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OJCA/303/2010 17/ 17 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CIVIL
APPLICATION No. 303 of 2010
In
STAMP
NUMBER No. 789 of 2010
For
Approval and Signature:
HONOURABLE
MS. JUSTICE HARSHA DEVANI
HONOURABLE
MR. JUSTICE H.B.ANTANI
=========================================
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 ?
=========================================
STATE
OF GUJARAT, THROUGH COMMISSIONER OF COMMERCIAL TAX, - Applicant(s)
Versus
M/S
RAMA NEWSPRINT & PAPERS LTD. - Respondent(s)
=========================================
Appearance
:
MS MAITHILI
MEHTA, ASSISTANT GOVERNMENT PLEADER
for Applicant(s) : 1,
MR
KH KAJI for Respondent(s) : 1,
MR MANISH K KAJI for Respondent(s)
: 1,
=========================================
CORAM
:
HONOURABLE
MS. JUSTICE HARSHA DEVANI
and
HONOURABLE
MR. JUSTICE H.B.ANTANI
Date
: 18/01/2011
CAV
ORDER
(Per
: HONOURABLE MS. JUSTICE HARSHA DEVANI)
1. By
this application under section 5 of the Limitation Act, 1963, the
applicant – the State of Gujarat seeks condonation of delay of
110 days caused in filing Tax Appeal (Stamp) No.789 of 2010.
2. Vide
order dated 16th August, 2010, this Court had issued rule.
In response to the notice of rule, the respondent has filed
appearance through learned advocate Mr. Manish K. Kaji and has filed
an affidavit in-reply, dealing with the averments made in the
application on merits. The respondent has also raised a contention
that in the light of the provisions of section 78 of the Gujarat
Value Added Tax Act, 2003 (the Act), the High Court has no power to
condone the delay caused in filing a tax appeal and as such, the
application deserves to be rejected on this ground alone.
3. Ms.
Maithili Mehta, learned Assistant Government Pleader, invited the
attention of the Court to the averments made in the application, to
submit that the delay that has been occasioned in filing the tax
appeal has been sufficiently explained and as such, the same requires
to be condoned in the interest of justice. It was submitted that the
time taken in preferring the appeal is because of the procedure that
is required to be followed in the administrative hierarchy which
requires the proposal for filing the appeal to be scrutinized at
various levels and as such, there was no negligence on the part of
the respondent in preferring the tax appeal and that the applicant
was bona fide pursuing the remedy of appeal.
4. On
the other hand, Mr. Manish K. Kaji, learned advocate for the
respondent raised a preliminary objection to the very maintainability
of the application on the ground that the appeal has been preferred
under section 78 of the Act which does not make any provision for
condonation of delay and as such, the application is required to be
rejected on this ground alone. The learned advocate placed reliance
upon a decision of the Supreme Court in the case of Commissioner
of Customs and Central Excise v. Hongo India, (2009) 315 ITR
449, wherein the Supreme Court in the context of the provisions of
sections 35G and 35H of the Central Excise Act, 1944, had held that
the limitation for preferring an appeal cannot be extended by
invoking the provisions of section 5 of the Limitation Act. Reliance
was placed upon a decision of the Bombay High Court in the case of
Commissioner of Income Tax v. Grasim Industries Ltd.,
[2009] 319 ITR 154 (Bom), wherein the Court while examining the
provisions of section 260A of the Income Tax Act, 1961, had held that
the said provisions being in pari materia with sections
35G and 35H of the Central Excise Act, 1944, the High Court had no
power to condone the delay. Strong reliance was placed upon a
decision of the Punjab & Haryana High Court in the case of State
of Punjab and another v. Shreyans Industries Ltd., [2010] 29
VST 474 (P&H), wherein the Court in the context of the provisions
of section 68(2)(a) of the Punjab Value Added Tax Act (8 of 2005),
had held that in the light of the reasoning adopted by the Supreme
Court in the case of Commissioner of Customs and Central Excise
v. Hongo India (supra), the High Court had no power to
condone the delay under section 5 of the Limitation Act.
5. Referring
to the provisions of section 78 of the Act, it was submitted that the
said section does not provide for condonation of delay for filing an
appeal to the High Court. Attention was also invited to the
provisions of section 84 of the Act, which provides for extension of
the period of limitation in certain cases, to submit that though the
said section makes provision for admitting any appeal or cross
objections after the period of limitation, the same only empowers the
Tribunal to admit an application under section 75 or section 78 of
the Act. That the said provision does not enact that the High Court
has the power to admit any appeal after the period of limitation and
as such, the High Court does not have any power to condone the delay
that has been caused in preferring a tax appeal under section 78 of
the Act.
6. It
was further submitted that even on merits, the application does not
deserve to be entertained inasmuch as the applicant has failed to
properly explain the delay of 110 days that had been caused in filing
the tax appeal, and as such, even on this count, the application is
required to be rejected.
7. Dealing
with the contentions as regards applicability of section 5 of the
Limitation Act, Ms. Maithili Mehta, learned Assistant Government
Pleader invited attention to the provisions of section 78 of the Act,
which makes provision for “Appeal to High Court”.
Referring to sub-section (7) thereof, it was submitted that the same
provides that in respect of matters not provided in the section, the
provisions of the Code of Civil Procedure, 1908 (the Code), which
applies to the second appeal to the High Court under section 100 of
the Code shall, so far as may be, apply to the second appeal under
the section. It was, accordingly, submitted that the provisions of
the Code as applicable to second appeals to the High Court would
apply to an appeal under section 78 of the Act.
8. Referring
to Order XLII of the Code, it was pointed out that rule 1 thereof
provides that the rules of Order XLI shall apply, so far as may be,
to appeals from appellate decrees. Referring to rule 3(A) of Order
XLI of the Code, it was pointed out that the same makes provision for
condonation of delay in presenting an appeal after the period of
limitation specified therefor. It was, accordingly, submitted that in
the light of the provisions of section 78 of the Act read with
section 100 and Orders XLI and XLII of the Code, it is apparent that
the High Court has the power to condone the delay that has occasioned
in preferring tax appeal under section 78 of the Act. It was,
accordingly, submitted that the objection raised to the
maintainability of the application is misconceived and that the High
Court has the power to condone the delay by invoking the provisions
of section 5 of the Limitation Act in the light of the provisions of
sub-section (7) of section 78 of the Act.
9. In
the light of the aforesaid facts and contentions, the question that
arises for consideration is as to whether section 5 of the Limitation
Act is applicable to an appeal filed in the High Court under section
78 of the Act or as to whether there is any power vested in the High
Court under the provisions of the Gujarat Value Added Tax Act for
condoning the delay caused in filing an appeal under section 78 of
the Act.
10. In
this regard, it may be germane to refer to certain statutory
provisions. Section 78 of the Act, insofar as the same is relevant
for the present purpose, reads thus:
“[78] Appeal
to High Court.
[1] An
appeal shall lie to the High Court from Court every order passed in
appeal by the Tribunal, if the High Court is satisfied that the case
involves a substantial question of law.
[2] xxx
[3] xxx
[6] An
appeal under this section may be filed within ninety days from the
date of communication of the order of the Tribunal and shall be
accompanied with a fee of rupees two hundred.
[7] In
respect of such matters not provided in this section, the provisions
of Code of Civil Procedure, 1908, which applies to the second appeal
to High Court under section 100 of the said Code shall, so far as may
be, apply to the second appeal under this section.”
11. On
a plain reading of section 78 of the Act, it is apparent that
sub-section (6) thereof provides for preferring an appeal within
ninety days from the date of communication of the order of the
Tribunal. The language employed in the provision is an appeal under
the section may be filed within ninety days. The expression used is
“may” and not “shall”, hence, prima facie, it
appears that the provision is directory rather than mandatory in
nature. Sub-section (7) of section 78 of the Act provides that in
respect of such matters not provided under the section, the
provisions of Code of Civil Procedure, 1908, which applies to the
second appeal to High Court under section 100 of the said Code shall,
so far as may be, apply to the second appeal under this section.
Thus, the said provision provides that the provisions of the Code of
Civil Procedure as applicable to second appeals to High court under
section 100 of the Code shall apply to second appeals under section
78 in respect of such matters not provided under the section. Section
100 of the Code provides for second appeals to the High Court, where
the High Court is satisfied that the case involves a substantial
question of law. The procedural provisions in respect of second
appeal are provided under Order XLII of the Code, which deals with
appeals from appellate decrees. Sub-rule (1) of Order XLII of the
Code provides that rules of Order XLI shall apply, so far as may be,
to appeals from appellate decrees. Rule 3(A) of Order XLI provides
that when an appeal is presented after the expiry of the period of
limitation specified thereof, it shall be accompanied by an
application supported by affidavit setting forth the facts on which
the appellant relies to satisfy the court that he had sufficient
cause for not preferring appeal within such period. Sub-rule (2)
thereof provides that if the Court sees no reason to reject the
application without issue of a notice to the respondent, notice
thereof shall be issued to the respondent and the matter shall be
finally decided by the Court before it proceeds to deal with the
appeal under rule 11 or rule 13, as the case may be. Thus, rule 3(A)
of Order XLI of the Code specifically provides for condoning the
delay in case an appeal is presented after the period of limitation
when the Court is satisfied that the appellant had sufficient cause
for not preferring the appeal within such period.
12. As
noted hereinabove, sub-section (7) of section 78 of the Act opens
with the words “In respect of such matters not provided in this
section”. On a plain reading of the said expression, it is
apparent that the provisions of second appeal under section 100 of
the Code shall apply in respect of such matters which are not
provided under section 78 of the Act. Thus, since section 78 of the
Act does not make any provision in the matter of condonation of
delay, the provisions of section 100 of the Code which would include
provisions of Order XLII of the Code, would be applicable and the
provisions of rule 3(A) of Order XLI which provides for condoning the
delay where sufficient cause is made out, would also be applicable.
In the circumstances, the contention that there is no provision for
condoning the delay in case where an appeal is filed under section 78
of the Act does not merit acceptance.
13. The
question is also required to be examined from another angle. Section
84 of the Act, which provides for “Extension of limitation in
certain cases”, reads as follows :
“[84]
Extension of period of limitation in certain cases.
An
appellate authority may admit any appeal or permit the filing of a
memorandum of cross objections under section 73 and the Tribunal may
admit an application under section 75 or under section 78 after the
period of limitation laid down in the said sections, if the appellant
or the applicant satisfies the appellate authority or the Tribunal,
as the case may be, that he had sufficient cause for not preferring
the appeal or filing a memorandum of cross objections or making the
application, within such period.”
14. Thus,
section 84 of the Act provides for admitting any appeal or permitting
filing of memorandum of cross objection under section 73 of the Act
by the appellate authority and admitting of an application under
section 75 or section 78 by the Tribunal after the period of
limitation laid down under the said sections, if the appellant or the
applicant satisfies the appellate authority or the Tribunal, as the
case may be, that he had sufficient cause for not preferring the
appeal or filing the memorandum of cross objections or making
application within such period. Thus, section 84 of the Act provides
for extension of period of limitation in relation to any appeal or
cross objections under section 73, and applications under sections 75
and 78 of the Act.
15. Section
73 of the Act provides for an appeal from every original order, not
being an order mentioned in section 74, passed under the Act or the
rules, shall lie, (a) if the order is made by an Assistant
Commissioner or Commercial Tax Officer or any other officer
subordinate thereto, to the Deputy Commissioner, (b) if the order is
made by a Deputy Commissioner, to the Joint Commissioner; (c) if the
order is made by a Joint Commissioner, Additional Commissioner or
Commissioner, to the Tribunal. Thus, the appeals under section 73 of
the Act shall lie to the Deputy Commissioner, to the Joint
Commissioner or to the Tribunal, as the case may be, depending upon
the authority whose order is subject matter of appeal.
16. Section
75 of the Act makes provisions for revision by the Commissioner of
his own motion within three years or on an application made to him
and by the Tribunal on an application made to it against the order of
the Commissioner as provided under the said section. Section 78 of
the Act makes provision for appeal to High Court.
17. On
a close reading of section 84 of the Act, it appears that there are
certain lacunas in the drafting of the said provision. As noted
hereinabove, section 73 provides for appeal to the appellate
authority as well as the Tribunal; section 75 provides for revision
by the Commissioner as well as the Tribunal whereas section 78
provides for appeal to the High Court. However, section 84 speaks of
admitting an appeal or cross objection under section 73 by the
appellate authority and admitting an application under section 75 or
78 by the Tribunal after the period of limitation. Thus, though
section 73 or section 75 provide for an appeal and revision both to
the Commissioner and the Tribunal, section 84 of the Act provides for
extension of limitation in case of an appeal to the appellate
authority under section 73 and application to the Tribunal under
section 75 and 78 of the Act. As noted hereinabove, section 78 of the
Act does not provide for making any application to the Tribunal but
provides for appeal to the High Court.
18. Sub-section
(3) of section 73 of the Act provides that subject to the provisions
of section 84, no appeal shall be entertained unless it is filed
within sixty days from the date of communication of the order
appealed against. Thus all appeals under section 73 of the Act,
whether to the appellate authority or the Tribunal are subject to
section 84 of the Act. But from the language of section 84, it
appears as if the same applies only in respect of appeals to the
appellate authority under section 73 of the Act.
19. As
noticed above, section 84 specifically provides for admitting an
application under section 78 of the Act by the Tribunal after the
prescribed period of limitation. Whereas, section 78 of the Act
provides for appeal (not application) to the High Court. No power is
vested in the Tribunal under section 78 of the Act. Thus, if section
84 of the Act is construed literally, the same results into an
absurdity, inasmuch as the words section 78 are rendered meaningless.
It appears that though the intention of the legislature was to make
the provisions of section 84 applicable to appeals to the High Court
under section 78 of the Act, due to some error on the part of the
draftsman, the words “the High Court may admit an appeal”
have been accidentally omitted before the words “under section
78“. Since section 78 has in fact been included in section 84
of the Act, unless such an interpretation is adopted, namely, that
the legislature has through inadvertent error, left out the words
“the High Court may admit an appeal” in the said
provisions, the words “under section 78 of the Act” would
become meaningless. Though it is not permissible to read words in a
statute which are not there, but where the alternative lies between
either supplying by implication words which appear to have been
accidentally omitted, or adopting a construction which deprives
certain existing words of all meaning, it is permissible to supply
the words. In the present case, unless the words “and the High
Court may admit an appeal” are read to be existing before the
words “under section 78“, the words “under section
78” would lose all meaning. In the circumstances, adopting a
purposive interpretation, the words “the High Court may admit
an appeal” have to be read into section 84 of the Act.
20. The
Supreme Court in the case of Surjit Singh Kalara v. Union of
India, (1991) 2 SCC 87, has held thus:
“19.
True it is not permissible to read words in a statute which are not
there, but “where the alternative lies between either supplying
by implication words which appear to have been accidentally omitted,
or adopting a construction which deprives certain existing words of
all meaning, it is permissible to supply the words” (Craies
Statute Law, 7th edn., p. 109). Similar are the
observations in Hameedia Hardware Stores v. B.
Mohan Lal Sowcar where it was observed that the court
construing a provision should not easily read into it words which
have not been expressly enacted but having regard to the
context in which a provision appears and the object of the statute in
which the said provision is enacted the court should construe it in a
harmonious way to make it meaningful. An attempt must always be made
so to reconcile the relevant provisions as to advance the remedy
intended by the statute. (See: Sirajul Haq Khan v.
Sunni Central Board of Waqf.)
21. Thus,
reconciling the relevant provisions, it is apparent that section 84
of the Act provides for extension of period of limitation even in
respect of appeal to the High Court under section 78 of the Act.
22. In
Gujarat Urja Vikas Nigam Ltd. v. Essar Power Ltd.,(2008) 4
SCC 755, the Supreme Court reiterated the aforesaid
view and held thus:
52.
No doubt ordinarily the literal rule of interpretation should be
followed, and hence the court should neither add nor delete words in
a statute. However, in exceptional cases this can be done where not
doing so would deprive certain existing words in a statute of all
meaning, or some part of the statute may become absurd.
53.
In the chapter on “Exceptional Construction” in his book
on Interpretation of Statutes, Maxwell writes:
“WHERE
the language of a statute, in its ordinary meaning and grammatical
construction, leads to a manifest contradiction of the apparent
purpose of the enactment, or to some inconvenience or absurdity,
hardship or injustice, presumably not intended, a construction may be
put upon it which modifies the meaning of the words, and even the
structure of the sentence. This may be done by departing from the
rules of grammar, by giving an unusual meaning to particular words,
by altering their collocation, by rejecting them altogether,
or by interpolating other words, under the influence, no doubt, of an
irresistible conviction that the legislature could not possibly have
intended what its words signify, and that the modifications thus made
are mere corrections of careless language and really give the true
meaning.”
54.
Thus, in Surjit Singh Kalra v. Union of India
this Court has observed that sometimes courts can supply words which
have been accidentally omitted.
55.
In G.P. Singh’s Principles of Statutory Interpretation,
9th Edn., 2004 at pp. 71-74 several decisions of this Court and
foreign courts have been referred to where the court has added words
to a statute (though cautioning that normally this should not be
done).
23. In
the light of the aforesaid discussion, the contention raised on
behalf of the respondent that the High Court has no power to condone
the delay in respect of an appeal preferred under section 78 of the
Act, does not merit acceptance and is, accordingly, rejected.
24. Insofar
as the reasons stated for the delay caused in filing the appeal are
concerned, it is apparent that the delay has been occasioned on
account of procedural delay which is inherent in most matters which
are filed by the Government, namely, various stages at which the
approval is required for the purpose of filing appeal. The apex
court in case of State of Haryana v. Chandramani, (1996)
3 SCC 132, held thus:
“It
is notorious and common knowledge that delay in more than 60 per cent
of the cases filed in this Court — be it by private party or
the State — are barred by limitation and this Court generally
adopts liberal approach in condonation of delay finding
somewhat sufficient cause to decide the appeal on merits. It is
equally common knowledge that litigants including the State are
accorded the same treatment and the law is administered in an
even-handed manner. When the State is an applicant, praying for
condonation of delay, it is common knowledge that on account of
impersonal machinery and the inherited bureaucratic methodology
imbued with the note-making, file-pushing, and passing-on-the-buck
ethos, delay on the part of the State is less difficult to understand
though more difficult to approve, but the State represents collective
cause of the community. It is axiomatic that decisions are taken by
officers/agencies proverbially at slow pace and encumbered process of
pushing the files from table to table and keeping it on table for
considerable time causing delay — intentional or otherwise —
is a routine. Considerable delay of procedural red-tape in the
process of their making decision is a common feature. Therefore,
certain amount of latitude is not impermissible. If the appeals
brought by the State are lost for such default no person is
individually affected but what in the ultimate analysis suffers, is
public interest. The expression “sufficient cause”
should, therefore, be considered with pragmatism in justice-oriented
approach rather than the technical detection of sufficient cause for
explaining every day’s delay. The factors which are
peculiar to and characteristic of the functioning of the governmental
conditions would be cognizant to and requires adoption of pragmatic
approach in justice-oriented process. The court should decide the
matters on merits unless the case is hopelessly without merit.”
25. In
G. Ramegowda, Major v. Spl. Land
Acquisition Officer, (1988) 2 SCC 142, the
Supreme Court held that no general principle saving the party from
all mistakes of its counsel could be laid. The expression “sufficient
cause” must receive a liberal construction so as to advance
substantial justice and generally delays in preferring the appeals
are required to be condoned in the interest of justice where no gross
negligence or deliberate inaction or lack of bona fides is imputable
to the party seeking condonation of delay. In litigations to which
Government is a party, there is yet another aspect which, perhaps,
cannot be ignored. If appeals brought by Government are lost for such
defaults, no person is individually affected; but what, in the
ultimate analysis, suffers is public interest. The decisions of
Government are collective and institutional decisions and do not
share the characteristics of decisions of private individuals. The
law of limitation is, no doubt, the same for a private citizen as for
governmental authorities. Government, like any other litigant must
take responsibility for the acts or omissions of its officers. But a
somewhat different complexion is imparted to the matter where
Government makes out a case where public interest was shown to have
suffered owing to acts of fraud or bad faith on the part of its
officers or agents and where the officers were clearly at
cross-purposes with it. It was, therefore, held that in assessing
what constitutes sufficient cause for purposes of Section 5, it
might, perhaps, be somewhat unrealistic to exclude from the
consideration that go into the judicial verdict, these factors which
are peculiar to and characteristic of the functioning of the
Government. Government decisions are proverbially slow encumbered, as
they are, by a considerable degree of procedural red-tape in the
process of their making. A certain amount of latitude is, therefore,
not impermissible. It is rightly said that those who bear
responsibility of Government must have “a little play at the
joints”. Due recognition of these limitations on governmental
functioning — of course, within reasonable limits — is
necessary if the judicial approach is not to be rendered unrealistic.
It would, perhaps, be unfair and unrealistic to put Government and
private parties on the same footing in all respects in such matters.
Implicit in the very nature of governmental functioning is procedural
delay incidental to the decision-making process. The delay of over
one year was accordingly condoned.
26. Examining
the facts of the present case in the light of the principles
enunciated in the above referred decisions, this Court is of the view
that the applicant has sufficiently explained the delay that has been
caused in preferring the tax appeal and that there is no willful
negligence on the part of the applicant, nor has the applicant ever
given up the cause. In the circumstances, the delay caused in filing
the appeal deserves to be condoned.
27. For
the foregoing reasons, the application succeeds and is, accordingly,
allowed. The delay of 110 days caused in filing Tax Appeal (Stamp)
No.789 of 2010 is hereby condoned. Rule is made absolute,
accordingly, with no order as to costs.
[HARSHA
DEVANI, J.]
[H.B.ANTANI,
J.]
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