State of Kerala and Others v. Betty Terence, Thrikkadavur Grama Panchayat, and Secretary, Thrikkadavur Grama Panchayat

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR** ## **&** **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY FRIDAY, THE 11TH DAY OF SEPTEMBER 2020 / 20TH BHADRA, 1942** **WA.No.1123 OF 2020** **AGAINST THE JUDGMENT IN WP(C) 6157/2015(T) OF HIGH COURT OF KERALA** ## **APPELLANTS/RESPONDENTS 1-3 IN W.P.(C):** |**1**|**STATE OF KERALA**|| |---|---|---| ||**REPRESENTED BY THE SECRETARY TO GOVERNMENT,**|| ||**LOCAL SELF GOVERNMENT DEPARTMENT,**|| ||**GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM.**|| |**2**|**THE CHIEF TOWN PLANNER**|| ||**THIRUVANANTHAPURAM - 695 001.**|| |**3**|**THE DISTRICT TOWN PLANNER**|| ||**KOLLAM - 691 601.**|| ||**SRI.TEK CHAND, SR. GOVT.PLEADER FOR APPELLANT,**|| |**ENTS**|**/PETITIONER & RESPONDENTS 4 & 5 IN W.P.(C)**<br>**:**|| |**1**|**BETTY TERENCE**|| ||**TERENCE NIVAS, KAVANAD P. O., MUKKAD,**|| ||**KOLLAM - 691 003.**|| |**2**|**THRIKKADAVUR GRAMA PANCHAYAT**|| ||**REPRESENTED BY ITS SECRETARY, PERINAD**|**P. O.,**| ||**PIN - 691 601, KOLLAM DISTRICT.**|| |**3**|**THE SECRETARY**|| ||**THRIKKADAVUR GRAMA PANCHAYAT, PERINAD**|**P. O.,**| ||**PIN - 691 601, KOLLAM DISTRICT.**|| ## **RESPONDENTS/PETITIONER & RESPONDENTS 4 & 5 IN W.P.(C):** **SRI.M.V.BOSE FOR R1, SRI.M.T.SURESHKUMAR, STANDING COUNSEL FOR R2 AND R3** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 11.09.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WA.No.1123 OF 2020 2 ## **JUDGMENT** ## **S.MANIKUMAR,CJ** By the impugned judgment in W.P.(C) No.6157 of 2015 dated 4.11.2015, writ court has directed the Chief Town Planner, Thiruvananthapuram, 2[nd] respondent therein, to accord consent to the new Kesan Seva Kendra at Kavanad immediately granting permission for construction of marine fuel pump of Indian Oil Corporation Ltd. in the property comprised in Sy.No.4/8-2, 4/8-3, 20/4, 20/4, 20/4-2 and 20/4-3 in Thrikkadavur Village. 2. Instant writ appeal is filed with a delay of 1705 days and C.M.Application No.1 of 2020 is filed for condonation of delay. Reasons assigned for condonation are that ; “4. Though a letter was sent to the District Town Planner, Kollam requested to furnish instructions regarding the status by letter dated 05.08.2016 of the Office of the Advocate General, no reply was received. Chief Town Planner vide letter dated 28.01.2017 requested to file appeal against the judgment. Thereafter, the District Town Planner, Kollam was again requested to furnish the status by letter dated 24.10.2018 of the Office of the Advocate General. Meanwhile, a copy of the letter dated 05.08.2016 was sent to the Chief Town Planner too on 16.11.2018. Thereafter, by letter dated 19.11.2018 with No. C/1544/18/K.Dis (2) Town Planner, Kollam after conducting a site inspection informed that License had been issued to the Diesel Pump of the petitioner on 14.09.2017 and a Marine Pump was functioning there in the WA.No.1123 OF 2020 3 name and style of “John Fuels”. It was also reported that one more building also completed and was in use in the same plot, which was not included in the layout submitted by the petitioner for obtaining layout approval by the Chief Town Planner. Under the circumstance, there was a legal opinion to the effect that no purpose would be served by filing an appeal against the Judgment and that legal opinion was communicated to the Government by letter no. L1/W.P (C) 6157/2015 dated 10.12.2018 of the Office of the Advocate General. Thereafter, by letter dated 14.02.2019, the Chief Town Planner requested to Advocate General to file an appeal in the matter especially when the judgme would have far-reaching consequences as there is every chance for availing t benefit of the Judgment by others as well. 5.It is submitted that there is an appeal pending as W.A. 86/2015 before this Hon'ble Court in a similar matter and the files in respect of that matter also had to be examined for filing a writ appeal in the matter. That process also took some substantial time. In the meanwhile, letter dated 20.09.2019 of the Chief Town Planner also was received in the office of the Advocate General. Further delay has been caused due to the Administrative exigencies in the office of the Advocate General. A total delay of 1795 days has been caused in filing the Writ Appeal which is not intentional or willful. If the delay is not condoned, appellants will be put into irreparable injury and hardship. It is necessary in the interest of justice that this Hon'ble Court may be pleased to condone the delay of 1705 days in filing the Writ Appeal. A separate application for condoning the delay is filed herewith which may kindly be allowed.” 3. Perusal of the above shows that pursuant to the judgment in W.P.(C) No.6157/2015 dated 4.11.2015, appellants have sought for opinion from the learned Advocate General, Government of Kerala. However, after conducting a site inspection, license has been issued to the marine pump of the respondent on 15.9.2017 and that the marine pump has been functioning at the subject WA.No.1123 OF 2020 4 site in the name and style “John Fuels”, which fact has been communicated to the Town Planner, Kollam vide letter dated 19.11.2018 bearing No.C/1544/18/K.Dis(2)Town Planner, Kollam. Thereafter, legal opinion is stated to have been communicated to the Government vide letter No.L1/WP(C)6157/2015 dated 10.12.2018. Thereafter, vide letter dated 14.12.2019, the Chief Town Planner has requested the learned Advocate General to file an appeal. Thus the instant appeal has been filed with a delay of 1705 days. 4. One of the reasons assigned in C.M.Application No.1 of 2020 in the instant Appeal No.1123/2020 for condonation is that, the decision made in W.P.(C) No.969/2014 dated 16[th] July, 2014, relied on by the writ court, to grant the relief in W.P.(C) No.6157/2015, is under challenge in W.A.No.86/2015 and hence, for the reasons stated supra, the delay has to be condoned. 5. Perusal of the above shows that while the appellants were trying to get the appropriate advice for filing writ appeal against the judgment in W.P.(C) No.6157/2015 dated 4.11.2015, after inspection of the site, licence had already been issued on 14.9.2017 and that as on today, a marine pump is functioning in the name and style of “John Fuels”. Thereafter, a legal opinion has been communicated to the Government, vide letter dated 10.12.2018 bearing No.L1/WP(C)6157/2015. The marine pump has been functioning, and nearly 5 years have elapsed since the date of pronouncement of the WA.No.1123 OF 2020 5 ## judgment in W.A.No.86/2015. 6. Instant writ appeal has been filed only on 14[th] August,2020 with a delay of 1705 days. In the matter of condonation of delay and condonation of re-presentation of delay, the Hon'ble Apex Court held thus: ## In **Esha Bhattacharjee v. Raghunathpur Nafar Academy** , reported in [ **(2013) 12 SCC 649]** , has been rendered with reference to an application filed for condoning the delay. Principles culled out by the Hon'ble Apex Court are extracted hereunder:- ## 21. From the aforesaid authorities the principles that can broadly be culled out are: i) There should be a liberal, pragmatic, justice-oriented, non- pedantic approach while dealing with an application for condonation of delay, for the courts are not supposed to legalise injustice but are obliged to remove injustice. ii) The terms “sufficient cause” should be understood in their proper spirit, philosophy and purpose regard being had to the fact that these terms are basically elastic and are to be applied in proper perspective to the obtaining fact- situation. iii) Substantial justice being paramount and pivotal the technical considerations should not be given undue and uncalled for emphasis. iv) No presumption can be attached to deliberate causation of delay but, gross negligence on the part of the counsel or litigant is to be taken note of. v) Lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact. vi) It is to be kept in mind that adherence to strict proof should not WA.No.1123 OF 2020 6 affect public justice and cause public mischief because the courts are required to be vigilant so that in the ultimate eventuate there is no real failure of justice. vii) The concept of liberal approach has to encapsule the conception of reasonableness and it cannot be allowed a totally unfettered free play. viii) There is a distinction between inordinate delay and a delay of short duration or few days, for to the former doctrine of prejudice is attracted whereas to the latter it may not be attracted. That apart, the first one warrants strict approach whereas the second calls for a liberal delineation. ix) The conduct, behaviour and attitude of a party relating to its inaction or negligence are relevant factors to be taken into consideration. It is so as the fundamental principle is that the courts are required to weigh the scale of balance of justice in respect of both parties and the said principle cannot be given a total go by in the name of liberal approach. x) If the explanation offered is concocted or the grounds urged in the application are fanciful, the courts should be vigilant not to expose the other side unnecessarily to face such a litigation. xi) It is to be borne in mind that no one gets away with fraud, misrepresentation or interpolation by taking recourse to the technicalities of law of limitation. xii) The entire gamut of facts are to be carefully scrutinized and the approach should be based on the paradigm of judicial discretion which is founded on objective reasoning and not on individual perception. xiii) The State or a public body or an entity representing a collective cause should be given some acceptable latitude. 22. To the aforesaid principles we may add some more guidelines taking note of the present day scenario. They are: - a) An application for condonation of delay should be drafted with careful concern and not in a half hazard manner harbouring the notion that the courts are required to condone delay on the bedrock WA.No.1123 OF 2020 7 of the principle that adjudication of a lis on merits is seminal to justice dispensation system. b) An application for condonation of delay should not be dealt with in a routine manner on the base of individual philosophy which is basically subjective. c) Though no precise formula can be laid down regard being had to the concept of judicial discretion, yet a conscious effort for achieving consistency and collegiality of the adjudicatory system should be made as that is the ultimate institutional motto. d) The increasing tendency to perceive delay as a nonserious matter and, hence, lackadaisical propensity can be exhibited in a nonchallant manner requires to be curbed, of course, within legal parameters. 23. Presently to the assertions made in the application for condonation of delay and the asseverations in oppugnation of the same. It may be stated here that the Division Bench while dealing with the application for condonation of delay has also adverted to the legal tenability of the interim order in a matter of appointment and approval of a teacher, and condoned the delay. It does not require Solomon’s wisdom to perceive that the delay was colossal. In the application for condonation of delay the appellant before the High Court had stated about the circumstances in which the order came to be passed by the learned single Judge, the order in the earlier contempt petition and the second petition for contempt, the extinction of right of the respondent employee to continue in the post and thereafter proceeded to state the grounds for condonation of delay. We think it apposite to reproduce the grounds: - “14. That from the record it appears that the order impugned was communicated to the then managing committee including the head master in question and the said fact is totally unknown to the newly elected managing committee as they have been elected on 20.9.2009 and they have been handed over charge on 21.11.09 and to the WA.No.1123 OF 2020 8 teacher in charge who has been handed over charge on 1.3.10. It is pertinent to mention in this context that after having received the notice and the contempt application the applicants entrusted the Ld. Advocate for taking appropriate steps and they have been advised to defend the case but due to miscommunication the applicant herein again handed over the brief from Mr. Banik, Ld. Advocate to Mr. Baidya, Ld. Advocate. After having received the said papers and after perusing all the records he opined to prefer an appeal before the appeal court or to prefer an application for vacating the interim order and ultimately the same was filed on 07.06.2010 after several pursuance in spite of taking the application for vacating the interim order the court below day to day is proceeding with the contempt application. 15. Having got no other alternative applicant have been advised to prefer an appeal without certified copy and the leave has been prayed for and the same was allowed. The photocopy of the receipt for application of Xerox certified copy is annexed herewith and marked with letter “A”. ## In **H.Dohil Constructions Co.(P). LTD. v. Nahar Exports LTD.** reported in [ **(2015) 1 SCC 680]** , considered as to how the application filed to condone the representation has to be considered, at paragraphs 19 to 21 and 24 and same are reproduced hereunder: “19. Having considered the respective submissions, on this question, we find that the submissions made on behalf of the appellant(s) are forceful. It is true that the delay in filing the appeals was only of 9 days and that the longer delay was only relating to the refiling of the appeal papers. But even if it is related to refiling of the appeals, the net result is that the appeals could be taken into records only when such a delay in refiling is condoned. Therefore, if the refiling had been made within the time granted by the Registry of the High Court, no fault can be WA.No.1123 OF 2020 9 found with anyone much less with the party concerned or whomsoever was entrusted with the filing of the papers into Registry. But when an enormous delay of nearly five years occurred in matter of refiling, it definitely calls for a closer scrutiny as to what was the cause which prevented the party concerned from refiling the papers in time to enable the Registry to process the papers and ascertain whether the papers were in order for the purpose of numbering the appeals. 20. In the case on hand, the delay in refiling was on 1727 days. As rightly pointed out by the learned Senior Counsel for the appellant(s), the respondents paid the scrutiny charges on 11.04.2008 as disclosed in Receipt No.73 issued by the High Court of that date. When the appeal papers were filed on 06-09-2007 and the scrutiny charges were paid on 11-4-2008, it was quite apparent that the processing of papers of the appeals for its registration did commence in the month of April 2008. Thereafter, if rectification of whatever defects were not carried out by the respondents or its counsel between April 2008 and May 2012, it is the bounden duty of the respondents to have satisfactorily explained such a long delay in refiling. When we refer to the applications filed on behalf of the appellant(s), we find that there was no convincing explanation as to how the respondents were disabled from rectifying the defects pointed out by the Registry and refiling the appeal papers within time. The respondents only attempted to throw the blame on the previous counsel to whom appeal papers were entrusted for filing in September 2007. As pointed out by the learned Senior Counsel for the appellant(s), there were no details as to whom it was entrusted and what were the steps taken to ensure that the appeals filed were duly registered for pursuing further remedy as against the said judgment of the trial Court. As a a matter of fact the appeal papers were filed without payment of any court fee. This only affirms the stand of the appellant(s) that there was no bona fide in the respondents' claim and that they were seriously interested in challenging the judgment of the trial Court as against the non-grant of WA.No.1123 OF 2020 10 relief of specific performance. We also fail to see as to how Respondent 1 which is a limited company involved in the business of exports, which would certainly have its own legal department, can plead that after entrusting the papers to some counsel whose name was not disclosed even before this Court did not even bother to take any followup action to ensure that its appeals were duly registered in the High Court. In this context the maxim vigilantibus non dorminetibus jura subveniunt (law assists those who are vigilant and not those who sleep over their rights) aptly applies to the case on hand. The respondents simply by throwing the blame on the previous counsel whose identity was not disclosed claimed that irrespective of the enormous delay of 1727 days in refiling the same should be condoned as a matter of course as there was only 9 days'delay involved in filing the appeals. 21. We express our total disinclination to countenance such a stand made on behalf of the respondents. In this respect, the claim of the appellant(s) that serious prejudice would be caused to the appellant(s) merits acceptance. In the rejoinder filed by the appellant(s) to the respondents' counter, the appellant(s) has explained as to how they had to spend a huge amount to upkeep the property by approaching the authorities of Delhi Municipal Corporation, the enormous amount spent to the tune of Rs.28,00,000 by way of house tax from the year 2004 up to this date and various other improvements made in the property during the period wherein the delay in the matter of filing of the appeals and refiling was made by the respondents. Therefore, the principle that the law of limitation is based on a sound public policy and therefore in the absence of bona fide reasons the applications for condonation of delay should be strictly construed assumes significance. 24. When we apply those principles of Bhattacharjee case to the case on hand, it has to be stated that the failure of the respondents in not showing due diligence in filing of the appeals and the enormous time taken in the refiling can only be construed, in the absence of any WA.No.1123 OF 2020 11 valid explanation, as gross negligence and lacks in bona fides as displayed on the part of the respondents. Further, when the respondents have not come forward with proper details as regards the date when the papers were returned for refiling, the non furnishing of satisfactory reasons for not refiling of papers in time and the failure to pay the Court fee at the time of the filing of appeal papers on 06-092007, the reasons which prevented the respondents from not paying the Court fee along with the appeal papers and the failure to furnish the details as to who was their counsel who was previously entrusted with the filing of the appeals cumulatively considered, disclose that there was total lack of bonafides in its approach. It also requires to be stated that in the case on hand, not refiling the appeal papers within the time prescribed and by allowing the delay to the extent of nearly 1727 days, definitely calls for a stringent scrutiny and cannot be accepted as having been explained without proper reasons. As has been laid down by this Court, Courts are required to weigh the scale of balance of justice in respect of both the parties and the same principle cannot be given a go-by under the guise of liberal approach even if it pertains to refiling. The filing of an application for condoning the delay of 1727 days in the matter of refiling without disclosing reasons, much less satisfactory reasons only results in the respondents not deserving any indulgence by the Court in the matter of condonation of delay. The respondents had filed the suit for specific performance and when the trial Court found that the claim for specific performance based on the agreement was correct but exercised its discretion not to grant the relief for specific performance but grant only a payment of damages and the respondents were really keen to get the decree for specific performance by filing the appeals, they should have shown utmost diligence and come forward with justifiable reasons when an enormous delay of five years was involved in getting its appeals registered. " ## 7. Though reference has been placed on the pendency of the writ appeal WA.No.1123 OF 2020 12 No.86/2015, having regard to the decisions of the Hon'ble Apex Court, subsequent events, stated supra, we are of the view that, the delay has not been properly explained; the appellants have not made a strong case for condonation. Accordingly C.M.Application No.1 of 2020 in Writ Appeal No.1123 of 2020 filed for condonation of delay of 1705 days is dismissed. Resultantly, the writ appeal is also dismissed. It is made clear that dismissal of C.M.Application No.1 of 2020 would not be a bar for adjudicating the correctness of the judgment impugned in writ appeal No.86/2015. **Sd/-** **S.MANIKUMAR CHIEF JUSTICE** **Sd/-** **SHAJI P.CHALY JUDGE** smv