1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY: NAGPUR BENCH: NAGPUR Civil Application No. 252 of 2010 in Second Appeal St. 2102 of 2010 Union of India, through its Secretary, Ministry of Defence, Central Secretariat, New Delhi and Ors. ….... APPLICANTS. // Versus // Park View Co-operative Housing Society Limited, through its Secretary, having registered Office at P.K.Salve Marg, Mohan Nagar, Sadar, Nagpur and another. …..... RESPONDENTS -=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- Dr. R.S.Sundaram, Adv. for the applicants. Mr. S.W.Sambre, Adv. for respondent no.1. Mr.A.C.Dharmadhikari, Adv. for respondent no.2. -=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- CORAM: SMT. VASANTI A. NAIK, J. DATE : 9 /12 / 2010 P. C. : 2 1. By this application, the applicants : the Union of India, through it's Secretary, Ministry of Defence, the Defence Estate Officer, Government of India, Ministry of Defence, Mumbai and the Estate Officer, c/o. Station Staff Officer, Kamptee Cantt., Kamptee, District Nagpur have sought for condonation of delay of 604 days in filing the Second Appeal. 2. It is necessary to note that the judgment and decree under challenge in the Second Appeal was passed by the First Appellate Court on 18.2.2008. It is the case of the applicants that they had applied for the grant of certified copies on 20.2.2008. The certified copies were received by the applicants on 10.3.2008. According to the applicants, after the certified copies were received by the applicants, they referred the matter to the Ministry of Law and Company affairs on 24.3.2008 and this communication was received by the Branch Secretariat at Mumbai on 27.3.2008. According to the applicants, the Ministry of Law gave an opinion, which was received by the Defence Estate Officer, Mumbai on 31.3.2008. By this opinion, dt. 31.3.2008, the applicant no.2 - Defence Estate Officer, Mumbai was advised to file the Second Appeal as early as possible and before the other suit bearing Regular Civil Suit No.1216 of 1994 filed by the applicants was decided by the trial Court. After the opinion was received by the Defence Estate Officer, Mumbai, the Defence Estate Officer, Mumbai referred the matter to the Principal Director, 3 Defence Estate, Pune for financial and administrative sanction by the communication dt. 1.4.2008. Since no response was received by the Defence Estate Officer, Mumbai, a reminder was given to the Principal Director at Pune on 22.4.2008. Subsequently, according to the applicants, four reminder letters were issued to the Principal Director at Pune on 14.7.2008, 18.9.2008, 16.11.2008 and 17.3.2009. 3. It is then submitted by the applicants in the application and the additional affidavits filed on record that, in the meanwhile, the two other suits which related to the same subject matter and the adjoining land, were decided by the trial Court and legal opinion was also sought in regard to these suits and the decree passed therein. The applicants have stated that the law Ministry gave its opinion in regard to the two other matters which were decided by the trial Court on 20.7.2009. On 25.9.2009, the Law Ministry advised the applicants to file appeals against the said common judgment. The applicants again referred the matter to the Principal Director, Pune on 3.11.2009 reminding the Principal Director of the previous communication dt. 1.4.2008 for the grant of administrative and financial sanction in regard to the opinion given by the Law Ministry on 25.9.2009. For the first time, according to the applicants, the Principal Director, by the communication dt. 23.12.2009, granted administrative and financial sanction and the applicants were asked to file the First Appeals 4 and the present Second Appeal. After receiving the communication dt. 23.12.2009, according to the applicants, the Second Appeal was immediately filed on 1.2.2010. 4. It is submitted on behalf of the applicants that there was a delay in filing the appeal as the file was routed from the Office of Defence Estate Officer to the Principal Director, Pune and later on, to the Director General at Delhi. It is the case of the applicants that the Defence Estate Officer, Mumbai had no right to release the payment for filing of the Second Appeal. The learned Counsel for the applicants submitted that the communication releasing the payment is signed by the Defence Estate Officer, Mumbai, but it needs to be counter-signed by the Pune Office and hence, a considerable time was required in completing these formalities. 5. The learned Counsel for the applicants has also relied on an affidavit filed by the Officer working in the Office of the Principal Director, Defence Estate, Pune wherein it is stated that though the sanction was sought on 1.4.2008 and certain clarifications were sought after receipt of communication, the instructions could not be made available to the Office of Principal Director due to shortage of manpower in the Office of Defence Estate Officer, Mumbai as well as Kamptee. It is stated in the affidavit that there was also a shortage of manpower in the Office of the Principal 5 Director, Defence Estate Pune and hence, there was some delay in filing the appeal. It is further stated in the affidavit that, in Special Civil Suit No.1216 of 1994 filed by the applicants, the arguments were heard in January, 2009 and the suit was closed for judgment on 26.3.2009. It was stated that the Office of the Defence Estate at Pune was awaiting the final result of Special Civil Suit No.1216 of 1994 as, according to it, it had a bearing on the issues involved in this Second Appeal. It is stated in the affidavit that, in the facts and circumstances of the case, the entire case papers of both the Civil Suits as well as this Second Appeal were considered for granting funds for the purpose of expenses and the same were released in favour of the Defence Estate Officer by the communication dt. 8.12.2009. 6. It is lastly submitted on behalf of the applicants that the applicants/ Union of India and others have raised an issue of title in Regular Civil Suit No.1216 of 1994 and in all these three matters, it is the claim of the applicants that they are the owners of property and the proposed construction by respondent no.1 on the suit property would be a security hazard, as the property is situated opposite to the Sitabuldi Fort at Nagpur. The learned Counsel for the applicants submitted that, in public interest, the delay caused in filing the appeal needs to be condoned, specially when the same is condoned by this Court on 16.6.2010 in the 6 other First Appeal which has been filed against the judgment passed in Regular Civil Suit No.1216 of 1994 and the appeal is admitted on 30.6.2010. 7. The learned Counsel for the applicants relied on the judgments reported in (2009) 14 SCC 54, Special Land Acquisition Officer, UK Project vs. Mehaboob and another and (2005) 3 SCC 752, State of Nagaland .vs. Lipok AO and Others to substantiate his submissions. 8. Mr. M.G.Bhangde, the learned Senior Counsel appearing on behalf of the respondent no.2 strongly opposed the prayer made in the Civil Application and submitted that since the Government has not acted with utmost care and diligence and has belatedly preferred the appeal, the delay should not be condoned. 9. It is submitted on behalf of the respondent no.2 that the Law Ministry had given its advice on 27.3.2008 and by this advise, the Law Ministry had, in- fact, asked the Defence Estate Officer, Mumbai to file the Second Appeal challenging the judgment dt. 18.2.2008 as early as possible and before Special Civil Suit No.1216 of 1994 filed by the Union of India was decided as the filing of the Second Appeal would keep the issues involved in Special Civil Suit No.1216 of 1994 alive before the trial Court. 7 According to the learned Senior Counsel, the communication issued by the Law Ministry on 27th July, 2010 had advised the applicants not to waste time and to file the Second Appeal immediately and in such circumstances, it was in-cumbent on the part of the applicants to have filed the Second Appeal as early as possible and before the Special Civil Suit No.1216 of 1994 was decided. It is submitted on behalf of the respondent no.2 that, in pursuance of the communication of the Law Ministry, dt. 27.3.2008, the Defence Estate Officer, Mumbai immediately wrote to the Principal Director, Defence Estates, Pune for grant of administrative and financial sanction for filing the Second Appeal without further loss of time. It is submitted on behalf of the respondent no.2 that though this communication was issued on 1.4.2008, the Principal Director, Pune, for the first time, accorded the sanction, administrative and financial, on 23.12.2009. It is submitted on behalf of the respondent no.2 that the affidavit filed on behalf of the Principal Director, Pune does not disclose that the Principal Director was diligent in prosecuting the matter. The learned Senior Counsel submitted that the reasons stated in the affidavit about shortage of manpower or about the bona fide belief that the result of the second suit bearing Special Civil Suit No.1216 of 1994 would be helpful in filing of this Second Appeal are unacceptable. The learned Senior Counsel submitted that there was total negligence on the part of the Principal Director, Pune in ignoring the advice of the Law Ministry. It was 8 disputed by the learned Senior Counsel that the suit property was situated adjacent to the Sitabuldi fort at Nagpur and a construction on the same would be a safety hazard. 10. The learned Senior Counsel relied on the decisions reported in 1991 Supp (2) SCC 286, State of Rajasthan and another .vs. Jaimal; (1997) 7 SCC 556, P.K.Ramchandran .vs. State of Kerala and another; AIR 1998 Bombay 176, Laxman N. Divekar vs. State of Maharashtra; (2008) 17 SCC 448, Pundlik Jalam Patil (Dead) by L.Rs. vs. Executive Engineer, Jalgaon Medium Project and another and 2010 (6) Scale 749, Balwant Singh .vs. Jagdish Singh and Ors. to substantiate his submission that the delay caused in filing the appeal should not be condoned. 11. Mr. Sachin Sambre, the learned Counsel for the respondent no.1/Housing Society adopted the arguments advanced by the learned Senior Counsel on behalf of respondent no.2 for dismissal of the Civil Application. 12. On hearing the learned Counsel for the parties and on perusal of the application, reply filed by the respondent no.2, the affidavits and counter-affidavits, it appears that, in the facts and circumstances of the case and on considering the nature of the dispute involved in the Civil Suits and the rival claims made by the Union of India and the private 9 parties in regard to the subject matter of the suits, as also the fact that certain latitude needs to be given in the cases where the applicant is a State, the delay involved in this case needs to be condoned in the interest of justice and specially, in the public interest. It is necessary to note that, on the communication issued by the Defence Estate Officer to the Law Ministry, the Law Ministry had communicated its opinion on 27.3.2008 and the Defence Estate Officer, Mumbai had immediately referred the matter to the Principal Director, Defence Estate Pune for administrative and financial sanction on 1.4.2008. It is clear from the communications issued by the Defence Estate Officer to the Law Ministry; by the Law Ministry to the Defence Estate Officer; by the Defence Estate Officer to the Principal Director, Pune that atleast the present applicants had not shown any laxity in endeavoring to file the appeal as early as possible after the Law Ministry had communicated its advice by the communication dt. 27.3.2008. Atleast five reminders were issued by the Defence Estate Officer, Mumbai to the Principal Director at Pune and ultimately, after the other two suits were also decided by the judgments dt. 27.2.2009, the administrative and financial sanction was granted on 23.12.2009. Though the statement made on behalf of the Principal Director Defence Estate, Pune that there was a shortage of manpower at all the three Offices i.e. Defence Estate Officer, Mumbai, the Estate Officer, Nagpur and the Principal Director Defence Estate Pune is disputed by respondent no.2 by filing a counter- 10 affidavit, the fact that there was some delay in moving of the files and securing certain clarifications is quite believable. Moreover, as stated in the affidavit filed on behalf of the Principal Director, Pune, the applicants and the Office of the Principal Director were bona-fide awaiting final result in Special Civil Suit No. 1216 of 1994. Though the applicants and the Principal Director's Office ought not have normally awaited the result in Special Civil Suit No.1216 of 1994, specially in view of the advice given by the Law Ministry by its communication dt. 27.3.2008, it cannot be said that there was a deliberate omission on the part of the applicants in making an endeavor to file the appeal at the earliest. It cannot be said, as canvassed on behalf of the respondent no.2, that the Principal Director, Pune had, in a grossly negligent manner, ignoring the advice of the Law Ministry, belatedly filed the Second Appeal after a long lapse of time. It is nodoubt true, as submitted on behalf of the respondent no.2, that the Government should act with utmost care, diligence and dispatch, but a bona-fide omission on the part of a Government Official cannot override public interest. It is to be noted that the land in dispute is claimed to be the defence land and the Union of India through the Ministry of Defence claims title to the same. Even if it is assumed that there was some omission on the part of the Principal Director, Pune in not diligently according the sanction, both financial and administrative before 23.12.2009, in the facts and circumstances of the case and specially on 11 considering the issues involved in the case, the delay in filing the appeal needs to be condoned. It is a settled principle of law that some latitude needs to be given in the cases where the applicant is a state as in those cases working is not through the personal machinery, but through an impersonal machinery. Same is not the case where a citizen is an applicant in a matter as, in such a case, the individual is the person interested and is solely responsible either for the diligence or for the negligence, but a state working through its Officers and servants cannot be placed on the same footing as that of an individual as held by the Hon'ble Supreme Court in the judgment reported in (2005) 3 SCC 752 and relied on by the learned Counsel for the applicants. 13. In this case, it appears that the applicants were following the routine practice based on general instructions of sending the case for sanction to the Secretariat at Pune and in the absence of sanction, the applicants could not have filed the second appeal. The judgments reported in the five cases in 1) 1991 Supp (2) SCC 286, 2) 1991 Supp (2) SCC 286, 3) (1997) 7 SCC 556, 4) AIR 1998 Bombay 176, 4) (2008) 17 SCC 448, and 2010 (6) Scale 749, and relied on by the learned Senior Counsel lay down the general principles which need to be followed by the Courts while considering the applications for condonation of delay. The facts involved in these reported cases, where the delay was not condoned and the facts 12 involved in the present case are not similar and hence, the application filed by the applicants in the present case cannot be dismissed because the application for condonation of delay, in those cases were dismissed. No straight-jacket formula can be applied while considering the question of condonation of delay in all the cases. Each application has to be considered on the facts and circumstances involved therein. There are cases like the ones reported in (1997) 9 SCC 69, where the Hon'ble Supreme Court had condoned the delay of 3379 days and there are cases where a short delay is not condoned. Hence, in the facts and circumstances of the case, it cannot be said that the delay of 604 days in filing the present Second Appeal was not liable to be condoned as the same was inordinate. 14. It is also to be noticed that the issues involved in the present Second Appeal and the issues involved in First Appeal No.588 of 2010, which is admitted on 30.6.2010, are almost identical and the issues involved in both the cases relate to the dispute of title to the suit property which is in the near vicinity of the Sitabuldi fort and which is claimed by both, the Union of India through the Ministry of Defence and the respondent no.1. 15. Thus, as stated hereinabove, in the facts and circumstances of the case and considering the subject matter and the issues involved, the 13 public interest involved therein, the fact that the applicants are the Union of India through the Defence Ministry and for the reasons stated in the application and the additional affidavits, the delay caused in filing the Second Appeal needs to be condoned. Hence, in the interest of justice, the application is allowed and the delay in filing the Second Appeal is condoned subject to payment of costs of Rs.7,500/- in this Court within a period of eight weeks from the date of this order. The Civil Application is allowed in the aforesaid terms. JUDGE jais