhinagar that to contact the officer of the Government Pleader, High Court of Gujarat for initiating appropriate procedure of filing first appeal and the said instructions was received by the concerned department on 08.01.2014; and that "on 15.04.2014 the office of Page 5 of 10 HC-NIC Page 5 of 10 Created On Thu May 05 02:47:31 IST 2016 C/CA/6487/2015 CAV JUDGMENT Government Pleader received instructions to prefer appeal without Certified Copy of the Judgment and award and therefore the office of the Government Pleader 15.04.2014 had sent a fax to the concerned office/department to call for the record of the case, and thereafter on 17.04.2014 the Certified Copy of the judgment was applied for and the office of the Government Pleader, Hon'ble High Court of Gujarat received the certified copy of Judgment and Award on 23.04.2014 with relevant documents of the case. And thereafter the papers were given to the concerned Assistant Government Pleader for drafting and finally appeal was drafted and after receiving the receipt dated 07.05.2015 of deposit for the awarded amount, the first appeal was filed on 08.05.2015 in the Hon'ble High Court of Gujarat. Thus, there is a delay of 2770 days in filing the appeal."
7. It is further contended that such delay is procedural delay and not inaction on the part of any of the department of the government and that prompt decision has been taken to file an appeal.
8. However, I do not see any substance in such application for the simple reason that first of all, the State has failed to disclose the proper period of delay when original award is under challenge when they have considered the delay only from the date of dismissal of their application for setting aside the ex-parte award Page 6 of 10 HC-NIC Page 6 of 10 Created On Thu May 05 02:47:31 IST 2016 C/CA/6487/2015 CAV JUDGMENT and that State has never bothered to remain present before the concerned Commissioner to decide their application for setting aside the ex-parte award on merits. If State has not bothered to remain present before the Court for more than 6 years and that too for setting aside the ex-parte award against them, it becomes clear that there is sheer negligence on their part, for which, there is no explanation at all and, therefore, only because State is claiming to condone the delay, the delay cannot be condoned. Because there is no sufficient cause to show that why this much delay has occurred. The rest of the grounds cannot be said to be sufficient cause, in as much as, it is an administrative delay on the part of the State, for which there is no proper explanation.
9. Perused the record. Though the law of limitation is considered as liberal piece of legislation while condoning the delay, pursuant to following decisions, now, it cannot be said that the application to condone the delay is to be allowed irrespective of facts, circumstances and material, which is placed on record.
(1) (2010)2 SCC 114 Dalipsingh Vs.State of UP & Ors., (2) (2012)8 SCC 524 - Cicily Kallarackal Vs. Vehicle Factory, (3) (2012)5 SCC 157 Maniben Devraj Shah Vs. Municipal Corporation of Brihan Mumbai, (4) (2012)3 SCC 563 Post Master General & Ors. Vs.Living Media India Ltd. & Ors., (5) (2010)8 SCC 685 Balwant Singh (Dead) Vs. Jagdish Singh and Others, (6) (2010)5 SCC 459 Oriental Aroma Chemical Industries Ltd. Vs. Gujarat Industrial Development Corporation & Anr., (7) (2008)17 SCC 448 Pundlik Jalam Patil (Dead) Page 7 of 10 HC-NIC Page 7 of 10 Created On Thu May 05 02:47:31 IST 2016 C/CA/6487/2015 CAV JUDGMENT Vs.Executive Engineer, Jalgaon Medium Project & Anr., (8) (1997)7 SCC 556 P.K. Ramachandran Vs.State of Kerala & Anr.,(9) 2012(7) SCALE 230 B.Madhuri Goud Vs.B.Damodar Reddy, (10) AIR 2012 SC 640 - Abdul Gafoor Vs. State of Bihar, (11) AIR 2011 SC 428 Delhi Development Authority Vs.Bhola Nath Sharma, (12) AIR 2011 SC 977 Union of India Vs.Giani, (13) AIR 2011 SC 1150 Parimal Vs.Veena, (14) AIR 2010 SC 1445 State of J & K Vs.Mohmad Maqbool Sofi, (15) AIR 2009 SC 1927 State of Jharkhand Vs. Ashok Kumar Chokhani, (16) AIR 2009 SC 2577 State of Karnataka Vs.Y.Moideen Kunhi, (17) AIR 2009 SC (Supp.) 695 State (NCT of Delhi) Vs.Ahmed Jaan, (18) AIR 1984 SC 1744 O.P. Kathpalia Vs. Lakhmir Singh (Dead) by 3 Judges bench of Apex Court, (19) AIR 2008 SC 1688 Sinik Security Vs.Sheel Bai, AIR 2009 SC 2170 D.D. Vaishnav Vs.State of M.P. and AIR 2009 SC (Supp.) 195 Commissioner, Nagar Parishad, Bhilwara Vs.Labour Court, Bhilwara, (20) AIR 1987 SC 1353 Collector, Land Acquisition, Anantnag & Anr. Vs. Mst.Katiji & Ors.
10. So far as decisions cited by the petitioner in the case of judgment dated 17.9.2014 in Civil Application no.2798 of 2014 between Madan Hundraj Thakur & Ors. Vs. Vishindas Jethanand Materja & Anr. and G.Ramegowda Vs.The Special Land Acquisition Officer reported in AIR 1988 SC 897 are concerned, suffice to say that only because in a given case, delay is condoned, delay cannot be condoned in all the cases, irrespective of facts, circumstances and material on record, more particularly, reasons for delay so as to consider that such reasons are sufficient cause for condoning the delay. If we read both the above judgments, the fact remains that in the case of G.Ramegowda Page 8 of 10 HC-NIC Page 8 of 10 Created On Thu May 05 02:47:31 IST 2016 C/CA/6487/2015 CAV JUDGMENT (supra), Honble Supreme Court of India has practically not interfered with the decision of the High Court when High Court has deemed it fit to condone the delay observing that Governmental decisions are proverbially slow encumbered, as they are, by a considerable degree of procedural red-tape in the process of their making. A certain amount of latitude is, therefore, not impermissible. With due respect, it is sufficient to record here that though this decision is cited at bar, contending that the State should not suffer for the lacuna on the part of the advocate, practically, in the pleading for condoning the delay, the petitioner State has not stated a single word either against its own District Govt. Pleader or against their procedural lacuna for which Hon'ble Supreme Court of India has confirmed to condone the delay. Unfortunately, the pleading in an application to condone the delay is totally against the judicial procedure and blaming the Courts that Court has never conveyed the decision to the GP and the officers of the Government, and therefore, there is a delay. Whereas, in the decision of Madan Hundraj Thakur (supra), the decision is based upon the previous decisions of the Honble Supreme Court of India only which are taken into consideration. However, none of such judgment has ever been distinguished or overruled in the decisions which are cited in this judgment.
11. It is clear that condonation of delay in all the cases was mainly based on facts and circumstances of that case when it was Page 9 of 10 HC-NIC Page 9 of 10 Created On Thu May 05 02:47:31 IST 2016 C/CA/6487/2015 CAV JUDGMENT held that there is sufficient cause to condone the delay. Whereas, in the present case, as discussed herein above, when there is no sufficient cause to condone the delay, there is no reason to condone the delay and, thereby, to allow such petition.
12. Therefore, the present Civil Application is dismissed as there is no substance in it.
13. In view of dismissal of present Civil Application, other allied matters do not survive and the same are disposed of.
(S.G.SHAH, J.) drashti Page 10 of 10 HC-NIC Page 10 of 10 Created On Thu May 05 02:47:31 IST 2016