Writ Petition No.6019 of 1997

9th January, 1998

Petitioner Counsel: Mr. P.K. HUSHING
Respondent Counsel: Mr. KANSARA, AGP

Cases Cited:
AIR 1987 SC 1353 [Para 2]
1988 Civil LJ 708 [Para 2]
AIR 1987 SC 1353 [Para 5]
(1988) 2 SCC 142 [Para 6]
JT 1997 (8) SC 189 [Para 9]

JUDGMENT

JUDGMENT :- Rule Returnable forthwith Mr.Kansara, Assistant Government Pleader waives service for respondent.

2. By consent rule is taken up on Board for final hearing at this stage.

3. The only question that falls for determination in this writ petition filed under Article 227 of the Constitution of India is whether the Court below committed an error of jurisdiction in condoning the delay of more than 750 days? The suit filed by the petitioner Laxman N. Divekar (for short "the plaintiff") against the respondent herein, namely, the State of Maharashtra (for short "the defendant") for perpetual injunction and declaration in challenging the award was decreed by the Civil Judge, Senior Division, Baramati on 2.3.1991. The said judgment and decree passed by the Civil Judge, Senior Division, Baramati, was challenged by the defendant in appeal filed on 18.12.1993 before the Additional District Judge, Baramati. The appeal was barred by more than 750 days and accordingly an application was filed by the defendant under Section 5 of the Limitation Act. It was stated in the application that the application for obtaining certified copies of the judgment and decree dated 2.3.1991 was made on 22.10.1993. The certified copies were received on 28.10.1993 and the appeal was filed on 18.12.1993. According to the averments made in the application the delay occurred because of the rush of the administrative work and other pre-occupations in the State government. It was stated that if delay is condoned no loss would be caused to the plaintiff. The said application was contested by the plaintiff and the Additional District Judge by the impugned order dated 22.9.1997 allowed the same on the cost of Rs.100/- and accordingly condoned the delay in filing the appeal. While doing so, the Additional District Judge relied upon two decisions of the Apex Court, namely, Collector, Land Acquisition Anantnag and others vs. Mst. Katiji and others, AIR 1987 SC 1353 and G. Ramegowda vs. Special Land Acquisition Officer, 1988 Civil L.J. page 708.

3. The nub of the reasoning given by the Additional District Judge while condoning the delay reads thus :

"........ Considering the function of the Government and it's bureaucracy it can be said that the delay has been caused due to inaction taken by the Government officer and therefore in the larger public interest, in my opinion, it is necessary to condone the delay as issue of the allotment of the land to the persons affected by the projects and their rehabilitation are involved in this suit. Not doubt, there is delay in filing the appeal. But considering the peculiar facts and circumstances of the case, in my opinion it is just to decide the matter on merit and the Government cannot be thrown out on the threshold in the matter. No loss will be caused to the respondent in case of allowing the application as the matter will be decided on merit."

3. Section 5 of the Limitation Act, 1963 enables the appeal Court to admit the appeal after the prescribed period on the appellant / applicant satisfying the Court that he had sufficient cause for not preferring the appeal in time. It is the satisfaction about the sufficiency of the cause in not preferring the appeal in time that confers the jurisdiction to the appeal court in condoning the delay in filing appeal. If the appellant does not show the sufficient cause nor does the Court record the finding that the cause shown by the appellant is sufficient in not preferring the appeal in time, the Court does not possess power to arbitrarily condone delay in the name of advancing substantial justice merely because the appellant litigant happens to be the government. It need not be emphasised that no separate standards to determine the sufficient cause could be laid be it a private party or the state; though the factors which are peculiar to the functioning of the Governmental conditions may require pragmatic approach in justice oriented process. The Court, when the State is an applicant, may give certain amount of latitude because of impersonal nature of administrative working in the State. Nevertheless it is incumbent upon the Court that discretion is exercised in accord with well recognised principles. The discretion so exercised by the court must proceed on material which spells out sufficient cause. The sufficient cause has to be considered with pragmatism and of course with justice oriented approach but "any cause" can not be construed as "sufficient cause". It is necessary for the Court to apply its mind to the cause shown to satisfy itself whether the cause so shown is 'sufficient' or not. The Court cannot on its whims jump to the conclusion on generality that the Government cannot be thrown out at the threshold taking general view of the matter that considering the function of the government and it's bureaucracy that the delay was caused due to inaction by the government officer without adverting to the facts and cause shown. Each case has to be considered on its own facts. No doubt, in the very nature of the governmental functioning the decision is not taken by an individual and the matters are processed at various levels but if in such processing, there is any delay, it is for the government to explain such delay sufficiently setting out the specific facts where the matter was held up which resulted in delay. However, on general, vague and ambiguous averments that the appellant is the State and because of the rush of the administrative work and other pre-occupations the appeal could not be filed within time, by no stretch could be accepted as sufficient cause. The Court ought to bear in mind that a very valuable right is secured to the successful litigant on expiration of limitation and this right should not be casually disturbed and that applicant is not entitled to condonation of delay as a matter of right. The applicant, before it can seek condonation of delay and invoke discretion of the Court must show that there was no negligence, inaction or want of bonafides on its part.

5. In Collector, Land Acquisition Anantnag and others vs. Mst. Katiji and others, AIR 1987 SC 1353, the Apex Court held thus :

1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.

2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.

"Every day's delay must be explained" does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay? The doctrine must be applied in a rational common sense pragmatic manner.

4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.

5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.

6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.

Making a justice-oriented approach from this perspective, there was sufficient cause for condoning the delay in the institution of the appeal. The fact that it was the 'State' which was seeking condonation and not a private party was altogether irrelevant. The doctrine of equality before law demands that all litigants, including the State as a litigant, are accorded the same treatment and the law is administered in an even-handed manner. There is no warrant for according a stepmotherly treatment when the 'State' is the applicant praying for condonation of delay. In fact experience shows that on account of an impersonal machinery (no one in charge of the matter is directly hit or hurt by the judgment sought to be subjected to appeal) and the inherited bureaucratic methodology imbued with the note-making, file pushing, and passing-on-the-buck ethos, delay on its part is less difficult to understand though more difficult to approve. In any event, the State which represents the collective cause of the community, does not deserve a litigation non grata status. The Courts therefore have to informed with the spirit and philosophy of the provisions in the course of the interpretation of the expression "sufficient cause". So also the same approach has to be evidenced in its application to matters at hand with the end in view to do even-handed justice on merits in preference to the approach which scuttles a decision on merits."

6. After laying down the aforesaid principles the Apex Court turned on facts of the matter and found that the matter was time barred only by 4 days and accordingly condoned the delay.

7. In G. Ramegowda vs. Special Land Acquisition Officer, (1988)2 SCC 142, the Apex Court ruled thus :

"In litigation to which Government is party there is yet another aspect which, perhaps, can not be ignored. If appeals brought by Government are lost for such defaults, no person is individually affected; but which is the ultimate analysis, suffers is public interest. The decisions of Government are collective and institutional decisions and do not share the characteristics of private individuals.

The law of limitation is no doubt, the same for a private citizen as for Governmental authorities. Government, like any other litigant must take responsibility for the acts or omissions of its officers, but a somewhat different complexion is imparted to the matter where Government makes out a case where public interest was shown to have suffered was shown to have suffered owing to 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, in a particular case, constitutes 'sufficient cause' for purposes of Section 5, it might perhaps, be somewhat unrealistic to exclude from the consideration that go into the judicial verdict these factors which are peculiar to and characteristic of the functioning of the Government. Governmental 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, therefore, 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 the judicial approach is not to rendered unrealistic. It would, perhaps, be unfair and unrealistic to put Government and Private parties on the same footing in all respects in such matters. Implicit in the very nature of the Governmental functioning is procedural delay incidental to the decision making process. In the opinion of the High Court, the conduct of the law officers of the Government placed in the Government in a predicament and that it was one of those cases where malafides of the officers should not be imputed to Government. It relied upon and trusted its law officers. In the opinion of the High Court, it took quite sometime for the Government to realise that the law officers failed that trust."

8. The aforesaid observations of the Apex Court in G.Ramagowda have to be read in the context where the public interest is shown to have suffered because of the acts of fraud or bad faith on the part of its officers or agents and whether the officers were clearly at cross purposes with it. Nevertheless the liberal approach for condonation of delay in the matters where Government is involved has to be within reasonable limits as observed by the Apex Court, "Due recognition of these limitations on Governmental functioning of course, within reasonable limits."

9. In the present case, there is no allegation in the application made by the State that delay occurred due to the acts of fraud or bad faith on the part of its officers or agents or the concerned officers acted contrary to the interest of the State. Turning to the facts of the present case, it would be seen that the only ground stated in the application for condonation of delay is :

"2) The appellant/Defendant is the State of Maharashtra because of the rush of the administrative work and other preoccupations the Govt. of Maharashtra should not file the appeal within time. If the delay is condoned there will be irreparable inquiry to the State public at large. If the delay is condoned no loss could be caused to the opponents/respondents."

The aforesaid cause is no cause in the eye of law sufficient for condoning the delay of 750 days. The averment is too vague and general to be accepted for making out a case of sufficient cause for condonation of delay of 750 days. The Appellate Court has also not given any specific finding that the aforesaid cause was reasonable and satisfactory. Recently, in P.K. Ramachandran v. State of Kerala & Anr. JT 1997 (8) S.C. 189, while dealing with the matter where the High Court condoned the delay of 565 days in the appeal filed by State of Kerala, the Apex Court held thus:

"6. Law of limitation may harshly effect a particular party but it has to be applied with all its rigour when the statute so prescribe and the Courts have no power to extend the period of limitation on equitable grounds. The discretion exercised by the High Court was, thus neither proper nor judicious. The order condoning the delay cannot be sustained. This appeal, therefore, succeeds and the impugned order is set aside."

10. Limitation is prescribed by law and the said provision has to be applied - without carving separate standards - equally to all litigants : be it the State or private party. The discretion, exercised by the appellate Court in condoning the delay of 750 days in the facts and circumstances of the case already noted above was neither proper nor judicious and rather suffered from serious error or jurisdiction. In the circumstances, the impugned order deserves to be set aside.

11. Accordingly, the writ petition is allowed. The order dated 22.9.1997 passed by the 2nd Additional District Judge, Baramati, is quashed and set aside. As a result thereof, the application for condonation of delay filed by the State of Maharashtra before appeal court stands rejected.

12. No costs.

Petition allowed