Dismissed

State of Hp and Others v. Suresh Kumar and Another

Himachal Pradesh HC11 Oct 2023CMP.M/616/2023

Case brief

AI extract

What is this about?

This order dismisses an application for condonation of delay filed by the State of Himachal Pradesh. The court held that the 223-day delay was not satisfactorily explained and rejected the plea that the State benefits from bureaucratic methodology, citing Supreme Court precedents requiring bona fide explanations.

What did the court decide?

The application for condonation of delay and the consequent special appeal stood dismissed.

State of Hp and Others Vs Sure… — Constitutional and Fundamental Rights | Himachal Pradesh HC (2023)

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IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

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CMP(M) No.616 of 2023 Decided on: 11^th October, 2023

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______________________________________________________ State of HP and others …..Applicants Versus Suresh Kumar and Anr. …Respondents ______________________________________________________ Coram_

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The Hon’ble Mr. Justice M. S. Ramachandra Rao, Chief Justice The Hon'ble Ms. Justice Jyotsna Rewal Dua, Judge

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Whether approved for reporting?

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____________________ For the applicants:	_________________________________ Mr. Anup Rattan, Advocate General with
	Mr. Rakesh Dhaulta & Mr. Pranay Pratap Singh, Additional Advocates General and
	Mr. Arsh Rattan, Deputy Advocate
	General.
For the respondents:	Mr. Naresh K.Sharma, Advocate.

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M.S.Ramachandra Rao, Chief Justice (Oral)

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This application is filed by the applicants-appellants seeking condonation of delay of 223 days in filing the appeal under Clause 10 of the Delhi High Court Rules and orders as applicable to

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the State of Himachal Pradesh, challenging the judgment dt. 08.09.2022 passed in CWPOA no. 4737 of 2019.

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It is not in dispute that the applicants/appellants had

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applied for the copy of the impugned judgment on 16.09.2022; that such an attested copy was delivered to the applicants/appellants on 11.11.2022; and then according to the application for condonation of delay and the supplementary affidavit filed explaining the delay in more detail, it appears that starting from the office of Superintendent Law Branch, Police Headquarters to the Assistant District Attorney, Joint Director of Prosecution, PHQ, Deputy Controller (F&A) PHQ, Shimla, Inspector General of Police, Communication and Technical Services, Inspector General of Police, Welfare and Administration, Home Secretary, the file was pushed from time to time in spite of the Department of Law apparently advising against pursuing the appeal. Admittedly, the appeal in question came to be filed only on 25.04.2023 with a delay of 223 days.

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The learned Advocate General has placed reliance on the decision of the Hon’ble Supreme Court in State of Manipur and others Versus Kotling Lamkang¹ , suggesting that Courts have to be conscious of Bureaucratic delay. Hon’ble Supreme Court had considered similar aspects in Postmaster General and others Versus

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1 (2009)10 SCC 408

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Living Media India Limited and another² and had observed as

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under:-

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“ 26. In spite of affording another opportunity to file better affidavit by placing adequate material, neither the Department nor the person in-charge has filed any explanation for not applying the certified copy within the prescribed period. The other dates mentioned in the affidavit which we have already extracted, clearly show that there was delay at every stage and except mentioning the dates of receipt of the file and the decision taken, there is no explanation as to why such delay had occasioned. Though it was stated by the Department that the delay was due to unavoidable circumstances and genuine difficulties, the fact remains that from day one the Department or the person/persons concerned have not evinced diligence in prosecuting the matter to this Court by taking appropriate steps.

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27. It is not in dispute that the person(s) concerned were well aware or conversant with the issues involved including the prescribed period of limitation for taking up the matter by way of filing a special leave petition in this Court. They cannot claim that they have a separate period of limitation when the Department was possessed with competent persons familiar with court proceedings. In the absence of plausible and acceptable explanation, we are posing a question why the delay is to be condoned mechanically merely because the Government or a wing of the Government is a party before us.

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28. Though we are conscious of the fact that in a matter of

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2 (2012) SCC 563

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condonation of delay when there was no gross negligence or deliberate inaction or lack of bonafide, a liberal concession has to be adopted to advance substantial justice, we are of the view that in the facts and circumstances, the Department cannot take advantage of various earlier decisions. The claim on account of impersonal machinery and inherited bureaucratic methodology of making several notes cannot be accepted in view of the modern technologies being used and available. The law of limitation undoubtedly binds everybody including the Government.

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29. In our view, it is the right time to inform all the government bodies, their agencies and instrumentalities that unless they have reasonable and acceptable explanation for the delay and there was bonafide effort, there is no need to accept the usual explanation that the file was kept pending for several months/years due to considerable degree of procedural redtape in the process. The government departments are under a special obligation to ensure that they perform their duties with diligence and commitment. Condonation of delay is an exception and should not be used as an anticipated benefit for government departments. The law shelters everyone under the same light and should not be swirled for the benefit of a few.

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30. Considering the fact that there was no proper explanation offered by the Department for the delay except mentioning of various dates, according to us, the Department has miserably failed to give any acceptable and cogent reasons sufficient to condone such a huge delay. Accordingly, the appeals are liable to be dismissed on the ground of delay.”

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This was reiterated in State of Madhya Pradesh and

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others Versus Bherulal³ and it was held that even if there is merit, the period of delay has to be satisfactorily explained and merely because a case is good on merit, delay cannot be condoned.

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In the instant case, we are of the opinion that delay of 223 days has not been satisfactorily explained. The State has no separate period of limitation for filing the appeals and cannot plead that on account of impersonal machinery and the inherited bureaucratic methodology of making several notes, delay has to be condoned. Such a plea was rejected in Postmaster General’s case (supra). Therefore, this application is dismissed. Consequently, the appeal is also dismissed.

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