Allahabad High Court
State Of U.P. Thru. Prin. Secy. ... vs C/M , Seth Jaipuriya School, Lko. Thru. ... on 23 January, 2023
Author: Ramesh Sinha
Bench: Ramesh Sinha
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No. - 1 AFR Case :- SPECIAL APPEAL DEFECTIVE No. - 5 of 2023 Appellant :- State Of U.P. Thru. Prin. Secy. Secondary Education Govt. Of U.P. Civil Sectt. , Lko. And Others Respondent :- C/M , Seth Jaipuriya School, Lko. Thru. Manager Counsel for Appellant :- C.S.C. Counsel for Respondent :- Som Kartik Shukla,Ashok Kumar Singh Hon'ble Ramesh Sinha,J.
Hon'ble Subhash Vidyarthi,J.
C.M. Application No.1 of 2023 (Application for Condonation of Delay)
1. Heard Shri Amitabh Kumar Rai, learned Additional Chief Standing Counsel for State-appellant and Shri Prashant Chandra, learned Senior Advocate assisted by Shri Anshuman Singh, learned counsel for the respondent.
2. By means of the instant application, the appellant- State of U.P. is seeking condonation of delay of 65 days in filing the special appeal.
3. In the affidavit filed in support of the application filed for condonation of delay, it has been stated that by means of the order dated 27.09.2022 passed by learned Single Judge in Writ C No.522 of 2022, the appellants were directed to grant No-Objection Certificate for admission sought by the respondent within a period of two months. A copy of the judgment and order dated 27.09.2022 passed in Writ-C No.522 of 2022 was served by Manager of the respondent/ School, along with its representation dated 12.10.2022. On 05.11.2022, a meeting of the designated Regional Committee was held and after due deliberation, it was decided to file a special appeal challenging the judgment and order dated 27.09.2022. On 05.11.2022 itself, a letter was sent to the State Government as well as to the Chief Standing Counsel of the State Government for giving his legal opinion. The Chief Standing Counsel gave his opinion by means of letter dated 18.11.2022, which was received in the Office of Joint Director, Education on 23.11.2022. Joint Director forwarded the letter on the same date to the State Government seeking permission to file special appeal.
4. The affidavit further stated that on 08.11.2022, the State Government sought details from the Director Education (Secondary), U.P. regarding the grounds and basis for challenging the judgment and order dated 27.09.2022. The Joint Director, Education replied to the aforesaid letter on the next following day, i.e., 09.12.2022. On 21.12.2022, the State Government granted permission for filing the Special Appeal and a letter was sent to the Chief Standing Counsel for preparation of the special appeal. On 23.12.2022, the file was allotted to one of the State Government Counsel for preparation of the special appeal and thereafter it was filed on 02.01.2023, that is, on the next following working day.
5. The respondents has filed a counter affidavit in response to the application for condonation of delay. Shri Prashant Chandra, learned Senior Advocate appearing for the respondents has drawn our attention to the submissions made in the paragraph nos.8 and 9 of the counter affidavit, wherein it has been stated that filing of the special appeal is not advancing the cause of substantial justice but giving vent to the personal grudge of the Joint Director, Education; that the law of limitation is to be adhered to by all and the State Government cannot claim any privilege as it is not above the law.
6. The State-appellant has relied upon the decisions in the cases of Indian Oil Corp. Ltd. and others vs. Subrata Borah Chowlek and another, 2010 14 SCC 419, Esha Bhattacharjee vs. Mg. Committee of Raghunathpur Nafar, 2013 12 SCC 649.
7. Shri Prashant Chandra, learned Senior Advocate has placed reliance on the judgments rendered in the case of National Spot Exchange Limited vs. Anil Kohli, 2021 SCC OnLine SC 716, State of M.P. vs. Bherulal, 2020 10 SCC 654, State of U.P. vs. Sabha Narain, 2022 9 SCC 266 and Union of India vs. Vishnu Aroma Pouching (P) Ltd., 2022 9 SCC 263.
8. The appellant has filed a rejoinder affidavit giving the detailed particulars of the facts pleaded in the affidavit filed in support of the application filed for condonation of delay in filing the appeal and copies of the relevant documents have been annexed in the rejoinder affidavit.
9. We have considered the facts, circumstances of the case, submissions made and the pleadings rendered upon by learned counsel for the parties.
10. National Spot Exchange Limited Versus Anil Kohli, Resolution Professional For Dunar Foods Limited 2021 SCC OnLine SC 716 was a case arising out of rejection of an application for condonation of delay in an appeal filed under the Insolvency and Bankruptcy Code, and Section 61(2) of the Code provides the limitation for filing an appeal to be 30 days and the Appellate Tribunal has been given the power to condone the delay of only 15 days over the period of 30 days, if there is a sufficient cause. Beyond the period of 15 days, over the period of 30 days, the Appellate Tribunal has no jurisdiction to condone the delay. The case was decided in this factual and legal background whereas in the present case, there is no limit on the power of this Court to condone the delay in filing the Special Appeal.
11. In State of M.P. v. Bherulal, (2020) 10 SCC 654, The special leave petition had been filed with a delay of 663 days and the reason for the delay was stated to be only "due to unavailability of the documents and the process of arranging the documents" and it was also stated that "bureaucratic process works, it is inadvertent that delay occurs". In the aforesaid background the Hon'ble Supreme Court imposed a cost of Rs.25,000/- and ordered the same to be recovered from the officers responsible.
12. In State of U.P. v. Sabha Narain, (2022) 9 SCC 266, the special leave petition had been filed with a delay of 502 days and the Court found that the petitioner had acted in a casual manner, without any cogent or plausible ground for condonation of delay. The Supreme Court even observed that "In fact, other than the lethargy and incompetence of the petitioner, there is nothing which has been put on record." Yet the Hon'ble Supreme Court condoned the delay by imposing a cost of Rs. 25,000/-.
13. In Union of India v. Vishnu Aroma Pouching (P) Ltd., (2022) 9 SCC 263 also, the Hon'ble Supreme Court found that "there is no reason to condone the delay. The Hon'ble Supreme Court expressed the view that "such kind of lethargy on the part of the Revenue Department with so much computerisation having been achieved is no more acceptable." Yet the Hon'ble Supreme Court condoned the delay after imposing a cost of Rs.25,000/-.
14. In Antiyur Town Panchayat v. G. Arumugam, (2015) 3 SCC 569, the High Court had condoned a delay of 1373 days in filing the appeal and this order was challenged before the Hon'ble Supreme Court. The Hon'ble Supreme Court held as follows: -
"we are satisfied that the delay occasioned only on account of the deliberate lapses on the part of the Executive Officer of the Panchayat at the relevant time. Who else are involved in the process, is not quite clear.
4. As held by this Court in State of Nagaland v. Lipok Ao (2005) 3 SCC 752, the court must always take a justice-oriented approach while considering an application for condonation of delay. If the court is convinced that there had been an attempt on the part of the government officials or public servants to defeat justice by causing delay, the court, in view of the larger public interest, should take a lenient view in such situations, condone the delay, howsoever huge may be the delay, and have the matter decided on merits."
15. In Indian Oil Corpn. Ltd. v. Subrata Borah Chowlek, (2010) 14 SCC 419, the Hon'ble Supreme Court held that: -
"10. It is manifest that though Section 5 of the Limitation Act, 1963 envisages the explanation of delay to the satisfaction of the court, and makes no distinction between the State and the citizen, nonetheless adoption of a strict standard of proof in case of the Government, which is dependent on the actions of its officials, who often do not have any personal interest in its transactions, may lead to grave miscarriage of justice and therefore, certain amount of latitude is permissible in such cases."
16. In Esha Bhattacharjee v. Raghunathpur Nafar Academy, (2013) 12 SCC 649, after taking into consideration various earlier pronouncements on the subject, the Hon'ble Supreme Court culled the following broad principles: -
"21.1. (i) There should be a liberal, pragmatic, justice-oriented, non-pedantic approach while dealing with an application for condonation of delay, for the courts are not supposed to legalise injustice but are obliged to remove injustice.
21.2. (ii) The terms "sufficient cause" should be understood in their proper spirit, philosophy and purpose regard being had to the fact that these terms are basically elastic and are to be applied in proper perspective to the obtaining fact-situation.
21.3. (iii) Substantial justice being paramount and pivotal the technical considerations should not be given undue and uncalled for emphasis.
21.4. (iv) No presumption can be attached to deliberate causation of delay but, gross negligence on the part of the counsel or litigant is to be taken note of.
21.5. (v) Lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact.
21.6. (vi) It is to be kept in mind that adherence to strict proof should not affect public justice and cause public mischief because the courts are required to be vigilant so that in the ultimate eventuate there is no real failure of justice.
21.7. (vii) The concept of liberal approach has to encapsulate the conception of reasonableness and it cannot be allowed a totally unfettered free play.
21.8. (viii) There is a distinction between inordinate delay and a delay of short duration or few days, for to the former doctrine of prejudice is attracted whereas to the latter it may not be attracted. That apart, the first one warrants strict approach whereas the second calls for a liberal delineation.
21.9. (ix) The conduct, behaviour and attitude of a party relating to its inaction or negligence are relevant factors to be taken into consideration. It is so as the fundamental principle is that the courts are required to weigh the scale of balance of justice in respect of both parties and the said principle cannot be given a total go by in the name of liberal approach.
21.10. (x) If the explanation offered is concocted or the grounds urged in the application are fanciful, the courts should be vigilant not to expose the other side unnecessarily to face such a litigation.
21.11. (xi) It is to be borne in mind that no one gets away with fraud, misrepresentation or interpolation by taking recourse to the technicalities of law of limitation.
21.12. (xii) The entire gamut of facts are to be carefully scrutinised and the approach should be based on the paradigm of judicial discretion which is founded on objective reasoning and not on individual perception.
21.13. (xiii) The State or a public body or an entity representing a collective cause should be given some acceptable latitude.
22. To the aforesaid principles we may add some more guidelines taking note of the present day scenario. They are:
22.1. (a) An application for condonation of delay should be drafted with careful concern and not in a haphazard manner harbouring the notion that the courts are required to condone delay on the bedrock of the principle that adjudication of a lis on merits is seminal to justice dispensation system.
22.2. (b) An application for condonation of delay should not be dealt with in a routine manner on the base of individual philosophy which is basically subjective.
22.3. (c) Though no precise formula can be laid down regard being had to the concept of judicial discretion, yet a conscious effort for achieving consistency and collegiality of the adjudicatory system should be made as that is the ultimate institutional motto.
22.4. (d) The increasing tendency to perceive delay as a non-serious matter and, hence, lackadaisical propensity can be exhibited in a nonchalant manner requires to be curbed, of course, within legal parameters."
(Emphasis supplied)
17. From a persual of the aforesaid decisions of the Hon'ble Supreme Court, the principle governing condonation of delay is that unless there is a specific statutory provision restricting the powers of the Court to condone delay, the court should adopt a liberal approach while scrutinizing the sufficiency of the cause shown for the delay and adoption of a strict standard of proof in case of the Government, which is dependent on the actions of its officials, who often do not have any personal interest in its transactions, may lead to grave miscarriage of justice and therefore, certain amount of latitude is permissible to the State in such cases.
18. Examining the facts of the present case in light of the relevant law on the point as discussed above, it appears that there is a delay of 65 days in filing the Special Appeal, which cannot be said to be an ''inordindate delay'. The facts pleaded in the affidavit filed in support of the affidavit filed in support of the application for delay, which have been extracted in paras 3 and 4 of this order, make out a sufficient cause for condoning the delay in filing the Special Appeal.
19. In view of the aforesaid discussion, the delay in filing the Special Appeal is hereby condoned and the office is directed to allot a regular Number to the Special Appeal.
20. The learned counsel for the appellant has submitted that a contempt petition has been filed for disobedience of the order dated 27.09.2020 passed in Writ C No. 522 of 2022, which is under challenge in the Special Appeal.
21. As the validity of the order is being examined in this Special Appeal, to secure the interests of justice it is provided that further proceedings of the contempt case arising out of the order dated 27.09.2020 passed in Writ C No. 522 of 2022, shall remain stayed till the pendency of the appeal.
22. Office is directed to allot regular number.
23. List the appeal for final disposal on 22.02.2023.
(Subhash Vidyarthi, J.) (Ramesh Sinha, J.) Order Date :- 23.1.2023 Arnima