(1.) Both these appeals have been preferred under Section 39 of the Arbitration Act, 1940. A.O. No. 511/2011 has been filed with a delay of 631 days whereas A.O. No. 291/2011 has been filed with a delay of 690 days. Delay condonation applications have been filed under Section 5 of Indian Limitation Act, accompanied by affidavits seeking condonation of delay in filing the appeals. Since reasons for delay in both the applications are common both the delay condonation applications are being decided by this common order.
(2.) It is stated in the affidavits of delay condonation applications that against the judgment and order dated 31.07.2009, legal opinion was obtained from the District Govt. Counsel (Civil) on 24.08.2009. Thereafter, the matter was sent to the office of Chief Engineer, Yamuna Valley Projects, Dehradun for seeking further instructions who referred the matter to the Chief Engineer/Head of the Department, Irrigation, Dehradun for further action. The Chief Engineer/Head of the Department wrote to Addl. Secretary, Irrigation for seeking permission to file an appeal and the Secretary, Irrigation vide letter dated 05.02.2010 directed the Chief Engineer/Head of the Department to file an appeal before High Court, Uttarakhand. Thereafter, official of Superintending Engineer, Lakhwar Byasi Construction Circle contacted the office of Chief Standing Counsel for filing an appeal, where it was informed that appeal could be filed only after permission from the Law Department is granted. On the basis of advice of Chief Standing Counsel for the State, the Superintending Engineer requested the Chief Engineer, Yamuna Valley Projects to obtain required permission from the Law Department. It is further asserted that since the project was transferred to Uttarakhand Jal Vidyut Nigam Ltd., some delay was also caused communicating them. Thereafter, the State Govt. vide order dated 08.09.2010 directed the Chief Engineer/Head of the Department to file an appeal before the District Judge, Dehradun. The matter was again referred to D.G.C. (Civil), Dehradun, who on 15.09.2010 opined that appeal is to be filed before the High Court and not before the District Judge. The State Govt. insisted to prefer appeal before the District Judge. Since, the D.G.C. (Civil), Dehradun expressed his inability to file appeal before the District Judge, Dehradun, a letter was written by the Executive Engineer to the Superintending Engineer on 15.10.2010 seeking permission to file appeal before the High Court. Thereafter, the Chief Engineer/Head of Department, Irrigation vide letter dated 18.11.2010 directed the Chief Engineer, Yamuna Valley Projects to file appeal before the District Judge, Dehradun. Thereafter, the Chief Engineer/Head of Department was informed about the opinion of D.G.C. (Civil) regarding the forum, before whom an appeal was to be filed, who vide letter dated 04.12.2010 asked the Chief Engineer, Yamuna Valley Projects to obtain written opinion from D.G.C. (Civil), Dehradun. On 06.05.2011, the Superintending Engineer, Lakhwar Byasi Construction Circle requested to Executive Engineer to supply written opinion of the D.G.C. (Civil) and the D.G.C. (Civil) gave his opinion on 10.05.2011, which was sent to the Chief Engineer. On the basis of the opinion of D.G.C. (Civil) the Chief Engineer/Head of the Department vide letter dated 24.05.2011 requested the Addl. Secretary, Irrigation for seeking permission from the State Govt. to file appeal before this High Court. Thereafter, vide order dated 30.06.2011, the Law Department granted permission to file appeal before the High Court. Permission dated 30.06.2011 was received by the office of Head of the Department, Irrigation on 02.07.2011 and after receiving said permission the Pairokar of the Department contacted the office of Chief Standing Counsel at Nainital and the case file was allotted to State Law Officer on 04.07.2011 for preparing appeal, who also required some more information and documents. Thereafter, all the documents were collected and supplied to the State Law Officer, who prepared the appeal. Appeal was filed on 22.07.2011.
(3.) Shri T.A. Khan, Deputy Advocate General, for the applicant submitted that the delay in filing the appeals has been caused because of movement of papers through proper channel as also queries sought at different level, hence no willful delay has been caused and whatever delay has been caused is unintended and is not deliberate. Relying upon paragraph-10 of the judgment of Hon'ble the Apex Court, reported in , : 1996 AIR(SC) 1623 learned Dy. Advocate General for the applicant/State contended that the Court should decide the matters on its merits. He also relied on the judgment of Hon'ble the Apex Court, reported in (, : (2005) 3 SCC 752 : 2005 AIR(SC) 2191 , wherein the Hon'ble Court has held that
The State is an impersonal machinery working through its officers or servants. Hence, it cannot be put on the same footing as an individual. Public interest suffers if appeals by the State are lost because of such default. Court to decide the matters on merits unless the case is hopelessly without merit. State should constitute legal cells to examine whether cases involve legal principles for decision by Court or require adjustment at governmental level. Officer concerned should be made personally responsible for the delay in filing the appeal.
Learned Dy. Advocate General also relied paragraph Nos. 12 and 13 of the judgment of Hon'ble the Apex Court, STATE (NCT OF DELHI) vs AHMED JAAN, 2008 14 SCC 582.
12. In O.P. Kathpalia v. Lakhmir Singh, 1984 AIR(SC) 1744 a Bench of three Judges had held that if the refusal to condone the delay results in grave miscarriage of justice, it would be a ground to condone the delay. Delay was accordingly condoned. In Collector, Land Acquisition v. Katiji, 1987 AIR(SC) 1353 a Bench of two Judges considered the question of limitation in an appeal filed by the State and held that Section 5 was enacted in order to enable the Court to do substantial justice to the parties by disposing of matters on merits. The expression 'sufficient cause' is adequately elastic to enable the court to apply the law in a meaningful manner which subserves the ends of justice -- that being the life purpose for the existence of the institution of courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters instituted in this Court. But the message does not appear to have percolated down to all the other courts in the hierarchy. This Court reiterated that the expression 'every day's delay must be explained' does not mean that a pedantic approach should be made. 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 for 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 fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk. Judiciary is not respected on account of its power to legalise injustice on technical grounds but because it is capable of removing injustice and is expected to do so. Making a justice-oriented approach from this perspective, there was sufficient cause for condoning the delay in the institution of the appeal. The fact that it was the State which was seeking condonation and not a private party was altogether irrelevant. The doctrine of equality before law demands that all litigants, including the State as a litigant, are accorded the same treatment and the law is administered in an even-handed manner. There is no warrant for according a step motherly treatment when the State is the applicant. The delay was accordingly condoned.
13. Experience shows that on account of an impersonal machinery (no one is in charge of the matter is directly hit or hurt by the judgment sought to be subjected to appeal) and the inherited bureaucratic methodology imbued with the note-making, file-pushing, and passing-on-the-buck ethos, delay on its part is less difficult to understand though more difficult to approve. The State which represents collective cause of the community, does not deserve a litigant-non-grata status. The courts, therefore, have to be informed with the spirit and philosophy of the provision in the course of the interpretation of the expression of sufficient cause. Merit is preferred to scuttle a decision on merits in turning down the case on technicalities of delay in presenting the appeal. Delay was accordingly condoned, the order was set aside and the matter was remitted to the High Court for disposal on merits after affording opportunity of hearing to the parties. In Prabha v. Ram Prakash Kalra, 1987 Supp1 SCC 339 this Court had held that the Court should not adopt an injustice-oriented approach in rejecting the application for condonation of delay. The appeal was allowed, the delay was condoned and the matter was remitted for expeditious disposal in accordance with law.;