JUDGMENT Amitava Lala, J.
1. This Court is regularly observing that several Special Appeals are being placed in the list as 'Special Appeal Defective'. On enquiry we have come to know that whenever Special Appeals are filed with application for condonation of delay, such appeals are normally being treated as 'Special Appeal Defective' in the list. Upon going through the records of the individual cases, we find that most of such appeals are filed by the State in the routine manner on some pretext or other. This gives us the impression whether latitude is to be shown to the appellant as because it is a State as a matter of course without verifying the sufficiency of the cause applicable to them or we shall shut our eyes, as because State is not similarly placed with an individual. Against this background we have to consider the individual applications.
2. In further, the present policy of the government, either Union or the State is that there should be sufficient curtailment of red-tapism to go ahead. The procedures are getting liberalized in respect of all activities in connection with public interest. If it is so, why the same principle will not be adopted in case of Court proceedings when pendency of litigations are piling up regularly, is unknown to the Court. Court is anxious about the circumstances. Defective appeals are also appeals so far as number of pendency is concerned.
3. Moreover, at the time of consideration of individual cases on the part of the State, not being an individual, we have to visualize what public interest will be subserved and whether any third party interest will be affected by allowing such application or not.
4. There is no doubt that law of limitation is made for all. But sufficiency of the cause is the source of information to the Court to come to a conclusion that by such sufficiency minimum latitude will be shown to the State or the Union differentiating them from individuals. But that does not necessarily mean that an unfettered latitude will be given to the State to file appeal/s as and when it requires taking the advantage of legal interpretations. Legal interpretations cannot travel beyond the law. Legal interpretations must have to be considered on the individual factual position and such individual position alone gives an indication to the mind of Court of law, whether it will pass an affirmative order or negative order. We are aware that we should not make any pedantic approach but liberal approach, how many approach is dependable upon the facts and circumstances of individual cases. No routine appeal by the State taking the advantage of the situation can be allowed to be sustained. Whenever a State is faced with an order it compels the State to give utmost importance to consider whether appeal should be filed or not. Obtaining permission from the appropriate authority to prefer an appeal is not a luxury at the cost of public exchequer at any time but at the time of genuine need. If so, no delay should be condoned which appears to be done intentionally. State cannot sit tight over the matter only on the ground of red-tapism giving a secondary importance to the process of Court of law. Court of law is not only out of generosity but also in public interest giving minimum possible latitude to the individual cases. That cannot be treated as weakness of the Court of law. This is a high time to consider the appeals of the State from this angle. It is to be remembered latitude can only be given to the State Authorities, if it is genuinely prevented from filing the appeal. Before our further discussion with regard to the factual background of the following individual cases, we have to say that learned Chief Standing Counsel wanted to satisfy the Court for condoning the delay on the strength of judgment of the Supreme Court (State of Nagaland v. Lipok AO and Ors.) based on various earlier judgments, which are dealt with therein Hence no de novo discussion is necessary. Therefore, let us take note of the factual background therein. Factually the question of appeal arose there from a judgment of acquittal in a criminal matter to obtain a leave to prefer an appeal. Such judgment was pronounced on 18th December, 2002. Copy of the order was received by the concerned department on 15th January, 2003 without wasting any time on the same day, the relevant documents and papers were put up for necessary action before the Deputy Inspector General of Police, (Head-quarters), Nagaland. On the next date, the said Deputy Inspector General considered the matter and forwarded the file for consideration to the Deputy Inspector General of Police (M&P), Nagaland. Unfortunately the whole file along with note sheet were found missing from the office and could not be traced in spite of best efforts made by the department. Finally it was traced on 15th March, 2003 and the file was put up for necessary orders by the Additional Director General of Police (Headquarter) Nagaland. The said officer opined that an appeal was to be filed on 26th March, 2003, and finally an appeal was filed after appointing a Special Public Prosecutor. When it was found that no appeal had been filed, the Secretary to the Department of Law and Justice, Government of Nagaland got in touch with the Additional Advocate General, Gauhati High Court regarding the filing of the appeal and in fact the appeal was filed on 14th May, 2003. It is of relevance to note that in the application for condonation of delay it was clearly noted that when directions were given to reconstruct the file, missing file, suddenly appeared in the office of Director General of Police, Nagaland. Against this background the Supreme Court thought it fit that legal principles are applicable in the case of condonation of delay on the part of the State by condoning the delay of 57 days.
5. Therefore the prayer of condonation of delay on the part of the State will have to be based on genuine ground not as a matter of course nor at the sweet will of the State taking the advantage of the Court's generosity. Latitude is to be given when Court will come to the conclusion on the factual background that in such case a latitude is required to be given. From the factual background of the case before the Supreme Court, it appears that the prosecution was eager to test the order of acquittal by the Appellate Court. Another special fact has been noticed by the Supreme Court that the file was missing but was surprisingly available when the prosecution thought to reconstruct it. Therefore the Court was guided by such factor.
6. Importance of the merit and genuinely are also guiding factors for the Court to determine the necessity of condonation of delay.
7. Against this background, let us now look to individual cases one after another to come to the appropriate conclusions.
Special Appeal No. (158) of 2001 Special Appeal No. (159) of 2001
8. Both the applications for condonation of delay in the aforesaid two matters are identically placed. Factually in both the cases order was passed by the learned Single Judge of this High Court on 26th May, 1999 on the relevant questions of fact and law giving adequate opportunity of hearing to the petitioner/s and the State. After hearing the Court was only pleased to direct the appropriate authority to consider equivalency of the qualification of the incumbent and said that if qualification of the petitioner is equivalent to the recognized course available to other candidates the petitioner can be treated at par. Therefore, Court did not pass any mandatory order but left the option open to the State to consider the issue. Hence, upon considering the cause, either the State will accept or reject the cause. No prejudice can be suffered by the State by such order.
9. Special Appeal can be filed from an order within a period of thirty days excluding the period necessary for obtaining certified copy as per Chapter IX Rule 10 of the Allahabad High Court Rules, 1952 as amended upto date. Such rule is made keeping parity with the principle of appeal from one Court to the same Court under the Limitation Act, 1963.
10. However, the State averred in the application for condonation of delay that they have come to know for the first time about the judgment and order only on 21st June, 1999 after about thirty days from such date of order when on the other hand the order was passed in their presence. Therefore, such statement is false. Moreover what prevented the State to apply for certified copy of the order in time is yet unknown. The deponent stated that they thought that since on the identical cases Special Appeals have been filed and the operations have been stayed, there is no need to file Special Appeal. But when the respondent/writ petitioner/s filed contempt application in the year 2000 and notices were issued and the order was served upon the concerned Director, the matter was further studied and consulted with the necessary law department and the permission was granted to file Special Appeal on 1st March, 2001. Therefore, it is explicit that the State used the process as shield from the threat of contempt. Surprisingly application for certified copy of the judgment was made on only 14th February, 2001 and obtained copy on 20th March, 2001 much beyond the relevant period and after getting the same the Special Appeal has been filed without any further delay. From the departmental note it appears that the delay is one year two hundred seventy days.
1. Can it be said that the above ground is a genuine ground on the part of the State to give certain latitude by the Court of law?
2. Can it be further said ignorance of law on the part of the State having huge legal machinery unlike a rustic villager, an appropriate ground for condoning the delay?
Our answer is 'NO'
11. Under no stretch of imagination the delay on the part of the State of one year two hundred seventy days on the aforesaid grounds can be said to be genuine, even upon taking a pragmatic stand ignoring the technicalities.
12. Hence delay on the part of State in preferring the appeal cannot be condoned. Accordingly both the Special Appeals are rejected being barred by time.
13. However, no order is passed as to costs.
Special Appeal No. (86) of 2001
14. In the instant case we find that the order was passed by the Learned Single Judge on 30th March, 2000 upon hearing the counsels for the parties and upon going through the record. The writ petitioner filed a 'representation on 6th May, 2000 along with copy of the aforesaid order which was forwarded to the Additional District Magistrate on 8th May, 2000. No averment has been made by the deponent in support of the application for condonation of delay as to what did the State do within the period of more than a month including making application of certified copy when they were present at the time of passing order. Moreover when the respondent/writ petitioner/s made a representation to the State for consideration of the cause by themselves what prejudice will be suffered by the State? It is mechanically said that on 11th May, 2000 the Additional District Magistrate instructed the concerned Deputy Collector, Hariya to seek legal advise from the Chief Standing Counsel, High Court, Allahabad to file review/appeal. The concerned Tehsildar vide its letter dated 22nd May, 2000 contacted the office of Chief Standing Counsel, High Court, Allahabad for obtaining the copy of the writ petition as well as certified copy of the order. He was informed that Chief Standing Counsel obtained permission for filing Special Appeal from Legal Remembrancer, U.P., Lucknow. But no appeal was filed. Instead of doing so he submitted a report on 27th May, 2000 to the office of District Magistrate on 30th May, 2000. The District Magistrate wrote a letter to the Secretary, department of revenue for sanction in the aforesaid matter. On 29th November, 2000 necessary sanction for filing Special Appeal was made by the Legal Remembrancer and the same was available to the office of District Magistrate, Basti on 14th December, 2000. On 29th December, 2000, District Magistrate, Basti wrote a letter to the Deputy Collector, Hariya for taking cognizance of the matter and filing necessary Special Appeal. In pursuance with the direction the District Magistrate instructed the Sub Divisional Magistrate to take steps. We have to take note of the audacity and desperate statement of the deponent from the following lines. From 1st January, 2001 to 30th January, 2001 the deponent was busy in training work of enumerator and supervisor employed for census work 2001 and as such no steps could be taken for filing Special Appeal. On 5th February, 2001 the deponent got permission from the Deputy Collector for filing Special Appeal and thereafter in the second week of February, 2001 contacted the office of the Chief Standing Counsel for filing Special Appeal and the same was allotted to the Standing Counsel and the Special Appeal was drafted and was being presented without any further delay. When the permission was sought from the higher authority much before and both the Chief Standing Counsel and Legal Remembrancer opined long back, what prevented the deponent to file an appeal long before without further permission from the Deputy Collector is unknown to this Court. It appears the deponent used the permission of the Deputy Collector as a shield. The entire explanation gives an impression as to how the State takes the court of law leisurely without any justiciable cause.
15. From the office note it appears that delay is of about two hundred ninety three days without sufficient cause.
16. Therefore, the explanation for condoning the delay in preferring the appeal cannot be accepted and thereby the appeal is rejected being barred by time.
17. No order is passed as to costs.
Special Appeal No. (182) of 2001
18. In this matter upon hearing learned Counsel appearing for the parties the Writ Court only held that the earlier order dated 1295 of 1996 was holding good, therefore, with the observation the writ petition was disposed of on 12th February, 1998. State took five months time to give the correct reference number of other writ petitions from the date of order i.e. 29th July, 1998. The appeal was preferred on 30th March, 2001. The departmental note says that there is a delay in filing the appeal of two years forty-four days. The only explanation is given that due to busy schedule of deponent in completing the Kumb Mela work, he was not available for any other work and as such necessary corrections could not be carried out. Again he had stated that during the course of Kumb Mela in 2001 he had fallen ill and was under treatment as such necessary corrections could not be made. No further explanation is there about the delay in preferring the appeal. The only statement is made that subsequently in March 2001 the appeal was presented along the application under Section 5 of the Limitation Act.
19. Can it be said that such explanation is at all an explanation for condoning the delay for such long period and to show any latitude to the deponent or the State. Our answer is 'NO'. Not only this application but also other applications are casually moved in routine manner only to make safe guard before the Court for any present or future course of action. No body pursued those matters for long period and now in 2006 possibly there is no face value of the original case. However, we do not find any cogent reason for condoning the delay. Hence, we refuse to condone the delay. Thus the Special Appeal stands rejected being barred by time.
20. However, no order is passed as to costs.