Union of India and Ors. Vs Soman Devi

2025:HHC:4613-DB

IN THE HIGH COURT OF HIMACHAL PRADESHAT SHIMLA

CWP No.767 of 2024 Decided on:04.03.2025 __________________________________________________________ Union of India and Others ...Petitioners Versus Soman Devi (since deceased) ...Respondents through her legal heirs-Deepak Sharma & ors.

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Coram

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Hon’ble Mr. Justice G.S. Sandhawalia, Chief Justice Hon’ble Mr. Justice Ranjan Sharma, Judge

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1 Whether approved for reporting?.

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For the petitioners:	Mr. Balram Sharma, Solicitor General of India Advocate] with Mr. Sharma, Advocate.	Deputy [Senior Rajeev
For the respondents:	Mr. Chitranjan Kumar and Mr. Gopal Singh Advocates.	Sharma Verma,

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G.S. Sandhawalia, Chief Justice [Oral]

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CMP(M) No.227 of 2025

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Keeping in view the averments made in the

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application duly supported by an affidavit, we are of the opinion that sufficient cause has been made out to condone the delay. Therefore, the delay of 407 days in filing the application for bringing on record the LRs of respondent No.1, is condoned.

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The application stands disposed of.

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1 Whether reporters of Local Papers may be allowed to see the judgment?

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CMP(M) No.226 of 2025

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2. The present application under Order 22 Rule 4

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of the Code of Civil Procedure has been filed to bring on record legal heirs of deceased-respondent [Soman Devi].

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3. No reply is intended to be filed to the present application.

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4. Keeping in view the averments made in the application duly supported by an affidavit, the application is allowed and legal heirs of deceasedrespondent [Soman Devi] are ordered to be substituted as respondents No.I to VII as mentioned in Para 1 of the application.

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5. Amended Memo of Parties is taken on record.

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The application stands disposed of.

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CWP No.767 of 2024

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6. Challenge has been laid to the order dated 17.05.2022, passed by the Armed Forces Tribunal, Chandigarh, Regional Bench, Circuit Bench at Shimla, in O.A. No.1298 of 2020, titled as Soman Devi versus Union

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of India and Others. The writ petition has been filed on 15.01.2024, after the period of more than one and half years. The perusal of the impugned order would go on

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to show that it is a consent order and matter was covered

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by the judgment of the Larger Bench of the Tribunal.

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7. The matter is covered by a judgment passed by

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this Court in CWP No.2522 of 2025 , titled as Union of India & Others versus Pawna Devi and connected matters, decided on 25.02.2025, whereby we dismissed the petitions on the ground of delay and laches, wherein it was observed as under:-

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“10. As noticed, the Tribunal had passed various orders way back in May, August & November, 2022 and for a period ranging to1 year to 1½ years, the Union of India opted not to challenge the said orders.

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In service matters, the Hon’ble Apex Court has time and again held that the orders passed by the authorities regarding seniority etc. be challenged within a reasonable time and reference can be made in the judgment of P.S. Sadasivcaswamyv. State of Tamil Nadu, AIR 1974 SC 2271, whereby the right has been curtailed of the litigants to challenge the administrative orders or claim the right to seniority by filing the writ petitions.

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The said principle can be kept in mind while deciding the present cases also. The concept of liberal approach has to be kept in mind, but the concept of reasonableness and a total unfettered free play cannot be permitted and there is a distinction between inordinate delay and delay of short duration. The fundamental principle before the Court is to weigh the balance of justice in respect of both parties and inaction of a party cannot be given the go-by in the name of a liberal approach and the lack of bonafide’s which is a relevant factor.

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In State of Nagaland versus Lipok AO and others (2005) 3 SCR 108, certain amount of latitude was held permissible to the officers/officials of the Government by applying the principles of ‘a little play at a joints’ and resultantly the delay of 57 days which had occurred in filing the application for leave to appeal in view of the provisions under Section 378 (3) of the Code of Criminal Procedure had been allowed. It was, however, held that the State has impersonal machinery which works through its officers or servants to grant the said relief keeping in view the nominal delay.

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Similar principles have been laid down in Karnataka Power Corporation Ltd. and another versus K. Thangappan and another (2006) 4 SCC 322. It was held that the High Court may refuse to invoke its extraordinary powers if there is such negligence or omission on the part of the applicant to assert his right as it will cause prejudice to the opposite party. Accordingly it was held that the High Court may decline to intervene and grant relief in exercise of its writ jurisdiction while relying upon the judgment in State of M.P vs. Nandlal Jaiswal (1986) 4 SCC 566. In Tridip Kumar Dingal and others versus State of West Bengal and others (2009) 1 SCC 768, it was held that there is no upper or lower limit of limitation. The principles were accordingly laid down that invocation under Article 226 of the Constitution of India should be invoked at the earliest. Accordingly, it was held that jurisdiction of the writ Court has to be invoked at the earliest reasonably possible opportunity. This principle was not to encourage agitation of stale claims and exhume matters which had already been disposed of or settled. Thus, it was left open to the Writ Court as being question of discretion which will be decided on the basis of facts before the Court depending and varying from case to case. Thus, what is to be kept in mind is that the writ Court has to be vigilant not to expose the other side unnecessarily to face litigation if the explanation offered is not to be accepted or is fanciful in nature which has already been

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noticed by us in the facts and circumstances of the present case.

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In Pundlik Jalam Patil (D) by LRs versus Exe. Eng. Jalgaon Medium Project and another (2008) 17 SCC 448, the delay as such of 1724 days in filing the appeals which had been condoned by the Bombay High Court was set aside by holding that the Limitation Act does not provide for a different period to the Government for filing appeals or applications and statutes of limitation are prescribed as ‘Statute’s of peace’. It was accordingly held that where the Government makes out a case and where public interest was shown to have suffered owing to acts of fraud or collusion on the part of its officers, the benefits as such could be given, which is not the case herein.

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In Oriental Aroma Chemical Industries Ltd versus Gujarat Industrial Development Corporation and another (2010) 5 SCC 459, it was held that law of limitation is founded on public policy and resultantly the appeal was allowed and the order condoning the delay as such of four years in filing of the appeal was set aside by holding that in the absence of any plausible/tangible explanation for long delay of more than four years in filing of appeal, there was no valid reasons to condone the delay.

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In Chief Postmaster General and others versus Living Media India Limited and another (2012) 3 SCC 563, the principles as such have been laid down that the department could not take advantage of impersonal machinery or the inherited bureaucratic methodology and the law of limitation binds everybody including the Government. The relevant paras of the said judgment reads as under:-

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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

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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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Though we are conscious of the fact that in a matter of 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 red-tape 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

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benefit of a few. 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.”

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In Maniben Devraj Shah versus Municipal Corporation of Brihan Mumbai (2012) 5 SCC 157, it has been held that a litigant acquire certain rights and if the Court finds that there is negligence in prosecuting the case then it would be a legitimate exercise of discretion not to condone the delay.

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In B. MadhuriGoud versus B. Damodar Reddy (2012) 12 SCC 693, it was noticed that there is a life span for such legal remedy for the redressal of such injuries so suffered and unending period lead to unending certainty and consequential anarchy. The Rules of limitation were held not meant to destroy the rights of the parties.

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In Esha Bhattacharjee versus Managing Committee of Raghunathpur Nafar Academy and others (2013) 12 SCC 649 , the principles of limitation were culled out as under:

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“i) There should be a liberal, pragmatic, justice-oriented, non-pedantic approach while dealing with an application for condonation of delay, for the courts are not supposed to legalise injustice but are obliged to remove injustice.

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ii) The terms “sufficient cause” should be understood in their proper spirit, philosophy and purpose regard being had to the fact that these terms are basically elastic and are to be applied in proper perspective to the obtaining fact- situation.

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iii) Substantial justice being paramount and pivotal the technical

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considerations should not be given undue and uncalled for emphasis.

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iv) No presumption can be attached to deliberate causation of delay but, gross negligence on the part of the counsel or litigant is to be taken note of.

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v) Lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact.

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vi) It is to be kept in mind that adherence to strict proof should not affect public justice and cause public mischief because the courts are required to be vigilant so that in the ultimate eventuate there is no real failure of justice.

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vii) The concept of liberal approach has to encapsule the conception of reasonableness and it cannot be allowed a totally unfettered free play.

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viii) There is a distinction between inordinate delay and a delay of short duration or few days, for to the former doctrine of prejudice is attracted whereas to the latter it may not be attracted. That apart, the first one warrants strict approach whereas the second calls for a liberal delineation.

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ix) The conduct, behaviour and attitude of a party relating to its inaction or negligence are relevant factors to be taken into consideration. It is so as the fundamental principle is that the courts are required to weigh the scale of balance of justice in respect of both parties and the said principle cannot be given a total go by in the name of liberal approach.

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x) If the explanation offered is concocted or the grounds urged in the application are fanciful, the courts should be vigilant not to expose the other side unnecessarily to face such a litigation.

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xi) It is to be borne in mind that no one gets away with fraud, misrepresentation or interpolation by taking recourse to the technicalities of law of limitation.

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xii) The entire gamut of facts are to be carefully scrutinized and the approach should be based on the paradigm of judicial discretion which is founded on objective reasoning and not on individual perception.

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xiii) The State or a public body or an entity representing a collective cause should be given some acceptable latitude.”

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In State of Madhaya Pradesh versus Bherulal (2020) 10 SCC 654, the apex Court has commented upon the tendency of the State as such to file ‘Certificate Cases’ in order to cover up its lapse.

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In State of Orissa and others versus Sunanda Mahakuda (2021) 1 SCC 560, similar observations came forth from the apex Court while dismissing a Special Leave Petition which was time barred and proceedings had been filed after contempt proceedings had been initiated on the dismissal of the writ appeal and therefore, the conduct of the State Government was depreciated while imposing costs of Rs.25000/-.

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Similar was the position in State of Uttar Pradesh and others versus Sabha Narain and others (2022) 9 SCC 266, which is a three Judge Bench verdict. The relevant portion reads as under:-

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“4. We have also categorized such kind of cases as “certificate cases” filed with the only object to obtain a quietus from the Supreme Court on the ground that nothing could be done because the highest Court has dismissed the appeal. The objective is to complete a mere formality and save the skin of the officers who may be in default in following the due process or may have

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done it deliberately. We have deprecated such practice and process and we do so again. We refuse to grant such certificates and if the Government/public authorities suffer losses, it is time when concerned officers responsible for the same, bear the consequences. The irony, emphasized by us repeatedly, is that no action is ever taken against the officers and if the Court pushes it, some mild warning is all that happens.”

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In Pathapati Subba Reddy (died) by LRs and others vs. Special Deputy Collector (LA) 2024 SC OnLine SC 513, it was also held that stale matters cannot be entertained to defeat the substantial law of limitation and Statute.

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It is not the case of Union of India that there is any fraud or misrepresentation in the present set of cases, whereby mainly the legal representatives of the Armed Forces are seeking redressal of their rights. The State or the public body can be given some acceptable latitude keeping in view the law laid down by the Hon’ble Apex Court in the principle of limitation and though no precise formula,as such,can be laid down, but we cannot brush aside the fact that the parties in view of the orders passed by the Tribunal could have also resorted to getting the orders executed by filing appropriate remedies and Tribunal has also granted the benefit of penal interest, if the payment is not made within the prescribed period. Inspite of this fact the Union of India chose to sit tight and chose not to file the writ petitions within a reasonable period which can be classified as one year and beyond the same, no indulgence can be granted.

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Therefore, the period prior to 18.10.2023 as such between the date of the decisions ranging from May/August/November, 2022 cannot be condoned in any manner and therefore, we are of the considered opinion that the present writ petitions are liable to be dismissed on the grounds of delay and laches

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as on account of Union of India not having resorted to its legal remedies expeditiously or even having made reasonable effort to challenge the said orders or even take a decision as such to challenge the said orders for a period of over one year. The latitude as such on account of laxity on the department, in such circumstances cannot be extended.

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Without going into the merits of the cases, we are of the considered opinion that there is a delay of over a year from passing of the orders and no effort was made to challenge the order passed by the Tribunal within a reasonable time, therefore, on account of the opinion given on 18.09.2023, the Union of India cannot raise the issue on merits.”

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8. Resultantly, there is no other option, but to

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dismiss the present writ petition on the ground of principle of delay and laches and the same is accordingly dismissed along with pending miscellaneous application(s), if any.

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(G.S. Sandhawalia) Chief Justice

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(Ranjan Sharma) Judge

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March 04, 2025

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[Shivender/Himani]

Union of India and Ors. v. Soman Devi

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Union of India and Ors. v. Soman Devi

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