Kerala State Electricity Board v Accelerated Freeze Drying Company Ltd & Ombudsman, KPFC

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR** **&** **THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P. MONDAY, THE 13[TH] DAY OF MARCH 2023 / 22ND PHALGUNA, 1944 WA NO. 59 OF 2023** **AGAINST THE ORDER/JUDGMENT IN WP(C) 6706/2008 OF HIGH** **COURT OF KERALA** ## **APPELLANT/PETITIONER:** KERALA STATE ELECTRICITY BOARD, VYDYUTHI BHAVANAM, PATTOM THIRUVANANTHAPURAM REPRESENTED BY ITS SECRETARY PIN - 695004 BY ADV B.PREMOD ## **RESPONDENTS:** 1 M/S. ACCELERATED FREEZE DRYING COMPANY LTD, AMALGAM HOUSE, BRISTOW ROAD, WILLINGTON ISLAND, KOCHI-3., PIN - 682003 2 THE OMBUDSMAN,KPFC BHAVAN, C.V. RAMAN PILLAI ROAD, VELLAYAMBALAM, THIRUVANANTHAPURAM-10 BY ADVS. S.RAMESH BABU (SR.) NANDAGOPAL S.KURUP ARAVIND BABU C.K.KARUNAKARAN(K-36) LEKSHMI P. NAIR(K/001011/2017) REMIL REGI GEORGE(K/479/2022) **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 13.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** CM.Appl.No.1 of 2023 in WA No.59 of 2023 & WA No.59 of 2023 2 ## **A.K. JAYASANKARAN NAMBIAR & MOHAMMED NIAS C.P., JJ** **…................................................... CM.Appl.No.1 of 2023 in WA No.59 of 2023 & WA No.59 of 2023** -------------------------------------------- **Dated this the 13[th] day of March, 2023** ## **JUDGMENT** ## Mohammed Nias.C.P. J. This is an application filed to condone the delay of 805 days in preferring the above appeal. The affidavit filed in support of the petition dated 09.1.2023 is extracted hereunder: “4. It is submitted that the judgment was pronounced on 29.8.2018. Due to an inadvertent omission on the part of the clerk of the Standing Counsel, application for getting the certified copy was not done immediately. The fact that judgment was delivered, came to the notice of the board only when the board enquired about the status of case on 30.03.2021 with the Standing Counsel and the Standing Counsel informed that the writ petition was jointly heard and a common order has been passed on 29.8.2018, dismissing both the writ petitions. The Standing Counsel was under the bonafide belief that timely application had been preferred and on receiving the same, the same has been forwarded to the board and the board had received the same. During the said period, the mother of the previous Standing Counsel CM.Appl.No.1 of 2023 in WA No.59 of 2023 & WA No.59 of 2023 3 Sri.R.Sudheer Ganesh Kumar was ailing and was under his care and she expired on 15.11.2019. On realizing that there occurred an omission to apply for the certified copy, immediately thereon, application was made, on 31.03.2021. The stamp papers were called on 03.04.2021 and the same was produced on the same day itself. Copy was ready on the same day and was notified for appearance to 19.5.2021. The copy of the judgment was received on 03.04.2021. The certified copy of the judgment was immediately forwarded to the Board. The board on receiving the judgment examined the matter in detail and decided to file writ appeal against the judgment and accorded sanction to prefer writ appeal vide order dated 19.03.2021 and directed the legal liaison officer to make arrangements for preferring the writ appeal. 5. The respective files along with the order sanctioning to prefer writ appeal was forwarded to the previous Standing Counsel Sri.R.Sudheer Ganesh Kumar on 25.03.2021. Unfortunately on account of the covid pandemic situation, the Standing Counsel could not take immediate step to prepare and prefer writ appeal immediately. Later there was a change in the Standing Counsels of the board, as the tenure of appointment came to an end by November 2021. During December 2021 new counsels were appointed and the previous counsels returned the files entrusted to them. Accordingly the present Standing Counsel has been entrusted to file the writ appeal. Owing to the pandemic situation, the filing of cases before the various courts had been affected and therefore the newly appointed counsels were having with them considerable number of cases that are to be filed. Therefore, the present counsel, on account of the heavy work load of the office, could not immediately on receiving the file prepare and prefer the writ appeal. The writ appeal could be prepared and presented only today. CM.Appl.No.1 of 2023 in WA No.59 of 2023 & WA No.59 of 2023 4 6. The writ appeal ought to have been filed on or before 30.09.2018 to be within the period of limitation. The writ appeal could only be prepared and preferred today. There is a delay on 1555 days in preferring the writ appeal. The appellant is entitled to have the set off of 750 days, the period under which the operation of the limitation act stood suspended owing to the covid pandemic situation. The delay is quantified, setting off the said period and appeal is filed with a prayer for condoning the delay of 805 days. There is no willful latches or negligence on the part of the board in preferring the writ appeal within the period of limitation. The delay occurred in preferring the above writ appeal is not willful and is on account of the aforementioned facts and circumstances.” 2. A counter affidavit has been filed opposing the prayer in the application by the first respondent, clearly denying the statements made in the affidavit on behalf of the Board and stating that no reason, much less any sufficient cause, has been shown for condoning the delay. It is also pointed out that the delay calculated is totally wrong as there is a delay of 1594 days. Faced with the above, the learned counsel for the appellant sought permission to file a better affidavit. Accordingly, a fresh affidavit was filed on 10.03.2023. - “6. It is submitted that the judgment was pronounced on 29.8.2018. Due to an inadvertent omission on the part of the clerk of the Standing Counsel, application for getting the certified copy was not done immediately. The fact that judgment was delivered, came to the notice of the board only CM.Appl.No.1 of 2023 in WA No.59 of 2023 & WA No.59 of 2023 5 when the board enquired about the status of case on 30.03.2021 with the Standing Counsel and the Standing Counsel informed that the writ petition was jointly heard and a common order has been passed on 29.8.2018, dismissing both the writ petitions. The Standing Counsel was under the bonafide belief that timely application had been preferred and on receiving the same, the same has been forwarded to the board and the board had received the same. During the said period, the mother of the previous Standing Counsel Sri.R.Sudheer Ganesh Kumar was ailing and was under his care and she expired on 15.11.2019. On realizing that there occurred an omission to apply for the certified copy, immediately thereon, application was made, on 31.03.2021. The stamp papers were called on 03.04.2021 and the same was produced on the same day itself. Copy was ready on the same day and was notified for appearance to 19.5.2021. The copy of the judgment was received on 03.04.2021. The certified copy of the judgment was immediately forwarded to the Board. The board on receiving the judgment examined the matter in detail and decided to file writ appeal against the judgment and accorded sanction to prefer writ appeal vide order dated 19.03.2021 and directed the legal liaison officer to make arrangements for preferring the writ appeal. 7. The respective files along with the order sanctioning to prefer writ appeal was forwarded to the previous Standing Counsel Sri.R.Sudheer Ganesh Kumar on 25.03.2021. Unfortunately on account of the covid pandemic situation, the Standing Counsel could not take immediate step to prepare and prefer writ appeal immediately. Later there was a change in the Standing Counsels of the board, as the tenure of appointment came to an end by November 2021. During December 2021 new counsels were appointed and the previous counsels returned the files entrusted to them. Accordingly the CM.Appl.No.1 of 2023 in WA No.59 of 2023 & WA No.59 of 2023 6 present Standing Counsel has been entrusted to file the writ appeal. Owing to the pandemic situation, the filing of cases before the various courts had been affected and therefore the newly appointed counsels were having with them considerable number of cases that are to be filed. Therefore, the present counsel, on account of the heavy work load of the office, could not immediately on receiving the file prepare and prefer the writ appeal. The writ appeal could be prepared and presented only today. 8. The writ appeal ought to have been filed on or before 30.09.2018 to be within the period of limitation. The writ appeal could only be prepared and preferred today. There is a delay on 1555 days in preferring the writ appeal. The appellant is entitled to have the set off of 750 days, the period under which the operation of the limitation act stood suspended owing to the covid pandemic situation. The delay is quantified, setting off the said period and appeal is filed with a prayer for condoning the delay of 805 days. There is no willful latches or negligence on the part of the board in preferring the writ appeal within the period of limitation. The delay occurred in preferring the above writ appeal is not willful and is on account of the aforementioned facts and circumstances.” 3. Having considered the affidavits filed in support of the delay condonation petition and having heard the learned counsel on either side, we note that no plausible reason worth accepting has been offered in the affidavits filed and even the number of days calculated is clearly wrong, as the period of the pandemic cannot be excluded in the instant case, and the actual delay is 1555 days. It is 7 CM.Appl.No.1 of 2023 in WA No.59 of 2023 & WA No.59 of 2023 seen from the fresh affidavit filed that the Board came to know about the dismissal of the case only on 30.03.2021. If that be so, the reasons stated for the prior period have no relevance at all, as any reason for the delay can only start from the point when they obtained knowledge of the date of disposal of the writ petition. That itself shows the callous manner in which the affidavit was filed. Even in the fresh affidavit, we find different reasons are given to justify the huge delay. 4. In the following judgments of the Supreme Court and this Court the various aspects to be noticed while condoning delays in filing the appeals were dismissed. 5. The Supreme Court, in the judgment reported in **State of Nagaland v. Lipok AO and others** [(2005) 3 SCC 752], has held that the pre-condition for the exercise of the discretion of the court to condone delay is the existence of 'sufficient cause.' It is true that what counts is not the length of delay but the sufficiency of the cause, and the shortness of the delay is one of the circumstances to be taken into account while exercising discretion. The expression 'sufficient cause' is adequately elastic to enable the court to apply the law in a meaningful manner that substantiates the ends of CM.Appl.No.1 of 2023 in WA No.59 of 2023 & WA No.59 of 2023 8 justice. We are also cognizant of the factors peculiar to and characteristic of the functioning of the governmental conditions that require adopting a pragmatic approach in the justice-oriented process. The Supreme Court in **Office of the Chief Post Master General and Ors. v. Living Media India Ltd. and Ors.** [2012(3) SCC 563], after considering its earlier decisions, found that without a plausible and acceptable explanation, the delay cannot be condoned mechanically merely because the Government or a wing of the Government is a party before it. The claim on account of impersonal machinery and inherited bureaucratic methodology of making several notes cannot be accepted in view of the modern technologies being used and available. The law of limitation undoubtedly binds everybody, including the Government. Again the judgment of the Supreme Court in **Amalendu Kumar Bera and others v. State of West Bengal** [(2013) 4 SCC 52] has cautioned the courts from taking a liberal approach in the matter of condonation of delay when the action of the State in preferring appeal is marred by serious laches and negligence in the absence of 'sufficient cause.' When the Government takes its own time to reach the conclusion whether the judgments should be appealed or not, the delay cannot be condoned merely because the application is by the State or its instrumentalities. The Supreme Court again, in CM.Appl.No.1 of 2023 in WA No.59 of 2023 & WA No.59 of 2023 9 the judgment reported in **State of U.P. v. Amar Nath** [JT 2014 1 SC 494] after considering several of its earlier decisions, categorically held as follows:- “Though we are conscious of the fact that in a matter of condonation of delay when there was no gross negligence or deliberate inaction or lack of bona fides, a liberal concession has to be adopted to advance substantial justice, we are of the view that in the facts and circumstances, Department cannot take advantage of various earlier decisions. The claim on account of impersonal machinery and inherited bureaucratic methodology of making several notes cannot be accepted in view of the modern technologies being used and available. The law of limitation undoubtedly binds everybody, including the Government. In our view, it is the right time to inform all the government bodies, their agencies, and instrumentalities that unless they have a 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 the process. 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 the 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 CM.Appl.No.1 of 2023 in WA No.59 of 2023 & WA No.59 of 2023 10 offered by the Department for the delay except mentioning of various dates, according to us, the Department has miserably failed to give any acceptable and cogent reasons sufficient to condone such a huge delay. Accordingly, the appeals are liable to be dismissed on the ground of delay. “ ## 6. Again, in **State of Madhya Pradesh v. Bherulal** [ JT 2020 11 SC 496] Supreme Court came down heavily while considering an application to condone delay attributed due to 'bureaucratic process works'. In **State of Uttar Pradesh and Ors. v. Sabha Narain and Ors.** [MANU/SC/0394/2021], the Supreme Court dismissed the application with costs after considering the period of delay and the casual manner in which the application was worded. This Court, in the judgment reported in **State of Kerala v. M/s.Havea Combines** (2009 KHC 4008), also, after a detailed consideration, held that when the explanation offered with regard to the delay is neither reasonable nor acceptable, the delay cannot be condoned, merely citing administrative reasons or by using analogous expressions. It is also held that the administrative reasons for delay do not ipso facto constitute sufficient cause. 7. Recently a Division Bench of this Court in **Anandavalliyamma v. Kerala Housing Finance Ltd.** [2023 (2) CM.Appl.No.1 of 2023 in WA No.59 of 2023 & WA No.59 of 2023 11 KLT 556) had also followed the earlier judgment of the Supreme Court in **Esha Bhattacharjee v. Raghunathpur Nafar Academy** [2013(4) KLT Suppl.59] that found the distinction between inordinate delay and a delay of short duration or few days, for to the former doctrine or prejudice is attracted, whereas to the latter it may not be attracted. The first one warrants a strict approach. whereas the second calls for a liberal delineation. In the light of the above principles, and after careful consideration of the affidavits filed in support of the application seeking condonation of delay, we have no hesitation at all to hold that no reason, much less any sufficient cause, has been put forth in the application. C.M.Application is dismissed. Consequently, the writ appeal is also dismissed. ## **Sd/- A.K. JAYASANKARAN NAMBIAR, JUDGE** ## **Sd/- MOHAMMED NIAS C.P. JUDGE** dlk/22.2.2023 12 CM.Appl.No.1 of 2023 in WA No.59 of 2023 & WA No.59 of 2023 ## **APPENDIX OF WA 59/2023** ## **PETITIONER'S ANNEXURES** Annexure1 THE TRUE COPY OF THE NOTICE DATED 23/12/2006. Annexure2 THE TRUE COPY OF THE OBJECTION DATED 04/01/2007. Annexure3 THE TRUE COPY OF THE ORDER DATED 31/01/2007 ISSUED BY THE SPECIAL OFFICER (REVENUE). Annexure4 THE TRUE COPY OF THE REVISED BILL ISSUED ON 16/05/2007.