The Lieutenant Governor And ORS v. Nimai Biswas And ORS
IN THE HIGH COURT AT CALCUTTA
[CIRCUIT BENCH AT PORT BLAIR] ...
MAT/36/2023 IA No.CAN/1/2023, CAN/2/2023 The Lieutenant Governor and others Vs.
Nimai Biswas and others Mr. Shatadru Chakraborty Mr. Dibesh Dwivedi ... for the appellants Mr. Gopala Binnu Kumar ... for the respondents January 30, 2024 [SR] Item No.6 Re: CAN/1/2023 ( Condonation of delay) CAN/1/2023 is an application for condonation of delay of 892 days on the part of the appellants in preferring the appeal from an order passed by a learned Single Judged on 19th March, 2021.
The grounds for condonation are stated in paragraphs 2 and 4 of the application. The grounds are that the advocate and the Standing Counsel of the Port Blair Municipal Council took time for obtaining legal opinion and the advocate also had to travel frequently between mainland and the Andaman and Nicobar Islands.
The other statements relate to the further time taken on behalf of the advocate and the law department of the Andaman and Nicobar Administration and last that certain papers were misplaced in the course of time. The applicants/appellants have also stated that the certified copies were applied for but could not be obtained.
Paragraph 4 not relates to the delay caused by reason of the complexity arising out of the matter and certain policy issues including economic consequences.
Learned counsel appearing for the applicants/appellants also submits that the delay should actually be around 365 days taking into account the pandemic from March 2021 onwards.
We find that the ground of Covid -19 has, however, not been taken either in paragraphs 2 or 4 of the application. Learned counsel appearing for the respondents takes strong objection to the plea of delay of the ground in support thereof. Counsel submits that there were several significant intervening factors including of a resolution taken by the appellant no.4/the Port Blair Municipal Council with regard to implementation of the order passed by the learned Single Judge. It is also submitted that the respondents (writ petitioners) were constrained to file a second writ petition on 18th September, 2023 by reason of the appellant no.4 not following up with the resolution for compliance. Counsel submits that the appellants sought for time when the second writ petition came up for hearing and only thereafter file the present appeal on 26th September, 2023 along with the connected applications including the application for condonation of delay.
We find from the narration of the relevant facts that the respondents/writ petitioners communicated the order in appeal dated 19th March, 2021 to the appellants on 3rd May, 2021. The appellants, however, failed to take any steps for challenging the order till 26th September, 2023 which is almost two years six months later. Apart from the failure to challenge the order, the appellant no.4 also took a resolution on 18th October, 2022 for implementation of the directions contained in the order under appeal. The appellants, however, continued to drag their feet even thereafter which forced the respondents/writ petitioners to file a second writ petition on 18th September, 2023. The present appeal was filed on 26th September, 2023 and appears to be more of an afterthought without any indication of the appellants' keenness to challenge the impugned order or stop the consequences flowing from the impugned order.
Our view is strengthened by the grounds offered for condonation of delay. There is absolutely no mention in the grounds of pandemic or that the appellants are entitled to get any benefit therefrom. The only grounds given are the usual factors caused by the representing counsel and the legal
department of the authority in question. Travelling from the island to the mainland or non-availability of the certified copy of the order are not grounds for condonation of delay. In any event, it appears that the certified copy was made available on 16th April, 2021. Hence, paragraph 2 contains a specific mis-statement.
We also note with concern that the appellants have suppressed filing of the second writ petition and also the resolution taken by the appellant no.4 on 18th October, 2022 whereby the said appellant decided to comply with the order under appeal. The suppression of these two grounds constitutes sufficient material for exercise of our discretion against the appellants/applicants.
The subsequent modification of the period of delay from 892 dates to 365 days is of no consequence as that is not part of the pleadings or the grounds taken by the applicants. Moreover, vital rights may have been created by reason of the delay in filing of an appeal. We cannot ignore the same. The above reasons persuade us to reject the prayer for condonation of delay.
CAN/1/2023 is rejected.
MAT/36/2023 and all connected applications are accordingly dismissed for the above reasons.
( Moushumi Bhattacharya, J. ) ( Hiranmay Bhattacharyya, J. )