STATE OF J&K Vs. GH NABI BHAT

JUDGEMENT

(1.) THIS is an application filed on behalf of State of Jammu & Kashmir through Chief Secretary and Commissioner Secretary, General Department, Jammu & Kashmir Government, who are respondents No. 1 and 2 in SWP No. 1707/2000 decided on 11.7.2000 for seeking condonation of delay of 16 days caused in filing Letters Patent Appeal against the said judgement. The cause due to which delay has occurred in filing the appeal has been shown in para 3 of the application as follows: - "Thereafter the judgement impugned in the above referred appeal was decided by the Honble Court, a copy of the judgment was applied for and the same was provided after one week by the registry to the standing counsel of the applicant. The same was forwarded to the appellant by the said counsel and the matter was considered at various levels. On 6.8.2002 it was decided to refer the matter to the standing counsel to get a draft of appeal prepared so that a final decision could be taken regarding filing of the appeal. The relevant record was sent to the counsel who drafted the appeal and returned the records with draft appeal on 31.8.2002. The matter was again considered and a final decision to file the appeal was taken on 13.9.2002. The draft appeal was sent to the counsel after approval. He required some documents which were to be annexed with the appeal the same were made available to him and the counsel there after prepared the paper book and filed the same."

(2.) WE have heard Ld. Counsel for the parties and perused the record. Ld. Counsel for the respondents Mr, M.A. Qayoom has strenuously argued that appeal can only be filed by the person who is aggrieved of the judgement and only such person can either himself sign the memo of appea /and the application or he can authorise any other competent person to do so on his behalf. According to him, in the writ petition, the judgment which is sought to be appealed against, state through Chief Secretary and Commissioner Secretary General Department were respondents and therefore they alone can be said to be aggrieved persons. So according to him, the application as well as the power of attorney filed with the application appointing the counsel for prosecution of the application could only be signed by them. According to him in the present case, the application and the power of attorney appointing the counsel for prosecution of application has been signed by Under Secretary to Government General Department who is not legally competent to do so. In support he relies upon case reported in 1998 SLJ page 46 and 1998 SLJ page 50.

(3.) MR . Hussain Ld. Counsel appearing for the applicants submitted that for considering the sufficiency of the cause shown for seeking condonation of delay, liberal approach should be adopted and a meritorious case should not be declined to be heard simply because there is some delay as reported in 2000 SLJ page 335. He further contended that Under Secretary is a competent person under law duly authorised on behalf of the state to make an appeal and sign the same on behalf of the State as well as to make and sign the application for condonation of delay. According to Ld. Counsel the State has empowered the Under Secretary in this behalf by issuance of SRO 413 dated 18th of August 1973, He relies in support on the case reported in 1974 KLJ page 745.