Gujarat High Court
Rangaben vs State on 6 May, 2011
Author: H.K.Rathod
Bench: H.K.Rathod
Gujarat High Court Case Information System
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CA/13355/2010 24/ 24 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL
APPLICATION - FOR CONDONATION OF DELAY No. 13355 of 2010
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RANGABEN
RUPABHAI - Petitioner(s)
Versus
STATE
OF GUJARAT - Respondent(s)
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Appearance
:
MR
HEMANT K MAKWANA for
Petitioner(s) : 1,
G Mr. AL Sharma AGP for Respondent(s) :
1,
NOTICE SERVED BY DS for Respondent(s) :
1,
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CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
and
HONOURABLE
MR.JUSTICE S.R.BRAHMBHATT
Date
: 06/05/2011
ORAL
ORDER
(Per : HONOURABLE MR.JUSTICE S.R.BRAHMBHATT) Present applicant is widow of one Rupabhai. Said Rupabhai had died in the year 1969 leaving his widow means present applicant, two minor sons and one minor daughter. Said Rupabhai owned agricultural lands admeasuring 113 acres, situated at village Balotri, Taluka Vav, District Banaskantha. Pursuant to amendment to Gujarat Agricultural Lands Ceiling Act, 1960 made effective from 1st April, 1976, applicant filed declaration furnishing particulars of the lands held by her. Applicant having held land in excess of ceiling area, proceedings under the Act were initiated in Ceiling Case NO. 182/903/76. The Mamlatdar and ALT under his judgment and order dated 10th August, 1982, hold that the applicant was entitled to retain one unit of ceiling area i.e. 54 acres of land. Lands to the extent of 59 acres 17 gunthas held by applicant were held to be surplus land. Feeling aggrieved, applicant preferred Ceiling Appeal NO. 98 of 1982 before the Deputy Collector, Tharad which was dismissed on 31st August, 1983. Revision Application NO. TEN.BA 575/84 preferred before Gujarat Revenue Tribunal was also dismissed on 30th October, 1986. Applicant since then preferred Review Application No. TEN.C.A. No. 10/87 before the Tribunal which too was rejected on 14th June, 1988. Thereafter, applicant has preferred Special Civil Application No. 8093 of 1988 which was decided by this Court on 17th January, 2002. Against that, Letters Patent Appeal was preferred but because of delay, it was preferred with Delay Condonation Application. There was office objection in filing Delay Condonation Application which was not removed by applicant or her advocate and, therefore, ultimately Division Bench of this Court has dismissed in default Civil Application (Stamp Number) No. 3818 of 2002 on 9th September, 2005, against which, after period of about five years, present application is preferred by applicant on 1st September, 2010 where reason is given for condoning delay of more than five years in present application in para 4, 5,(a),(b),(c) and
6. Therefore, para 4, 5,(a),(b),(c) and 6 are quoted as under:
"4. It appears that an advocate appearing for the parties could not remove the objection in time and even after having afforded many opportunities, the said objection were found not removed and hence the matters stood dismissed for want of prosecution.
5. The applicant submits that the order dated 9.9.2005 passed by this Hon'ble Court (Coram : Hon'ble the Chief Justice and Hon'ble Mr. Justice H.K.Rathod), whereby the matter had been dismissed for want of prosecution came to the applicant's knowledge, only when she inquired into the registry and tried to get herself apprised of the status of the Letters Patent Appeal filed by her on behalf of an advocate concerned. A copy of status of present appeal is annexed hereto and marked as Annexure-A to this application. That there has been a delay of substantial amount of time in preferring present application for various reasons which can be enumerated as under:
(a) That the applicant is an old aged woman of 75 years and she is suffering from an Asthama, an ailment of permanent nature.
(b) That she could not remain in touch with the advocate appearing for herself and the matter had been disposed of along with other cognate matters filed by other litigants in this Hon'ble Court.
(c) That an ailing lady is a ristric one and as such she is ailing from the backward area in the Banaskantha District, situated in the remote area.
6. In view of the grounds aforesaid, an applicant begs to present application for restoration of the matter which was allotted the Stamp No. and to take up on board for its consideration on merits."
Applicant, original appellant in Letters Patent Appeal (Stamp Number) No. 416 of 2002 has approached this Court seeking condonation of delay in preferring Restoration Miscellaneous Civil Application as, vide order dated 9.9.2005, entire group wherein this appeal was also one of matter stood dismissed for want of prosecution on the ground of non removal of office objection within time prescribed therein.
Appellant had to prefer Letters Patent Appeal being aggrieved and dissatisfied with order passed by learned Single Judge of this Court dismissing Special Civil Application No. 8093 of 1988 on the ground that finding recorded by authorities did not warrant any interference. While dismissing said Special Civil Application containing challenge to orders passed by authorities under Gujarat Agricultural Lands Ceiling Act,1960, this Court was considerate enough to extend interim relief so as to enable petitioner to move Division Bench if so desired. Therefore, even after dismissal of main matter on 17.1.2002, interim relief was extended for a further period of six weeks. Office objection was not removed and ultimately, along with group of other letters patent appeal, order came to be passed by Division Bench of this Court on 9.9.2005 recording that despite long lapse of time, objections have not been removed. Time for doing so was extended by three weeks, failing which, matters shall stand dismissed for want of prosecution without reference to Court. Pursuant to said order, matter automatically stood dismissed for want of prosecution since objections were not removed in time granted by this Court. Now, as per say of applicant in memo of this application, intimation to this effect has not been received by her and when she came to know about dismissal of matter for want of prosecution, she moved this application for restoration along with civil application for condonation of delay.
In this matter, this Court has issued notice to other side as the original dispute was of year 1982 and parties were agitating since 1982 in regard to big parcel of land ad measuring 59 Acres, 17 Gunthas. Thus when parties have already acquired their interest on account of settled dispute by way of operation of order in question, it was deemed fit to issue notice calling upon other side to come forward and show cause as to why delay may not be condoned. Pursuant to said notice issued by this Court, respondents appeared and filed detailed affidavit in reply opposing condonation of delay on various grounds including ground that delay is not explained satisfactorily so as to warrant condonation thereof. We have considered reply filed by respondents. Para 3 and 4 of affidavit in reply filed by respondent NO.1 being material, is quoted as under:
"3. 3. I submit that the application filed by the applicant is totally misconceived and hopelessly time barred. I say and submit that there is apparent negligence on the part of the applicant in pursing the Letters Patent Appeal. Since after filing of the Appeal, the same must have been listed for removal of the same, the Letters Patent Appeal with Civil Application came to be listed for orders before the Hon'ble Court. The Hon'ble Court, by its order dated 9.9.2005, after extending time by three weeks, ordered the case to be dismissed on failure to remove the office objections with the time granted by the Hon'ble Court. It is unbelievable that the applicant was not aware of the pending litigation and the proceedings in the Hon'ble High Court.
4. I say and submit that it is incorrect to say that by dismissal of the civil application for non prosecution, the applicant has suffered irreparable loss. I submit that the land in question, ad measuring 59 Acres and 17 Gunthas came to be declared surplus by the Agriculture Land Tribunal by its order dated 10.08.1982. Against the said order, the applicant preferred appeal to the Deputy Collector,Tharad which also came to be rejected by order dated 31.8.1983. Challenging the order passed by the Deputy Collector, the applicant approached Gujarat Revenue Tribunal which upheld the order of the Deputy Collector vide its order dated 14.6.1988. Against the said order, the applicant filed Special Civil Application No. 8093/1988. The Special Civil Application also came to be dismissed by the Hon'ble Court on 17.1.2002. Aggrieved by the order passed in SCA/8093/1988, Letters Patent Appeal with Civil Application was filed in the year 2002. However, for about three years the office objections were not removed. Even after order dated 9.9.2005, no care was taken for removal of office objections and thus the Civil Application as well as Letters Patent Appeal came to be dismissed for non prosecution. The concurrent finding of fact having been confirmed by this Hon'ble Court by order passed in Special Civil Application,it cannot by any stretch of imagination be averred that the applicant has suffered irreparable loss. It is submitted that the applicant had been heard on merit at every stage of the proceedings and it is incorrect to say that the applicant's right of being heard on merits would get destroyed because of non removal of office objections in time. While dismissing the SCA, the Hon'ble Court, at the instance of the learned Advocate for the petitioner, was pleased to extend the interim relief granted during pendency of the petition for further period of six weeks. The applicant was expected to act diligently in such circumstances, however, no steps even for removal of office objection were taken for a period of three years and, therefore, the negligence on the part of the applicant is apparent. Even otherwise also, it is unbelievable that a litigant who has challenged the orders of the authorities with diligence at each stage would never had approached/inquired from her Advocate about the case and its stage. It is in these circumstances the ground put forth by the applicant for seeking condonation of delay does not inspire confidence and therefore the application be dismissed."
Against aforesaid affidavit in reply of opponent, affidavit in rejoinder is filed by present applicant where paragraph 4,5,6 and 7 are quoted as under:
"4. It is submitted that the applicant lady had engaged an Advocate Shri Manoj Popat through whom the appeal along with a copy of delay condonation was filed in the Court. The said matter had come up on board with the cognate matters in which late Shri Harubhai Mehta was appearing for the main litigant in a matter bearing Civil Application (Stamp) No.8843 of 2001 in Letters Patent Appeal (Stamp) No.471 of 2001 in Special Civil Application No.4599 of 1991. The Advocate had expired in between and thus, present petition could not pursue the main petition along with the present appeal was tagged with. The above group thereafter came to be listed on the board on 07.09.2005, the order passed thereon clearly reveals that the Advocate had not taken any steps to remove the objection, and hence, the matter was dismissed for want of prosecution. A copy of status in C.A. (Stamp) No.3818 of 2002 in LPA (Stamp) No.416 of 2002 along with LPA (Stamp) No.416 of 2002 in Special Civil Application 8093 of 1988 is annexed herewith and marked as Annexure R-I (Colly.)
5. Only two days later the present Appeal had also appeared on board, in which the court has passed an identical order in dismissing the matter as the court in its earlier directive had observed specifically that the matter would stand automatically dismissed without the reference by the Court. However, the Advocate could not convey the aspect of dismissal of the matter in time which had put present petition in a pitiable situation.
6. In view of the facts set out hereinabove, an applicant most humbly submits that there was no such deliberate attempt on the part of an applicant for allowing the prescribed time limit to elapse. And if the delay aforesaid could not allowed to condoned, the same would frustrate the cause of justice to be delivered at the hand of this appellant bench of the Hon'ble Court. The applicant therefore with folded hands most humbly prays to condone the delay as occurred in filing an appeal for restoration of appeal. A copy of medical certificate issued by the hospital authorities along with the medical paper pertaining to the health of the petitioner is annexed herewith and marked as Annexure "R-2" colly.
7. The applicant lady is seriously ailing rustic lady who fails from remotest area in backward taluka of Banaskantha District. She is an illiterate and does not have any acquaintance of court procedure, in which, the steps could have taken in time before an expiry of stipulated time. The lapse of the applicant lady is only attributed to her ignorance when the advocate had not communicated the outcome concerning with her rights, for the reasons best known to the advocate above. The applicant therefore requests this Hon'ble Court to condone the delay on the consideration of her valuable right of appeal and as such there is no likelihood of causing any prejudice to the respondent authorities in any manner whatsoever."
In light of aforesaid pleadings and brief facts which we have narrated, initially, Advocate Mr. Manoj Popat was engaged by applicant. Applicant, in rejoinder, just mentioned facts that said matter had come up on board with other cognate matters in which learned Advocate late Shri Harubhai Mehta was appearing for main litigation in a matter being Civil Application (Stamp Number) No. 8843 of 2001 in Letters Patent Appeal (Stamp Number) No. 471 of 2001 in Special Civil Application NO. 4599 of 1991. Advocate Shri Harubhai Mehta expired in-between and due to that, applicant could not pursue main matter along with present appeal which was tagged with. Group came to be listed on Board on 7th September, 2005 and order passed therein clearly reveals that advocate engaged by applicant had not taken any steps to remove office objections. Therefore, averments in respect to advocate late Shri Harubhai Mehta who expired in-between, in fact, have no connection at all with appeal preferred by present applicant because applicant has engaged independent advocate on her behalf.
Learned advocate for applicant has contended that on merit, case of appellant applicant is very good and in case if delay is not condoned, good case of applicant will not be agitated and it will cause injustice to applicant. This Court has heard learned advocate for applicant extensively. Authorities cited by learned advocate for applicant would be of no help as peculiar facts of this case needs to be considered for condonation of delay. Fact remains to be noted that dispute which had started from the year 1982 has been culminated into consistent orders of all authorities right from order of Agriculture Land Tribunal dated 10.8.1982 declaring 59 Acres and 17 Gunthas of land as surplus against which appeal was preferred by applicant before Deputy Collector, Tharad which also came to be rejected by order dated 31.8.1983, which came to be confirmed by Gujarat Revenue Tribunal by order dated 14.6.1988 against which Special Civil Application No. 8093 of 1988 was preferred by applicant which came to be dismissed by this Court on 17.1.2002 while extending interim relief granted earlier for a period of six weeks for enabling petitioner to approach Higher Forum and thus after order of learned Single Judge of this Court, when six weeks time was granted by way of extension of interim relief, inaction in that period on the part of applicant cannot be tolerated by any court. Therefore, such inaction on the part of applicant cannot be condoned when parties have not agitated their grievance after order of learned Single Judge for a period of about five years. Therefore,now, it would not be appropriate to upset situation by condoning delay and reopening entire case. At this stage, it would not be out of place to mention that order impugned in main matter was order passed by learned Gujarat Revenue Tribunal and learned Tribunal and authorities below have concurrently held that order of declaration of surplus land was just and proper. Suffice it to say that had there been any genuine cause required to be agitated, then, applicant would not have ignored same and when delay has occurred, same cannot be condoned as it has not been condoned to satisfaction of this Court. Delay caused in filing of an application for recalling order of this court dated 9.9.2005 is sought to be explained by way of medical certificate but this medical certificate would hardly be helpful to applicant for condonation of delay. Therefore, this Court cannot permit learned advocate for applicant to contend that State being party and land being not allotted to anyone else, permission be granted. Learned Advocate for applicant also contended that now lady can be saddled with appropriate costs so as to permit her to continue with appeal and it may be decided on merits.
Recently, in case of Oriental Aroma Chemical Industries Ltd. Vs Gujarat Industrial Development Corporation and another, reported in 2010(2) SCALE 645,apex court has considered case of condonation of more than four years in filing of appeal. Para 8 may be reproduced as under:
"8.
We have considered the respective submissions. The law of limitation is founded on public policy. The legislature does not prescribe limitation with the object of destroying the rights of the parties but to ensure that they do not resort to dilatory tactics and seek remedy without delay. The idea is that every legal remedy must be kept alive for a period fixed by the legislature. To put it differently, the law of limitation prescribes a period within which legal remedy can be availed for redress of the legal injury. At the same time, the courts are bestowed with the power to condone the delay, if sufficient cause is shown for not availing the remedy within the stipulated time. The expression "sufficient cause"
employed in Section 5 of the Indian Limitation Act, 1963 and similar other statutes is elastic enough to enable the courts to apply the law in a meaningful manner which sub serves the ends of justice. Although, no hard and fast rule can be laid down in dealing with the applications for condonation of delay, this Court has justifiably advocated adoption of a liberal approach in condoning the delay of short duration and a stricter approach where the delay is inordinate
- Collector, Land Acquisition, Anantnag v. Mst. Katiji (1987) 2 SCC 107, N. Balakrishnan v. M. Krishnamurthy (1998) 7 SCC 123 and Vedabai v. Shantaram Baburao Patil (2001) 9 SCC 106. In dealing with the applications for condonation of delay filed on behalf of the State and its agencies/instrumentalities this Court has, while emphasizing that same yardstick should be applied for deciding the applications for condonation of delay filed by private individuals and the State, observed that certain amount of latitude is not impermissible in the latter case because the State represents collective cause of the community and the decisions are taken by the officers/agencies at a slow pace and encumbered process of pushing the files from table to table consumes considerable time causing delay - G. Ramegowda v. Spl. Land Acquisition Officer (1988) 2 SCC 142, State of Haryana v. Chandra Mani (1996) 3 SCC 132, State of U.P. v. Harish Chandra (1996) 9 SCC 309, State of Bihar v. Ratan Lal Sahu (1996) 10 SCC 635, State of Nagaland v. Lipok Ao (2005) 3 SCC 752, and State (NCT of Delhi) v. Ahmed Jaan (2008) 14 SCC 582."
Recently, in case of Lank Venkateshwarlu (D) by LRs vs State of AP & Ors., reported in 2011 (2) SCALE page 703, similar question of condoning delay, to what extent, it is permissible, has been considered. For that, relevant paragraph 19, 20, 21, 22, 26 and 27 are quoted as under:
"19. We have considered the submissions made by the learned counsel. At the outset, it needs to be stated that generally speaking, the courts in this country,including this Court, adopt a liberal approach in considering the application for condonation of delay on the ground of sufficient cause under Section 5 of the Limitation Act. This principle is well settled and has been set out succinctly in the case of Collector, Land Acquisition, Anantnag & Ors. Vs. Katiji & Ors.5
20. In the case of M. Balakrishnan (supra), this Court again reiterated the principle that rules of limitation are not meant to destroy the rights of parties. They are meant to see that the parties do not resort to dilatory tactics, but seek their remedy promptly.
21. In the case of Sardar Amarjit Singh Kalra (supra), this Court again emphasized that provisions contained in the Order 22 CPC were devised to ensure continuation and culmination in an effective adjudication and not to retard further progress of the proceedings. The provisions contained in the Order 22 are not to be construed as a rigid matter of principle, but must ever be viewed as a flexible tool of convenience in the administration of justice. It was further observed that laws of procedure are meant to regulate effectively, assist and aid the object of doing a substantial and real justice and not to foreclose even adjudication on merits of substantial rights of citizen under personal, property and other laws. In the case of Mithailal Dalsangar Singh and Ors. Vs. Annabai Devram Kini & Ors, (Supra), this Court again reiterated that in as much as abatement results in denial of hearing on the merits of the case, the provision of an abatement has to be construed strictly. On the other hand, the prayer of setting aside abatement and the dismissal consequent upon abatement had to be considered liberally. It was further observed as follows:-
"The Courts have to adopt a justice oriented approach dictated by the uppermost consideration that ordinarily a litigant ought not to be denied an opportunity of having a lis determined on merits unless he has, by gross negligence, deliberate inaction or something akin to misconduct, disentitled himself from seeking the indulgence of the court."
22. The concepts of liberal approach and reasonableness in exercise of the discretion by the Courts in condoning delay, have been again stated by this Court in the case of Balwant Singh (supra), as follows:-
"25. We may state that even if the term "sufficient cause"
has to receive liberal construction, it must squarely fall within the concept of reasonable time and proper conduct of the party concerned. The purpose of introducing liberal construction normally is to introduce the concept of "reasonableness" as it is understood in its general connotation."
"26. The law of limitation is a substantive law and has definite consequences on the right and obligation of party to arise.
These principles should be adhered to and applied appropriately depending on the facts and circumstances of a given case. Once a valuable right has accrued in favour of one party as a result of the failure of the other party to explain the delay by showing sufficient cause and its own conduct, it will be unreasonable to take away that right on the mere asking of the applicant, particularly when the delay is directly a result of negligence, default or inaction of that party. Justice must be done to both parties equally. Then alone the ends of justice can be achieved. If a party has been thoroughly negligent in implementing its rights and remedies, it will be equally unfair to deprive the other party of a valuable right that has accrued to it in law as a result of his acting vigilantly."
26. We are at a loss to fathom any logic or rationale, which could have impelled the High Court to condone the delay after holding the same to be unjustifiable. The concepts such as "liberal approach", "justice oriented approach", "substantial justice" can not be employed to jettison the substantial law of limitation. Especially, in cases where the Court concludes that there is no justification for the delay. In our opinion, the approach adopted by the High Court tends to show the absence of judicial balance and restraint, which a Judge is required to maintain whilst adjudicating any lis between the parties. We are rather pained to notice that in this case, not being satisfied with the use of mere intemperate language, the High Court resorted to blatant sarcasms. The use of unduly strong intemperate or extravagant language in a judgment has been repeatedly disapproved by this Court in a number of cases. Whilst considering applications for condonation of delay under Section 5 of the Limitation Act, the Courts do not enjoy unlimited and unbridled discretionary powers. All discretionary powers, especially judicial powers, have to be exercised within reasonable bounds, known to the law. The discretion has to be exercised in a systematic manner informed by reason. Whims or fancies; prejudices or predilections can not and should not form the basis of exercising discretionary powers.
27. The order of the High Court, in our opinion, is based purely on the personal perceptions and predilections of the Judges on the bench. The latent anger and hostility ingrained in the expressions employed in the judgment have denuded the judgment of impartiality. In its desire to castigate the government pleaders and the Court staff, the High Court has sacrificed the "justice oriented approach", the bedrock of which is fairness and impartiality. Judges at all levels in this country subscribe to an oath when entering upon office of Judgeship, to do justice without fear or favour, ill will or malice. This commitment in form of a solemn oath is to ensure that Judges base their opinions on objectivity and impartiality. The first casualty of prejudice is objectivity and impartiality. It is also well known that anger deprives a human being of his ability to reason. Judges being human are not immune to such disability. It is of utmost importance that in expressing their opinions, Judges and Magistrates be guided only by the considerations of doing justice. We may notice here the observations made by a Constitution Bench of this Court in the case of State of U.P. Vs. Mohammad Naim, which are of some relevance in the present context. In Paragraph 11 of the judgment, it was observed as follows:-
"If there is one principle of cardinal importance in the administration of justice, it is this: the proper freedom and independence of Judges and Magistrates must be maintained and they must be allowed to perform their functions freely and fearlessly and without undue interference by any body, even by this Court. At the same time it is equally necessary that in expressing their opinions Judges and Magistrates must be guided by considerations of justice, fair-play and restraint. It is not infrequent that sweeping generalisations defeat the very purpose for which they are made. It has been judicially recognised that in the matter of making disparaging remarks against persons or authorities whose conduct comes into consideration before courts of law in cases to be decided by them, it is relevant to consider; (a) whether the party whose conduct is in question is before the court or has an opportunity of explaining or defending himself; (b) whether there is evidence on record bearing on that conduct, justifying the remarks; and (c) whether it is necessary for the decision of the case, as an integral part thereof, to animadvert on that conduct. It has also been recognised that judicial pronouncements must be judicial in nature, and should not normally depart from sobriety, moderation and reserve.""
Recently, in case of Union of India & Ors. v. A. Durairaj (D), reported in 2011 AIR SCW page 873 also, question of delay is to be condoned or not and in which circumstances, has been considered by apex court. Relevant discussion and observations made by apex court in para 12, 13 and 14 are quoted as under:
"12. Section 21 of the Administrative Tribunals Act, 1985 prescribes the limitation for approaching the Tribunal. In this case the medical examination of the respondent and the non-promotion as ad hoc ASTE were in the year 1976. The respondent accepted the diagnosis that he was colour blind and did not make any grievance in regard to his non-promotion. On the other hand, he attempted to get treatment or correction contact lenses from USA (to aid the colour blind to distinguish colours correctly). On account of the non-challenge, the issue relating to his non-selection in 1976 attained finality and the same issue could not have been reopened in the year 1999-2000, on the ground that medical tests conducted in 1998 and 2000 showed him to be not colour blind.
13. It is well settled that anyone who feels aggrieved by non-promotion or non-selection should approach the Court/Tribunal as early as possible. If a person having a justifiable grievance allows the matter to become stale and approaches the Court/Tribunal belatedly, grant of any relief on the basis of such belated application would lead to serious administrative complications to the employer and difficulties to the other employees as it will upset the settled position regarding seniority and promotions which has been granted to others over the years. Further, where a claim is raised beyond a decade or two from the date of cause of action, the employer will be at a great disadvantage to effectively contest or counter the claim, as the officers who dealt with the matter and/or the relevant records relating to the matter may no longer be available. Therefore, even if no period of limitation is prescribed, any belated challenge would be liable to be dismissed on the ground of delay and laches.
14. This is a typical case where an employee gives a representation in a matter which is stale and old, after two decades and gets a direction of the Tribunal to consider and dispose of the same; and thereafter again approaches the Tribunal alleging that there is delay in disposal of the representation (or if there is an order rejecting the representation, then file an application to challenge the rejection, treating the date of rejection of the representation as the date of cause of action). This Court had occasion to examine such situations in Union of India v. M.K. Sarkar [2010 (2) SCC 58] and held as follows:
"The order of the Tribunal allowing the first application of respondent without examining the merits, and directing appellants to consider his representation has given rise to unnecessary litigation and avoidable complications. x x x x x When a belated representation in regard to a 'stale' or 'dead' issue/dispute is considered and decided, in compliance with a direction by the Court/Tribunal to do so, the date of such decision can not be considered as furnishing a fresh cause of action for reviving the 'dead' issue or time-barred dispute. The issue of limitation or delay and laches should be considered with reference to the original cause of action and not with reference to the date on which an order is passed in compliance with a court's direction. Neither a court's direction to consider a representation issued without examining the merits, nor a decision given in compliance with such direction, will extend the limitation, or erase the delay and laches.
A Court or Tribunal, before directing 'consideration' of a claim or representation should examine whether the claim or
representation is with reference to a 'live' issue or whether it is with reference to a 'dead' or 'stale' issue. It it is with reference to a 'dead' or 'stale' issue or dispute, the Court/Tribunal should put an end to the matter and should not direct consideration or reconsideration. If the court or Tribunal deciding to direct 'consideration' without itself examining of the merits, it should make it clear that such consideration will be without prejudice to any contention relating to limitation or delay and laches. Even if the Court does not expressly say so, that would be the legal position and effect."
We are therefore of the view that the High Court ought to have affirmed the order of the Tribunal dismissing the application of the respondent for retrospective promotion from 1976, on the ground of delay and laches.
Re:
Question (ii)"
Recently, Division Bench of this Court in case of Arvindbhai Dhanabhai Chaudhary the then Joint Manager versus S.Vaidyanathan and Ors., 2010 (1) GLH 675 observed as under in para 10,11,12, 17 and 21:
"10. In this context, judgment relied on by learned Advocate Mr.Parikh may be referred to. Hon'ble Apex Court in the case of C.Jacob v/s. Director of Geology and Mining and Anr. [(2008) 10 SCC 115] observed in paragraph 8 and 9 as under :-
"8.
Let us take the hypothetical case of an employee who is terminated from service in 1980. He does not challenge the termination. But nearly two decades later, say in the year 2000, he decides to challenge the termination. He is aware that any such challenge would be rejected at the threshold on the ground of delay (if the application is made before Tribunal) or on the ground of delay and laches (if a writ petition is filed before a High Court). Therefore, instead of challenging the termination, he gives a representation requesting that he may be taken back to service. Normally, there will be considerable delay in replying such representations relating to old matters. Taking advantage of this position, the ex-employee files an application/writ petition before the Tribunal/High Court seeking a direction to the employer to consider and dispose of his representation. The Tribunals/High Courts routinely allow or dispose of such applications/petitions (many a time even without notice to the other side), without examining the matter on merits, with a direction to consider and dispose of the representation.
9. The courts/tribunals proceed on the assumption, that every citizen deserves a reply to his representation. Secondly they assume that a mere direction to consider and dispose of the representation does not involve any 'decision' on rights and obligations of parties. Little do they realize the consequences of such a direction to 'consider'. If the representation is considered and accepted, the ex-employee gets a relief, which he would not have got on account of the long delay, all by reason of the direction to 'consider'. If the representation is considered and rejected, the ex-employee files an application/writ petition, not with reference to the original cause of action of 1982, but by treating the rejection of the representation given in 2000, as the cause of action. A prayer is made for quashing the rejection of representation and for grant of the relief claimed in the representation. The Tribunals/High Courts routinely entertain such applications/petitions ignoring the huge delay preceding the representation, and proceed to examine the claim on merits and grant relief. In this manner, the bar of limitation or the laches gets obliterated or ignored."
11. In the case of Jatunbibi w/o. Gulam Mohiyodin Sheikh and Ors. V/.s State of Gujarat [2000 (2) GLR 1599], this Court refused to condone delay considering lack of action on the part of the applicant therein for a long time and also considering case of the applicant that he approached the respondent authority for number of times.
12. The case of the applicant, therefore, will have to be considered in above set of facts and law. Admittedly, impugned order was passed on 06.09.2006 and thereafter, first action initiated by the applicant was in the form of notice dated 03.05.2007. During this period, the applicant does not claim to have taken any action on his part nor does he explain why he did not take any action to challenge the order impugned in this appeal. This become more relevant because during interregnum period, on 27.09.2006 the applicant came to be acquitted in the criminal trial. His case in the petition itself was that he could not have been terminated from service during the pendency of criminal trial and in light of acquittal, some action on his part can reasonably be expected, which he has failed to do.
17. Expanding our line of thoughts further, we find that even if the delay is condoned and appeal is sought to be decided on merits, it would not help the applicant in any manner as he had not argued the matter on merits before the learned Single Judge. The only point that was canvassed was that during the pendency of criminal trial, the applicant could not have been removed from service. Now that the trial is over and he is acquitted of charges, it would not be possible for him to canvass any new point on merits which were not canvassed before the learned Single Judge. Therefore, even if the delay is condoned and appeal is entertained, it is not going to help the applicant in any manner.
21. In view of above discussion that there was gross inaction on the part of the applicant between 06.09.2006 to 03.05.2007, between 16.05.2007 to 01.04.2008 and thereafter. The inaction has not been attempted to be explained. The above conclusion is reached by taking case of the applicant at its face value. This apart, as discussed earlier, even on merits, the applicant's appeal if entertained, is not likely to help the applicant in any manner and the exercise would be purely academic and no substantive justice is likely to be rendered by condoning delay."
In view of aforesaid facts and circumstances and in view of fact that delay has not been satisfactorily explained and no sufficient cause shown to this court which satisfy conscience of this court, applicant has not come out with case that on which date, she contacted her advocate after order was passed by learned Single Judge of this Court in Special Civil Application, or on the date on which matter has been dismissed on default by Division Bench of this Court because of non removal of office objection in time, thereafter, whether any information has been given by advocate to applicant or not, and subsequently after how many years, applicant contacted advocate or not and whether any answer is given by advocate to her or not, for that, there is no detailed explanation and averments made by applicant in present application. Affidavit of advocate who has been engaged by applicant is also not filed on record in support of averments made in present application, therefore, question is whether it is a negligence or fault on the part of applicant or on the part of advocate who was engaged by applicant. For that, no detailed averments have been made by applicant in present application. On the contrary, merely vague averments have been made in present application. In this case, apparently, conclusion of negligence and inaction on the part of applicant comes. Conclusion comes that applicant had not remained vigilant about her right and proceedings initiated by her and no sincere efforts have been made by her after filing of an appeal before Division Bench of this Court. Merely applicant is aged person and suffering from various ailment may not be a good ground for not contacting advocate within reasonable time. Applicant remained silent about date on which she was having knowledge or information of order passed by Division Bench of this Court. No date and details have been given by applicant. In facts of present case, delay being sizable, that of about five years and when parties have now settled as if dispute had been settled by order of this Court passed by learned Single Judge, now, it is not permissible for racking up entire issue to be reopened while condoning delay which caused great prejudice to the rights of other side, accrued in their favour. According to our considered opinion, delay is not required to be condoned. Matter has been finally concluded by order of learned Single Judge and land has vested in State Government being surplus land. As regards contention raised by learned advocate Mr. Makwana that applicant is still in possession of land, for that, no averments have been made by applicant in present application and no proof has been produced on record to show that land in question being surplus land is still in possession of present applicant. Once land is vested with State Government according to law, even question of possession also cannot be given weightage for condoning this much delay of more than five years which has remained unexplained and no sufficient cause has been shown and, therefore, according to our opinion, on merits also, concurrent finding of fact given by all authorities confirmed by learned Single Judge of this Court would hardly be required to be disturbed as original petition was in nature of petition under Article 227 of Constitution of India. Therefore, there is no substance in this application. Therefore, same is dismissed. Notice is discharged. No order as to costs.
(H.K. Rathod,J.) (S.R. Brahmbhatt,J.) Vyas Top