STATE OF U.P. Vs. SHYAMA MISHRA

JUDGEMENT

(1.) Heard learned standing counsel for the appellant on the question of condonation of delay and perused the record.

(2.) This FAFO is reported to be beyond time by 52 days. The appellant has moved an application supported with affidavit under section 5 of the Limitation Act, for condonation of delay. The explanation for delay as averred in the affidavit, is that information regarding impugned judgment and award dated 28.8.2012 was given by the D.G.C.(civil), Bulandshahr on 21.9.2012 to Assistant Commissioner, (Sachaldal), Bulandshahr, who on 25.9.2012 wrote a letter to the Commissioner, Commercial Tax, Lucknow for granting permission to file the appeal and for allotment of Rs. 25,000/- towards statutory deposit. Thereafter, reminders are also said to have been given in this regard on 31.10.2012 and 5.11.2012. It is stated that permission to file case was given by the State Government by letter dated 11.12.2012; that it was found by the standing counsel that permission granted by the Government was for filing a writ petition and not First Appeal From Order, so the standing counsel on 3.1.2013 had written a letter for correction in the permission granted by the State Government; that thereafter vide letter dated 16.1.2013 issued by Commissioner, Commercial Tax, U.P., Lucknow, permission was given to file First Appeal which is not maintainable against the impugned award, therefore, again a letter dated 18.1.2013 was sent by the standing counsel for correction of the permission and ultimately the permission for filing FAFO was granted by the State Government by letter dated 29.1.2013. Copies of the aforesaid correspondence have also been appended with the delay condonation application

(3.) It is submitted by the standing counsel appearing for the appellant that delay caused is neither intentional nor deliberate, but has occasioned due to the facts and circumstances stated above which is procedural involving government machinery. Relying upon the decisions rendered by the Apex Court in Special Tehsildar, Land Acquisition, Kerala Vs. K.V. Ayisumma, 1996 10 SCC 634, National Insurance Company Ltd. Vs. Giga Ram and others, 2002 10 SCC 176, State of Rajasthan Vs. Chanda alias Chandkori and others, 2007 11 SCC 402, State of Haryana Vs. Chandra Mani and others, 1996 3 SCC 132, State (NCT of Delhi) Vs. Ahmed Jaan, 2008 14 SCC 582 and State of Nagaland Vs. Lipokao and others, 2005 3 SCC 752, learned counsel for the appellant has urged that for the reasons stated in the delay condonation application, sufficient grounds have been made out for condoning the delay and the Court is empowered to condone the delay in the facts and circumstances of the present case.