1 IN THE HIGH COURT OF BOMBAY AT GOA. MISC. CIVIL APPLICATION NO. 345 OF 2009 IN STAMP NUMBER MAIN NO. 1026 OF 2009 1. Chief Secretary, State of Goa, Secretariat Building, Porvorim, Bardez Goa. 2. Conservator of Forest, Forest Department, Junta House, Panaji Goa. 3. Range Forest Officer, Forest Office, Khairicate, Sanguem Goa. ... Applicants V e r s u s 1. Mr. Minguel Francisco Fernandes, son of late Francisco Fernandes, aged 44 years, 2. Mrs. Sandra Fernandes, wife of Minguel Francisco Fernandes, aged 37 years, Both residing at House No.177, Ward Bepquegal, Curchorem Village, Taluka Quepem, South Goa, Goa. ... Respondents Mr. S. R. Rivonkar, Advocate for the Applicants. Mr. S. Usgaonkar, Advocate for the Respondents. 2 CORAM: R. M. SAVANT, J. Dated: 4th December, 2009. ORDER : 1. The above Civil Application has been filed by the Applicants abovenamed seeking condonation of delay of 772 days in filing the First Appeal against the Judgment and Decree dated 31.1.2007 in Civil suit No. 165/2004 passed by the learned District Judge-2, Margao. The condonation of delay is sought on the grounds mentioned in the application. It is the case of the Applicants that the Decree in the said suit was passed on 31.1.2007 whereby a declaration was issued that the Respondent herein is the owner and is in possession of the suit property under survey No.30. The application for the certified copy of the said Judgment was applied on 31.1.2007 which is the same day as the day on which the Judgment and Decree was passed and the same was delivered to the Applicants on 8.2.2007. 2. It is the case of the Applicants that on receipt of the certified copy, the Deputy Conservator of Forest submitted it to the Chief Conservator of Forests, Panaji, on 28.2.2007. Thereafter, the 3 said Judgment was referred to the Law Department on 7.3.2007 for its opinion as regards filing of an Appeal. The Law Department on 5.4.2007 referred the said file No.8-1-2007/FOR back to the Chief Conservator of Forest for furnishing of certain documents and depositions recorded in the suit. The office of the Chief Conservator of Forests asked for the said documents from the Range Forest Officer, Sanguem, who submitted the said documents and the depositions, which were received in the Legal Cell of the Chief Conservator of Forest in mid May, 2007. It is further the case of the Applicants that the said file was thereafter misplaced in Legal Cell Section of the office of the Chief Conservator of Forests and was not traceable even after search was made in the said Legal Cell. Thereafter, the search was made in all other sections in the office of the Chief Conservator of Forests which has around 3000 files and the file was ultimately traced on 7.11.2008 and was found tied up in between the bundle of the old file of 301(4). On such tracing of the file, the said file was immediately referred to the Law Department on 7.11.2008 for opinion along with required documents and depositions. 3. It is the case of the Applicants that the Law Department gave its opinion for filing the Appeal which was received by the Chief 4 Conservator of Forests on 15.12.2008 and the office of Chief Conservator of Forests, Panaji then sent the file to the Government for approval and filing Appeal on 17.12.2008. The Government approval for filing of the Appeal was received on 26.12.2008. It is further the case of the Applicants in the said application that thereafter the matter was referred to the learned Advocate General of the State on 5.1.2009 for appointing Government Advocate. Learned Advocate General referred the file to Government Advocate for filing Appeal on 6.1.2009 and thereafter the instant Appeal has been filed on 12.3.2009 resulting in delay of 772 days. On the basis of the facts as mentioned above, the said condonation of delay has been sought. 4. On behalf of the Respondents herein a reply has been filed to the above application and the relief sought in the above application has been opposed. The sum and substance of the case of the Respondents is that the conduct of the Applicants was negligent and indolence is writ large in the manner in which the above matter has been dealt with. It has been further averred in the said reply that the period for filing the Appeal was over on 9th of May, 2008 and the alleged misplacement of the file has occurred thereafter and therefore the principal cause shown by the Applicants for the delay which has 5 occurred in filing the Appeal cannot be said to be sufficient cause for delay. In so far as the loss of file is concerned, it is averred in the said reply that an officer in the office of Chief Conservator of Forests has custody of files of urgent nature like the one for filing Appeal etc., and therefore the explanation that the file could not be traceable till November, 2008 cannot be accepted and would not constitute a sufficient cause. It is further averred in the said reply that the misplacement of the file from May, 2007 till November, 2008 cannot be accepted. There are also other periods in the entire period of 772 days for which there is no explanation given in the application. The Respondents have therefore prayed for dismissal of the application. 5. I have heard learned Government Advocate for the Applicants Shri S. R. Rivonkar and the learned Counsel for the Respondents Shri S. Usgaonkar. On behalf of the Applicants, it is submitted that the delay has occasioned mainly in view of the fact that the concerned file was misplaced from mid May, 2007 till 7.11.2008 when it was found, and therefore the said period being the chunk of the period in the said delay of 772 days, the Applicants have shown sufficient cause for condonation of delay. Learned Counsel further submitted that the delay has not been deliberate or willful but has 6 occasioned in view of the misplacement of the file in the office of the Chief Conservator of Forest. 6. In so far as the delay between 6.1.2009 when the file was received after the opinion was recorded by the learned Advocate General and till filing of the Appeal i.e. on 12.3.2009, though no reason has been mentioned in the application, it is submitted that the said delay was occasioned as inquiries were made by the Government Advocate whether any person was responsible for the misplacement of the file and only after being so satisfied that the Appeal was filed. Learned Counsel for the Applicants relied upon the following judgments of the Apex Court. AIR 1987 SC 1353 in the matter of Collector, Land Acquisition, Anantnag and another v/s Mst. Katiji and others, Respondents. In the said judgment certain principles were laid down by the Apex Court which are to be applied while dealing with an application of condonation of delay. The said principles have been laid down by the Apex Court in paragraph 3 of the said judgment. AIR 1996 SC 1623 in the matter of State of Haryana,Appellant V/s Chandra Mani and others,Respondents, wherein it has been laid down that when the State is a party in view of the fact that Government is a impersonal machinery and decisions are 7 taken at slow pace, certain amount of latitude is not impermissible. AIR 1998 (7) SCC page 123 in the matter of N. Balakrishnan, Appellant, V/s M. Krishnamurthy, Respondent, wherein it is stated that the period of limitation and object of prescribing periods is not intended to destroy rights but is founded on public policy fixing a life span for legal remedy for general welfare. The length of delay per se may not be a ground for rejecting an application but if a satisfactory explanation has been furnished by the parties which can be accepted by the Court in consonance with the settled norms for exercise of such jurisdiction. But if the explanation rendered is so fanciful, then in such circumstances it will also be equally unfair to deprive the other party of a valuable right which has accrued to them from the default of the other party The Court has to protect right of both the parties and right of one should not be permitted to be destroyed unjustly and contrary to law. 2005(3) SCC page 752 in the matter of State of Nagaland, Appellant V/s Lipok AO and Others, Respondent, wherein it has been held that sufficient cause should be considered with pragmatism in a justice-oriented approach rather than the technical detection of sufficient cause for explaining every day's delay. It has been further held that in public interest if the Appeals brought by the State are lost for such default no person is individually affected 8 by what in the ultimate analysis public interest suffers. The Court therefore should decide the matters on merits unless the case is hopelessly without merit. In the said case there was a delay of 37 days in filing the application for the grant of leave which was made in terms of Section 378(3) Cr.P.C. Learned Counsel for the Applicants therefore submitted that the case as set out in the application constitute sufficient cause and this Court therefore should condone the delay of 772 days in filing the Appeal. 7. Per contra, the learned Counsel for the Respondents submitted that for the two periods i.e. from mid May, 2007 till 7.11.2008 the explanation given by the Applicants does not constitute sufficient cause but in fact shows negligence and the indolence on the part of the Applicants. Learned Counsel submitted that though the file was allegedly misplaced in mid May, 2007 assuming it to be so why the tracing of the file took almost 1½ years has not been explained beyond stating that about 3000 files had to be examined. Learned Counsel further submitted that the reason that the file could not be traced for 1½ years also cannot be accepted as according to the Respondents there is an officer designated for dealing with the files of an urgent nature and therefore the instant file wherein the Appeal was 9 to be filed in this Court would qualify to be a file of an urgent nature and therefore had to be with the said officer. If the file was not kept with the said officer then according to the learned Counsel the Applicants have to blame themselves for the said file being not available. Learned Counsel further submitted that carelessness, negligence and the casual manner in which the instant case has been dealt with by the Applicants is writ large. The learned Counsel submitted that initially also as per their own case the Judgment and Decree was not sent with the necessary papers and in the said process of not sending the necessary papers time was lost. Learned Counsel further submitted that the limitation in the instant case has expired on 9.5.2007 and therefore the reasons given for the period after that would not apply and would not constitute sufficient cause as the foundation for the reasons constituting sufficient cause has to begin in the period prior to the limitation coming to an end and may be it continues thereafter. However, in the instant case the main reason i.e. the loss of the concerned file on the basis of which condonation of delay is sought has occurred after the limitation was over on 9.5.2007. The learned Counsel therefore submitted that the explanation/reason cited by the Applicants do not constitute sufficient cause. The learned Counsel submitted that assuming that the said file was lost or 10 misplaced in the office of the Chief Conservator of Forests, nothing prevented the Applicants from tracing the file expeditiously and why the tracing of the file has taken almost 1½ years has not been properly explained. The learned Counsel further submitted that the cases relied upon by the Applicants relate to compensations for land acquisition where there are financial implications for the State however the instant case is a case where the Respondents had filed a suit claiming declaration in respect of the suit property and which declaration was granted by the Trial Court. The considerations therefore according to the learned Counsel would be different then the considerations that would apply in land acquisition cases. The learned Counsel for the Respondents relied upon the following judgments of the Apex Court. 2008 (6) BCR page 513 in the matter of Pundalik J. Patil (Dead) by Lrs, Appellant V/s Executive Engineer, Jalgaon Medium Project and another, Respondents. In the said judgment the Apex Court has held that settled rights cannot be interfered by condoning inordinate delay without any proper explanation of delay on the ground of involvement of public revenue. 1997(7) SCC page 556 in the matter of P. K. Ramachandran, Appellant, V/s State of Kerala and another, Respondents, wherein the Apex Court has held that merely because large number of 11 matters have to be dealt with by the Government could hardly be a reasonable and satisfactory explanation for seeking condonation of delay. In the said case the explanation given was that the office of the Advocate General was “fed up” with so many Arbitration matters. AIR 1981 SC 773 in the matter of Ajit Singh V/s State of Gujarat. 2008(5) BCR page 323 in the matter of State of Maharashtra and others, Applicatns, V/s Vithu Kalya Govari and others, Respondents , a Division Bench of this Court after going through the conspectus of the cases governing, condonation of delay has held that the Court is bound to exercise its discretion in condoning or declining to condone delay judiciously and ensure that no serious prejudice is caused to either of the parties. In the said case the delay of more than two years was refused to be condoned as the State failed to show sufficient cause for the condonation of delay. 8. Learned Counsel relying upon the said judgments submitted that considering the reasons mentioned in the instant application they do not constitute sufficient cause and therefore the application for condonation of delay ought to be rejected. 12 9. I have heard learned Counsel for the parties and bestowed my anxious consideration to the rival contentions. At the outset it would be necessary to refer to the suit filed by the Respondents herein. The Respondents herein had filed suit being Civil Suit No.165/04 for the declaration and deletion of the name of the Forest Department from the occupants column. The said suit was for declaration, permanent injunction and consequential reliefs. The Plaintiffs claimed right to the property known as Ghotunrim situated at Dhodo, Sanvordem. The Plaintiffs claimed right to the property by virtue of the Deed of Sale and Quittance dated 25.10.1968 and by Deed of Sale and Quittance dated 25.2.1970 from one Mohan Ramchandra Nadkarni and others. It was the case of the Plaintiffs that the suit property consists of 220 coconut trees, 4000 cashew trees and other fruit bearing trees and forest trees. It was the case of the Plaintiffs that with a view to plant further trees in the suit property, the Plaintiffs had undertaken the work of clearing the bushes and had continued it for almost three weeks. However, since the officials of the Defendants i.e. the Applicants herein on 4.6.2004 had obstructed their labourers on the premise that the suit property belongs to the Forest Department and asked the labourers to stop the work, that the Plaintiffs had filed the said suit for the correction of the survey records 13 and for a declaration. The said suit property bears survey No.30/0 and admeasures 1,73,150 square metres. In the said suit the Defendants i.e. Applicants herein took a stand that the said suit property along with the earlier survey holdings were the forest land known as Ontigondor and Pagicho Dongor and therefore the same was the property of the Government. It was the case of the Defendants that the said suit property has been declared as reserved forest under Sections 3 and 4 of the Indian Forest Act, 1927 by the then Government of Goa, Daman and Diu vide a Notification dated 31.12.1980 and published in the Official Gazette dated 22.1.1981. The parties went to trial and the Trial Court considering the evidence on record decreed the suit and issued the declaration that the Plaintiffs are the owners and in possession of the suit property i.e. the land survey No.30 and that they are entitled to correction of the survey records in respect of the suit property and permanent injunction to restrain the Defendants, their employees, officers etc., from interfering in whatsoever manner. Therefore, it can be seen from the said Decree that the dispute in question was as regards the ownership of the property which admeasures 1,73,150 square metres. It is in the context of the Decree passed that one would have expected the State Government to move expeditiously in the matter. 14 10. In the background of aforesaid fact, it would have to be considered whether the reasons given by the Applicants in the application constitute sufficient cause. Out of the said period of 772 days there are two chunks periods which constitute the major portion of the said 772 days which are as follows :- (i) The period between mid May, 2007 to 7.11.2008 when the file was allegedly misplaced and traced; and (ii) The period between 6.1.2009 and 13.3.2009 when the instant Appeal was filed after the file was received with the opinion of the learned Advocate General. 11. As can be seen from the judgments cited on behalf of the Applicants where the State is the Applicant, a certain amount of latitude is not impermissible and the State cannot be equated with a individual litigant and the provisions of the Limitation Act would have to be construed liberally in favour of the State. The State may not be expected to explain each day's delay as a private party may be called upon to do. The expression 'sufficient cause' should therefore, be considered with pragmatism in justice oriented approach rather than the technical detection of sufficient cause for explaining every day's 15 delay. The explanation given by the Applicants should be worthy of acceptance so as to deprive the other party of a valuable right which has accrued to it on account of the default of the Applicants. The Court has to protect the right of both the parties and right of onus should not be permitted to be destroyed unjustly and contrary to law. 12. Coming to the facts of the instant case and the two chunks of periods for which the explanation has been given by the Applicants in respect of the one for which the explanation has been given in the application and in respect of the second for which the submission was made only across the bar. At the outset, it can be seen from the facts that considering the decree passed against the State the manner in which the matter was dealt with by the concerned Department of the State Government was most casual. As per the case of the Applicants themselves that the file was sent without the necessary papers to the Chief Conservator of Forests and therefore the papers went back and forth from the office of the Chief Conservator of Forests to the office of the Deputy Conservator of Forests and Range Forest Officer. The facts as disclosed shows that the approach of the officers was most casual and did not have the seriousness that was required befitting the case in question wherein the Government was faced with a Decree in favour 16 of the Respondents. In so far as the period between mid May, 2007 and 7.11.2008, the only explanation is that the file was misplaced in mid May, 2007 and could be traced only on 7.11.2008, assuming that the file was misplaced in a matter assuming serious proportions as is now sought to be contended on behalf of the Applicants by the learned Government Advocate, the tracing of the file should have been done with some urgency and why the file could be traced only after a period of almost 1½ years has not been explained beyond saying that the said file had to be located from amongst the 3000 files which are in the office of Chief Conservator of Forests. The said explanation in my view is not bonafide and has just been given to cover up the delay. As rightly submitted by the learned Counsel for the Respondents that merely because the Government had to examine 3000 files could not be a ground to justify the said huge period of 1½ years when the file was supposedly misplaced moreso when the Applicants are faced with the Decree of declaration of ownership in favour of the Respondents. The fact that there is an officer designated for dealing with urgent matters as averred in the reply of the Respondents and which as contended by the learned Counsel for the Respondents is not disputed, no explanation has been given as to why the said file was not kept with the said officer. In my view therefore in so far as the first chunk 17 of the period between mid May, 2007 till November, 2008, the explanation given by the Applicants is far from satisfactory and does not deserve acceptance. 13. In so far as the second period between 6.1.2009 till 12.3.2009 which is also a period of almost two months and seven days apart from the fact that there is no explanation in the application, the explanation now given by the learned Government Advocate across the bar, in my view also does not constitute a satisfactory explanation for the said period. The inquiries etc., as to who are responsible ought to have been made by the concerned Department when the file was misplaced and not after the file was received from the learned Advocate General. This in a way exemplies the manner in which the matter is being dealt with. The limitation for filing the Appeal was long over in May, 2007, however, no attempt was made to expedite the process of filing the Appeal. 14. It would also be pertinent to note that in the instant case, as can be seen that the explanation or the reasons given for the said huge delay of 772 days is on the basis of the facts which have occurred after the limitation had got over on 9.5.2008. Therefore, the 18 said reason or explanation cannot be accepted as held by the Apex Court as the event or circumstance arising after the expiry of limitation cannot constitute a sufficient cause. Reference could be made to the judgment of the Apex Court reported in AIR 1981 SC 773 in the matter of Ajit Singh Thakur Singh & Anr. V/s State of Gujarat, replied upon by the Respondents. 15. Though it is well settled that where State is an Applicant certain amount of latitude is permissible. The facts of the instant case are such that the reasons/explanation given by the Applicants hardly justify the condonation of delay of 772 days. It was expected that the State would act with reasonable despatch and would have filed the Appeal in time. In my view therefore the reasons/explanation given by the Applicants do not constitute a sufficient cause for condonation of the huge delay of 772 days. Resultantly, the application stands rejected. R. M. SAVANT, J. at*