Rs 25,000 cost imposed on appellants
Mohinder Verma
JAMMU, Aug 27: Division Bench of the Jammu and Kashmir and Ladakh High Court comprising Chief Justice Pankaj Mithal and Justice Wasim Sadiq Nargal has held that State cannot be lackadaisical in seeking condoning of delay in filing the appeal against the judgment passed by the writ court and imposed cost of Rs 25,000 on the appellants.
The DB was dealing with a motion by which the UT of J&K through Commissioner Secretary to Government Home Department sought indulgence of the Division Bench (DB) in condoning of delay of 693 days in filing the appeal against the judgment dated 23.05.2019 passed in Writ Petition bearing SWP No. 641/2008.
The condoning of delay was sought on the grounds that after receiving the copy of the impugned order/judgment passed by the Single Judge, all relevant documents were submitted to Zonal Armed Police Headquarters (ZAPHQ) Jammu vide office Letter No. Estt/IRP-12th/19/13442-44 dated 22.06.2019 with the request to favour the office of the Commandant IR-12th Battalion Zewan, Srinagar, with legal opinion.
It was further averred in the application that subsequently ZAPHQ submitted the same to the office of ADGP Armed J&K for favouring legal opinion and further guidelines vide letter No. ZAPHQ/Legal/90/19/7815-16 dated 16.07.2019. Accordingly APHQ J&K vide letter No. APHQ/Legal/SWP/S/07/2019/25005-10 dated 27.08.2019 took up the matter with PHQ J&K. Further PHQ vide its letter No. Legal/SWP-49/S/2008/66851-55 dated 16.11.2019 took up the matter with the Commissioner Secretary to Government Home Department for accord of sanction for filing of LPA against the order/judgment.
Accordingly, in terms of APHQ J&K letter No. APHQ/Legal/SWP/S/14/2008/10503-05 dated 19.04.2021, the Commandant IR-12th Battalion Zewan, Srinagar received copy of letter No. Home/PB-IV/232/2008-II dated 09.04.2021 of Home Department and also copy of letter No. LD(Lit)2021/11-Home dated 26.03.2021 of Department of Law, Justice and Parliamentary Affairs J&K, where under sanction was accorded by the Government for filing LPA against the judgment.
Additional Advocate General Asifa Padroo appearing for the appellants submitted that the Government of India ordered a nationwide lockdown as a preventive measure against the COVID-19 pandemic, which was extended from time to time. Thus, the delay has not been caused in filing of the appeal deliberately, willfully or intentionally.
“The appeal involves very important questions of law, which require authoritative adjudication and accordingly argument has been made that in case delay in filing the appeal is not condoned, it will cause great prejudice to the Government”, she further submitted.
The counsel for the respondent (writ petitioner before the Single Judge) submitted that the application seeking condonation of delay in filing the appeal against the judgment passed by the Single Judge is not maintainable as the present appeal has been filed after a gap of two years and bureaucratic works are not grounds for condoning the delay.
After hearing counsel for the parties and going through the pleadings on record, the Division Bench observed, “we are of the view that the delay in filing the appeal against the judgment of Single Judge is relatable to such factors which are peculiar to the characteristics of functioning of the Government at various administrative levels and therefore, requires a “justice-oriented” approach rather than the “technical detection” of the sufficient cause for explaining each day’s delay”.
“In the present case, there is a delay of 693 days and there is a consistent view of the Supreme Court and various other courts that the justice-oriented approach is expected from the court while considering the application for condonation of delay”, the DB said, adding “if the court is convinced that the sufficient cause has been shown to demonstrate that there had been no attempt on part of the Government official or the public servants to defeat justice by causing deliberate delay, the court, in view of the large public interest, should take a lenient view in such situations and condone the delay, howsoever, huge delay may be there”.
The expression “sufficient cause” must receive the liberal construction so as to advance substantial justice and generally delay preferring the appeal are required to be condoned in the interest of justice, where no gross negligence or deliberate inaction or lack of bonafides is imputable to the party seeking condonation of delay, the DB further said, adding “if the appeals brought by the Government are dismissed for such defaults, it will not affect any individual person but ultimately it is against the public interest”.
Stating that State cannot as a matter of rule take refuge under the plea that it has to be treated on a different pedestal in a matter of extension of time for filing the appeal/application, the DB said, “no doubt, some latitude may be warranted to be given to the State promoting social justice but it cannot escape the liability of satisfying the court that the appeal was filed with due diligence”.
“We have gone through the cause projected in the application and we are satisfied that the application for condonation of delay spell out the sufficient cause and the approach of the State in making such application. We are of the view that the State in the present case has been remiss and callous in seeking the condonation of delay in filing the appeal for which we are of the view that the State should be burdened with costs of Rs 25,000, which should be deposited before the Registrar Judicial of this court within a period of two weeks”, read the judgment authored by Justice Wasim Sadiq Nargal.
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