DECEMBER 23, 2020

By Vijay Kumar

IN a case before a High Court, I had vociferously argued against a condonation of delay application filed by the Revenue. The very next day, I was before the same bench pleading pathetically for allowing my condonation of delay application. The Bench observed, "yesterday, you were so loud and today you are so soft." I prayed for the same kind of relief given to Revenue and I won on the second day, having lost on the first day. Revenue got its condonation and so did I. But why did I oppose the condonation of delay for the government? This is the story.

I had won the case in the Tribunal, but the Assistant Commissioner who was to give refund, refused to give the refund and passed an order explaining why he need not obey the orders of the Tribunal. Against this speaking order, I filed a writ in the High Court, wherein, I argued that the order of the Tribunal had attained finality as the Revenue had not appealed against that order. Thereupon, the Revenue woke up and filed an appeal. I submitted that the appeal was filed beyond the period of limitation and so could not be admitted. Thereafter, they filed a condonation of delay, which I strongly objected, in the peculiar circumstances. The High Court Bench told me, "if we don't allow their application for condonation, they will go to the Supreme Court - and you will be doing a great disservice to your client; let's decide the matter on merits, instead of limitation." And so, the department's application for condonation was allowed. If you want to know what happened to the case finally, please see - 2017-TIOL-2165-HC-AP-CUS

The Government approaches the High Courts and Supreme Court with strange reasons and situations to condone the delay in filing appeals. After all, they are government and they have too many difficulties in filing appeals and every officer responsible for filing the appeal believes that the government has a special right in getting condonation of delay - as it is the right of the government to delay.

To condone, or not to condone

In the famous case of Collector, Land Acquisition Anantnag - 2002-TIOL-444-SC-LMT, the Supreme Court started its judgement with the words, "To condone, or not to condone, is not the only question. Whether or not to apply the same standard in applying the "sufficient cause" test to all the litigants regardless of their personality in the said context is another."

The Supreme Court observed that:-

A liberal approach is adopted on principle as it is realized that:

1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.

2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.

3. "Every day's delay must be explained" does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay? The doctrine must be applied in a rational common sense pragmatic manner.

4. 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.

5. 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.

6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.

Should the State get a differential treatment in condonation of delay? The Supreme Court in the above case observed,

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 praying for condonation of delay. In fact experience shows that on account of an impersonal machinery (no one 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. In any event, the State which represents the collective cause of the community, does not deserve a litigant-non-grata status. 

This judgement was delivered in 1987 and the government officers started believing that they have a sovereign right to delay and that no court can refuse to decide a case on merits for the simple reason that there was an innocent delay by the busy bureaucrat.

Twenty Five years later in a 2012 judgement known as The Chief Post Master General Vs Living Media India Ltd - 2012-TIOL-123-SC-LMT, the Supreme Court thought it was the right time to inform all the government bodies, their agencies and instrumentalities that

- unless they have 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 several months/years due to considerable degree of procedural red-tape in the process.

- The 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 government departments.

- The law shelters everyone under the same light and should not be swirled for the benefit of a few.

The Supreme Court also observed,

In the absence of plausible and acceptable explanation, we are posing a question why the delay is to be condoned mechanically merely because the Government or a wing of the Government is a party before us.

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the 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.

But bureaucrats cannot generally be accused of respect to judiciary.

The Supreme Court in a recent judgement - State of Madhya Pradesh - 2020-TIOL-160-SC-MISC, commented,

Eight years hence the judgment is still unheeded !

The Supreme Court observed, "We are thus, constrained to send a signal and we propose to do in all matters today, where there are such inordinate delays that the Government or State authorities coming before us must pay for wastage of judicial time which has its own value. Such costs can be recovered from the officers responsible."

Looking to the period of delay and the casual manner in which the application has been worded, the Supreme Court imposed costs on the petitioner- State of Rs.25,000/- to be recovered from the officers responsible for the delay in filing the special leave petition and a certificate of recovery of the said amount to be filed in the Court.

In a very recent order in Diary Number 19059/2020, on 18th December 2020, the Supreme Court observed,

the parties cannot keep on relying on judicial pronouncements for a period of time when technology had not advanced and a greater leeway was given to the Government, (Collector, Land Acquisition, Anantnag & Anr.) This situation no more prevail and this position had been elucidated by the judgment of this Court in Office of the Chief Post Master General.

The irony is that despite observations, no action was ever taken against officers who sit on the file and do nothing.

The Court again imposed cost, to be recovered from the officers responsible for the delay.

Certificate Cases

The Supreme Court has categorized such cases of condonation of delay as certificate cases. In the Post Master General case referred to above, the Court observed,

We are also of the view that the aforesaid approach is being adopted in what we have categorized earlier as "certificate cases". The object appears to be to obtain a certificate of dismissal from the Supreme Court to put a quietus to the issue and thus, say that nothing could be done because the highest Court has dismissed the appeal. It is to complete this formality and save the skin of officers who may be at default that such a process is followed. We have on earlier occasions also strongly deprecated such a practice and process. There seems to be no improvement. The purpose of coming to this Court is not to obtain such certificates and if the Government suffers losses, it is time when the concerned officer responsible for the same bears the consequences. The irony is that in none of the cases any action is taken against the officers, who sit on the files and do nothing. It is presumed that this Court will condone the delay and even in making submissions, straight away counsels appear to address on merits without referring even to the aspect of limitation as happened in this case till we pointed out to the counsel that he must first address us on the question of limitation.

Jest Rules

The Government has issued a Notification yesterday to amend the CGST Rules. These rules are called The Central Goods and Services Tax (Fourteenth Amendment) Rules, 2020, which means the rules were amended 14 times in 2020. These rules are quite funny, like they restrict use of input credit to 99% of the tax liability! Read and enjoy Notification No. 94/2020-Central Tax, dated 22nd December, 2020.

Law and equity are two things which God hath joined, but which Man has put asunder

Until next week