Andhra Pradesh High Court - Amravati
The State Of Andhra Pradesh vs Smt.Ammaji, on 11 October, 2023
HIGH COURT OF ANDHRA PRADESH
MAIN CASE: W.A.No.606 OF 2023
PROCEEDING SHEET
SL. DATE ORDER OFFICE
NO. NOTE
5. 11.10.2023 RNT, J & DVR,J
I.A.No.1 OF 2023
This is an application for condonation
of delay of 126 days in filing the writ appeal.
2. The writ appeal is filed against the
judgment and order dated 05.12.2022 in
W.P.No.39224 of 2022. The appeal was filed
on 10.05.2023. The respondent i.e the writ
petitioner has filed Counter affidavit. The appellant-applicants have filed a better affidavit, copy which was served to the respondent‟s counsel on 18.07.2023, but to the better affidavit any objection has not been filed.
3. Sri G.V.S. Kishore Kumar, learned Government Pleader for the appellant- applicants submits that in view of the facts stated and cause shown in the affidavit and the better affidavit there is sufficient cause. The delay deserves to be condoned. He placed reliance in the cases of State of Haryana vs. Chandra Mani and others1, 1 (1996) 3 SCC 132 2 SL. DATE ORDER OFFICE NO. NOTE Sridevi Datla vs. Union of India and others2, Raheem Shah and another vs. Govind Singh and others3.
4. Sri P.V Ramana, learned counsel for the writ petitioner/respondent No.1 herein, submits that the cause shown is not sufficient to condone the delay. The appellants have not explained each and every day‟s delay. He has placed reliance in the cases of Postmaster General and others vs. Living Media India Limited and another4 and State of Uttar Pradesh though Executive Engineer and another vs. Amar Nath Yadav5.
5. We have considered the submissions of the learned counsels for the parties and perused the material on record.
6. The appellant/applicants have submitted in the affidavit filed in support of I.A.No.1 of 2023 as also in the better affidavit, that the copy of the order dated 05.12.2022 was received from the Registry on 06.04.2023. Thereafter, on perusal of the judgment, the officials of the appellants were advised to secure all the relevant papers for filing the appeal. After obtaining the material papers and the draft affidavit, 2 (2021) 5 SCC 321 3 2023 SCC OnLine SC 910 4 (2012) 3 SCC 563 5 (2014) 2 SCC 422 3 SL. DATE ORDER OFFICE NO. NOTE the draft of writ appeal was preferred and sent for approval of the Government Pleader for Services, on 24.04.2023, which was approved on 26.04.2023. Thereafter, the writ appeal was finalized and was filed on 10.05.2023. It is further submitted that the delay is not willful or deliberate. Time was consumed due to the departmental proceedings in obtaining necessary permission and there was some communication gap. It is further submitted that on merits the appellants have got good case and if the delay is not condoned, much loss would be caused to the appellants as the matter pertains to grant of additional amount of pension burdening the State Exchequer, to which the writ petitioner is legally not entitled.
7. Learned Government Pleader further submits that the impugned judgment is granting the benefit of the order dated 20.01.2022 passed in W.P.No.26092 of 2021 against which also the appellants have already filed W.A.No.786 of 2022 along with I.A.No.1 of 2022 for condonation of delay which is also pending for disposal.
8. In Raheem Shah (supra), the Hon‟ble Apex court referred to its previous judgment, 4 SL. DATE ORDER OFFICE NO. NOTE in Collector, Land Acquisition, Anantnag vs. Mst. Katiji6, and held as under in paras 5 and 6:
"5. This Court in the case of Collector, Land Acquisition, Anantnag & Anr. Vs. Mst. Katiji & Ors. reported in (1987) 2 SCC 107 has held as hereunder:
"The legislature has conferred the power to condone delay by enacting Section 5 of the Indian Limitation Act of 1963 in order to enable the courts to do substantial justice to parties by disposing of matters on `merits‟. The expression `sufficient cause‟ employed by the legislature is adequately elastic to enable the courts to apply the law in a meaningful manner which subserves the ends of justice-that being the life- purpose for the existence of the institution of courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters instituted in this Court. But the message does not appear to have percolated down to all the other courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:
1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.
2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.
3. "Every day‟s delay must be explained" does not mean that a pedantic approach should be made. Why not every hour‟s delay, every second‟s delay ? The doctrine must be applied in a rational common sense pragmatic manner.
6 (1987) 2 SCC 107 5 SL. DATE ORDER OFFICE NO. NOTE 4. When substantial justice and technical
considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.
5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.
6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so. Making a justice-oriented approach from this perspective, there was sufficient cause for condoning the delay in the institution of the appeal.
6. The above decision expressing the intention of justice oriented approach percolating down to all the courts was rendered nearly three decades ago but unfortunately the case on hand demonstrates the pervading insensitive approach, which apart from continuing the agony of the litigants concerned has also unnecessarily burdened the judicial hierarchy which after going through the entire process will have to set the clock back, at this distant point in time and prolong their agony. If only the court concerned had been sensitive to the justice oriented approach rather than the iron- cast technical approach, the litigation between the parties probably would have come to an end much earlier after decision on the merits of their rival contention."
6SL. DATE ORDER OFFICE NO. NOTE
9. In the aforesaid case, the Hon‟ble Apex Court held that ordinarily a litigant does not stand to benefit by lodging an appeal late. It is also held that refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.
10. In Chandra Mani (supra)the Hon‟ble Apex Court held that the expression „sufficient cause‟ should receive a liberal construction. It was held that unless want of bonafides of such inaction or negligence as would deprive a party of the protection of Section 5 is proved, the applicant must not be thrown out or any delay cannot be refused to be condoned. Referring to its previous precedents, the Hon‟ble Apex Court held that in litigations to which government is a party, if the appeals brought by the Government are lost for such defaults, no person is individually 7 SL. DATE ORDER OFFICE NO. NOTE affected but what in the ultimate analysis, suffers is public interest. The expression "sufficient cause" should be considered with pragmatism in justice-oriented approach rather than the technical detection of sufficient cause for explaining every day's delay. The factors which are peculiar to and characteristic of the functioning of the Governmental conditions would be cognizant to and requires adoption of pragmatic approach in justice-oriented process. The Court should decide the matters on merits unless the case is hopelessly without merit. It was also observed that when the State is an applicant, the decisions are taken by officers/agencies at slow pace and encumbered process of pushing the files from table to table and keeping it on the table for considerable time causing delay is a routine. Therefore, certain amount of latitude is, not impermissible.
11. It is apt to refer relevant part from paras 4,9 and 11 of Chandra Mani (supra) as under:
"4. What constitute sufficient cause cannot be laid down by hard and fast rules. In New India Insurance Co. Ltd. v. Smt. Shanti Misra [AIR 1976 SC 237], this Court held that discretion given by Section 5 should not be defined or crystalized so as to convert a discretionary matter into a rigid rule of law. The expression "sufficient cause' should receive 8 SL. DATE ORDER OFFICE NO. NOTE a liberal construction. In Inder Singh v. Kanshi Ram [AIR 1917 PC 156] it was observed that true guide for a court to exercise the discretion under Section 5 is whether the appellant acted with reasonable diligence in prosecuting the appeal. In Shakuntala Devi Jain v. Kuntal Kumari & Ors. [(1969) 1 SCR 1006], a Bench of three Judges had held that unless want of bona fides of such inaction or negligence as would deprive a party of the protection of Section 5 is proved, the application must not be thrown out or any delay cannot be refused to be condoned.
9. In G. Ramegowda, Major & Ors, v. Spl, Land Acquisition Officer, Bangalore [(1988) 2 SCC 142], it was held that no general principle saving the party from all mistakes of its counsel could be laid. The expression "sufficient cause" must receive a liberal construction so as to advance substantial justice and generally delays in preferring the appeals are required to be condoned in the interest of justice where no gross negligence or deliberate inaction or lack of bona is imputable to the party seeking condonation of delay. In litigations to which Government is a party, there is yet another aspect which, perhaps, cannot be ignored. If appeals brought by Government are lost for such defaults, no person is individually affected; but what, in the ultimate analysis, suffers is public interest. The decisions of Government are collective and institutional decisions and do not share the characteristics of decisions of private individuals. The law of limitation is, no doubt, the same for a private citizen as for Governmental authorities. Government, like any other litigant must take responsibility for the acts or omissions of its officers. But a somewhat different complexion is imparted to the matter where Government makes out a case where public interest was shown to have suffered owing to acts of fraud or bad faith on the part of its officers or agents and where the officers were clearly 9 SL. DATE ORDER OFFICE NO. NOTE at cross-purposes with it. It was, therefore, held that in assessing what constitutes sufficient cause for purposes of Section 5, it might, perhaps, be somewhat unrealistic to exclude from the consideration that go into the judicial verdict, these factors which are peculiar to and characteristic of the functioning of the Government. Government 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. It is rightly said that those who bear responsibility of Government must have a little play at the joints'. Due recognition of these limitations on Governmental functioning - of course, within reasonable limits - is necessary if the judicial approach is not to be rendered unrealistic. It would, perhaps, be unfair and unrealistic to put Government and private parties on the same footing in all respects in such matters. Implicit in the very nature of Governmental functioning is procedural delay incidental to the decision making process. The delay of over one year was accordingly condoned.
11. It is notorious and common knowledge that delay in more than 60 per cent of the cases filed in this Court - be it by private party or the State - are barred by limitation and this Court generally adopts liberal approach in condonation of delay finding somewhat sufficient cause to decide the appeal on merits. It is equally common knowledge that litigants including the State are accorded the same treatment and the law is administered in an even-handed manner. When the State is an applicant, praying for condonation of delay, it is common knowledge that on account of impersonal machinery and the inherited bureaucratic methodology imbued with the note-making, file-pushing, and passing-on-the-buck ethos, delay on the part of the State is less difficult to understand though more difficult to approve, but 10 SL. DATE ORDER OFFICE NO. NOTE the State represents collective cause of the community. It is axiomatic that decisions are taken by officers/agencies proverbially at slow pace and encumbered process of pushing the files from table to table and keeping it on table for considerable time causing delay intentional or otherwise - is a routine. Considerable delay of procedural red tape in the process of their making decision is a common feature. Therefore, certain amount of latitude is not impermissible. If the appeals brought by the State are lost for such default no person is individually affected but what in the ultimate analysis suffers, is public interest. The expression "sufficient cause"
should, therefore, be considered with pragmatism in justice-oriented approach rather than the technical detection of sufficient cause for explaining every day's delay. The factors which are peculiar to and characteristic of the functioning of the Governmental conditions would be cognizant to and requires adoption of pragmatic approach in justice-oriented process. The Court should decide the matters on merits unless the case is hopelessly without merit....................."
12. In Sridevi Datla (supra), the Hon‟ble Apex Court referred to Esha Bhattacharjee vs. Raghunathpur Nafar Academy7, in which the Hon‟ble Apex Court held that adoption of a strict standard of proof sometimes fails to protect public justice and it may result in public mischief.
13. It is apt to refer paras 24 and 25 of Sridevi Datla (supra) as under:
24. In G. Ramegowda v. Land Acquisition Officer8, speaking for this court, Venkatachaliah, J 7 (2013) 12 SCC 649 8 (1988) 2 SCC 142 11 SL. DATE ORDER OFFICE NO. NOTE summarized the position in the following terms:
"14. The contours of the area of discretion of the courts in the matter of condonation of delays in filing appeals are set out in a number of pronouncements of this Court. See Ramlal v. Rewa Coalfields Ltd. [AIR 1962 SC 361 : (1962) 2 SCR 762] , Shakuntala Devi Jain v. Kuntal Kumari [AIR 1969 SC 575 : (1969) 1 SCR 1006] , Concord of India Insurance Co. Ltd. v. Nirmala Devi [(1979) 4 SCC 365 : 1979 SCC (Cri) 996 :
(1979) 3 SCR 694] , Mata Din v. A. Narayanan [(1969) 2 SCC 770 : (1970) 2 SCR 90] and Collector (LA) v. Katiji [(1987) 2 SCC 107 : 1989 SCC (Tax) 172] , etc. There is, it is true, no general principle saving the party from all mistakes of its counsel. If there is negligence, deliberate or gross inaction or lack of bona fides on the part of the party or its counsel there is no reason why the opposite side should be exposed to a time-barred appeal. Each case will have to be considered on the particularities of its own special facts. However, the expression „sufficient cause‟ in Section 5 must receive a liberal construction so as to advance substantial justice and generally delays in preferring appeals are required to be condoned in the interest of justice where no gross negligence or deliberate inaction or lack of bona fides is imputable to the party seeking condonation of the delay."
25. Much later, in Esha Bhattacharjee v. Raghunathpur Nafar Academy9 this court referred to a large number of previous judgments17 , and 9 (2013) 12 SCC 649 12 SL. DATE ORDER OFFICE NO. NOTE observed that adoption of a strict standard of proof sometimes fails to protect public justice and it may result in public mischief. Other decisions have highlighted that there cannot be a universal formula to judge whether sufficient cause has, or has not been shown and the exercise is necessarily fact specific; in Improvement Trust v. Ujagar Singh10, the court held:
"16. While considering [an] application for condonation of delay no straitjacket formula is prescribed to come to the conclusion if sufficient and good grounds have been made out or not."
14. In Post Master General (supra), the decision upon which the learned counsel for the writ petitioner/respondent placed reliance it has been held as under in paras 27 to 30:-
"27. 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.
10 (2010)6 SCC 786 13 SL. DATE ORDER OFFICE NO. NOTE
28. 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.
29. 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.
30. Considering the fact that there was no proper explanation offered by the Department 14 SL. DATE ORDER OFFICE NO. NOTE 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."
15. In Amarnath Yadav (supra), referring to the Post Master General (supra) condonation of delay was refused.
16. We are of the considered view that for the delay of 126 days there is plausible explanation which has been stated. The „sufficient cause‟ is to be liberally construed to advance substantial justice and in favour of the decision on merits. The appellants here are the State and if on technical considerations, the appeal is rejected as barred by limitation, the public interest would suffer. The dispute involved on merits is, if the direction to make the payment of additional pension to the pensioners at the age of entering into 70 years is justified or it should be on completion of 70 years. So, the financial burden on the State, for one year with respect to so many pensioners would be the implication, ultimately reflecting upon the public exchequer. No prejudice would be caused to the writ petitioner, if the delay is condoned and the matter is heard on merits. The petitioner is in receipt of the 15 SL. DATE ORDER OFFICE NO. NOTE pension. The only thing is of the additional amount of pension. If the delay is condoned, the cause would be decided on merits after hearing the parties. It is settled that certain amount of latitude is not impermissible to the State appellant. It is not the objection of the respondent-writ petitioner that there is gross negligence or deliberate inaction or lack of bonafides. Further, the argument of the respondent‟s counsel that every day‟s delay has not been explained, is unsustainable, in view of what has been laid down in Mst. Katiji (supra) that every day‟s delay must be explained does not mean that a pedantic approach should be make. The doctrine must be applied in a rational common sense pragmatic manner. In Post Master General (supra) and Amarnath Yadav (supra) there was inordinate delay of 427 days and 481 days respectively for which there was no proper explanation.
17. In Post Master General (supra) also, the Hon‟ble Apex Court reiterated that in the matter of condonation of delay when there was no gross negligence or deliberate inaction or lack of bonafides, a liberal construction has to be adopted to advance substantial justice.
16SL. DATE ORDER OFFICE NO. NOTE
18. In over all consideration of the factual and legal aspects, we are of the considered view that the delay deserves to be condoned. The same is condoned.
19. I.A.No.1 of 2023 is allowed.
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1. Learned counsel for the appellants submitted that it is not entering into the age of 70th year, but on completion of the age of 70 years that the additional quantum of pension would be payable in terms of G.O.Ms.No.6 dated 12.01.2019 read with G.O.Ms.No.100 Finance (Pension-I) Department dated 06.04.2010.
2. On merits, we find that the question raised and involved in the appeal is as to whether "from 70" as in G.O.Ms.No.6, „in the table‟ is to be counted from the date of entering into the 70th year or on completion thereof, and whether G.O.Ms.No.6 is to be read with G.O.Ms.No.100 or independently.
3. The learned single Judge placed reliance in the case of Sri Bebbadi Appa Rao vs. The Assistant Treasury Officer, Visakhapatnam and others in W.P.No.26092 of 2021, which in turn placed reliance in the case of Virendra Dutt Gyani vs. Union of 17 SL. DATE ORDER OFFICE NO. NOTE India (W.P.(C) No.4224 of 2016 dated 15.03.2018) in which the question involved was with respect to the interpretation of Section 17-B of the High Court Judges (Salaries and Conditions of Service) Act, 1954. In that context, the expression „from‟ was considered and interpreted. It was held that it would be from the date of entering into the particular age, but what has been submitted by the learned Government Pleader is that the explanation to Section 17-B was not considered and if the same had been taken into consideration the interpretation as given would not have followed.
4. In the submission of learned Government Pleader, the G.O.Ms.No.6, itself, though in para 4 does not mention the completion or attainment of the age of 70, and in the table "from 70", is mentioned but in view of clause (5) of G.O.Ms.No.6, the same is in continuation of G.O.Ms.No.100, and in view of paragraph 4.5 of that G.O, it is to be paid, on attainment of the age of "70" years. In his submission the attainment of the particular age would be on completion and not on entering into the age.
5. The matter requires consideration.
6. Learned counsel for the writ petitioner prays for time to file counter affidavit to 18 SL. DATE ORDER OFFICE NO. NOTE I.A.No.2 of 2023.
7. Post after four weeks.
8. Till the next listing, the operation of the judgment and order dated 20.01.2022, passed in W.P.No.26092 of 2021 shall remain stayed. However, the writ petitioner shall be paid the additional amount of pension w.e.f completion of 70 years. The payment of additional amount if payable from the date of entering into 70th year, shall be as per the final decision in the writ appeal.
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