Rajasthan High Court - Jodhpur
State Of Rajasthan And Ors vs Ashiana Amar Developers on 23 July, 2020
Bench: Sangeet Lodha, Rameshwar Vyas
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Spl. Appl. Writ No. 1407/2018
State Of Rajasthan and Ors.
----Appellants
Versus
Ashiana Amar Developers
----Respondent
For Appellant(s) : Mr. Sandeep Shah, AAG with
Ms. Akshiti Singhvi
For Respondent(s) : Mr. Anjay Kothari with
Mr. Mukesh Gurjar
HON'BLE MR. JUSTICE SANGEET LODHA
HON'BLE MR. JUSTICE RAMESHWAR VYAS Order 23/07/2020
1. The matter comes up on an application preferred on behalf of the appellants under Section 5 of the Limitation Act for condonation of delay in filing the appeal.
2. The appeal is directed against order dated 2.12.16 passed by the learned Single Judge of this Court, whereby the writ petition preferred by the respondent has been allowed. It is reported to be barred by limitation for 54 days.
3. Explaining the delay in filing the appeal, it is averred in the application that the Deputy Government Counsel vide his correspondence dated 17.12.16 opined that the case was fit for filing the appeal. The opinion was forwarded to DIG (Stamp), Ajmer on 20.12.16 and a reminder was sent on 9.1.17. Thereafter, decision was taken to file the appeal and Officer-in-Charge was appointed through the LITES software on 14.2.17. After appointment of the Officer-in-Charge, the Sub Registrar (SR), (Downloaded on 27/07/2020 at 08:57:30 PM) (2 of 5) [SAW-1407/2018] Jodhpur, sent a letter to the Deputy Legal Remembrancer, who sought for the factual status of the case, which was sent on 20.3.17. After preparation of the petition, the petition was sent for vetting. After approval, the Deputy Legal Remembrancer, vide communication dated 13.7.17 (sic 13.4.17) approved the petition, sent the petition (sic appeal) for filing to the Deputy Government Counsel. Subsequently, a reminder was sent on 23.4.17 by the Deputy Legal Remembrancer to the Sub Registrar (SR), Jodhpur, with regard to filing of the appeal and immediately, thereafter the appeal was filed. As a matter of fact, the appeal was filed before this Court on 19.4.17.
4. Learned AAG submitted that on the facts and in the circumstances of the case, the delay caused in filing the appeal is bonafide. It is submitted that the present appeal involves a substantial question of law and therefore, in the interest of justice, the delay caused deserves to be condoned. It is submitted that if the matter is not heard on merits and the order impugned is allowed to stand, it will cause huge loss to the State exchequer. Relying upon the decisions of the Supreme Court in the matters of State of Nagaland Vs. Lipok AO and Others : (2005) 3 SCC 752 and State of Rajasthan and Another Vs. Bal Kishan Mathur (Dead) through Legal Representatives and Others : (2014) 1 SCC 592, learned AAG submitted that in the instant case where there is no gross negligence, deliberate inaction or lack of bonafides, taking a broad and liberal view so as to advance substantial justice, the delay caused deserves to be condoned.
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5. On the other hand, learned counsel appearing for the respondent submitted that simply because the appeal is filed on behalf of the State, the expression "sufficient cause" in Section 5 of the Limitation Act cannot be construed liberally. It is submitted that the matter with regard to condonation of delay has to be considered by the court on the basis of the explanation furnished. Learned counsel submitted that earlier application under Section 5 of the Limitation Act, filed by the appellants was withdrawn with liberty to file fresh, but now in the fresh application filed also the respondent has made the averments which are patently incorrect. Drawing the attention of the Court to para 4 of the application, learned counsel submitted that it is averred by the appellants that Deputy Legal Remembrancer vide his correspondence dated 13.7.17 addressed to the Deputy Government Counsel approved the petition sent by the Deputy Government Counsel for filing, whereas the appeal had already been filed on 19.4.17. Learned counsel submitted that the averments made in the application demonstrates casual approach of the appellants in seeking condonation of delay. Learned counsel submitted that the dates indicating movement of the file without placing any evidence in support of the same, do not constitute "sufficient cause" so as to condone inordinate delay of 54 days in filing the appeal. Learned counsel submitted that the appellants are clearly negligent in delaying the filing of the appeal and there are no bonafide reasons for condonation of delay. Learned counsel urged that the condonation of delay is an exception and should not be used as anticipated benefit for the Government Departments. In support of the contention, learned counsel has relied upon the decisions of (Downloaded on 27/07/2020 at 08:57:30 PM) (4 of 5) [SAW-1407/2018] the Supreme Court in the matters of Basawaraj and Another Vs. Special Land Acquisition Officer : (2013) 14 SCC 81, Post Master General and Others Vs. Living Media India Limited and Another :
(2012) 3 SCC 563, M/s. Lifelong Mediatech Pvt. Ltd. Vs. M/s.
United India Insurance Co. Ltd. : 2018 SCC Online Del 9559, Maniben Devraj Shah Vs. Municipal Corporation of Brihan, Mumbai : (2012) 5 SCC 157, Esha Bhattacharjee Vs. Managing Committee of Raghunathpur Nafar Academy and Others : (2013) 12 SCC 649, Pundlik Jalam Patil (Dead) by Lrs Vs. Executive Engineer, Jalgaon Medium Project and Another : (2008) 17 SCC 448, Brijesh Kumar and Others Vs. State of Haryana and Others : (2014) 11 SCC 351 and N. Balakrishnan Vs. M. Krishnamurthy : (1998) 7 SCC 123.
6. We have considered the rival submissions.
7. Undoubtedly, the State is not entitled for any latitude in the matters of condonation of delay and the discretion to condone the delay has to be exercised judiciously on the facts and in the circumstances of each case. It is also equally true that the "sufficient cause" cannot be liberally interpreted if negligent inaction or lack of bonafides is attributed to the party. But then, even if the Officer-in-Charge has not pursued the litigation with due diligence, there is no presumption that the delay is occasioned deliberately or on account of culpable negligence or on account of mala fides. (vide "Collector, Land Acquisition, Anantnag vs. Mst. Katiji & Ors.", AIR 1987 S.C., 1353). In the instant case, a perusal of the explanation furnished does not reflect that the Government authorities were grossly negligent in pursuing the litigation and in taking the decision to file the appeal. That apart, on the facts and (Downloaded on 27/07/2020 at 08:57:30 PM) (5 of 5) [SAW-1407/2018] in the circumstances of the case, lack of bonafides also cannot be inferred.
8. In this view of the matter, in considered opinion of this Court having regard to the issues involved in the appeal so as to advance the cause of justice, the delay in filing the appeal deserves to be condoned. The inconvenience caused to the respondent may be compensated by awarding exemplary cost .
9. Accordingly, the application is allowed. The delay in filing the appeal is condoned, subject to payment of cost of Rs.5,000/- by the appellants to the respondent.
10. Let, the appeal be registered and listed for admission on 17.8.2020.
(RAMESHWAR VYAS),J (SANGEET LODHA),J
Vij/-
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