Office of the Chief Post Master General v Living Media India Ltd (2012)

For decades Government departments came to court late and were forgiven. A line of Supreme Court decisions — Collector, Land Acquisition, Anantnag v Mst. Katiji, G. Ramegowda, State of Haryana v Chandra Mani — accepted that Government decisions are institutional and slow, that "red tape" is a fact of life, and that some latitude is therefore due when the State asks for delay to be condoned.

This case draws the line. A Department that sat on a judgment for 427 days, and could explain the delay only by listing the dates on which files moved between offices, was refused. The Court did not overrule the earlier cases; it said there was "no quarrel about the propositions inferred therein", but that they turned on their own facts and could not be used as a standing licence. Its message to every Government litigant is the modern position on s. 5: the law of limitation binds the Government too, and delay will not be condoned mechanically because the applicant is the State.

Living Media India Ltd published Reader's Digest and India Today, both registered newspapers entitled to concessional postage under the Indian Post Office Act 1898 and the Rules of 1933. In 2005–06 the Postal Department refused concessional rates for two issues that carried advertising booklets (a Toyota booklet with a 2006 calendar, and an Amway booklet), on the ground that the booklets were not part of the publication.

The company's writ petitions were allowed by a single Judge of the Delhi High Court on 28 March 2007. The Department's Letters Patent Appeals were dismissed by a Division Bench on 11 September 2009. The Department filed special leave petitions in the Supreme Court on 10 February 2011 — a delay of 427 days.

Its original application for condonation did not contain acceptable reasons, so the Court allowed it to file a "better affidavit". That affidavit set out a chronology: the judgment was downloaded from the High Court website; the file was referred to the Postal Directorate; the Directorate asked for documents in stages; the matter went to the Additional Legal Advisor, then the Central Agency Section, then back through the Ministry of Law and Justice, then to the Additional Solicitor General for opinion, then for drafting, vetting, typing and paper books; and the SLP was held up for want of copies of the magazines. Counsel had applied for the certified copy of the High Court judgment only on 8 January 2010.

1. Had the Department shown sufficient cause for condoning the delay of 427 days in filing the SLPs?
2. Only if it had: was the advertisement in the December 2005 Reader's Digest in conformity with law, and was there a case for interfering under Article 136 with concurrent findings of the High Court?

For the Department (Additional Solicitor General): relying on Katiji, Ramegowda, Chandra Mani, State of U.P. v Harish Chandra, National Insurance Co v Giga Ram and State of Nagaland v Lipok Ao, a liberal approach must be adopted; there is no warrant for step-motherly treatment of the State; Government decisions are collective and slow, and if its appeals are lost for delay, public interest suffers.

For the company (Soli J. Sorabjee): relying on Commissioner of Wealth Tax v Amateur Riders Club and Pundlik Jalam Patil v Executive Engineer, the latitude given to Government has limits; a stereotyped affidavit listing dates is no explanation; "Delay defeats equity."

The appeals were dismissed on the ground of delay. The merits were not decided.

The earlier liberal cases distinguished, not overruled

Having reviewed the decisions relied on by the ASG, the Court said "we are of the view that there is no quarrel about the propositions inferred therein", but that in each of them the Court had condoned delay on "the peculiar facts and circumstances of each case". It noted, for instance, that in Katiji the delay was only four days and in Lipok Ao only 57 days.

No explanation for the delay

The Department knew the date of the judgment, yet its counsel applied for the certified copy only on 8 January 2010. The Court found "There is no explanation for not applying for certified copy of the impugned judgment on 11.09.2009 or at least within a reasonable time." As for the rest of the chronology, the dates "clearly show that there was delay at every stage and except mentioning the dates of receipt of the file and the decision taken, there is no explanation as to why such delay had occasioned." From day one the Department had not shown diligence in taking the matter to the Supreme Court.

No separate period of limitation for Government

The central passage:

"They cannot claim that they have a separate period of limitation when the Department was possessed with competent persons familiar with court proceedings. 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."

The Court accepted the general rule — "a liberal concession has to be adopted to advance substantial justice" where there is no gross negligence, deliberate inaction or lack of bona fides — but held that the Department could not take advantage of the earlier decisions on these facts. And it rejected the familiar excuse outright: "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."

A warning to all Government litigants

The Court said it was "the right time to inform all the government bodies, their agencies and instrumentalities" that, without a reasonable and acceptable explanation and a bona fide effort, there is no need to accept the usual explanation that the file was kept pending for months or years because of procedural red tape. It added:

"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 Department had "miserably failed to give any acceptable and cogent reasons sufficient to condone such a huge delay". In view of that conclusion, issues (b) and (c) were not decided, and the question of law was "left open to be decided in an appropriate case". No order as to costs.

Under s. 5 of the Limitation Act, the Government is not entitled to a separate or more generous period of limitation. A Department possessed of persons familiar with court proceedings must explain its delay with plausible and acceptable reasons showing a bona fide effort; a bare chronology of file movements is not an explanation, and "impersonal machinery" and bureaucratic note-making are no longer an acceptable excuse. Delay will not be condoned mechanically merely because the Government or a wing of it is the applicant; condonation is an exception, not an anticipated benefit.

• Direct question: What is "sufficient cause" under s. 5 of the Limitation Act? Is the Government entitled to special treatment? Set out the Katiji principles, then Ramegowda and Chandra Mani on Government latitude, then this case as the limit: no separate period of limitation, no mechanical condonation, and a chronology of dates is not an explanation.
• Problem question: a State department files an appeal a year late and its affidavit lists only the dates on which the file moved between sections. Apply this case: the delay at every stage must be explained; absent that, the application fails.
• Link: the Supreme Court later adopted this passage at length in State of Madhya Pradesh v Bherulal (2020) — use the two together to show the modern position.