Madhya Pradesh High Court
Rajendra Singh Yadav vs The State Of Madhya Pradesh on 26 June, 2014
Bench: A.M. Khanwilkar, S.K. Gangele
W.A. No. 162/2014
1
HIGH COURT OF MADHYA PRADESH:
BENCH AT GWALIOR
Writ Appeal No. 162/2014
Rajendra Singh Yadav ..... Appellant/Petitioner
Vs
State of Madhya Pradesh & Another .. Respondents
Coram:
Hon'ble Mr. Justice A.M. Khanwilkar, Chief Justice
Hon'ble Mr. Justice S.K. Gangele, Judge
Whether approved for reporting? Yes/No
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Mr. H.D. Gupta, Senior Advocate assisted by
Mr. Santosh Agarwal, Advocate for the Appellant.
Mr. M.P.S. Raghuwanshi, Additional Advocate General
for the respondent No.1/State.
Mr. Arvind Dudawat, Advocate for respondent No.2.
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ORDER (Oral)
26.06.2014 Per : A.M. Khanwilkar, Chief Justice This intra-court appeal takes exception to the decision of the learned single Judge dated 23rd April, 2014 in W.A. No. 162/2014 2 Writ Petition No.797/2014. The writ petition was filed against the decision of the statutory Authority dated 21st January, 2014, which in turn, had dismissed the revision application filed by the appellant on the ground of limitation.
2. The proceedings emanate from the order passed by the Authority dated 10th February, 2011 on the applications filed by both the private parties. The appellant being dissatisfied with the said decision, instead of resorting to statutory remedy, chose to file writ petition in this Court only on 4th November, 2011 bearing Writ Petition No.7443/2011. Indisputably, in the writ petition no averment is found as to what prevented the appellant to file the writ petition with utmost dispatch after 10th February, 2011. Instead, a vague and misleading averment is found that there is no delay in filing the writ petition. When the writ petition proceeded further, preliminary objection was raised by the opposite party. The learned single Judge disposed of the said writ petition on 16th May, 2013 in the following terms:-
"Learned counsel for the petitioner submits that he may be permitted to withdraw the petition with liberty to approach the appropriate forum.
Learned counsel for the respondent No.2 submits that instead of approaching the appropriate forum, after expiry of prescribed period of limitation the petition is filed, therefore, no liberty can be given to the petitioner.W.A. No. 162/2014 3
Keeping in view the statement made by counsel for parties petition is dismissed as withdrawn with liberty to the petitioner to approach the appropriate forum. If the petitioner approaches the appropriate forum, then the respondent No.2 shall be at liberty to raise all the objections which are available to the respondent No.2."
On a bare reading of this order it is noticed that writ petition was dismissed as withdrawn with liberty to the petitioner to approach the appropriate Forum and including liberty to respondent No.2 to raise all objections as may be available to him about the maintainability of the revision proceedings.
3. No doubt, the revision application came to be filed immediately on 4th June, 2013. The affidavit in support of the revision application to explain the delay in filing of the revision and with a request to condone the same makes an interesting reading. The inaction for the period between 10th February, 2011 till 4th November, 2011 until filing of the writ petition has been explained in the following words:-
"7. That, before passing of the State Government's Order 10.02.2011 (impugned), on 06.01.2011, a notice was received by the petitioner for violation of guideline of Industry lease deed, in pursuance of which the petitioner appeared for hearing on 19.01.2011 and on 25.01.2011, the General Manager, District Trade and Industrial Centre was pleased to pass order/letter stating that in light of the W.A. No. 162/2014 4 Petitioner's representative's appearance on 19.01.2011 and the reasons stated by him therein as regards the earlier show-cause notice to close the industry of the Petitioner, the Petitioner was being given an opportunity till 18.07.2011 to re-start the industry on the condition that an amount of Rs.16781.00/- is paid by the Petitioner as deemed appropriate. (A copy of the order dated 25.01.2011 is attached herewith as Annexure C-2)
8. That, the amount was duly paid by the Petitioner and it is pertinent to mention herein that the Petitioner was unable to run his industry properly and to full capacity due to shortage/non-availability of raw material. Therefore, the petitioner had applied for prospecting license for the subjected area for captive consumption.
9. That, due to the fact that the Petitioner only had until 18.07.2011 to save his industry, full concentration and time was given to make sure that there is no lack of effort in keeping the industry alive.
10. That, thereafter, in the month of august the Petitioner's wife fell seriously ill and needed constant attention due to which the Petitioner was busy taking care of her and ensuring her proper treatment in Arun Memorial ICU and Government hospital. (A copy of the doctor prescription and medicine receipt dated 06.08.2011, 17.08.2011 & 24.08.2011 are enclosed herewith as Annexure C-3 (Colly).
11. That, in the month of September/ October the Petitioner again was over-W.A. No. 162/2014 5
burdened, trying to revive his industry, looking for raw material but on 14.10.2011 State Government passed an order cancelling the industry lease of the Petitioner stating that the Petitioner did not start the industry within the stipulated time upto 18.07.2011 as per the previous order dated 25.01.2011.
12. That, such order of the State Government dated 14.10.2011 was received by the petitioner during the time when Petitioner was collecting documents & drafting a Writ Petition against the Impugned order of the State government dated 10.02.2011 for Village Paar which was filed on 04.11.2011 as by this time the Petitioner had exhausted all options of acquiring raw material known to him. (A copy of the order dated 14.10.2011 is attached herewith as Annexure C-4)
13. That, the Petitioner also filed an appeal against the order of the State Government dated 14.10.2011 whereby his industry was closed and on 30.08.2012, the appellant authority, District Trade & Industrial Center passed an order in favour of Petitioner and set aside the previous order dated 14.10.2011. (A copy of the order dated 30.08.2012 is attached herewith as Annexure C-5)
14. That, the petitioner requires the mineral applied for captive consumption without which the Petitioner will carry on facing great hardship in running his industry which the Petitioner has managed to re-open with great difficulty. That the merits in favour of the Petitioner, inter-W.A. No. 162/2014 6
alia, are stated in detail in the Revision Petition. Therefore, the Petitioner seeks condonation of delay in light of the Hon'ble High Court's order dated 16.05.2013 and in the interest of equity and justice.
15. That, the condonation of delay is merited in favour of the Petitioner in view of Section 5, Limitation Act 1963. While deciding on the question of delay, it is pertinent to ensure that there is no miscarriage of justice by taking a strict approach in condoning delay and further the courts must do substantial justice to parties by disposing of matters on merits. The same has been held by the Hon'ble Supreme Court in the case of Collector, Land Acquisition, Anantnag v. Katiji, AIR 1987 SC 1353. It has been held:
"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:- "Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 may be admitted after the prescribed period if the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period."W.A. No. 162/2014 7
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.
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."
W.A. No. 162/2014 8In the context of this assertion the Revisional Authority has opined that the appellant had delayed filing of writ petition and also failed to give just and proper explanation for the relevant period between 10th February, 2011 till 4th November, 2011. This is the sum and substance of the opinion formed in paragraph 6 of the order passed by the Revisional Authority. No doubt the Revisional Authority has loosely observed that the delay in filing the revision application is nearly 25 months but after that statement it has observed as above. This view was the subject matter of the challenge before the learned single Judge. The learned single Judge has affirmed the conclusion reached by the Revisional Authority for the reasons recorded in the judgment under appeal.
4. In our opinion, the final conclusion reached by the learned single Judge is just and proper. Inasmuch as, the appellant in the first place did not offer any explanation whatsoever in the earlier writ petition as to what prevented him to file the said writ petition on 4th November, 2011, although the order was passed by the Authority on 10th February, 2011. Even the liberty given by this Court was availed by making assertion in the application for condonation of delay before the Revisional Authority, which has been justly rejected by the Revisional Authority as not reasonable.
W.A. No. 162/2014 95. The fact that the appellant resorted to remedy of writ petition, at best, would be a good ground to accept the delay between 4th November, 2011 till 16th May, 2013 when the writ petition was pending and for that reliance can be placed on Section 14 of the Limitation Act, but, the pendency of the writ petition would not extricate the appellant from explaining the delay between 10th February, 2011 to 3rd November, 2011, in the first place, in the writ petition and more so, in the revision application, as to what prevented the appellant to file the writ petition till 4th November, 2011. The discretionary order passed by the Revisional Authority that the reasons given by the appellant in support of condonation of delay for the said period are not reasonable, in our opinion, is unexceptionable. This is the view taken by the learned single Judge as well.
6. Counsel for the appellant has placed reliance on the decision in the case of B.T. Purushothama Rai vs. K.G. Uthaya and others, (2011) 14 SCC 86, in particular, paragraph 17, to contend that the Limitation Act is not to destroy the rights of the parties. The object of providing legal remedy is to repair the damage caused as a result of legal injury. We fail to understand as to how this decision will come to the aid of the appellant, who was obviously not diligent and failed to offer any explanation much less sufficient and reasonable cause for condoning the delay between 10th February, 2011 till 4th November, 2011 inspite W.A. No. 162/2014 10 of the liberty granted by the learned single Judge of this Court in the earlier writ petition vide order dated 16th May, 2013. Having said this, nothing more is required to be done nor it is necessary for us to go into the different observations found in the decision of the learned single Judge being an intra-court appeal.
Dismissed.
(A.M. KHANWILKAR) (S.K. GANGELE)
Chief Justice Judge
S/