YADAV, J. - (1.) ACCORDING to the office report the instant Misc. Appeal was presented u/s. 54 of the Land Acquisition Act which was found to be 184 days beyond limitation. The appellant State Government moved an application u/s. 5 of the Indian Limitation Act supported with an affidavit for condonation of delay. Upon the aforesaid application notice was issued to the sole respondent. After service of notice the respondent has filed an objection supported with an affidavit opposing condonation of delay.
(2.) I have heard Shri M. R. Singhvi learned counsel appearing on behalf of the State and Shri S. N. Sharma learned counsel appearing on behalf of the respondent. I have critically examined the application moved u/s. 5 of the Indian Limitation Act moved by the State Government for condonation of delay and objection filed by the respondent opposing condonation of inordinance delay of 184 days. Since the decision of the State Government to file the instant time barred appeal is an institutional decision and does not share the characteristic of a private individual, therefore, in abundant caution I have also have a glance on the impugned award dated 23. 3. 94 given by the Civil Court in exercise of its power u/s. 18 of the Land Acquisition Act to satisfy my judicial conscience so that substantial justice between the parties may not be allowed by this judgment either to escape or to elide on mere technicalities. The reasons which are alleged to have prevented the State Government to file the instance misc. appeal within limitation are disclosed in para 1 of the application moved u/s. 5 of the Indian Limitation Act which are reproduced below for ready reference : - "that the present appeal is being filed on 2. 1. 95 and the delay has occasioned for the following reasons : - That the reference was decided on 23. 3. 94 and the certified copy was applied for by the Government Advocate on 4. 4. 94 and the same was made available on 5. 4. 94. The Government Advocate did not opine in the matter expeditiously and finally submitted his opinion to the S. D. O. (Land Acquisition Officer) on 13. 6. 94 and thereafter the same was received in the office of Collectorate vide letter dated 17. 6. 94 on 22. 6. 94. Thereafter the matter was examined there and the matter was referred to the State Government vide letter dated 27. 7. 94 and thereafter the matter was examined at various levels in the Government and finally the Government conveyed vide its letter dated 10. 11. 94 that immediate steps be taken so as to challenge the judgment and decree and thereafter the record of the case was collected and relevant material was further collected from the office of the Land Acquisition Officer and thereafter contact was made with the legal Lawyer and the appeal was got prepared in the last week of December, 1994 and since there were holidays in Hon'ble Court the present appeal is being filed on the opening of the Courts i. e. on 2. 1. 1995. " It is conspicuously missing in the application u/s. 5 of the Indian Limitation Act as to when the letter alongwith relevant materials sent by the Collector on 27. 7. 94 seeking approval of the Government to file an appeal u/s. 54 of the Land Acquisition Act reached to the State government. A close scrutiny of the application u/s. 5 of the Indian Limitation Act further reveals that in para 1 of the said application only sequence of dates have been mentioned but period after receiving opinion of Government Advocate in the office of Collector on 22. 6. 94 and the time consumed in referring the matter to the State Government on 27. 7. 94 has, not been explained at all. This period which remains unexplained comes to 35 days. Similarly the period taken by the State Government in taking decision to file an appeal on 10. 11. 94 has also not been explained. This unexplained period comes to 106 days from the date of the letter written by the Collector on 27. 7. 94 seeking an approval to file an appeal from the State Government.
(3.) ACCORDING to the averments made in para 1 of the application u/s. 5 of the Indian Limitation Act the State Government has taken decision to file an appeal on 10. 11. 94 but the present appeal was presented on 2. 1. 1995 i. e. on the first reopening day of this Court after winter vacation. This period comes to 52 days for which it is alleged that the record of the case was collected and relevant materials were further collected from the office of Land Acquisition Officer and thereafter contact was made with a penal lawyer and the appeal was got prepared in the last week of December, 1994. Again date is not mentioned as to on which date the appeal was prepared by the learned penal lawyer. Assuming for the sake of argument that the appeal was prepared on 24. 12. 94 during winter vacation and it was present on 2. 1. 1995 i. e. on the first opening day of this Court after winter vacation even they only 8 days would be excluded as office of the court was functioning on 23. 12. 94. Thus even if 8 days of winter vacation are excluded then the State is required to explain 44 days. It is a matter of common knowledge that a letter seeking approval for filing an appeal by the Collector is always accompanied with the certified copy of the order impugned together with the legal opinion on the subject matter alongwith other relevant materials having bearing on the merit of the case so that the State Government may accord its approval or its disapproval dispassionately, therefore, this Court can take judicial notice of the aforesaid facts. The only compelling reason disclosed in the application u/s. 5 of the Indian Limitation Act which is alleged to have prevented the State Government to file the present appeal within limitation is about conduct of the Government Advocate who is alleged to have not opined in the matter expeditiously and his failure to submit his opinion with promptitude has prevented the State Government to file the present appeal within limitation. ;