LAW OF LIMITATION BINDS EVERYBODY INCLUDING GOVERNMENT.

[Mr. M. GOVINDARAJAN]

                        The object for fixing time limit for litigation is based on public policy fixing a lifespan for legal remedy for the purpose of general welfare.   They are meant to see that the parties do not resort to dilatory tactics but avail their legal remedies promptly.  Salmond in his jurisprudence stated that the laws come to the assistance of the vigilance and not of the sleepy.

                        Every suit, petition, application or appeal shall be filed within the prescribed period of time and if not filed it is liable to be dismissed.   Sec. 5 of the Limitation Act, 1963 provides that any appeal or application other than application under any provisions of order XXI of the Code of Civil Procedure, 1908 may be admitted after the sufficient cause for not preferring the appeal or making the application within such period.   Section 5 gives the courts a discretion which in respect of jurisdiction is to be exercised in the way in which judicial power and discretion ought to be exercised upon principles which are well understood; the words ‘sufficient cause’ receiving a liberal construction so as to advance substantial justice when no negligence nor inaction nor want of bona fide is imputable to the appellant.                    

                        In ‘Collector, Land Acquisition, Anantang and another V. Mst. Katiji and others’ – 1987 (2) TMI 61 - SUPREME Court, while considering ‘sufficient cause’ in the light of Section 5 of the Limitation Act, 1963 the Supreme Court pointed out various principles for adopting liberal approach in condoning the delay in matters instituted-

• Ordinarily  a litigant does not stand to benefit by lodging an appeal late;
• Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice is being defeated.  As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties;
• ‘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;
• When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred to the other side cannot claim to have vested right in injustice being done because of a non deliberate delay;
• There is no presumption that delay is occasioned deliberately or on account of culpable negligence, or on account of mala fide.   A litigant does not stand to benefit by resorting to delay.  In fact he runs a serious risk;
• It must be grasped that judiciary is respected not on account of the power to legalize injustice on technical grounds but because it is capable of improving injustice and is expected to do so.

In ‘G.  Ramegowda, Major and others V. Special Land Acquisition Officer, Bangalore’ – 1988 (3) TMI 408 (SC), the Supreme Court held that in litigations to which Government is a party there is yet another aspect which, perhaps, cannot be ignored.   If appeals brought by Government are lost for such defaults, no person is individually affected, but what, in the ultimate analysis, suffers is public interest.   The decisions of Government are collective and institutional decisions and do not share the characteristics of decisions of private individuals.  The Supreme Court further held that in assessing what, in a particular case constitutes ‘sufficient cause’ for purpose of Section 5, it might, perhaps, be somewhat unrealistic to exclude from the considerations that go into the judicial verdict, these factors which are peculiar to and characteristic of the functioning of the government.   Government decisions are proverbially slow encumbered, as they are, by a considerable degree of procedural red tape in the process of their making.

                        In ‘National Insurance Company Limited V. Giga Ram and others’ – (2002) 10 SCC 176 the Supreme Court held that the High Court was not justified in taking too technical a view of the facts and refusing to condone the delay, accepted the case of the appellant Insurance Company by protecting the interest of the claimant and condoned the delay.  It is relevant to point out that while accepting the stand of the Insurance Company for the delay, the Supreme Court has safeguarded the interest of the claimant also.

                        In ‘State of Haryana V. Chandra Mani and others’ – 1996 (1) TMI 378 (SC) the Supreme Court while condoning the delay of 109 days in filing the LPA before the High Court, the Supreme Court has observed that certain amount of latitude within reasonable limits is permissible having regard to impersonal bureaucratic set up involving red tapism.   In the same decision the Court directed the State to constitute legal cells to examine whether any legal principles are involved for decisions by the courts or whether cases required adjournment at Governmental level.

                        In ‘Union of India V. Manager, Jain and Associates’ – 2001 (2) TMI 979 (SC) the Supreme Court held that delay ought to be condoned when sufficiently explained particularly where party seeking condonation is the Government.   The High Court ought to have condoned the delay in considering the public revenue involved and also because of the genuine difficulties and circumstances beyond the control of the petitioner, on account which Special Leave Petition could not be filed within the time.

                        The Supreme Court in ‘Commissioner of Wealth Tax, Bombay V. Amateur Riders Club, Bombay’ – 1993 (12) TMI 214 (SC), held that having regard to the law of limitation which binds everybody, the Court cannot find any way of granting relief.   It is true that Government should not be treated as any other private litigant as, indeed, in the case of the former the decisions to present and prosecute appeals are not individual but are institutional decisions necessarily bogged down by the proverbial red tap.   But there are limits to this also.   Even with all this latitude, the explanation offered for the delay in this case merely serves to aggravate the attitude of indifference of the Revenue in protecting the common interests.   The affidavit it again one of the stereotyped affidavits making it susceptible to the criticism that the Revenue does not seem to attach any importance to the need for promptitude even where it affects its own interest.

                        In ‘State of Haryana V. Chandra Mani’ – 1996 (1) TMI 378 (SC) the Supreme Court observed that when the State is an applicant, praying for condonation of delay, it is common knowledge that on account of impersonal machinery and the inherited bureaucratic methodology imbued with the note making, file pushing and passing on the buck ethos, delay on the part of the State is less difficult to understand but more difficult to approve, but the State represents collective cause of the community.   It is axiomatic that decisions are taken by officers/agencies proverbially at slow pace and encumbered process of pushing the files from table to table and keeping it on the table for considerable time causing delay – intentional or otherwise – is a routine.   Considerable delay of procedural red-tape in the process of their making decision is a common feature.   Therefore, certain amount of latitude is not impermissible.   If the appeals brought by the State are lost for such default, no person is individually affected but what in the ultimate analysis suffers, is public interest.   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 delay.

                        In ‘Office of the Chief Post Master General V. Living Media India Limited’ – 2012 (4) TMI 341 (SC) M/s Living Media India Limited is a company publishing the magazines ‘Reader’s Digest’ and ‘India Today’ which are registered newspapers with the postal department for transmission by post under concessional rate of postage.  On 14.10.2005 the respondent company submitted an application to the postal department seeking permission to post December, 2005 issue of Reader’s Digest magazine containing the advertisement of Toyota Motor Corporation in the form of book let with Calendar for the year 2006 at concessional rates.   The postal department denied the grant of permission for mailing the said issue at concessional rates on the ground that the book let containing advertisement with calendar is neither a supplement nor a part and parcel of publication.   Likewise the postal department refused to grant permission for mailing the ‘India Today’ magazine containing a book-let of Amway India Enterprises titled ‘Amway’ at concessional rate. 

                        Against the decision of the Department the company filed a writ petition before the High Court which allowed the petition.  The Department filed appeal before the High Court Division Bench which also upheld the decision of the Single Judge.  The Department filed this present appeal before Supreme Court against the judgment of Division Bench along with petition to condone the delay of 427 days in filing the appeal.  Since the condonation of delay is a huge delay the Supreme Court directed to file a better affidavit explaining the reasons for the delay.  In the revised affidavit the department explained the reasons for the delay period wise. 

                        The Department contended that it is evident from the reasons given in the affidavit that the delay caused in filing the petition was result of all the necessary and unavoidable office formalities and was bona fide and not deliberate or intentional and the petitioner was prevented by sufficient cause from filing the petition within the period of limitation.  The Court observed through the affidavit that the department was aware of the date of judgment of Division Bench as 11.9.2009.  Their counsel applied for certified copy on 8.1.2010 and the Department got the same on the day itself.  There is no explanation for not applying for a certified copy of the judgment dated 11.9.2009 or at least within a reasonable time.  After a lapse of four months only certified copy of the judgment was applied for.  The other dates in the affidavit clearly show that there was delay at every stage and except mentioning the date of receipt of the file and the decision taken, there is no explanation as to why such delay had occasioned.   Though it was stated by the Department that the delay was due to unavoidable circumstances and genuine difficulties, the fact remains that day one the Department concerned have not evinced diligence in prosecuting the matter to this Court by taking appropriate steps.

                        The Supreme Court held that it is the right time to inform all the government bodies, their agencies and instrumentalities that unless they have reasonable and acceptable explanation for the delay and there was bona fide effort, there is no need to accept the usual explanation that the file was kept pending for several months/years due to considerable degree of procedural red-tape in the process.   The Government Departments are under a special obligation to ensure that they perform their duties with diligence and commitment.  Condonation of delay is an exception and should not be used as an anticipated benefit for government departments.  The law shelters everyone under the same light and should not be swirled for the benefit of a few.  Considering the fact that there was no proper explanation offered by the Department for the delay except mentioning of various dates, the Department has miserably failed to give any acceptable and cogent reasons sufficient to condone such a huge delay.   The appeal was dismissed by the Supreme Court.