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Judgment
ORDER
Hon’ble Mr. Manish Garg, Member (J):
M.A. No. 122/2024 (Condonation of Delay)
By virtue of the present order, we are disposing of MA No. 122/2024 in OA No. 100 of 2024, which has been filed by the applicant under Section 21 of the Administrative Tribunals Act, 1985 praying for condonation of delay in filing the accompanying OA.
In the accompanying OA, the applicant has impugned the order dated 01.11.2018, wherein the representation of the applicant was rejected. Narrating the circumstances under which the delay has occurred, learned counsel for the applicant points out that the applicants filed an OA No. 958/2017 which was disposed of by this Tribunal vide order dated 22.08.2017 by directing the respondents to consider the case of the applicant in terms of order dated 14.07.2017 passed by this Tribunal.
Since the respondents did not pass any order, the applicants were compelled to file an Execution Application No. 60/2018 in which the respondents filed the impugned order dated 01.11.2018. The MA No. 60/2018 seeking execution was disposed of on 23.02.2018 by observing as under:
“Shri N K Papnoi, holding brief of Shri MC Pant, learned counsel for the applicants and Shri Rajesh Sharma, learned counsel for the respondents, are present.
2.At the outset, learned counsel for the respondents submits that order of the Tribunal Passed in subject OA No. 958 of 2017 has been complied with substantially and thus the instant execution application may be disposed of.
3.Learned counsel for the applicants does not dispute the averments of the learned Colearned the respondents and submits that the applicant is satisfied with the compliance done by the respondents.
4.In view of the above, it would be in the fitness of things to dispose of this execution application at this stage itself as the order of the Tribunal has been complied with. Accordingly, MA No. 60 of 2018 is disposed of.
5.All associated MAs stand disposed of accordingly.
6.No costs.”
It has been urged that it is for the first time it came to the knowledge of the applicants that their representations have been rejected vide order dated 01.11.2018. The applicants herein have casted fault on the part of their earlier counsel stating that it was only in the month of December, 2023, the case file was returned to them by their earlier counsel.
The sum and substance of the argument put forth by the learned counsel for the applicants are as under:
“i.The Execution Application of the applicant was pending before the Circuit Bench of this Hon'ble Tribunal which was only disposed of on 23.02.2023.
ii.The impugned order was only come to the knowledge of applicant when the execution application came up for hearing 23.02.2023.
iii.Since on account of coronavirus the Circuit Bench of this Hon'ble Tribunal in Nainital was not assembling properly and due to the poor network coverage in the Hill Stations of Uttarakhand the matter could not be heard through virtual mode.
iv.Physical hearing in the Circuit Bench of this Hon'ble Tribunal only started in the month of February 2023 when the execution application of the applicants came up for hearing and the same was disposed of.
v.The erstwhile advocate of the applicant did not inform the applicants about disposal of the execution application until December 2023 and thus, the matter was not filed even after 23.02.2023.”
The learned counsel for the applicants has placed relies upon the following case laws:
Judgment of the Hon’ble Supreme Court in the matter of Collector, Land Acquisition Anantnag and Anr. Vs. Mst. Katiji & Ors., (1987) 2 SCC 107 decided on 19.02.1987.
Judgment of the Hon’ble Calcutta High Court in the matter of Omkar Tradecomm LLP and Ors. Vs.Mayank Agarwal and Ors., 2024 SCC OnLine Cal 2529 decided on 12.03.2024.
Judgment of the Hon’ble High Court of Gujrat in Nimesh Dilipbhai Brahmbhatt vs. Hitesh Jayantilal Patel., CA No. 6547 of 2020 decided on 02.05.2022.
Judgment of the Hon’ble High Court of Kerala in the matter of Rajesh Chandran Vs. Gopalakrishan Nair, OP (C) No. 281 of 2022 decided on 22.07.2022.
Judgment of the Hon’ble High Court of Calcutta in the case of UOI & Ors. Vs. Mozammil Haque & Ors. F.M.A. Ts. Nos. 103 and 104 of 1986 decided on 24.03.1986.
Opposing the present MA seeking condonation of delay, reply has been filed by the respondents and it has been contended on behalf of the respondents that the competent authority has already decided the representation of applicants by passing an order dated 01.11.2018 and the same was communicated to both applicants vide letter A-2/2/GDS/rikt dated 13.11.2018 through Superintendent of Post Offices Almora Division, Almora and Assistant Superintendent of Post Offices (East) Nainital.
It has been also contended that the applicants were informed regarding the disposal of their representations vide order dated 01.11.2018 not on 23.02.2023 as stated by the applicants. Hence there is delay of more than 4 year in filling the instant Original Application and no cogent reason has been explained in support of the MA seeking condonation of delay .
The instant MA is barred by Limitation under section 21 of Administrative Tribunal Act 1985, and liable to be dismissed in the interest of justice.
Having heard the learned counsel for the parties and perused the records.
5. ANALYSIS :
In In Nrisingha Charan Nandy Choudhury vs. Triguinand Jha Khoware, AIR (25) 1938 Pat 413, the Hon’ble Patna High Court held that the word ‘sufficient cause’ must be construed liberally for the advancement of substantial justice. The view extends to an extent, where the delay is even condoned in case of an absolute mistake of law. The rationale behind this view is that the innocent litigant must not suffer due to the mistake committed by the lawyer, because a lawyer is an officer of the Court.
In Kuldip Singh vs Krishan Kumar And Ors (AIR1974 Delhi 11), the Hon’ble Delhi High Court observed as under :-
29.It has been firmly established that a bona fide mistake committed by a counsel or his clerk would constitute sufficient cause entitling a party to claim condensation of delay provided that no negligence. nor inaction, nor want of bona fides is imputable to a party. In the instant case, all that. the petitioner was required to do was to obtain the certified copy within limitation and-hand it over to his counsel for being filed in the case., This had been done by the petitioner who obtained the certified copy an 24th July, 1972. and went to the office of his counsel on the 25th July, 1972. where he rightly handed over the copy to the clerk of the counsel, as it was not required of him to hand over the same personally to the counsel as such routine types of things are handled by the clerk of a counsel. The petitioner having done what was required of him, cannot be said to have committed any negligence, nor want of bona fides or inaction can be imputed to him. In the circumstances, what has to be determined is whether the act of Shri Rattan Lal, clerk of the petitioner's counsel in mislaying the certified copy in another brief due to rush of work as alleged by the said clerk in his affidavit, can be said to be in the normal course of his duties. There can be no manner of doubt that the receipt of the copy by Shri Rattan Lal from the petitioner was one of his normal duties and the Disability of the said copy being mislaid in another brief due to rush of work cannot be eliminated. If it is so, the petitioner cannot be made to suffer for a bona fide mistake on the part of Shri Rattan Lal. ”
In view of the above narrated facts, it is noticed that the Execution Application of the applicant was pending before the Circuit Bench of this Hon'ble Tribunal, which was only disposed of on 23.02.2023. The impugned order came to the knowledge of applicant when the Execution Application came up for hearing 23.02.2023. The erstwhile advocate of the applicant did not inform the applicants about disposal of the Execution Application until December 2023 and thus, the matter was not filed even after 23.02.2023.
In a recent decision in Civil Appeal Nos. 8435 - 8436 OF 2024 (@ S. L. P. (CIVIL) Nos. 2733-2734 of 2024) Mool Chandra Vs Union Of India & Anr. decided on 05.08.2024, the Hon’ble Apex Court observed as under :-
“This Court in Commissioner, Nagar Parishad, Bhilwara Vs. Labour Court, Bhilwara and Another reported in 2009 (3) SCC 525 has taken a view that while deciding an application for condonation of delay the High Court ought not to have gone into the merits of the case. It has been further held:-
“5.While deciding an application for condonation of delay, it is well settled that the High Court ought not to have gone into the merits of the case and would have only seen whether sufficient cause had been shown by the appellant for condoning the delay in filing the appeal before it. We ourselves have also examined the application filed under Section 5 of the Limitation Act before the High Court and, in our opinion, the delay of 178 days has been properly explained by the appellant. That being the position, we set aside the impugned order of the High Court. Consequently, the appeal filed before the High Court is restored to its original file. The High Court is requested to decide the appeal on merit in accordance with law after giving hearing to the parties and after passing a reasoned order.”
22.If negligence can be attributed to the appellant, then necessarily the delay which has not been condoned by the Tribunal and affirmed by the High Court deserves to be accepted. However, if no fault can be laid at the doors of the appellant and cause shown is sufficient then we are of the considered view that both the Tribunal and the High Court were in error in not adopting a liberal approach or justice oriented approach to condone the delay. This Court in Municipal Council, Ahmednagar and Anr. Vs. Shah Hyder Beig and Ors. 2000 (2) SCC 48 has held:
“6.Incidentally this point of delay and laches was also raised before the High Court and on this score the High Court relying upon the decision in Abhyankar case (N.L. Abhyankar v. Union of India [(1995) 1 Mah LJ 503] ) observed that it is not an inflexible rule that whenever there is delay, the Court must and necessarily refuse to entertain the petition filed after a period of three years or more which is the normal period of limitation for filing a suit. The Bombay High Court in Abhyankar case [(1995) 1 Mah LJ 503] stated that the question is one of discretion to be followed in the facts and circumstances of each case and further stated:
“The real test for sound exercise of discretion by the High Court in this regard is not the physical running of time as such but the test is whether by reason of delay, there is such negligence on the part of the petitioner so as to infer that he has given up his claim or where the petitioner has moved the writ court, the rights of the third parties have come into being which should not be allowed to be disturbed unless there is reasonable explanation for the delay.”
For the reasons mentioned in the MA for condonation of delay and for persuing remedy under law coupled with the fact that the erstwhile advocate of the applicants did not inform the applicants about disposal of the Execution Application until December 2023, we are convinced that the same can be construed to be a valid ground for condonation of delay. No valid proof of service of the office order dated 1.11.2018 has been placed on record. We cannot be obviate of the fact that MA for execution was also kept pending despite the office order dated 01.11.2018 being brought on record.
6. CONCLUSION
In view of the above observations, we allow the MA No. 122/2024 seeking Condonation of delay and allow the applicants to challenge the impugned order dated 01.11.2018.
7. OA No.100/2024
In view of the aforesaid order wherein we have allowed the MA seeking condonation of delay, we issue notice to the respondents in the OA. Let reply be filed within six weeks and rejoinder within two weeks thereafter.
List on 19.11.2024.