Allowed

The State of Assam and 3 Ors. v. Alaka Kalita and Anr.

Gauhati HC5 Aug 2022I.A.(Civil)/578/2022

Case brief

AI extract

What is this about?

The Gauhati High Court allowed an interlocutory application under Section 5 of the Limitation Act, 1963 to condone a delay of 387 days in filing a writ appeal. The court held that the delay was due to the time consumed in filing and dismissing a review petition, deeming it a sufficient cause for condonation to allow the matter to be heard on merits.

What did the court decide?

Condonation of delay of 387 days; interlocutory application allowed for admission hearing of the writ appeal.

The State of Assam and 3 Ors. Vs Alaka Kalita and Anr. — Service and Employment | Gauhati HC (2022)

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Page No.# 1/4

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GAHC010036852022

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : I.A. (Civil) No.578 of 2022

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In Writ Appeal No.2274/2022 (Filing Number)

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1: THE STATE OF ASSAM AND 3 ORS.

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REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM EDUCATION (ELEMENTARY) DEPARTMENT, DISPUR, GUWAHATI 781006

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2: THE DIRECTOR OF ELEMENTARY EDUCATION ASSAM KAHILIPARA GUWAHATI 781019

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3: THE DISTRICT ELEMENTARY EDUCATION OFFICER NALBARI ASSAM

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4: THE DEPUTY INSPECTOR OF SCHOOLS NALBARI ASSAM

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VERSUS

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ALAKA KALITA AND ANR. W/O SRI APURBA KUMAR TALUKDAR , RESIDENT OF VILLAGE AND PO BANGAON, DIST BARPETA .ASSAM

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2:THE DIRECTOR OF EDUCATION BODOLAND AUTONOMOUS COUNCIL KOKRAJHAR ASSAM

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Advocate for the Petitioner : SC, ELEM. EDU

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Advocate for the Respondent : SC, BTC

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- B E F O R E - HON’BLE THE CHIEF JUSTICE MR. R.M. CHHAYA HON’BLE MR. JUSTICE SOUMITRA SAIKIA

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ORDER

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Date : 05-08-2022 (R.M. Chhaya, CJ.)

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Heard Mr. D. Saikia, learned Advocate General, Assam, assisted by Mr. N.J. Khataniar, learned standing counsel, counsel Education (Elementary) Department, appearing for the applicants/appellants. Also heard Mr. B.D. Das, learned senior counsel, assisted by Ms. R. Deka, learned counsel, appearing for the respondent No.1/writ petitioner.

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By way of this application under Section 5 of the Limitation Act, 1963 read with Rule 2(2) of Chapter V-A of the Gauhati High Court Rules, the applicants/appellants/ original respondents have prayed for condonation of delay of 378 days in preferring the connected writ appeal.

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The learned counsels appearing for the parties have reiterated their respective contentions raised in the application as well as in the affidavit-in-opposition.

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As can be culled out from the record of the petition, the impugned order was passed by the learned Single Judge on 22.01.2019 in WP(C) No.1728/2015. Whereas according to the applicants, there was some error apparent on the face of the record. Instead of challenging the said order by way of a substantive writ appeal before this Court, the applicants preferred a review petition being Review Petition No.7/22, which came to be dismissed by an order dated 08.02.2022 and thereafter the present appeal is filed challenging the order dated 22.01.2019 passed in WP(C) No.1728/2015 as well as the order dated 08.02.2022 passed in Review

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Petition No.7/2022. The present appeal as per record was filed on 23.02.2022.

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Mr. B.D. Das, learned senior counsel, appearing for the respondent No.1/writ petitioner has objected to the condonation of delay. According to the learned senior counsel, there is no day to day explanation. In this connection, the learned senior counsel, however, has relied upon a catena of judgments of the Apex Court in Postmaster General & Ors. -Vs- Living Media India Limited & Anr. , reported in (2012) 3 SCC 563 ; in University of Delhi -Vs- Union of India & Ors. , reported in (2020) 13 SCC 745 and in Cognizance for extension limitation, in re , reported in (2022) 3 SCC 117 , which are forming part of the record of this application.

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However, in peculiar facts and circumstances of the fact, it is a matter of fact that the applicants filed a review petition and the review petition was dismissed on 08.02.2022 and thereafter the present writ appeal is filed on 23.02.2022. As such, challenging the order dated 22.01.2019 passed in WP(C) No.1728/2015, there is a technical delay of 387 days. Otherwise, it appears from the record that the appeal is filed on 23.02.2022, i.e. within the period of limitation from the date of passing the order dated 08.02.2022 in Review Petition No.7/2022. Even though we agree with the ratio laid down by the Apex Court in the judgments cited before us, the facts of the present application are different and, therefore, the same are not applicable to the present case.

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Considering the peculiar facts of this application and as per the averments made in the application, the applicants have been able to establish sufficient cause for condonation of delay of 387 days, more particularly, as the applicants instead of filing the substantive writ appeal

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preferred to file a review petition and the time consumed in that proceedings have resulted into further delay.

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In totality of facts, therefore, this Court is of the opinion that the applicants should be given an opportunity to plead their case on merits and should not be ousted on ground of delay alone. Accordingly, the delay is condoned and the interlocutory application is allowed.

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Registry to register and number the connected appeal and list the same for admission hearing on 31.08.2022 .

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JUDGE

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CHIEF JUSTICE

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Comparing Assistant

The State of Assam and 3 Ors. v. Alaka Kalita and Anr.

Case brief

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The State of Assam and 3 Ors. v. Alaka Kalita and Anr.

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