It is common that there is inordinate delay in filing Revisions/Appeals by the various functionaries of the Government. The Government functionaries have been harbouring a wrong notion that condonation of delay is a matter of course and in seeking such condonation the State can claim preferential or special treatment. It is true that Courts have always being taking a broad and liberal view so as to advance substantial justice instead of terminating a proceeding on a technical ground like limitation. However, recently the Apex Court has considered this anomaly and ruled that red tapism within the department, slow movement of files, impersonal machinery, bureaucratic methodology in making decisions are no longer acceptable as ‘Sufficient Cause’ for condonation of delay. The Apex Court has ruled that negligence of the State cannot be rewarded by mechanically condoning the delay u/s 5 of the Limitation Act. The Apex Court in the case of Postmaster General v. Living Media India Ltd (2012) 3 SCC 563 held thus:
“ 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. 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 bona fides, 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.
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 bona fide 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 the government departments. The law shelters everyone under the same light and should not be swirled for the benefit of a few.” (Emphasis supplied)
In a recent case of Amalendu Kumar Bera v. State of West Bengal (2013) 4 SCC 52, the Apex Court once again dealt strictly with this issue and held thus:
“ True it is, that courts should always take liberal approach in the matter of condonation of delay, particularly when the appellant is the State but in a case where there are serious laches and negligence on the part of the State in challenging the decree passed in the suit and affirmed in appeal, the State cannot be allowed to wait to file objection under Section 47 till the decreeholder puts the decree in execution. … Merely because the respondent is the State, delay in filing the appeal or revision cannot and shall not be mechanically considered and in the absence of “sufficient cause” delay shall not be condoned.” (Emphasis supplied)
It would be trite to refer to the case of Union of India vs Nripen Sharma AIR 2011 SC 1237 on the issue of inordinate delay. The Apex Court held thus:
“We have also gone through the condonation of delay application which was filed in the High Court. In our considered view, the High Court was fully justified in dismissing the appeal on the ground of delay because no sufficient cause was shown for condoning the delay.
The appellant has preferred this appeal against the final judgment dated 10.09.2007 before this Court. This appeal is also barred by limitation of 114 days. There is no satisfactory explanation for condonation of delay before this Court also.
The Union of India ought to have been careful particularly in filing this Civil Appeal because the Division Bench, by the impugned order, has dismissed the appeal before it on the ground of delay. It is a matter of deep anguish and distress that majority of the matters filed by the Union of India are hopelessly barred by limitation and no satisfactory explanations exist for condoning inordinate delay in filing those cases.
On consideration of the totality of the facts and circumstances, we are constrained to dismiss this appeal on the ground of delay.” (Emphasis supplied)
In cases of Trade Tax/Vat, there is a common practice of Delay in filing Revisions against the orders of the Tribunals. The delay in filing Revision in the Allahabad High Court against the order of the Tribunal in the case of S/S Assotech Realty Pvt. Ltd., a leading case for imposition of Works Contract Tax, was delayed by more than 14 months for reasons not known. The agony is that the advocates of the assessees do not fight the application for condonation of delay vehemently in the court. Probably, they too have the same misconception that the Courts would mechanically condone the delay of the State functionaries.
There can be no plausible, satisfactory and appealing explanation of inordinate delays by the Government Functionaries in filing of Revision/Appeals before the Courts. With the aforementioned precedents of the Apex Court, binding under Article 141 of the Constitution, when placed before the Court, it would not be easy henceforth for the Government Departments to get their inordinate delays condoned u/s 5 of the Limitation Act.
(Author- Inder Chand Jain, Agra, Mobile:9319215672, Email: [email protected])
Author Bio
Unless the courts shed the feudal mind set view that a “King can do no wrong” this would continue to happen. The Apex Court and the HIgh Courts have got a wrong notion that when a private individual files a appeal he is guided by the personal profit / loss motive and for a govt. this motive is absent. But this has given rise to lethargy and ineffective functioning in govt. offices. Unless the Courts now reverse their views and take a stern view of the matter, this would continue. The best way is to fix personal liability and recovery of damage caused to treasury from the official concerned and this only could perhaps stops lethargy in govt. offices and /or the administrative superior taking responsibility over the junior’s functioning.