State Of Odisha v. Banambar Samal Dead His Lrs. Mayadhar Samal And Ot

THE HONBLE MR. JUSTICE D.DASH

------------------------------------------------------------------------------------------- Date of hearing : 08.12.2015 : Date of judgment 11.12.2015

------------------------------------------------------------------------------------------- This appeal has been directed against the judgment and decree passed by the learned Additional District Judge, Talcher in RFA No. 2 of 2013 wherein the judgment and decree passed by the learned Civil Judge (Sr. Division), Talcher in C.S. No.27 of 2003 were impugned by the present appellant. The suit has been filed by the respondent as the plaintiff for declaration of his right, title and interest over the suit land which measures Ac.0.095 dec. on the basis of his purchase from the predecessor- in-interest of the defendant nos.2 to 28, who are said to have acquired title in respect of the said land by virtue of their long standing possession as its owner exercising all sorts of rights thereof for upward of the prescribed period. The suit land has been // 2 // recorded in the name of the State under Anabadi khata with note of possession of the vendors of the plaintiff. The suit has been decreed against the appellant-State.

2. Learned Government Pleader did not contest the suit and no written statement was filed on behalf of the State. When such was the state of affair, it was not even made known to the State authority by the learned Government pleader as to when the suit was disposed of and what was its result. Only on 15.12.2012, when the original respondent, who having died, his legal representatives are now on record, produced the said judgment before the Tahasildar for correction of the record of right, the result of the suit was known that the judgment had been rendered against the State. Thereafter, further informations were collected and necessary steps were taken in finally obtaining the decision of the Government for filing the appeal and accordingly the appeal was filed. In the process there has been delay of 2072 days in filing the appeal. The appeal when was filed along with the petition for condonation of delay on the above grounds, the learned Additional District Judge after hearing the parties has refused to condone the delay having not accepted the explanation given by the appellant for such long delay in filing the appeal and finding no such sufficient cause to have prevented the appellant from filing the appeal. Therefore, the State has assailed the said order of the lower appellate court by filing this second appeal.

3. The appeal has been admitted on the following substantial question of law: (a) Whether the First Appellate Court is justified in dismissing the appeal of the State on the ground of limitation without viewing the causation of serious prejudice to the State and also the factum of huge loss of the public property and simply because // 3 // of the inaction of the concerned lawyer handling the matter when the property involved is of great value and also when there remains strong grounds both in law and fact to challenge the trial courts judgment and decree?

4. Heard learned Additional Government Advocate and the learned counsel for the respondent.

5. Learned Addl. Government Advocate submits that here is a case where the State by the impugned judgment and decree has lost the immovable property of an extent of Ac.0.095 decimals and it is a loss of public property. According to him, the market value of the said property at present is also quite high looking at the steep rise of the price of land in the locality and more particularly in view of the developmental activities being in fast progress in the area. So, he submits that though in the matter the attitude of the concerned officials of the State are not supportable and it is seen that they have dealt the matter at their own sweet will and time which is not excusable yet, the same should not be taken to be the reason for not condoning the delay and the lower appellate court should have exercised the discretionary power in condoning the delay in filing the appeal in a liberal manner so as to advance the cause of substantial justice instead of preventing the matter from being heard and decided on merit as it involves public property. In support of the above submission, the learned Addl. Govt. Advocate has cited the decisions of Apex Court in case of State of Karnatak vs. Y. Moideen Kunhi (dead) by LRs. & Ors.:AIR 2009 SC 2577; State of Assam & Ors. Vs. Susrita Holdings Pvt.Ltd. :AIR 2014 SC 2307 and Executive Officer, Antiyur Town Panchayat vs. G.Arumugam (dead) by LRs.:(2015)

3 SCC 569. // 4 //

6. The respondent in the counter supported by affidavit vehemently refutes the above submission. It is stated that the move is to harass the respondent and the delay was knowingly made and it was deliberate. It is further stated that for such long delay, the causes assigned are not at all sufficient so as to be accepted for the purpose. Learned counsel for the respondents submits that though in such matters the views of the court have remained liberal in the direction of advancement of the cause of substantial cause yet, the State for the purpose has to satisfy that sufficient causes prevented for filing the appeal in time. According to him, general explanation that everything happened because of the lack of communication and silence of the Government pleader as also slow progress of the official machinery of the State are no more to be taken as reasonable explanation. It is also submitted that the law of limitation when binds everyone, the State does not come within an exceptional category so as to get any preferential treatment in the matter.

7. It has been held in case of G.Ramegowada, Major etc. vs. The Special Land Acquisition Officer, Bangalore: AIR 1988 SC 897 that the law of Limitation is, no doubt, the same for a private citizen as for Governmental Authorities. Government, like any other litigant, must take responsibility for the acts or omissions of its officers. But a somewhat different complexion is imparted to the matter where Government makes out a case where public interest was shown to have suffered owing to acts of fraud or bad faith on the part of its officer or agent and where the officers were clearly at cross-purposes with it. Therefore, in assessing what, in a particular case, constitutes sufficient cause for the purpose of section-5, it might, // 5 // perhaps, be somewhat unrealistic to exclude from the considerations that go in to the judicial verdict, these factors which are peculiar to and characteristics of the functioning of the Government. Governmental decisions are proverbially slow encumbered, as they are, by a considerable degree of procedural red tape in the process of their making. A certain amount of latitude is, therefore, not impermissible. It is rightly said that those who bear responsibility of the Government must have a little play at the joints. Due recognition of these limitations on the Governmental functioning of course, within responsible limits- is necessary if the judicial approach is not to be rendered unrealistic. It would, perhaps, be unfair and unrealistic to put Government and private parties on the same footing and in all respects in such matters. Implicit in the very nature of the Governmental functioning is procedural delay incidental to the decision-making process. In the opinion of the High Court, the conduct of the Law- officers of the Government placed the Government in a predicament and that it was one of those cases where the mala fides of the officers should not be imputed to the Government. It relied upon and trusted its law officers. Lindley, M.R., in the In re National Bank of Wales Ltd. (1899) 2 Ch. 629 at p.673 observed, though in a different context: Business cannot be carried on upon principles of distrust. Men in responsible positions must be trusted by those above them, as well as by those below them, until there is reason to distrust them.

8. In State (NCT of Delhi) V. Ahmed Jaan: 2008 (11) SCALE 455 it has been held as follows:- // 6 // It is axiomatic that decisions are taken by the officers/agencies proverbially at slow pace and encumbered process of pushing the files from table to table and keeping it on table for considerable time causing delay intentional or otherwise is a routin. Considerable delay of procedural red tape in the process of their making decision is a common feature. There-fore, certain amount of latitude is not impermissible. If the appeal brought by the State are lost for such default no person is individually affected but what in the ultimate analysis suffers, is public interest... In the event of decision to file appeal needed prompt action should be perused by the officer responsible to file the appeal and he should be made personally responsible for lapses, if any. Equally, the State cannot be put on the same footing as an individual. The individual would always be quick in taking the decision whether he would pursue the remedy by way of an appeal or application since he is a person legally injured while State is an impersonal machinery working through its officers or servants. Further at para-15 the court held that: .The above position was highlighted in State of Haryana V. Cnandra Mani and Ors., 1996 (3) SCC 132; Special Tahasildar, Land Acquisition, Kerala Vs. K. V. Ayisumma (1996 (10) SCC 634) and State of Nagaland Vs. Lipok AO and Ors.(2005 (3) SCC 752). It was noted that adoption of strict standard of proof sometimes fail to protract public justice, and, it would result in public mischief by skilful management of delay in the process of filing an appeal.

9. Referring to the above decisions, the Honble Apex Court in case of State of Karnatak (supra) keeping in view of the // 7 // important question of law which the case involved condoned the delay of 6500 days. It has been held in case of State of Assam & Ors. (supra) that unpardonable lackadaisical attitude of Govt. towards pursuing matter in court of law cannot be reason for loss of public property. In that case the very decision of G.Ramegowada, Major etc. (supra) has been quoted in extensio. In case of Executive Officer, Antiyur Town Panchayat (supra) the Court was dealing with the matter concerning the delay of 1373 days. Having taken a justice oriented approach the Court in view of large public interest have dealt the matter leniently in condoning the delay.

10. In the decision cited in case of Office of the Chief Post Master & Others vrs. Living Media India Ltd. & Another: (2012) 3 SCC 563, the court has refused to condone the delay of

447 days, was a matter concerning the grant of permission for mailing by the postal department at conceptional rates which was refused and then the matter having been carried to the High Court, no such fruitful result had yielded. Thereafter, the SLPs were filed after delay of 447 days. In that case the Court refused to condone the delay holding that the persons concerned have not shown diligence in the matter though they had no knowledge of limitation for filing the appeal and the departments explanation as regards delay in following the official procedure was repelled. Similarly, this court in case of State of Orissa and Others vs. Khirod Chandra Mohapatra : 2015 (II) ILR CUT 207 while dealing with the matter of condonation of delay in filing the letters patent appeal refused to condone the delay of 636 days applying the ratio of the case of Office of the Chief Post Master & Others (supra). // 8 //

11. The case in hand is one where Ac.0.095 decimals of land belonging to the State has been claimed by the original respondent on the ground that his vendors had acquired title by adverse possession and the suit has thus been decreed. The appeal being carried, the same has been allowed. No doubt the explanation offered shows that the officials were dealing with the matter either deliberately or without understanding the implications and dealing with the matter in a very casual lethargic manner. Its a matter of concern that in very serious matter action is not taken as required under law. Nonetheless, the court has a duty to protect the public justice. Neither the same can be rendered in effective by the deliberate action of the officials nor by skilful management of the delay in the process of making challenge to the order which prima facie appears to be a highly contested one, more particularly in the instant case where the Judgment and decree under challenge had been passed against the State causing a loss of public property of considerable extent and value. Therefore the decisions in case of Office of the Chief Post Master & Others (supra) and State of Orissa and Others (supra) are distinguishable in the facts and circumstances.

12. Keeping in view the importance of the question involved in the case as also the extent of public property and its value in the present scenario of the real estate market when also those surfaces grounds of challenge which per se cannot be said to be unacceptable, I am of the view that the ratios of the judgments in case of State of Karnatak (supra), Executive Officer, Antiyur Town Panchayat (supra) and State of Assam & Ors. (supra) apply with full force in the facts and circumstances of the present case.

13. In view of the aforesaid, the substantial question of law as framed in the particular case is answered in favour of the // 9 // appellant. Accordingly the order passed by the lower appellate court is hereby set aside. The delay in filing the said appeal would stand condoned subject to payment of cost of Rs.5,000/-(Rupees five thousand) to the respondent within a period of six weeks from today. The parties are directed to appear before the lower appellate court on 21.01.2016 when the appellant is to produce the receipt showing payment as above to the respondents through their counsel either appearing in this appeal or in the lower appellate court. The lower appellate court on being satisfied as regards payment would fix the date for hearing of the appeal as convenient to it and accordingly proceed to take up the hearing of the appeal on merit for its disposal in accordance with law after hearing the parties. It is hereby made clear that whatever has been said and observed in this order, those are just confined to the present purpose and would not be taken as any expression of opinion on the merit of the case.

14. The R.S.A. is accordingly allowed. No further order as to cost is passed. D. Dash, J. Orissa High Court, Cuttack Dated, the December, 2015/Himansu.