M.Cr.C. No.3327/2016
28.02.2017
      Mrs. Preeti Waghmare, learned counsel for the applicant.
      Shri A.S. Parihar, learned counsel for the respondent No.2.

Shri Rausif Warsi, learned counsel for the respondent No.3. Shri N.L. Tiwari, learned counsel for the respondent No.4. Heard on I.A. No.3068/2016, which is an application u/S.5 of Limitation Act for condonation of delay.

This leave to appeal has been filed against the judgment of acquittal dated 18.11.2015 passed by JMFC, Badnawar, District- Dhar, in S.T. No.443/2007, whereby learned Magistrate acquitted the respondents from the charge u/S.44/47 of Water (Prevention and Control of Pollution) Act, 1974.

Learned counsel for the applicant submitted that M.P. Pollution control Boar is a body constituted for prevention and controal of pollution all over M.P.. They have to follow mandatory correspondence. There is a delay in filing this petition before this Court was due to departmental correspondence and was bonafide so delay is of 41 days be condoned.

Learned counsel for the respondent in his reply opposed the prayer and submitted that the applicant has not assigned any reason for day to day delay and delay is of 65 days and there was no mentioned as to why the regional office could not make any decision on time since the application is silent about the provisions under which it has been filed and prayed for rejection.

In this regard, learned counsel for the respondents placed reliance of Division Bench's judgment of this Court in the case of State of M.P. and another vs. M/s. Amar Construction Co. Sriji passed in Arbitration Revision No.03/2016, whereby this Court rejected the application filed u/S.5 of the Limitation Act, observing that respondents have not explain day to day delay but fact of this case is distinguishable, wherein delay was of 637 days while in the present case delay is only 41 days.

On the other hands, the apex Court in the case of Indian Oil Corporation Limited and others vs. Subrata Borah Chowlek and others reported in (2010) 14 SCC 419 held that satisfaction as to sufficient cause of delay- application and approach

- State vis-avis citizen, extent of parity- although exercise of power under S.5 depends upon judicial satisfaction and although no distinction is made between State and citizens, Courts, held, should be liberal while condoning delay in case of State which depends upon its officials for its actions. The apex Court also in the matter of Ganesharaju (dead) through Lrs. and another vs. Narasamma (dead) through Lrs. and others (2013) 11 SCC 341 also held that Limitation Act, 1963-S.5- sufficient cause- Liberal construction- held, the expression has to be given a liberal construction so as to advance substantial justice- unless the respondents are able to show mala fides in not approaching the court within the period of limitation, generally as a normal rule, delay should be condoned.

The application for condonation of delay cannot be rejected merely on the ground that it did not mentioned the provisions under which it filed the application.

In the present case delay is only 41 days and the applicant has clearly stated the reason for delay in his application. Only on the ground that the applicant has not mentioned the provisions under which it filed the application for condonation of delay, cannot be rejected.

Looking to the reason assigned by the applicant, the application is allowed and delay is of 41 days is hereby condoned.

Let the matter be listed after two weeks.

(RAJEEV KUMAR DUBEY) JUDGE JYOTI