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‘Delay’ not to be condoned merely because the applicant is the State

The Government, being the largest litigant, has to be a model and ideal litigant, a division bench of the Bombay High Court comprising of Justices S.C. Dharmadhikari and Dr. Shalini Phansalkar Joshi has observed while refusing to condone the delay by the Government in preferring Appeals.  The Bench also observed that merely because applicant is a State, delay in filing appeals cannot be condoned without a proper explanation as Section 5 of the Limitation Act is equally applicable to the State as well. The reasons of delay stated in notice of motion, filed by Government read “”the delay is due to various factum, especially, related to procedural mandate in Government functioning, which were not in the control of the Applicant-Appellant“. In another notice of motion filed, the delay was attributed to “the various internal correspondence of the Revenue Department with its superior authorities, for seeking permission to file the Appeal” Observing that there is no ‘sufficient cause’ stated to excuse the delay, the Court observed: “Absolutely no cause is given, as such, for condonation of delay and that of about 548 days in preferring the Appeals, except for attributing the same to the specious plea of “various factors”. Which were those factors is not at all stated or illustrated. Merely stating that, “those factors relate to procedural mandates in Government functioning, which was not in control of the Appellant”, cannot be sufficient, even accepting that, in litigations to which the Government is a party, there are some aspects, which perhaps cannot be ignored and those factors and aspects are required to be stated.” The Court further said: “We are also aware that certain amount of latitude in cases where Government is a litigant, is not impermissible, as the State represents collective cause of the community and what ultimately suffers is public interest, necessitating adoption of pragmatic approach to do substantive justice. However, in case of gross delay and inaction, it becomes difficult to put a State on high pedestal, so as to be immune to the consequences of the inaction. No separate standards to determine the cause laid by the State vis-a-vis private litigant could be laid to prove sufficient cause.” In this context, the bench observed: “As a matter of fact, the Government, being the largest litigant, has to be a model and ideal litigant. The sheer and gross negligence on the part of the Government in preferring such Appeals cannot be condoned in this manner, as a routine or as a right of the Government, and that too to unearth the cause which is already set at rest.” Dismissing the petitions observing that if they are allowed, it will set a bad precedent and may encourage the Revenue in the ‘dilly dallying tactic’, the court observed: “a delay can hardly be explained by attributing the same merely to the functioning of the Government and internal correspondence.”

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