Jammu & Kashmir High Court - Srinagar Bench
State Of Jk & Ors vs Bashir Ahmad Mir & Ors on 22 December, 2020
Bench: Ali Mohammad Magrey, Vinod Chatterji Koul
Serial No. 218
Supplementary- 1 List
HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
(Through Virtual Mode)
CM No.6043/2019 in
LPA No.247/2019; CM No.6044/2019
State of JK & Ors.
..... Appellant(s)
Through: -
Mr Irfan Andleeb, Dy. AG.
V/s
Bashir Ahmad Mir & Ors.
..... Respondent(s)
Through: -
Mr R. A. Jan, Senior Advocate with Mr Taha Khaleel, Advocate.
CORAM:
Hon'ble Mr Justice Ali Mohammad Magrey, Judge Hon'ble Mr Justice Vinod Chatterji Koul, Judge (ORDER) 22.12.2020 {Per Magrey; J (Oral)}:
01. By this motion, the Government of Jammu and Kashmir, through Commissioner/ Secretary, PHE and I&FC Department, Civil Secretariat, Srinagar/ Jammu is seeking the indulgence of this Court in condoning the delay of 1090 days in filing the appeal against the judgment dated 11th of August, 2016 passed by the learned Single Bench in SWP No.1579/2013 in the Writ petition filed by the respondents/ Writ petitioners, inter alia, on the grounds that once the applicants/ appellants came to know about the judgment aforesaid, the matter was taken up with the higher authorities, in which process, the applicants/ appellants were required to collect the relevant record/ TAHIR MANZOOR BHAT 2020.12.23 14:57 I attest to the accuracy and integrity of this document Page 2 of 7 CM No. 6043/2019 in LPA No. 247/2019; CM No. 6044/2019 documents from various subordinate offices and also to obtain advice from the Department of Law, Justice and Parliamentary Affairs. Obviously, the examination of the matter and consideration of the question of filing of appeal, at various levels, led to consumption of some time. The Law Department considered the matter on its merits and decided to challenge the judgment passed by the learned Single Bench in Letters Patent before this Court. In this backdrop, it is pleaded that the delay that has occasioned in the filing of the appeal against the judgment of the learned Single Bench is bonafide and not deliberate, wilful or intentional. It is also contended that the appeal has an important bearing as far as the interests of the applicants/ appellants are concerned and, that in case the delay in filing the appeal is not condoned, it will cause great prejudice to the Government.
02. On notice having been issued, the respondents/ Writ petitioners have filed objections, stating therein that the application seeking condonation of delay in filing the appeal against the judgment passed by the learned Single Bench is cryptic and that there is no ground; much less a sufficient one, for condoning the delay that has occasioned in the filing of the appeal. It is stated that in terms of the Law of Limitation, the period of sixty days for filing of appeal against the judgment dated 11th of August, 2016 expired on 12th of September, 2016, however, the applicants/ appellants have filed the instant application seeking condonation of delay in filing the appeal, alongwith the main appeal, on 9th of October, 2019, meaning thereby that there is a huge delay in filing the same, as such, the appeal is patently barred by limitation. It is further submitted that the explanation tendered by the applicants/ appellants TAHIR MANZOOR BHAT 2020.12.23 14:57 I attest to the accuracy and integrity of this document Page 3 of 7 CM No. 6043/2019 in LPA No. 247/2019; CM No. 6044/2019 does not, at all, justify the condonation of delay inasmuch as the same demonstratively establishes absence of any reasonable or satisfactory cause.
03. We have heard learned the counsel for the parties, gone through the pleadings on record and considered the matter.
04. At the very outset, what requires to be stated is that the Courts are always expected to take a justice-oriented approach while considering an application for condonation of delay. If the Court concerned is convinced that sufficient cause has been shown to demonstrate that there had been no attempt on the part of the Government officials or public servants to defeat justice by causing deliberate delay, the Court, in view of the larger public interest, should take a lenient view in such situations, condone the delay; howsoever huge the delay may be, and have the matter decided on merits. 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 bonafides is imputable to the party seeking condonation of delay. In litigations to which the Government is a party, there is yet another aspect which, perhaps, cannot be ignored. If appeals brought by the Government are lost for such defaults, no person is individually affected, but what, in the ultimate analysis, suffers is public interest. Besides, the decisions of the Government are collective and institutional decisions and do not share the characteristics of decisions of private individuals. These decisions are taken by officers/agencies proverbially at slow pace and, TAHIR MANZOOR BHAT 2020.12.23 14:57 I attest to the accuracy and integrity of this document Page 4 of 7 CM No. 6043/2019 in LPA No. 247/2019; CM No. 6044/2019 encumbered process of pushing the files from table to table and keeping it on the table for considerable time causing delay; intentional or otherwise, is a routine.
05. The Law of Limitation, no doubt, is the same for a private citizen as for governmental authorities. Government, like any other litigant, must take responsibility for the acts, omissions of its officers/ officials. But, a somewhat different complexion is imparted to the matter where the Government makes out a case where public interest was shown to have suffered owing to the acts of fraud or bad faith on the part of its Officers or agents and where the Officers were clearly at cross-purposes with it. Therefore, in assessing what constitutes "sufficient cause" for the purposes of Section 5 of the Limitation Act, it might, perhaps, be somewhat unrealistic to exclude from the consideration that go into the judicial verdict, the 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, thus, 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 judicial approach is not to be rendered unrealistic. It would, perhaps, be unfair and unrealistic to put the 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 expression "sufficient cause" should, therefore, be TAHIR MANZOOR BHAT 2020.12.23 14:57 I attest to the accuracy and integrity of this document Page 5 of 7 CM No. 6043/2019 in LPA No. 247/2019; CM No. 6044/2019 considered with pragmatism in justice-oriented approach rather than the technical detection of sufficient cause for explaining every day's delay. The Courts should decide the matters on merits, unless the case is hopelessly without merit.
06. Hon'ble the Supreme Court in case titled 'State of Haryana V. Chandra Mani & Ors.', reported as '(AIR 1996 SC 1623), at paragraph No.10, has held as under:
"10. 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 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. No separate standards to determine the cause laid by the State vis-a-vis private litigant could be laid to prove strict standards of sufficient cause. The Government at appropriate level should constitute legal cells to examine the cases whether any legal principles are involved for decision by the courts or whether cases require adjustment and should authorise the officers take a decision or give appropriate permission for settlement. In the event of decision to file appeal needed prompt action should be pursued by the officer responsible to file the appeal and he should be made personally responsible for lapses, if any. Equally, the State cannot be put on the same footing as an individual. The individual would always be quick in taking the decision whether he would pursue the remedy by way TAHIR MANZOOR BHAT 2020.12.23 14:57 I attest to the accuracy and integrity of this document Page 6 of 7 CM No. 6043/2019 in LPA No. 247/2019; CM No. 6044/2019 of an appeal or application since he is a person legally injured while State is an impersonal machinery working through its officers or servants."
07. Applying the above perspective to the case on hand, we feel that the delay in filing the appeal against the judgment of the learned Single Bench is relatable to such factors which are peculiar to and characteristic of the functioning of the Government at various administrative levels and, therefore, requires a justice-oriented approach rather than the technical detection of sufficient cause for explaining every day's delay. An endeavour has been made by the applicants/ appellants to explain their bonafides in dealing with the instant case which shows that there is no deliberate or intentional delay on the part of the applicants/ appellants, instead, the same appears to have been caused purely due to administrative reasons which are associated with a case involving Governmental functionaries. Furthermore, we, upon perusal of the pleadings on record, are unable to find any gross negligence or deliberate inaction or lack of bonafides imputable to the applicants/ appellants seeking condonation of delay in filing the appeal against the judgment passed by the learned Single Bench.
08. The judgments referred to and relied upon by Mr R. A. Jan, the learned Senior Counsel representing the respondents/ Writ petitioners, are distinguishable to the facts and circumstances of the present case inasmuch as in the said cases, the Court(s) came to the conclusion that the appellants therein had been negligent in prosecuting their claim(s) within time and that the explanation offered for the delay was neither plausible nor reasonable. TAHIR MANZOOR BHAT 2020.12.23 14:57 I attest to the accuracy and integrity of this document Page 7 of 7
CM No. 6043/2019 in LPA No. 247/2019; CM No. 6044/2019
09. In the above background, we are satisfied that the delay that has occasioned in the filing of the appeal against the judgment dated 11th of August, 2016 passed by the learned Single Bench in SWP No.1579/2013 was only due to administrative factors relatable to Government decisions/ functions and not deliberate, wilful or intentional. Accordingly, we allow the instant application and condone the delay in the filing of the appeal.
10. CM No. 6043/2019 is, accordingly, disposed of on the above terms.
11. Registry is directed to list the main appeal, which has already been diarized, for consideration on 26th of February, 2021.
(Vinod Chatterji Koul) (Ali Mohammad Magrey)
Judge Judge
SRINAGAR
December 22nd, 2020
"TAHIR"
i. Whether the Order is reportable? Yes/ No.
ii. Whether the Order is speaking? Yes/ No.
TAHIR MANZOOR BHAT
2020.12.23 14:57
I attest to the accuracy and
integrity of this document