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SCA/10643/2010 42/ 45 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 10643 of 2010
For
Approval and Signature:
HONOURABLE
MR.JUSTICE H.K.RATHOD
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1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To be
referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
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MAGANLAL
V LODHIYA - Petitioner(s)
Versus
CHIEF
CONTROLLING REVENUE AUTHORITY & 2 - Respondent(s)
=========================================================
Appearance
:
MR
SANDEEP N BHATT for
Petitioner(s) : 1,
None for Respondent(s) : 1 - 2.
GOVERNMENT
PLEADER for Respondent(s) :
3,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 15/09/2010
ORAL
JUDGMENT
Heard
learned advocate Mr.Ashwin Patel with learned advocate Mr.Sandeep N.
Bhatt on behalf of petitioner and learned AGP Mr.Amit Patel on
behalf of respondent State Authority. Brief facts of present
petition are as under:-
According
to petitioner, he had purchased property on 16.02.1999 by registered
sale deed No.692 by paying requisite stamp duty. Thereafter,
respondent No.2 Deputy Collector, Stamp Duty Valuation
Organization, (City Block -1) had issued notice on 03.01.2002 for
determination of market value of property and petitioner represented
himself on date of hearing. Thereafter, on 31.01.2002, respondent
No.2 – Deputy Collector passed final order under Section 32(A) of
Bombay Stamp Act. Thereafter, on 18.06.2002, petitioner has
preferred appeal before respondent No.1 Authority against which
on 10.05.2006, respondent No.2 has issued order while dismissing
appeal.
Learned
advocate Mr.Ashwin Patel submitted that after order passed by Deputy
Collector on 31.01.2002, a request was made by petitioner on
17.05.2002 to Deputy Collector to permit him to pay 12.5% stamp duty
against total amount of deficit stamp duty. This amount requires to
be deposited when appeal preferred before Appellate Authority.
Learned advocate Mr.Ashwin Patel submitted that after receiving
aforesaid letter dated 06.06.2002, appeal was preferred immediately
within 15 days before Appellate Authority, but, answer was given
(Page-47, Annexure- E ) that appeal is beyond a period of
limitation, which is not correct looking to facts on record.
Therefore, he submitted that respondent No.1 not entertained appeal
because of limitation and therefore, letter dated 10.05.2006
required to be quashed and set aside.
Learned
AGP Mr.Amit Patel submitted that documents as referred in present
petition being registered sale deed No.692 by which property was
purchased by petitioner on 16.02.1999 and thereafter Deputy
Collector has issued notice to petitioner on 03.01.2002 under Rule
4(2) of Bombay Stamp (Determination of Market Value) Rules, 1984,
but, no representation has been made by petitioner as mentioned in
order dated 31.01.2002 by Deputy Collector. Learned AGP Mr.Amit
Patel also emphasized that before final order final notice dated
21.01.2002 was also served to petitioner, even though, no reply was
filed and not remained personally present before Deputy Collector.
Therefore, Deputy Collector has rightly examined matter and
determined proper stamp duty which requires stamp duty for valuation
of property in question. Therefore, order is passed after giving
reasonable opportunity of hearing to petitioner. According to Deputy
Collector, total amount of stamp duty comes to Rs.1,33,008/- but
stamp duty which was paid by petitioner was Rs.31,900/-, therefore,
remaining amount is Rs.1,01,188/- being deficit stamp duty and with
fine Rs.250/-, it come to Rs.1,01,438/- which requires to be
deposited by petitioner, but, it was not deposited and appeal was
preferred by petitioner beyond period of limitation. Learned AGP
Mr.Amit Patel submitted that in appeal dated 18.06.2002, which has
been preferred against order dated 31.01.2002 passed by Deputy
Collector, petitioner had no way mentioned that order dated
31.01.2002 was not received by petitioner. He also submitted that
request for reducing amount of deposit was firstly made on
17.05.2002, considering date of order 31.01.2002, then, that
application itself is beyond period of limitation, because, at the
relevant time appeal was required to be filed within a period of 60
days from the date of order passed as per Section 32(B) of Bombay
Stamp Act. Therefore, learned AGP Mr.Patel submitted that appeal
which was filed on 18.06.2002, was beyond a period of limitation of
60 days as prescribed under Section 32(B) of Bombay Stamp Act.
Therefore, respondent Authority rightly gave answer dated 10.05.2006
to petitioner that appeal preferred by petitioner is not to be
entertained because it is beyond a period of limitation under
Section 32(B) of Bombay Stamp Act.
After
appreciating submissions made by both learned advocates, relevant
Sections 32(A) and 32(B) are quoted as under:-
32A.Determination
of market value of property which is the subject matter of
conveyance, etc.
1[(1)
Every instrument of conveyance, exchange, gift, certificate of sale,
partition, partnership, settlement, power of attorney to sell
immovable property when given for consideration or transfer of lease
by way of assignment, presented for registration under provisions of
the Registration Act, 1908(XVI of 1908) shall be accompanied by a
true copy thereof;2
[and the statement in such form as may be prescribed by rules] and
if an officer registering such instrument under the aforesaid Act or
any person referred to in section 33 before whom such instrument is
produced or come in the performance of his functions, has reason to
believe that the consideration set forth therein does not
approximate to the market value of the property which is the subject
matter of such instrument or as the case may be the market value of
the property which is the subject matter of such instrument, has not
been truly set forth therein, he 3[shall
before] registering the instrument or, as the case may be,
performing his functions in respect of such instrument, refer the
instrument or true copy thereof to the Collector of such district in
which either the whole or any part of the property is situated for
determining the true market value of such property and the proper
duty payable on the instrument under this section]
4[Provided
that for the purpose of this Sub-section, the consideration set
forth in an instrument executed by the State Government, the Central
Government, a local authority, Gujarat Housing Board, Gujarat Slum
Clearance Board or Gujarat Industrial Development Corporation, shall
be deemed to be the true market value of the property which is the
subject matter of such instrument.]
(2)
On receipt of the instrument under Sub-section (3) of 5[section
31 or instrument or true copy of instrument under] sub-section (1)
of this section, the Collector of the district shall, after giving
the parties concerned a reasonable opportunity of being heard, and
in accordance with the rules made by the State Government in this
behalf, determine the true market value of the property which is the
subject matter of the instrument and the proper duty payable
thereon.
(3)
Upon such determination, the Collector of the district shall require
the party liable to pay the duty, to make payment of such amount as
is required to make up the difference between the amount duty
determined under this sub-section and the amount of duty already
paid by him and shall also require such party to pay a penalty 6[of
two hundred and fifty rupees] 7[or
the amount of the proper duty or of the deficient portion there of
whichever is less] and on such payment, return the instrument to the
officer referred in sub-section (5) of section 31 or, as the case
may be, sub-section (1) of this section:
Provided
that, no such party shall be required to pay any amount to make up
the difference or to pay any penalty under this sub-section if the
difference between the amount of the consideration or, as the case
may be, the market value as set forth in the instrument and the
market value as determined by the Collector of the district does not
exceed ten percent, of the market value determined by the Collector
of the district. This proviso deleted w.e.f.11-6-2004.
(4)
The Collector of the district may, suo motu or on receipt of
information from any source, within, 8[six
years] from the date of registration of any instrument referred to
in sub-section (1), not being the instrument upon which an
endorsement has been made under section 32 or the instrument in
respect of which the proper duty has been determined by him under
sub-section (3) or an instrument executed before the date of the
commencement of the Bombay Stamp (Gujarat Amendment Act, 1982) call
for and examine the instrument for the purpose of satisfying himself
as to the correctness of the consideration or of the market value of
the property which is the subject matter of such instrument and the
duty payable thereon; and if on such examination, he has reason to
believe that the consideration does not approximate to the market
value of such property or, as the case may be, market value of such
property has not been truly and fully set forth in the instrument,
he shall proceed as provided in sub-sections (2) and (3).
32B.
Statement of the case by the Collector. – (1) Any person
aggrieved by an order of the Collector determining the market value
under section 31 or, as the case may be, under section 32A, may,
after depositing with the Collector 9[twenty
five per cent.] of the amount of duty or, as the case may be, the
amount of the difference of duty payable by him by application
presented 10[within
a period of ninety days] from the date of such order and accompanied
by a fee of one hundred rupees, require the Collector to draw up a
statement of the case and refer it to the Chief Controlling Revenue
Authority and the Collector shall, within sixty days of the receipt
of such application, draw up a statement of the case and refer it to
the Authority:
Provided
that where in any particular case the Authority is of the opinion
that the deposit of the amount by the applicant will cause undue
hardship to him, the Authority may, in its discretion, either
unconditionally or subject to such conditions as it may think fit to
impose, dispense with a part of the amount deposited so however that
the part of the amount deposited so however that the party of the
amount so dispensed with shall not exceed fifty per cent of the
amount deposited or required to be deposited.
Deputy
Collector has passed an order on 31.01.2002 under Section 32(A) of
Bombay Stamp Act and remedy of appeal is available under Section
32(B) of Bombay Stamp Act, which requires to file appeal against
order of Deputy Collector to Chief Controlling Revenue Authority
within 60 days from the date of such order as amendment made
11.06.2004 not applicable and accompanied by a fee of one hundred
rupees, require Collector to draw up a statement of the case and
refer it to Chief Controlling Revenue Authority and Collector shall,
within sixty days of receipt of such application, draw up a
statement of the case and refer it to Authority. At the time of
preferring an appeal before Chief Controlling Revenue Authority, 25%
of amount of stamp duty requires to be deposited by appellant, which
can be reduced, if, it cause undue hardship to appellant with a
discretionary powers exercised by concerned Authority. Therefore,
learned AGP Mr.Patel submitted that the period of 60 days which was
for filing appeal against order passed by Deputy Collector as per
Section 32(B) of Bombay Stamp Act to Chief Controlling Revenue
Authority is subsequently amended by Gujarat Act No.18 of 2004
(w.e.f. 11.06.2004) and period is extended up to 90 days, but, at
relevant time, in the year 2002, this amendment was not in
existence, therefore, appeal is required to be filed by petitioner
within 60 days from 31.01.2002, which was undisputably not filed by
petitioner. Therefore, respondent Authority has rightly not
entertained appeal because it is beyond a period of limitation
prescribed under the statutory provision.
Learned
AGP Mr.Amit Patel submitted that Chief Controlling Revenue Authority
has no power to condone delay because there is no statutory
provision made available in Bombay Stamp Act. He submitted that
Chief Controlling Revenue Authority is not a Court, but, he is a
persona designata.
He submitted that whenever time limit is prescribed in statutory
provision and there is no provision that Limitation Act is applied,
then, such Authority has no jurisdiction to condone delay or
entertain appeal, which is filed beyond limitation period.
Therefore, if, there is no provision to condone delay made in
statutory provision, then, Authority has no power to entertain the
appeal, filed beyond a period of limitation. For that learned AGP
Mr.Patel has relied upon two decision of Division Bench of this
Court in Letters Patent Appeal No. 2008 of 2009 dated 3.3.2010 and
Letters Patent Appeal NO. 2009 of 2009 dated 19.3.2009. Observations
made by Division Bench of this Court in Letters Patent Appeal No.
2008 of 2009 on 3.3.2010 are quoted as under:
Deputy
Collector, Stamp Duty passed order dated 13.3.2003 under section 32A
of the Bombay Stamp Act, 1958 determining the market value of the
property. Being aggrieved, the petitioner preferred appeal on 22nd
July 2003 which was dismissed on 10th April 2006 being
barred by limitation. The petitioner thereafter did not challenge
the order dated 13th March 2003 before the Writ Court
for six years and not challenged the appellate order for three
years and in 2009, preferred writ petition against those orders
which was not entertained by the learned single Judge in view of the
latches on the part of the petitioner.
Learned
advocate appearing on behalf of the petitioner submitted that under
the Rules, the authorities were obliged to serve the order by
registered post acknowledgment due. It was never served on the
petitioner particularly when the petitioner was out of India during
that period.
It
has been brought to the notice of the Court by the learned counsel
for the respondent that in the appeal preferred by the petitioner,
he has accepted that the order dated 13th March 2003 was
forwarded to him. It is stated in the appeal that he was out of
India.
From
the aforesaid facts, it is evident that the copy of the order dated
13th March 2003 was forwarded to the petitioner on the
same day and therefore, the petitioner cannot derive advantage of
the ground that it was not forwarded by the authority. Admittedly,
the appeal was barred by limitation and the writ petition was
preferred after long delay of 6 years. In this background, we are
not inclined to interfere with the order passed by the learned
single Judge. In absence of merits, the appeal is dismissed. Notice
is discharged.
Observations
made by Division Bench of this Court in Letters Patent Appeal
No.2009 of 2009 on 19.03.2009
are quoted as under:-
Admittedly,
the final order was passed on 22.3.2003, though 25% amount was
deposited on 90th day (20.6.2003), but the application against the
final order having preferred on 26.6.2003, being barred by
limitation, was rightly rejected by the authorities on 8.4.2006. We
find no ground to interfere with the order passed by the learned
Single Judge.
Both
the appeal and the Civil Application stand dismissed. No costs.
He
also relied upon recent decision given by this Court in Special
Civil Application No.12456 of 2009 dated 27.11.2009 in the case of
Bharatkumar Nanalal Vyas V. Chief Controlling Revenue Authority
and others. It is also related to same issues, which has been
examined by this Court that if, appeal is preferred by petitioner
beyond a period of limitation, then, Appellate Authority has no
power or jurisdiction to condone delay caused in filling appeal,
because, there is no specific statutory provision made in Bombay
Stamp Act. Aforesaid judgment is quoted as under:-
By
way of this application the petitioner has prayed to quash and set
aside the order dated 13.3.2003 passed by the respondent no.2 and/or
the order passed in the appeal dated 4.4.2006 passed by the
respondent no.1. Further the petitioner has prayed for the direction
to respondent no.2 to hear the petitioner afresh .
The
petitioner purchased a property in Raiya Village in revenue Survey
No. 83 of Raiya, Rajkot in consideration of Rs. 4,96,000/- by
executing sale deed and been registered at serial no. 4002 on
16.8.2001. The said sale deed was sent to the Collector for
determination of value and recovery of the deficit stamp duty under
the provision of Section 32(A) of the Bombay Stamp Act.
The
Deputy Collector, respondent no.2 issued a notice dated 25.2.2002
and 10.10.2002 under rule 4(2) of the Bombay Stamp (Determination
of Market Value) Rules, 1984 to the petitioner and asked the
petitioner for the deficit stamp duty. Without giving reasonable
opportunity for hearing the petitioner the final order under Section
32(A) has been passed by the respondent no.2. Against which the
petitioner has preferred an appeal before the respondent no.1
authority. Which came to be rejected on the ground of delay by order
dated 4.4.2006. Hence this petition.
Heard
learned advocates for the respective parties.
From
the evidence on the record, it revealed that the order dated
13.3.2003 has been challenged by the petitioner by way of appeal,
which came to be rejected by the appeal authority on the ground of
delay. I am in complete agreement with the reasoning adopted by the
appeal authority. Therefore only on the ground of delay this
application deserves to be dismissed and the same is dismissed
accordingly.
Learned
AGP Mr.Patel also submitted that against aforesaid decision, Letters
Patent Appeal was preferred by appellant being Letters Patent
Appeal No.1199 of 2010 in Special Civil Application No.12456
of 2009 and Division Bench of this Court also rejected said
Letters Patent Appeal by its order dated 14.05.2010. Order passed by
Division Bench is quoted as under:-
Against
the order passed on 30.3.2003 pursuant to the notices dated
25.2.2002 and 10.10.2002 issued under Rule 4(2) of the Bombay Stamp
(Determination of Market Value) Rules, 1984 for depositing the
deficit stamp duty, the petitioner preferred an appeal under Section
32(A) of the Bombay Stamp Act. The appeal was dismissed on 4.4.2006
on the ground of delay and the same having unsuccessfully
challenged, the appellant preferred the present appeal.
The
learned counsel appearing on behalf of the appellant submits that in
many other cases, taking into consideration the facts and
circumstances, the Court had remitted to the appellate authority to
decide the appeal on merits.
Mr
AJ Desai, learned AGP appearing on behalf of the respondents submits
that though one or other orders might have been passed by the Court,
but the appellant cannot derive any benefit of the same as statutory
period of limitation of 90 days having fixed under Section 32B.
Having
heard the counsel for the parties as we find that the period of
limitation has been prescribed under the law and the appellant had
preferred the appeal beyond the period of limitation, and the law
does not prescribe condonation of delay or to accept the appeal
after a period of limitation on any one or other ground, the
appellant cannot not claim for condonation of delay nor the Court
can grant relief condoning such delay in absence of such provision.
For the reason aforesaid, we are not inclined to interfere with the
order passed by the learned Single Judge. The appeal is dismissed.
No costs.
Learned
AGP Mr.Amit Patel raised a contention that there is delay of four
years in filing petition against order dated 10.05.2006. He also
submitted that delay of four years has not been explained in
petition, therefore, according to him this being an additional
ground to dismiss present petition only on the ground of delay and
latches. He submitted that order dated 10.05.2006 was sent to
petitioner at same address which was received by him as per
endorsement made behind that order and merely copy of order dated
10.05.2006 sent to petitioner in response to his letter dated
28.06.2010, by letter dated 30.06.2010. Means order dated 10.05.2006
was communicated to petitioner at the relevant time and same was
received by petitioner as there is no averments made in petition
that communication of order dated 10.05.2006 was not received by
petitioner. Therefore, learned AGP Mr.Patel submitted that in
present petition, petitioner challenge communication dated
30.06.2010, but, in fact, prior to that, order dated 10.05.2006 was
communicated to petitioner and was received by him eventhough not
challenged at the relevant time, therefore, there is delay in
challenging order dated 10.0.2006 after four years period and
communication by letter 30.06.2010 in which order dated 10.05.2006
was already communicated to petitioner and same is received by him
as not denied this fact in present petition, therefore, in fact in
present petition order dated 10.05.2006 is challenged after four
years, for that, no explanation or sufficient cause shown by
petitioner and for that, no averments made in present petition.
Therefore, present petition may be dismissed on the ground of delay
and latches. It is not a case of petitioner that order dated
10.05.2006 is not received by petitioner at the relevant time and
endorsement made in communication dated 30.06.2010 not denied in
present petition by petitioner. In support of his submissions,
learned AGP Mr.Patel has relied upon one decision of this Court
reported in 2006(2) GLH Page No.472 in case of Gujarat
Water Resources Development Corporation Limited V. Baldevji Mohanji
Solanki. Relevant para Nos. 6, 6.1, 6.2, 6.3, 6.4, 6.5, 6.6 and
6.7 are quoted as under:-
6. The
law on the question raised in the present petitions, has been
examined by the Apex Court as well as various High Courts. That has
been discussed as under :
6.1 In
case of Bishnu Charan Mohantry Vs. State of Orrisa, reported in
AIR 1973 Orissa 1999, the following general principles relating
to delay and laches has been laid down:
(i) The
Limitation Act has no application to writ petitions. Where, however,
a suit for identical relief would be barred by the law of limitation,
the court would ordinarily refuse to exercise discretion to grant
relief under Article 226.
(ii) Even
if a suit for the same relief is not barred by limitation under the
Limitation Act, yet the High Court may refuse to issue a writ, if
otherwise the delay is not explainable by satisfactory reasons.
(iii) Two
important circumstances to be borne in mind in all such cases are :
the length of the delay and the nature of the acts done during the
interval which might affect either party and cause a balance of
justice or injustice in taking the one course or the other so far as
relates to the remedy.
(iv) Where
by the conduct of the party, the delay might fairly be regarded as
equivalent to a waiver of the remedy, the relief under Article 226
would be refused.
(v) Even
if the conduct or act is not equivalent to a waiver, if the neglect
of the petitioner put to opposite party in a situation in which it
would not be reasonable to place him if the remedy is afterwards
granted, the relief under Article 226 should be refused on account of
delay and laches.
(vi) Utmost
expedition is the essence for a claim under article 226; and
(vii) no
hard and fast rule can be laid down. Each case is to be determined on
its own facts and circumstances.
6.2 The
further view has laid down by the Supreme Court in case of
P.S.Sadasivaswamy Vs. State of Tamil Nadu, reported in (1975)
1 SCC 152. Relevant observations of the said decision is quoted
as under :
It
is not that there is any period of limitation for the courts to
exercise their powers under Article 226 nor is it that there can
never be a case where the courts cannot interfere in a matter after
the passage of a certain length of time. But it would be a sound and
wise exercise of discretion for the courts to refuse to exercise
their extraordinary powers under Article 226 in the case of persons
who do not approach it expeditiously for relief and who stand by and
allow things to happen and then approach the court to put forward
stale claims and try to unsettle settled matters, (emphasis
supplied).
6.3 In
the case of Eastern Coal Fields Ltd. Vs. Central Government
Industrial Tribunal, reported in 2000 III LLJ 3, the Calcutta
High has held in Para, 6, 7 and 8 as under :
6. Having
heard the learned counsel for the parties we are of the opinion that
it is not a fit case where this Court should interfere with the
impugned judgment and order as apart from the fact that the learned
trial Judge has refused to exercise its power of judicial review it
had also recorded a finding as regards the question of delay in the
following terms :
Before
parting with this case it should be noted that though the learned
Tribunal passed the award as far back as March 28, 1984 th writ
application was not filed before February 8, 1990 on the plea that
delay was due to the fact that Government permission could not be
obtained before February 7, 1989. The explanation is not
satisfactory. The plea of delay on the ground of office formalities
is absolutely untenable especially in case of Industrial Disputes
where there was illegal termination of service about 20 years ago.
It was submitted on behalf of the respondent union that this long
delay on the part of the management of all the workmen not only the
wasting of their valuable years of lives but have also caused death
to some of them. It is true, that there is no limitation in filing
the writ application but that shall not automatically entitle the
petitioner to make limitless delay in filing the writ application,
especially, in case of the present nature, where such delay brought
untold miseries to the workmen. There being unreasonable delay in
filing the application on frivolous ground the writ Court would have
refused to grant any relief to the petitioner, even if it had been
otherwise entitled to it. Th writ petition is liable to be rejected
on the ground of delay also
7. Mr.Ginwala
submits that delay cannot be considered to be a ground for refusing
to exercise its jurisdiction by the High Court in a case where the
writ of prohibition is to be issued. The submission of the learned
counsel cannot be accepted for more than one reasons. The appellant
primarily has prayed for issuance of a writ of certiorari for
quashing of the aforementioned award dated March 28, 1994 passed by
the Industrial Tribunal. Prayer for issuance of a writ of prohibition
had been sought for and the same could be issued only in the event
the primary prayer of the appellant viz. A writ of certiorari would
be issued. It is now a well settled principle of law that the delay
defeats equity. It is further well settled that a person who sleeps
over its right cannot claim any equity in enforcing its right before
a writ Court.
8. Writ
of certiorari as is well known is a discretionary remedy. A writ
Court does not exercise its jurisdiction under Article 226 of the
Constitution of India merely because it is lawful to do so. While
exercising its Jurisdiction under Article 226 a writ Court may take
into account several factors, delay being one of them. As noticed by
the learned trial Judge the concerned workmen were refused employment
as far back as in the year 1975 and reference was made by the Central
Government only on August 1, 1978. The learned Tribunal below made
its awards on March 28, 1984. The writ application had been filed
only on February 8, 1990. The only explanation which the appellant
gave before the learned Trial Judg was that it was required to obtain
permission of the Central Government for filing a writ application
which could not be obtained before February 7, 1989. the said
explanation, having been offered without any particulars, did not
find favour with the learned trial Judge. He, therefore, refused to
exercise its discretion.
6.4 In
case of M.C.D. Vs. Rajkumar & Othrs, reported in 2004 Lab IC
2334, the Delhi High Court has held in Para 3 and 4 as under :
3. This
writ petition challenges the Award dated 10th July,2000.
Learned counsel for the petitioner submits that the award was
published on 4th January,2001 and the information relating
thereto was received in the office of the petitioner Corporation on
14th February,2001. However, the writ petition was filed
in this Court only on 18th February,2002. There is no
other explanation for the delay and laches in filing the writ
petition. Mr.Monga has submitted that in matters relating to the
movement of files in Government Department, files move at their own
pace and such delay in the movement of the official files occur
because they are required to go through several channels.
Consequently the delay in filing the writ petition is not such which
should dis-entitle the petitioner to approach this Court under
Article 226 of the Constitution.
4. In
my view, institutionalized lethargy cannot be any ground to explain
the laches of more than one year. Merely because the bureaucratic
machinery in MCD moves slowly cannot be a ground for condoning
laches.
6.5 In
case of Bhoop Singh Vs. Union of India, reported in AIR 1992 SC
1414, the Apex Court has held in Para.8 as under :
8.
There is another aspect of the matter. Inordinate and unexplained
delay or laches is by itself a ground to refuse relief to the
petitioner, irrespective of the merit of his claim. If a person
entitled to a relief chooses to remain silent for long, he thereby
gives rise to a reasonable belief in the mind of others that he is
not interested in claiming that relief. Others are then justified in
acting on that behalf. This is more so in service matters where
vacancies are required to be filled promptly. A person cannot be
permitted to challenge the termination of his service after a period
of twenty-two years, without any cogent explanation for the
inordinate delay, merely because others similarly dismissed had been
reinstated as a result of their earlier petitions being allowed.
Accepting the petitioner’s contention would upset the entire service
jurisprudence and we are unable to construe Dharampal in the manner
suggested by the petitioner. Art. 14 or the principle of
non-discrimination is an equitable principle and, therefore, any
relief claimed on that basis must itself be founded on equity and not
.be alien to that concept. In our opinion, grant of the relief to the
petitioner, in the present case, would be inequitable instead of its
refusal being discriminatory as asserted by learned counsel for the
petitioner. We are further of the view that these circumstances also
justify refusal of the relief claimed under Art. 136 of the
Constitution.
6.6 In
case of State of M.P. & Others Vs. Nandlal Jaiswal and Others,
reported in AIR 1987 SC 251, the Apex Court has held in Para.23
as under :
23.
Now, it is well settled that the power of the High Court to issue an
appropriate writ under Article 226 of the Constitution is
discretionary and the High Court in the exercise of its discretion
does not ordinarily assist the tardy and the indolent or the
acquiescent and the lethargic. If there is inordinate delay on the
part of the petitioner in filing a writ petition and such delay is
not satisfactorily explained, the High Court may decline to intervene
and grant relief in the exercise of its writ jurisdiction. The
evolution of this rule of laches or delay is premised upon a number
of factors. The High Court does not ordinarily permit a belated
resort to the extraordinary remedy under the writ jurisdiction
because it is likely to cause confusion and public inconvenience and
bring in its train new injustices. The rights of third parties may
intervene and if the writ jurisdiction is exercised on a writ
petition filed after unreasonable delay, it may have the effect of
inflicting not only hardship and inconvenience but also injustice on
third parties. When the writ jurisdiction of the High Court is
invoked, unexplained delay coupled with the creation of third party
rights in the meanwhile is an important factor which always weighs
with the High Court in deciding whether or not to exercise such
jurisdiction. We do not think it necessary to burden this judgment
with reference to various decisions of this Court where it has been
emphasised time and again that where there is inordinate and
unexplained delay and third party rights are created in the
intervening period, the High Court would decline to interfere, even
if the State action complained of is unconstitutional or illegal. We
may only mention in the passing two decisions of this Court one in
Ramanna Dayaram Shetty v. International Airport Authority of India,
(1979) 3 SCR 1014: (AIR 1979 SC 1628) and the other in Ashok Kumar v.
Collector, Raipur, (1980) 1 SCR 491 : (AIR 1980 SC 112). We may point
out that in R. D. Shetty’s case (supra), even though the State action
was held to be unconstitutional as being violative of Article 14 of
the Constitution, this Court refused to grant relief to the
petitioner on the ground that the writ petition had been filed by the
petitioner more than five months after the acceptance of the tender
of the fourth respondent and during that period, the fourth
respondent had incurred considerable expenditure, aggregating to
about Rs. 1.25 lakhs, in making arrangements for putting up the
restaurant and the snack bar. Of course, this rule of laches or delay
is not a rigid rule which can be cast in a straitjacket formula, for
there may be cases where despite delay and creation of third party
rights the High Court may still in the exercise of its discretion
interfere and grant relief to the petitioner. But such cases where
the demand of justice is so compelling that the High Court would be
inclined to interfere in spite of delay or creation of third party
rights would by their very nature be few and far between. Ultimately
it would be a matter within the discretion of the Court; ex hypothesi
every discretion must be exercised fairly and justly so as to promote
justice and not to defeat it.
6.7 In
case of Delhi Transport Corporation Vs. Jai Bhagwan, reported in
2003-I LLJ 1029, the Delhi High Court has held in Para.4 and 5 as
under:
4. My
attention has been drawn by Ms.Bajaj to the judgment of the
Constitution Bench in State of Madhya Pradesh Vs. Bhailal, AIR 1964
SC 1006. The Apex Court observed that :
It
is not easy nor is it desirable to lay down any rule for universal
application. It may, however, be stated as a general rule that if
there has been unreasonable delay, the Court ought not to ordinarily
lend its aid to a party by this extraordinary remedy of mandamus….
It appears to us, however, that the maximum period fixed by the
Legislature as the time within which the relief by a suit in a civil
court must be brought may ordinarily be taken to be a reasonable
standard by which delay in seeking remedy under Article 226 of the
Constitution of India can be measured. This Court may consider the
delay unreasonable, even if it is less than the period of limitation
prescribed for a civil action for the remedy but where the delay is
more than this period, it will almost always be proper for the Court
to hold that it is unreasonable .
It
will be relevant to bear in mind that the Constitution Bench was
concerned with a situation where the petitioner has voiced the
grievance that he had been assessed to tax under a void statute. Even
in those extraordinary circumstances, the Supreme Court has declined
to over look the laches. Ms.Kittoo Bajaj also relies on the decision
of the Supreme Court in Maharasthra Road State Corporation Vs.
Balvant Regular Motor Service, Amravati, AIR 1969 SC 329. In that
case, the Apex Court again articulated that;
It
is well established that the writ of certiorari will not be granted
in a case where there is such negligence or omission on the part of
the applicant to assert his right as, taken in conjunction with the
lapse of time and other circumstances, causes prejudice to the
adverse party.
The
Court relied on Lindsey Petroleum Company Vs. Prosper Armstrong
Hurd, Arbran Farewell and John Kemp (1874) 5 PC 221 and also
specifically noticed in its earlier decision in Moon Mills Ltd. Vs.
M.R.Neher, President, Industrial Court, Bombay, AIR 1967 SC 1450 :
1967 -II LLJ 34, Ms.Kittoo Bajaj relies on the observations of the
Apex Court in Naik Subedar Lachhman Dass Vs. Union of India, AIR 1977
SC 1979, there the Court found that the writ petition has been filed
after gross delay for which there was no specific explanation and,
therefore, endorsed the High Court’s decision for a summary dismissal
of the action. It may be observed that the laches have not even been
attempted to be answered or explained by the DTC.
5. On
the issue of delay and laches, Mr.Vibhu Shankar, learned Consel for
the petitioners, has relied heavily on Para.6 of the judgment in Moon
Mills Ltd. Vs. M.R.Meher, President, Industrial Court, Bombay (Supra)
which reads as under at p.38 of 1967-II LLJ 34.
On
behalf of the respondents Mr. B. Sen, however, pointed out that the
conduct of the appellant does not entitle it to the grant of a writ,
because it has been guilty of acquiescence or delay. It was pointed
out that the award of Mr. Bhat was given on April 25, 1958 but an
application to the High Court for grant of a writ was made long after
on November 16, 1959. We do not think there is any substance in this
argument, because the second respondents had made an application,
dated August 19, 1958 to the Labour Court for enforcement of the
award and the appellant had contested that application by a Written
Statement, dated September 15, 1958. The Labour Court allowed the
application on August 4, 1959 and the appellant had preferred an
appeal to the Industrial Court on August 31, 1959. The decision of
the Industrial Court was given on October 24, 1959 and after the
appeal was dismissed the appellant moved the High Court for grant of
a writ on November 16, 1959. Mr. B. Sen then put forward the argument
that the appellant itself had acted on the bonus agreement and on
October 14, 1957 had issued a notice informing its workers that
“pursuant to the award of the Industrial Court in terms of the
agreement, dated March l, 1956 reached between the Millowners’
Association, Bombay, and the Rashtriya Mill Mazdoor Sangh, regarding
payment of bonus would be paid to them at 4.8 per cent of the total
basic earning during 1956”. On October 27, 1956 the appellant
and the Secretary of the second respondents signed a joint statement
in which it was stated as follows :
‘Since
it has not yet been possible to complete bonus calculations for all
these years, it is hereby agreed between the Rashtriya Mill Mazdoor
Sangh, Bombay, and the Moon Mills Ltd, Bombay, that under the Bonus
Agreement the Moon Mills should pay a bonus at the rate of 4.8 per
cent for each of the years 1953, 1954 and 1955 as a tentative
payment.’
It
was, therefore, contended that the appellant itself had agreed with
the second respondents to pay bonus for 1953, 1954, 1955 and 1956
according to the terms of the bonus agreement. It was also pointed
out that the appellant had not pressed its objection with regard to
jurisdiction before the Labour Court or the Industrial Court. But it
appears that the decision of this Court in Prakash Cotton Mills case,
(1962) 2 SCR 105: (AIR 1961 SC 977), was given on February 16, 1961
after the decision of K. K. Desai, J. on July 1, 1960 and before the
decision of the Letters Patent Bench on February 6, 1962. In the
circumstances of this case, we do not consider that there is such
acquiescence on the part of the appellant as to disentitle it to a
grant of a writ under Art. 226 of the Constitution. It is true that
the issue of a writ of certiorari is largely a matter of sound
discretion. It is also true that the writ will not be granted if
there is such negligence or omission on the part of the applicant to
assert his right as, taken in conjunction with the lapse of time and
other circumstances, causes prejudice to the adverse party. The
principle is to a great extent, though not identical with, similar to
the exercise of discretion in the Court of Chancery. The principle
has been clearly stated by Sir Barnes Peacock in Lindsay Petroleum
Co. v. Prosper Armstrong Hurd, Abram Farewell, and John Kemp, (1874)
5 PC 221 at p. 239, as follows:-
“Now
the doctrine of laches in Courts of Equity is not an arbitrary or a
technical doctrine. Where it would be practically unjust to give a
remedy, either because the party has, by his conduct, done that which
might fairly be regarded as equivalent to a waiver of it, or where by
his conduct and neglect he has, though perhaps not waiving that
remedy, yet put the other party in a situation in which it would not
be reasonable to place him if the remedy were afterwards to be
asserted, in either of these cases, lapse of time and delay are most
material. But in every case, if an argument against relief, which
otherwise would be just, is founded upon mere delay, that delay of
course not amounting to a bar by any statute of limitations, the
validity of that defence must be tried upon principles substantially
equitable. Two circumstances, always important in such cases, are,
the length of the delay and the nature of the acts done during the
interval, which might affect either party and cause a balance of
justice or injustice in taking the one course or the other, so far as
related to the remedy.’
In
the present case, we are of opinion that there is no such negligence
or laches or acquiescence on the part of the appellant as may
disentitle it to the grant of a writ.
Recently,
delay of two years not condoned by Hon’ble Apex Court in case of
Balwant Sing(Dead) Vs. Jagdish Singh and Others reported in 2010 AIR
SCW Page No.4848. The relevant observations made are as under:-
Even
if the term ‘sufficient cause’ has to receive liberal construction,
it must squarely fall within the concept of reasonable time and
proper conduct of the concerned party. The purpose of introducing
liberal construction normally is to introduce the concept of
‘reasonableness’ as it is understood in its general connotation. The
law of limitation is a substantive law and has definite consequences
on the right and obligation of a party to arise. These principles
should be adhered to and applied appropriately depending on the
facts and circumstances of a given case. Once a valuable right, has
accrued in favour of one party as a result of the failure of the
other party to explain the delay by showing sufficient cause and its
own conduct, it will be unreasonable to take away that right on the
mere asking of the applicant, particularly when the delay is
directly a result of negligence, default or inaction of that party.
Justice must be done to both parties equally. Then, alone the ends
of justice can be achieved. If a party has been thoroughly negligent
in emplementing its rights and remedies, it will be equally unfair
to deprive the other party of a valuable right that has accrued to
it in law as a result of his acting vigilantly(Para 13).
Sometimes
the Courts have taken a view that delay should be condoned with a
liberal attitude, while on certain occasions the Courts have taken a
stricter view and wherever the explanation was not satisfactory,
have dismissed the application for condonation of delay. Thus, it is
evident that it is difficult to state any straight-jacket formula
which can uniformly be applied to all cases without reference to the
peculiar facts and circumstances of a given case. It must be kept in
mind that whenever a law is enacted by the legislature, it is
intended to be enforced in its proper perspective. It is an equally
settled principle of law that the provisions of a statute, including
every word, have to be given full effect, keeping the legislative
intent in mind, in order to ensure that the projected object is
achieved. In other words, no provisions can be treated to have been
enacted purposelessly. Furthermore, it is also a well settled
canon of interpretative jurisprudence that the Court should not give
such an interpretation to provisions which would render the
provision ineffective or odious. Once the legislature has enacted
the provisions of Order 22, with particular reference to Rule 9, and
the provisions of the Limitation Act are applied to the
entertainment of such an application, all these provisions have to
be given their true and correct meaning and must be applied wherever
called for. If we accept the contention of the Learned Counsel
appearing for the applicant that the Court should take a very
liberal approach and interpret these provisions (Order 22 Rule 9 of
the CPC and Section 5 of the Limitation Act) in such a manner and so
liberally, irrespective of the period of delay, it would amount to
practically rendering all these provisions redundant and
inoperative.
AIR
2004 SC 4158 Held Per incuriam. (Para 14)
Delay
is just one of the ingredients which has to be considered by the
Court. In addition to this, Court must also take into account the
conduct of the parties, bona fide reasons for condonation of delay
and whether such delay could easily be avoided by the applicant
acting with normal care and caution. The statutory provisions
mandate that applications for condonation of delay and applications
belatedly filed beyond the prescribed period of limitation for
bringing the legal representatives on record, should be rejected
unless sufficient cause is shown for condonation of delay. Thus, it
is the requirement of law that these applications cannot be allowed
as a matter of right and even in a routine manner. (Para 16)
(C)
Limitation Act (36 of 1963), S.5 Condonation of delay
Sufficient cause Means presence of legal adequate reasons.
The
expression ‘sufficient cuase’ implies the presence of legal and
adequate reasons. The word ‘sufficient’ means adequate enough, as
much as may be necessary to answer the purpose intended. It embraces
no more than that which provides a plentitude which, when done
suffices to accomplish the purpose in the light of existing
circumstances and when viewed from the reasonable standard of
practical and cautious men. The sufficient cause should be such as
it would persuade the Court, in exercise of its judicial discretion,
to treat the delay as an excusable one. These provisions give the
Courts enough power and discretion to apply a law in a meaningful
manner, while assuring that the purpose of enacting such a law does
not stand frustrated. (Para 14)
Learned
AGP Mr.Patel also relied upon one decision of Hon’ble Apex Court
reported in AIR 2009 Supreme Court Weekly Page No.5424 in
case of M/s Chaudharana Steels (P) Ltd. Vs. Commissioner of
Central Excise, Allahabad where it was held that Appellate
Authority has no power and jurisdiction to condone delay caused in
filing appeal. That decision given by Hon’ble Apex Court is quoted
as under:-
1.
In this appeal the only question that arises for consideration is
whether there is power for condonation of delay in filing an appeal
under Section 35-G of the Central Excise Act, 1944 (in short the
`Act’). By judgment delivered in Commissioner of Customs, Central
Excise, Noida v. Punjab Fibres Ltd., Noida (2008 (3) SCC 73) it was
held that the High Court has no power to condone delay in seeking
reference under Section 35-H of the Act. Doubting correctness of the
view reference was made to larger Bench. By judgment dated 27.3.2009
a three-judge Bench in Commissioner of Customs & Central Excise
v. M/s. Hongo India (P) Ltd. & Anr. 2009 (4) SCALE 374 concurred
with the view taken by the two-judge Bench in Punjab Fibres case
(supra). The decision has full application to the present case also.
2.
That being so this appeal deserves to be dismissed which we
direct.
No
costs.
Learned
AGP Mr.Patel also relied upon decision of Hon’ble Apex Court in
respect to Section 125 of Indian Electricity Act, where a period of
appeal has been specified under provision of statute, beyond that,
if appeal is preferred, then, Appellate Authority has no
jurisdiction or power to condone it and in such circumstances, where
period of limitation is specified in Act, Appellate Authority has no
power or jurisdiction to condone it beyond period specified because
provision of Limitation Act, 1963 is not applicable. Hon’ble Apex
Court has laid down this principle in case of Chhattisgarh State
Electricity Board Vs. Central Electricity Regulatory Commission and
Ors. reported in AIR 2010 SC Page No.2061. Relevant
discussion made in Para 11, 16, 18 and 19 of aforesaid Judgment
of Hon’ble Apex Court is quoted as under:-
11.
The brief analysis of the scheme of the Electricity Act shows that
it is a self-contained comprehensive legislation, which not only
regulates generation, transmission and distribution of electricity
by public bodies and encourages public sector participation in the
process but also ensures creation of special adjudicatory mechanism
to deal with the grievance of any person aggrieved by an order made
by an adjudicating officer under the Act except under Section 127 or
an order made by the appropriate commission. Section 110 provides
for establishment of a Tribunal to hear such appeals. Section 111(1)
and (2) lays down that any person aggrieved by an order made by an
adjudicating officer or an appropriate commission under this Act may
prefer an appeal to the Tribunal within a period of 45 days from the
date on which a copy of the order made by an adjudicating officer or
the appropriate commission is received by him. Section 111(5)
mandates that the Tribunal shall deal with the appeal as
expeditiously as possible and endeavour to dispose of the same
finally within 180 days from the date of receipt thereof. If the
appeal is not disposed of within 180 days, the Tribunal is required
to record reasons in writing for not doing so. Section 125 lays down
that any person aggrieved by any decision or order of the Tribunal
can file an appeal to this Court within 60 days from the date of
communication of the decision or order of the Tribunal. Proviso to
Section 125 empowers this Court to entertain an appeal filed within
a further period of 60 days if it is satisfied that there was
sufficient cause for not filing appeal within the initial period of
60 days. This shows that the period of limitation prescribed for
filing appeals under Sections 111(2) and 125 is substantially
different from the period prescribed under the Limitation Act for
filing suits etc. The use of the expression `within a further period
of not exceeding 60 days’ in Proviso to Section 125 makes it clear
that the outer limit for filing an appeal is 120 days. There is no
provision in the Act under which this Court can entertain an appeal
filed against the decision or order of the Tribunal after more than
120 days. The object underlying establishment of a special
adjudicatory forum i.e., the Tribunal to deal with the grievance of
any person who may be aggrieved by an order of an adjudicating
officer or by an appropriate commission with a provision for further
appeal to this Court and prescription of special limitation for
filing appeals under Sections 111 and 125 is to ensure that disputes
emanating from the operation and implementation of different
provisions of the Electricity Act are expeditiously decided by an
expert body and no court, except this Court, may entertain challenge
to the decision or order of the Tribunal. The exclusion of the
jurisdiction of the civil courts (Section 145) qua an order made by
an adjudicating officer is also a pointer in that direction. It is
thus evident that the Electricity Act is a special legislation
within the meaning of Section 29(2) of the Limitation Act, which
lays down that where any special or local law prescribes for any
suit, appeal or application a period of limitation different from
the one prescribed by the Schedule, the provisions of Section 3
shall apply as if such period were the period prescribed by the
Schedule and provisions contained in Sections 4 to 24 (inclusive)
shall apply for the purpose of determining any period of limitation
prescribed for any suit, appeal or application unless they are not
expressly excluded by the special or local law.
16.
In view of the above discussion, we hold that Section 5 of the
Limitation Act cannot be invoked by this Court for entertaining an
appeal filed against the decision or order of the Tribunal beyond
the period of 120 days specified in Section 125 of the Electricity
Act and its proviso. Any interpretation of Section 125 of the
Electricity Act which may attract applicability of Section 5 of the
Limitation Act read with Section 29(2) thereof will defeat the
object of the legislation, namely, to provide special limitation for
filing an appeal against the decision or order of the Tribunal and
proviso to Section 125 will become nugatory.
18.
The next question which requires consideration is as to what is
the date of communication of the decision or order of the Tribunal
for the purpose of Section 125 of the Electricity Act. The word
`communication’ has not been defined in the Act and the Rules.
Therefore, the same deserves to be interpreted by applying the rule
of contextual interpretation and keeping in view the language of the
relevant provisions. Rule 94(1) of the Rules lays down that the
Bench of the Tribunal which hears an application or petition shall
pronounce the order immediately after conclusion of the hearing.
Rule 94(2) deals with a situation where the order is reserved. In
that event, the date for pronouncement of order is required to be
notified in the cause list and the same is treated as a notice of
intimation of pronouncement. Rule 98(1) casts a duty upon the Court
Master to immediately after pronouncement transmit the order along
with the case file to the Deputy Registrar. In terms of Rule 98(2),
the Deputy Registrar is required to scrutinize the file, satisfy
himself that provisions of rules have been complied with and
thereafter, send the case file to the Registry for taking steps to
prepare copies of the order and their communication to the parties.
If Rule 98(2) is read in isolation, one may get an impression that
the registry of the Tribunal is duty bound to send copies of the
order to the parties and the order will be deemed to have been
communicated on the date of receipt thereof, but if the same is read
in conjunction with Section 125 of the Electricity Act, which
enables any aggrieved party to file an appeal within 60 days from
the date of communication of the decision or order of the Tribunal,
Rule 94(2) which postulates notification of the date of
pronouncement of the order in the cause list and Rule 106 under
which the Tribunal can allow filing of an appeal or petition or
application through electronic media and provide for rectification
of the defects by e-mail or net, it becomes clear that once the
factum of pronouncement of order by the Tribunal is made known to
the parties and they are given opportunity to obtain a copy thereof
through e-mail etc., the order will be deemed to have been
communicated to the parties and the period of 60 days specified in
the main part of Section 125 will commence from that date.
19.
The issue deserves to be considered from another angle. As
mentioned above, Rule 94(2) requires that when the order is
reserved, the date of pronouncement shall be notified in the cause
list and that shall be a valid notice of pronouncement of the order.
The counsel appearing for the parties are supposed to take
cognizance of the cause list in which the case is shown for
pronouncement. If title of the case and name of the counsel is
printed in the cause list, the same will be deemed as a notice
regarding pronouncement of order. Once the order is pronounced after
being shown in the cause list with the title of the case and name of
the counsel, the same will be deemed to have been communicated to
the parties and they can obtain copy through e-mail or by filing an
application for certified copy.
Learned
AGP Mr.Patel also relied upon one recent decision in a similar
circumstances where contest the application is available to opposite
party must have to be filed within specific time as prescribed in
statute, beyond that, Authority has no power or jurisdiction to
condone even 1(One) day delay and in such circumstances, provision
of Limitation Act is not applicable and question of condoning delay
does not arise. For that, he relied upon judgment of Om Prakash
Vs. Ashwani Kumar Bassi being unreported judgment in Special
Civil Leave Petition (Civil) No.24430 of 2008 decided on
27.08.2010 delivered by Hon’ble Mr.Justice Altamas Kabir and Hon’ble
Mr.Justice A.K.Patnaik Relevant discussion made by Hon’ble Apex
Court after considering fact and submissions made by respective
advocates are in Para 12, 13, 14, 15, 16 and 17, which are
quoted as under:-
12.
From the materials on record it is clear that the application for
leave to contest the application under Section 13-B of the 1949 Act
has to be made within 15 days from the date of service of the
summons. In this case, the application for leave to contest the
application was made one day after the said period had expired. The
issue for consideration before us is whether the Rent Controller was
right in rejecting the application on the ground that he had no
jurisdiction to condone the delay under the Act. The matter was
considered at length by the High Court, which, as indicated
hereinabove, came to the conclusion that Section 18-A of the 1949
Act would have an over- riding effect on all other laws inconsistent
therewith and that Sub-Section (8) of Section 18-A of the 1949 Act
and Section 17 of the Presidency Small Causes Courts Act, 1882, were
not attracted to the facts of the case.
13.
The views expressed by the High Court also formed the subject matter
of the decision in Prithipal Singh’s case (supra), though in the
context of the Delhi Rent Control Act, 1958, and the rules framed
thereunder. This Court was of the view that Section 25-B of the
Delhi Rent Control Act was a complete Code by itself and other
provisions could not, therefore, be brought into play in such
proceedings. In the instant case, the same principle would apply
having regard to the fact that the Rent Controller had not been
conferred with power under Order 9 Rule 13 C.P.C. to recall an
ex-parte order passed earlier.
14.
Apart from the above is the view taken by this Court in Prakash
H.Jain vs. Marie Fernandes [(2003) 8 SCC 431], where it was
specifically held that since the Competent Authority under Section
40 of the Maharashtra Rent Control Act, 1999, was not a court but a
statutory authority with no power to condone the delay in filing an
affidavit and application for leave to contest, the Competent
Authority had no other option but to pass an order of eviction in
the manner envisaged under the Act.
15.
The decision in Mukri Gopalan’s case (supra) relied upon by Mr.
Ujjal Singh is distinguishable from the facts of this case. In the
facts of the said case, it was the District Judges who were
discharging the functions of the Appellate Authority and being a
Court, it was held that the District Judge, functioning as the
Appellate Authority, was a Court and not persona designata and was,
therefore, entitled to resort to Section 5 of the Limitation Act.
That is not so in the instant case where the Rent Controller
appointed by the State Government is a member of the Punjab Civil
Services and, therefore, a persona designata who would not be
entitled to apply the provisions of Section 5 of the Limitation Act,
1963, as in the other case. The decision in Gaya Prasad Kar’s case
(supra) is also of little help to the Petitioner since under the
West Bengal Premises Tenancy Act, 1956, powers have been vested in
the Rent Controller to extend the time for making deposits of
arrears of rent, which would make the provisions of the Limitation
Act applicable in such specific instances.
16.
The instant case stands on a different footing and, in our view, is
covered by the decision of this Court in Gaya Prasad Kar’s case
(supra), wherein it was held that the Competent Authority had no
other option but to pass an order of eviction since it had no power
to condone the delay in filing an application for leave to contest.
17.
Section 13-B is a power given to a Non-Resident Indian owner of a
building to obtain immediate possession of a residential building or
scheduled building when required for his or her use or for the use
of any one ordinarily living with and dependent on him or her. The
right has been limited to one application only during the life time
of the owner. Section 18-A(2) of the aforesaid Act provides that
after an application under Section 13-B is received, the Controller
shall issue summons for service on the tenant in the form specified
in Schedule II. The said form indicates that within 15 days of
service of the summons the tenant is required to appear before the
Controller and apply for leave to contest the same. There is no
specific provision to vest the Rent Controller with authority to
extend the time for making of such affidavit and the application.
The Rent Controller being a creature of statute can only
act in terms of the powers vested in him by statute and cannot,
therefore, entertain an application under Section 5 of the
Limitation Act for condonation of delay since the statute does not
vest him with such power.
I
have considered submissions, made by both learned advocates and I
have also considered decisions relied upon by learned AGP Mr.Patel
in this case. Undisputably, appeal was preferred by petitioner,
beyond a period of 60 days as order was passed on 31.01.2002,
therefore, question is whether in absence of specific provisions for
condoning delay, Chief Controlling Revenue Authority being Appellate
Authority has power to extend a period of filing appeal or whether
he is having power to condone delay, which is not preferred within
specified time. Deputy Collector and Chief Controlling Revenue
Authority, both are persona designata having power to
determine valuation of property in case if proper stamp duty is not
paid or not properly affixed on various documents which requires to
be affixed as per Bombay Stamp Act. Therefore, Deputy Collector and
Chief Controlling Revenue Authority are not a Court, but, both are
persona designata Authority and in such circumstances, if
before, persona designata Authority requires to file an
appeal in, specific time limit is prescribed under statutory
provision of Act, but, if appeal is preferred beyond a period of
limitation, then, such persona designata has no jurisdiction
and in such circumstances Limitation Act cannot be made applicable,
because, there is no provision made available by legislation in the
Bombay Stamp Act to condone delay or entertain appeal beyond period
of specified time limit.
Therefore,
according to my opinion, order which has been passed by respondent
Authority on 10.05.2006, not entertaining appeal preferred by
petitioner, which has been filed undisputably after 60 days is legal
and valid and therefore, no interference is required by this Court
as it has been rightly decided by Appellate Authority Chief
Controlling Revenue Authority that it has no jurisdiction and power
to entertain appeal beyond limitation of 60 days. No interference of
this Court while exercising power under article 226/227 of
Constitution of India is required, therefore, present petition is
dismissed having no substance, on both grounds, one is, petition is
preferred after four years, challenging order passed on 10.05.2006,
without giving any explanation or without establishing sufficient
cause of delay as well as respondent has rightly not entertained
appeal which is filed beyond specified period prescribed in Act for
which Chief Controlling Revenue Authority has no power and
jurisdiction to condone delay under Section 32(B) of Bombay Stamp
Act. Therefore, present petition is not having substance and same is
dismissed.
No
order as to costs.
[H.K.RATHOD,
J.]
..mitesh..
1Sub-sectin
(1) was substituted by Guj. 13 of 1994, S.7(1)
2These
words were inserted by Guj.19 of 2001 S.3 w.e.f. 1-9-2001.
3These
words were substituted for the words may either before or after
by Guj.8 of 2000, S.2
4Proviso
in Sub-Sec.(1) inserted by Guj.18 of 2004 Sec.2. w.e.f.11-6-2004.
5These
words were substituted for the words section 31 or Guj.8 of
2002 S.7(2)
6The
words were substituted by Guj.4 of 1991. S.2.
7These
words were inserted by Guj.13 of 1994. S.7(3)
8These
words were substituted for the words Two years by Guj.13 of
1994. S.7(4)
9As
per Noti. No. GHM/2002/32/M/STP/10/2002/690/H dt.18-4-2002 in
Gujarat Stamp Rules. 1978 in Rules 30-A, for the words 24% the
words 15% shall be substituted.
10Substituted
for Sixty days by Guj.18 of 2004 Sec.3 w.e.f. 11-6-2004.
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