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State of Himachal Pradesh Vs. Lt. Vijay Singh - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtHimachal Pradesh High Court
Decided On
Case NumberFirst Appeal No. 67 of 1974
Judge
Reported inAIR1977HP13
ActsLimitation Act, 1963 - Sections 5 and 12(2); ;Land Acquisition Act, 1894 - Section 54
AppellantState of Himachal Pradesh
RespondentLt. Vijay Singh
Appellant AdvocateAdv. General
Respondent Advocate O.P. Sharma, Adv.
DispositionAppeal dismissed
Cases ReferredIn Kishore Chand v. Bahadur
Excerpt:
- .....on 18-12-1973, the district attorney chamba applied on the next day, i.e. on 19-12-1973, to the copying agency of the district judge at dharamsala, for a copy of the judgment. according to state, this copy of the judgment has yet not been supplied. the district attorney reminded the superintendent of the court of the additional district judge, kangra division (dharamsala) on 16-7-1974, but no response was received. it is further averred that on 28-6-1974 the district attorney received a typed copy of the judgment from the land acquisition collector in connection with the execution application filed by lt. vijay singh, thereafter some official was appointed, and a fresh application for a copy was made on 14-8-1974 and a certified copy was received on 17-8-1974. according to state, the.....
Judgment:

D.B. Lal, J.

1. Lt. Vijay Singh has been awarded compensation, under the Land Acquisition Act, for a certain building belonging to him. The award was made by the Land Acquisition Collector on 14-8-1972. Thereafter under Section 18 Lt. Vijay Singh made a reference to the District Judge for enhancement of compensation. The award was made by the learned District Judge on 18-12-1973. The amount of compensation has been enhanced. The State of Himachal Pradesh preferred an appeal to this Court under Section 54 of the Land Acquisition Act. This appeal was filed on 9-10-1974, but on that date some defect was pointed out, and it was refiled on 11-11-1974. The period of 90 days is prescribed for filing appeal in the High Court. As the appeal was prima facie time barred, an application under Section 5 of the Limitation Act was moved by the State of Himachal Pradesh on 11-10-1974. A reply to this petition has been filed by Lt. Vijay Singh. We are called upon to decide, as to whether, upon sufficient cause shown, the period of delay in filing appeal can be condoned.

2. In the petition under Section 5 of the Limitation Act, it is alleged on behalf of the State that after the award was given by the learned District Judge on 18-12-1973, the District Attorney Chamba applied on the next day, i.e. on 19-12-1973, to the Copying Agency of the District Judge at Dharamsala, for a copy of the judgment. According to State, this copy of the judgment has yet not been supplied. The District Attorney reminded the Superintendent of the Court of the Additional District Judge, Kangra Division (Dharamsala) on 16-7-1974, but no response was received. It is further averred that on 28-6-1974 the District Attorney received a typed copy of the judgment from the Land Acquisition Collector in connection with the execution application filed by Lt. Vijay Singh, Thereafter some official was appointed, and a fresh application for a copy was made on 14-8-1974 and a certified copy was received on 17-8-1974. According to State, the period between 19-12-1973 and 17-8-1974 should be credited end the appeal should be deemed filed within limitation. The alternative argument is that for the reasons stated sufficient cause is made out under Section 5 for not preferring the appeal within the prescribed period.

3. The reply of the respondent is that the District Attorney never applied for a copy of the judgment on 19-12-1973. In the alternative, it is pleaded that if at all he applied for a copy, he did it to the Copying Agency of the Additional District Judge, Kangra Division, at Dharamsala. There was no such copying agency in existence, and he should have rather applied to the Copying Agency of the District Judge, Kangra Division, at Dharamsala. In fact the respondent got a certified copy of the judgment and applied for execution of the award in the third week of June, 1974. In that execution, notices were served upon the District Attorney before 28th June, 1974 and a typed copy of the judgment was supplied to him by the Land Acquisition Collector, Chamba. At that stage the District Attorney issued the reminder dated 16-7-74 to the Superintendent, Copying Agency of the Additional District Judge, Kangra.

The appellant thus knew about the execution proceeding in the last week of June, 1974 and still acted negligently in not obtaining the copy earlier. This culpable inaction on its part disentitles any benefit under Section 5 and the cause itself cannot be considered sufficient. A valuable right has been created in favour of the respondent and he should not be deprived of this valuable right because of any negligence or inaction committed by the appellant. In fact only one application was moved by the State for obtaining a copy and it was done on 14-8-1974 long after the limitation period had expired. As such no advantage can be derived by the appellant of Section 12 (2) of the Limitation Act. No sufficient cause is made out for not preferring the appeal within time. For these reasons, it is prayed that the appeal be held to be time barred.

4. The appellant State has sought for limitation under Section 12 (2) of the Limitation Act, 1963 and in the alternative they have asked for extension of time under Section 5 of that Act. As regards Section 12 (2) the time requisite for obtaining a copy of the judgment could be given credit to and the appeal be held within time. But the sine qua non to this plea must be the fact that the copy was sought to be obtained from an appropriate Court. In the instant case the copy was admittedly sought to be obtained from the Copying Agency of the Court of the Additional District Judge and that Court never maintained a Copying Agency. Therefore, prima facie Section 12 (2) did not apply and the time requisite for obtaining a copy could not be accounted for under that provision. Then the appellant fell back upon Section 5 of the Limitation Act and the learned Advocate-General pleaded that the facts alleged disclose a sufficient cause and the Court should exercise discretion in his favour by extending the time prescribed for limitation.

It is manifest in order to avail of Section 5, two considerations must prevail before the Court. Whatever rights have been decided or decreed in favour of the respondent cannot easily be displaced by any negligence or inaction on the part of the appellant and the period of limitation prescribed for appeal shall not easily be extended. Rather the Court will demand explanation for day to day's delay and the party availing of the provision under Section 5 has to explain this delay in a reasonable manner. The second consideration is of course this that the provision should be conducive to the interest of justice and in a case where sufficient cause is shown and the delay is properly explained, the Court should not refuse condonation of time in order to enable the parties to have their full say in the matter. In that connection it is to be understood that even in a case where sufficient cause is made out under Section 5 the discretion is still left to the Court to extend or not the period of limitation. It is in that sphere that considerations of good faith and due diligence arise and a thorough, enquiry will have to be made as to the conduct of the appellant.

The learned Advocate General contended that the appellant being a State Government, it has to act through the agencies of so many departments and, therefore, a liberal view has to be taken for extending the period of limitation. For this the answer is that the State Government has to be regarded as an ordinary litigant and whatever is not considered as sufficient ground for a private person cannot be considered a sufficient ground for the State. There may be a case governed by a special circumstance and where the delay is explained on behalf of the State in a reasonable manner and the Court is satisfied that due to cumbersome official machinery a certain act was not performed with so much promptitude as could be expected in the case of a private individual, regard may be had to that factor while deciding the dispute. At any rate, there is no hard and fast rule and each case will depend upon its own merits.

5. In Punjab State v. Gopal Singh Nagahia Singh (AIR 1964 Punj 154); Keshav Prasad v. State of Rajasthan (AIR 1967 Raj 24) and State of Himachal Pradesh v. Budhi Singh (ILR (1973) Him Pra 1087), the Courts have observed that different considerations cannot be brought into play while dealing with a case of a State who seeks extension of limitation under Section 5 as compared to a private individual. There cannot be a different standard of care and vigilance while one considers the case of a State as compared to the case of any private appellant. At the same time considering such an application filed on behalf of the State it may not be wholly improper or irrelevant in any particular case to make some allowance for the consideration that such appeals have to pass through a variety of officers. Therefore, there can be no question of any latitude to be shown in favour of the State and the sufficient cause shown has to be adjudged at its face value although regard will be had if any special difficulty arose which disabled the District Attorney to file the appeal within time.

6. In the instant case after considering the facts I have no hesitation to conclude that sufficient cause within the meaning of Section 5 has not been shown and as such the Court will not exercise discretion in favour of the appellant.

7. In their application under Section 5 the appellant stated that a reminder was sent to the Copying Agency of the Court of the Additional District Judge, Kangra. The affidavit of Shri S.P. Barotra, District Attorney, clearly indicated that the application for a copy was addressed to the Copying Agency of the Court of the Additional District Judge, Kangra. The learned Advocate-General filed yet another petition under Section 151 read with Order 16, Rules 1 and 2 of the Code of Civil Procedure and in that application it was averred that the application may not have even reached the Copying Agency, if at all of the Court of the Additional District Judge because it was intercepted by some person at Dharamsala and not entered in the register of the Copying Agency. There is a further averment that the application for copy might not have even been made. Therefore, the appellant is not sure as to whether the application was at all sent even to the so-called Copying Agency of the Court of the Additional District Judge. The register entries Ex. P-A and Ex. P-A/- dc indicate despite overwrit-ings, that the application was sent to the Copying Agency of the Court of the Additional District Judge.

Similarly the reminder entry Ex. P-B also indicates that it was sent to that Court Ex. R-A/1 is the letter written by the District Attorney Shri Barotra to the Land Acquisition Collector for payment of the amount to the respondent. It is dated 28-6-1974. It is significant that the reminder was sent on 16-7r 74 eighteen days after the letter Ex. R-A/1 was sent to the Lanti Acquisition Collector. The inference drawn is that the District Attorney was reminded of the judgment sometimes before 28-6-1974 and he was not even aware that a copy of the judgment was at all needed by him and perhaps no application was given for obtaining such a copy. If the District Attorney had come to know of the judgment on 28-6-1974, he did not take any steps and could obtain the copy only on 17-8-1974 while he filed the appeal on 11-11-1974. All this delay was committed without any excuse whatsoever.

8. The statement of Shri Barotra even, if not considered innately unconvincing, yf:t suffers from great infirmities and can certainly be interpreted on most of the points in favour of the respondent. He stated that he applied for a copy on 9-12-1973 and the application was duly stamped. At one stage he said that he got the application despatched in his presence. Thereafter he said that he did not get it despatched in his presence but gave it to his clerk Shri Anirud Kumar to post it. Shri Anirud Kumar was not produced and the statement was left at that stage. Shri Barotra did not bring his cash register so as to show as to what court fee stamp he had affixed on the application and as to whether any postal expenses were incurred. When cross-examined on that question he affirmed that he did not maintain a cash register but his clerk received periodical payment from the Collector and spent it from his own pocket.

This does not appear to be the correct position. At first he denied that the Court of the Additional District Judge does not maintain a Copying Agency. Thereafter he stated that he has no personal knowledge about that fact. When further pressed in cross-examination he stated that he derived that knowledge from the Reader of the Court of the Additional District Judge. This knowledge was derived in 1966 or 1967. Nevertheless he never applied before for a copy from the Court of the Additional District Judge. Finally he stated that he could not tell if there was no Copying Agency maintained by the Additional District Judge. It was even possible according to him that applications for copies were sent to the Copying Agency of the District Judge. In this manner he affirmed and denied at the same time as to the fact of application for copy to be submitted to the Copying Agency of the District Judge and that no Copying Agency was maintained by the Additional District Judge.

He agreed that there were over-writings in the entry Ex. P-A/1 in the Despatch Register. He could not point out any other entry in that Register where application for a copy was given to the Copying Agency of the Additional District Judge. He could not even deny that the over-writing in the entry was made even after 19-12-1973. There is a clear over-writing as to the place where the application was sent either to Chamba or Dharamsala. The witness further stated that he could not tell if the application was really posted by Shri Anirud Kumar. He was cross-examined for Ex. R-A/1 and had to admit that on 28-6-1974 he did write to the Land Acquisition Collector that payment be made to the respondent.

Finally he admitted that there was only one Copying Agency maintained by the District Judge and that no Copying Agency was maintained by the Additional District Judge. With this statement it is doubtful if an application for a copy was at all sent as indicated in the Despatch Register. That apart if an application was at all sent it was addressed to a wrong Court. It was very essential that the application for copy should have been given to the Copying Agency of the District Judge. When no such application was given how could it be stated that the time requisite for obtaining copy was to be accounted for in Section 12 (2). In fact no application was given and hence there was no question of deduction of time under Section 12 (2). In Kishore Chand v. Bahadur (AIR 1936 Lah 771). the learned Judges observed that an application for a copy should bear the necessary court-fee stamp and should also be addressed to the proper officer and that alone would be a valid application for the benefit of the period under Section 12. In the instant case the application was made to a wrong authority and, therefore, no benefit can be given under Section 12 (2).

9. As regards Section 5 it is abundantly clear that firstly the application was made to a wrong Agency and secondly the reminder was sent so late as on 16-7-1974. Besides that on 28-6-1974 the District Attorney was made aware of the award and he actually recommended for payment to the respondent. What was he doing since that date and he should have obtained the copy within a few days as he did subsequently by applying on 14-8-1974 and getting the copy on 17-8-1974. Even when the copy was received on 17-8-1974 the appeal was filed so late as on 9-10-1974 and on that day as well the appeal was incomplete and the deficiencies were made up on 11-11-1974. All this indicates intransigence on the part of the District Attorney and thereby on the part of the State. A valuable right has accrued in favour of the respondent and the said right cannot so easily be extinguished. A sufficient cause is not made out within the meaning of Section 5. At any rate the Court cannot exercise discretion in favour of the appellant which is proved to be careless and negligent. There is absolute lack of good faith and due diligence on the part of the District Attorney and the State has to suffer because of it.

10. In this view of the matter I am of the opinion that no period can be extended under Section 5 or 12 of the Limitation Act, 1963 and the appeal must be held to be time barred. The application C. M. P. 1025 of 1974 under Sections 5 and 12 of the Limitation Act, 1963 is, therefore, dismissed. The appeal is held to be time barred and the same is dismissed as such, without making any order as to costs.

B.S. Pathak, C.J.

11. I agree that upon the facts of the present case the appellant is not entitled to the benefit of Section 5 or Section 12 of the Limitation Act. The appeal is barred by time and must be dismissed accordingly.

12. I would like to add that as between the State and a private party there can be no distinction when considering an application for condonation of delay. It is wholly immaterial that the State is the appellant. Considerations which apply to a private party apply equally to the State. In my opinion, the circumstance that the State Government must act through the agency of several departments is not a valid consideration for condoning the delay in an appeal or revision petition filed by it. The period of limitation prescribed by the law must be taken to presume that the State Government will consult its relevant departments before instituting a proceeding in court. I am unable to hold that because the State may be burdened by a cumbersome official machinery there is reason for condoning the delay. It may be a different matter where the proceeding is taken late because of some unusual situation beyond the control of the State Government which is responsible for the delay. That is a ground as valid for the State as for a private party. With these observations, I dismiss the present appeal as barred by time. There is no order as to costs.


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