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MC (WA) No.98 of 2016 State of Meghalaya and another ..... Applicants

-Versus-

CMJ Foundation and others                            ..... Respondents

Date of Order:                  ::                   17.04.2017

                        PRESENT

HON'BLE SHRI JUSTICE DINESH MAHESHWARI, CHIEF JUSTICE HON'BLE SHRI JUSTICE VED PRAKASH VAISH Shri HS Thangkhiew, with Philemon Nongbri, for the applicants Shri S.N. Singh, with Shri A Singh, for the respondents No.1, 2 and 3 BY THE COURT: (per Hon'ble the Chief Justice) (Oral) The applicants/appellants seek to maintain an intra-court appeal against the order dated 16.07.2015 as passed by the learned Single Judge of this Court in WP (C) No.177 of 2014.

The appeal, as filed on 13.12.2016, is reportedly time barred by a period of about 485 days. The applicants/appellants have moved an application seeking condonation of delay, essentially with the submissions that in the peculiar circumstances where one of the Hon'ble Judges of this Court, who was otherwise a member available for Division Bench to consider the intra-court appeal had, after passing of the impugned order dated 16.07.2015, dealt with a criminal petition bearing No.32 of 2014 making certain observations as relating to the issues involved in this appeal while relying on the impugned order dated 16.07.2015. It is submitted that in the peculiar situation, the State Government, instead of availing the remedy of intra-court appeal, State of Meghalaya v. CMJ Foundation preferred a Petition for Special Leave to Appeal ['SLP'] before the Hon'ble Supreme Court. It is further submitted that some more time was consumed for curing the defects in the said SLP and only thereafter, the same was listed before the Court but in the meantime, with the availability of new Judges, a Bench for hearing intra-court appeal became available in this Court; and in the changed scenario, the applicants/appellants sought permission to withdraw from the SLP so as to approach the Division Bench of this Court. It is pointed out that the applicants/appellants were permitted to withdraw with liberty to take appropriate steps and the SLP was dismissed as withdrawn but, the Hon'ble Supreme Court observed that upon the applicants/appellants taking appropriate steps before the appropriate forum, the matter would be decided on merits. The applicants/appellants have, inter alia, averred in the application as under:-

6. That in the meantime, in view of the retirement of the Former Chief Justice of this Hon'ble High Court and upon the present Chief Justice being sworn in as a new judge of this Hon'ble High Court, as such, the bench for intra court appeal became available.

State of Meghalaya v. CMJ Foundation

7. That upon the matter being taken by the Hon'ble Supreme Court on 21.10.2016, the Appellants withdrew the Special Leave Petition before the Hon'ble Supreme Court, in light of the availability of Division Bench upon retirement of the former Chief Justice of High Court of Meghalaya, as such, the Appellants is approaching this Hon'ble Division Bench. That vide order dated 21.10.2016, the Hon'ble Supreme Court was pleased to allow the Appellants to withdraw the Special Leave Petition with liberty to approach this Hon'ble Court and directed that the matter be decided on merits. That the directions passed by the Hon'ble Supreme court were as follows:-

The learned counsel for the applicants/appellants has strenuously argued that there had not been any negligence or deliberate delay on the part of the applicants/appellants and the matter State of Meghalaya v. CMJ Foundation was earlier sought to be prosecuted before the Hon'ble Supreme Court in the given set of peculiar circumstances but, now, this appeal has been filed as permitted by the Hon'ble Supreme Court and the matter deserves to be examined on merits.

Per contra, learned counsel for the respondents has vehemently opposed the prayer for condonation of delay with the submissions that there was no justification that the applicants/appellant earlier attempted to by-pass the remedy of intra-court appeal in the matter and then, the applicants/appellants, at every stage, have made unnecessary and uncalled for remarks and comments on the Hon'ble Judge of the Court. Learned counsel has, particularly, drawn the attention of this Court towards paragraph 6.23 of the memo of appeal wherein, the impugned order dated 16.07.2015 has been questioned as if that of judicial indiscipline, for the Hon'ble Judge having returned a different finding while sitting in a Division Bench. It is also submitted that the applicants/appellants have not proceeded with the matter with due diligence and even the SLP was kept pending for long with defects; and the excessive delay in this matter is attributable only to the negligence on the part of the applicants/appellants.