SCA/2205/2008 1/6 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 2205 of 2008 For Approval and Signature: HON'BLE SMT. JUSTICE ABHILASHA KUMARI ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= MORBI TALUKA ANUSUCHIT JATI SAMUHIK KHETI SAHAKARI MANDALI - Petitioner(s) Versus STATE OF GUJARAT & 2 - Respondent(s) ========================================================= Appearance : MR RM PARMAR for Petitioner(s) : 1, MR DASHRATH CHAUHAN ASSISTANTGOVERNMENT PLEADER for Respondents:1-3. ========================================================= CORAM : HON'BLE SMT. JUSTICE ABHILASHA KUMARI Date : 06/02/2008 ORAL JUDGMENT 1. RULE. Mr. Dashrath Chauhan, learned Assistant Government Pleader, waives service of rule on behalf of the respondents. With the consent of the learned counsel SCA/2205/2008 2/6 JUDGMENT for the respective parties, the matter is being finally decided today. 2. This petition under Article 226/227 of the Constitution of India, has been filed by the petitioner with a prayer to issue a writ, order or direction, quashing and setting aside the order of the Principal Secretary, Revenue Department (Appeals), Government of Gujarat, dated 24th August, 2007/31st August, 2007 whereby the Revision Application filed by the petitioner has been dismissed. 2. The main grievance of the petitioner is that an application for condonation of delay in filing the Revision Application had been preferred by the petitioner on 21st April, 2007. But, without considering the said application, the respondent no. 1 has dismissed the Revision Application of the petitioner on the ground of delay, for the reason that the application was preferred after the arguments had been concluded in the matter. 3. I have heard Mr. R. M. Parmar, learned counsel for the petitioner and have perused the averments made in the petition as well as the documents annexed thereto. It is apparent from the reading of the impugned order dated SCA/2205/2008 3/6 JUDGMENT 24th August, 2007/31st August, 2007 that the arguments of the respective parties had concluded on 9th April, 2007 and thereafter the petitioner had preferred an application for condonation of delay on 21st April, 2007. However, without considering the application for condonation of delay, the respondent no. 1 has passed the impugned order, dismissing the Revision Application of the petitioner, as being beyond the period of limitation. 4. In this regard, the observations of the Apex Court enunciated in the case of Collector, Land Acquisition, Anantnag & Anr., v. Mst. Katiji & Ors., reported in AIR 1987 SC pg. 1353, are pertinent and are reproduced herein below :- “3. The legislature has conferred the power to condone delay by enacting Section 5 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on 'merits'. The expression “sufficient cause” employed by the legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner which subserves the ends of justice that being the life purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that :- 1. Ordinarily a litigant does not stand to SCA/2205/2008 4/6 JUDGMENT benefit by lodging an appeal late. 2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being condoned the highest that can happen is that a cause would be decided on merits after hearing the parties. 3.”Every day's delay must be explained” does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay? The doctrine must be applied in a rational common sense pragmatic manner. 4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay. 5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk. 6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so. Making a justice-oriented approach from this perspective, there was sufficient cause for condoning the delay in the institution of the appeal. The fact that it was the 'State' which was seeking condonation and not a private party was altogether irrelevant. The doctrine of equality before law demands that all litigants, including the State as a litigant, are accorded the same treatment and the law is administered in an even-handed manner.” 5. Although it is an admitted fact that the petitioner has filed the application for condonation of SCA/2205/2008 5/6 JUDGMENT delay after the hearing was over, but before the judgment was dictated. The respondent no. 1, sitting as a quasi- judicial authority while deciding the Revision Application of the petitioner, has to balance the cause of substantial justice, and not let technical considerations prevail over the same. No prejudice would have been caused to any party, had the application for condonation of delay been considered and an appropriate order passed after such consideration. 6. In the present case, the respondent no. 1 has recorded in the order itself that the application for condonation of delay was filed on 21st April, 2007. Admittedly, the said order has been dictated on 24th August, 2007 i.e., after the filing of the application for condonation of delay. Just because the respective parties had concluded their arguments on 9th April, 2007, it cannot be sufficient ground for the non-consideration of the application for condonation of delay, filed by the petitioner. The application could have been considered before pronouncing the impugned order by the respondent no. 1. 7. While this Court is not going into the merits of the case, the interest of justice would demand that the SCA/2205/2008 6/6 JUDGMENT application of the petitioner for condonation of delay be considered by the respondent no. 1, in accordance with law. 8. In view of the factual and legal position as discussed hereinabove, the order dated 24th August, 2007/31st August, 2007 passed by the respondent no. 1 is set aside. The matter is remanded to the respondent no. 1 to hear and consider the application of the petitioner for condonation of delay and pass an order, in accordance with law. 9. The petition is allowed. Rule is made absolute to the aforesaid extent. Direct Service is permitted. [Smt. Abhilasha Kumari, J.] /phalguni/