{"id":258543,"date":"2011-01-18T00:00:00","date_gmt":"2011-01-17T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/state-vs-ms-on-18-january-2011"},"modified":"2018-03-07T05:23:59","modified_gmt":"2018-03-06T23:53:59","slug":"state-vs-ms-on-18-january-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/state-vs-ms-on-18-january-2011","title":{"rendered":"State vs M\/S on 18 January, 2011"},"content":{"rendered":"
Gujarat High Court<\/div>\n
State vs M\/S on 18 January, 2011<\/div>\n
Author: Harsha Devani,&Nbsp;Honourable H.B.Antani,&Nbsp;<\/div>\n
   Gujarat High Court Case Information System \n\n  \n  \n    \n\n \n \n    \t      \n         \n\t    \n\t\t   Print\n\t\t\t\t          \n\n  \n\n\n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t\n\n\n \n\n\n\t \n\nOJCA\/303\/2010\t 17\/ 17\tORDER \n \n \n\n\t\n\n \n\n \n\n\n \n\n \n\n\n \n\nIN\nTHE HIGH COURT OF GUJARAT AT AHMEDABAD\n \n\n \n\n\n \n\n \n\n\n \n\nCIVIL\nAPPLICATION No. 303 of 2010\n \n\nIn\n\n\n \n\nSTAMP\nNUMBER No. 789 of 2010\n \n\n \n \nFor\nApproval and Signature:  \n \nHONOURABLE\nMS. JUSTICE HARSHA DEVANI  \nHONOURABLE\nMR. JUSTICE H.B.ANTANI\n \n \n=========================================\n\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n1\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tReporters of Local Papers may be allowed to see the judgment ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n2\n\t\t\n\t\t \n\t\t\t \n\nTo\n\t\t\tbe referred to the Reporter or not ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n3\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\ttheir Lordships wish to see the fair copy of the judgment ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n4\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tthis case involves a substantial question of law as to the\n\t\t\tinterpretation of the constitution of India, 1950 or any order\n\t\t\tmade thereunder ?\n\t\t\n\t\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\n5\n\t\t\n\t\t \n\t\t\t \n\nWhether\n\t\t\tit is to be circulated to the civil judge ?\n\t\t\n\t\n\n \n\n \n=========================================\n\n\n \n\nSTATE\nOF GUJARAT, THROUGH COMMISSIONER OF COMMERCIAL TAX, - Applicant(s)\n \n\nVersus\n \n\nM\/S\nRAMA NEWSPRINT & PAPERS LTD. - Respondent(s)\n \n\n========================================= \nAppearance\n: \nMS MAITHILI\nMEHTA, ASSISTANT GOVERNMENT PLEADER\nfor Applicant(s) : 1, \nMR\nKH KAJI for Respondent(s) : 1, \nMR MANISH K KAJI for Respondent(s)\n: 1, \n=========================================\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\nCORAM\n\t\t\t: \n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\nHONOURABLE\n\t\t\tMS. JUSTICE HARSHA DEVANI\n\t\t\n\t\n\t \n\t\t \n\t\t \n\t\t\t \n\n                              and\n\t\t\n\t\n\t \n\t\t \n\t\t \n\t\t\t \n\nHONOURABLE\n\t\t\tMR. JUSTICE H.B.ANTANI\n\t\t\n\t\n\n \n\n \n \n\n\n \n\nDate\n:  18\/01\/2011 \n\n \n\n \nCAV\nORDER                                                     \n<\/pre>\n
                                                  (Per
\n: HONOURABLE MS. JUSTICE HARSHA DEVANI)<\/p>\n
1.\tBy
\nthis application under section 5<\/a> of the Limitation Act, 1963, the
\napplicant – the State of Gujarat seeks condonation of delay of
\n110 days caused in filing Tax Appeal (Stamp) No.789 of 2010.\n<\/p>\n
2.\tVide
\norder dated 16th August, 2010, this Court had issued rule.
\nIn response to the notice of rule, the respondent has filed
\nappearance through learned advocate Mr. Manish K. Kaji and has filed
\nan affidavit in-reply, dealing with the averments made in the
\napplication on merits. The respondent has also raised a contention
\nthat in the light of the provisions of section 78 of the Gujarat
\nValue Added Tax Act, 2003 (the Act), the High Court has no power to
\ncondone the delay caused in filing a tax appeal and as such, the
\napplication deserves to be rejected on this ground alone.\n<\/p>\n
3.\tMs.\n<\/p>\n
Maithili Mehta, learned Assistant Government Pleader, invited the
\nattention of the Court to the averments made in the application, to
\nsubmit that the delay that has been occasioned in filing the tax
\nappeal has been sufficiently explained and as such, the same requires
\nto be condoned in the interest of justice. It was submitted that the
\ntime taken in preferring the appeal is because of the procedure that
\nis required to be followed in the administrative hierarchy which
\nrequires the proposal for filing the appeal to be scrutinized at
\nvarious levels and as such, there was no negligence on the part of
\nthe respondent in preferring the tax appeal and that the applicant
\nwas bona fide pursuing the remedy of appeal.\n<\/p>\n
4.\tOn
\nthe other hand, Mr. Manish K. Kaji, learned advocate for the
\nrespondent raised a preliminary objection to the very maintainability
\nof the application on the ground that the appeal has been preferred
\nunder section 78<\/a> of the Act which does not make any provision for
\ncondonation of delay and as such, the application is required to be
\nrejected on this ground alone.  The learned advocate placed reliance
\nupon a decision of the Supreme Court in the case of Commissioner
\nof Customs and Central Excise v. Hongo India<\/a>, (2009) 315 ITR
\n449, wherein the Supreme Court in the context of the provisions of
\nsections 35G<\/a> and 35H<\/a> of the Central Excise Act, 1944, had held that
\nthe limitation for preferring an appeal cannot be extended by
\ninvoking the provisions of section 5<\/a> of the Limitation Act. Reliance
\nwas placed upon a decision of the Bombay High Court in the case of
\nCommissioner of Income Tax v. Grasim Industries Ltd<\/a>.,
\n[2009] 319 ITR 154 (Bom), wherein the Court while examining the
\nprovisions of section 260A<\/a> of the Income Tax Act, 1961, had held that
\nthe said provisions being in pari materia with sections
\n35G<\/a> and 35H<\/a> of the Central Excise Act, 1944, the High Court had no
\npower to condone the delay. Strong reliance was placed upon a
\ndecision of the Punjab & Haryana High Court in the case of State
\nof Punjab and another v. Shreyans Industries Ltd., [2010] 29
\nVST 474 (P&H), wherein the Court in the context of the provisions
\nof section 68(2)(a)<\/a> of the Punjab Value Added Tax Act (8 of 2005),
\nhad held that in the light of the reasoning adopted by the Supreme
\nCourt in the case of Commissioner of Customs and Central Excise
\nv. Hongo India<\/a> (supra), the High Court had no power to
\ncondone the delay under section 5<\/a> of the Limitation Act.\n<\/p>\n
5.\tReferring
\nto the provisions of section 78<\/a> of the Act, it was submitted that the
\nsaid section does not provide for condonation of delay for filing an
\nappeal to the High Court.  Attention was also invited to the
\nprovisions of section 84<\/a> of the Act, which provides for extension of
\nthe period of limitation in certain cases, to submit that though the
\nsaid section makes provision for admitting any appeal or cross
\nobjections after the period of limitation, the same only empowers the
\nTribunal to admit an application under section 75<\/a> or section 78<\/a> of
\nthe Act.  That the said provision does not enact that the High Court
\nhas the power to admit any appeal after the period of limitation and
\nas such, the High Court does not have any power to condone the delay
\nthat has been caused in preferring a tax appeal under section 78<\/a> of
\nthe Act.\n<\/p>\n
6.\tIt
\nwas further submitted that even on merits, the application does not
\ndeserve to be entertained inasmuch as the applicant has failed to
\nproperly explain the delay of 110 days that had been caused in filing
\nthe tax appeal, and as such, even on this count, the application is
\nrequired to be rejected.\n<\/p>\n
7.\tDealing
\nwith the contentions as regards applicability of section 5<\/a> of the
\nLimitation Act, Ms. Maithili Mehta, learned Assistant Government
\nPleader invited attention to the provisions of section 78<\/a> of the Act,
\nwhich makes provision for “Appeal to High Court”.
\nReferring to sub-section (7) thereof, it was submitted that the same
\nprovides that in respect of matters not provided in the section, the
\nprovisions of the Code of Civil Procedure, 1908 (the Code), which
\napplies to the second appeal to the High Court under section 100 of
\nthe Code shall, so far as may be, apply to the second appeal under
\nthe section. It was, accordingly, submitted that the provisions of
\nthe Code as applicable to second appeals to the High Court would
\napply to an appeal under section 78<\/a> of the Act.\n<\/p>\n
8.\tReferring
\nto Order XLII of the Code, it was pointed out that rule 1 thereof
\nprovides that the rules of Order XLI shall apply, so far as may be,
\nto appeals from appellate decrees. Referring to rule 3(A) of Order
\nXLI of the Code, it was pointed out that the same makes provision for
\ncondonation of delay in presenting an appeal after the period of
\nlimitation specified therefor. It was, accordingly, submitted that in
\nthe light of the provisions of section 78<\/a> of the Act read with
\nsection 100<\/a> and  Orders XLI and XLII of the Code, it is apparent that
\nthe High Court has the power to condone the delay that has occasioned
\nin preferring tax appeal under section 78<\/a> of the Act. It was,
\naccordingly, submitted that the objection raised to the
\nmaintainability of the application is misconceived and that the High
\nCourt has the power to condone the delay by invoking the provisions
\nof section 5<\/a> of the Limitation Act in the light of the provisions of
\nsub-section (7) of section 78<\/a> of the Act.\n<\/p>\n
9.\tIn
\nthe light of the aforesaid facts and contentions, the question that
\narises for consideration is as to whether section 5<\/a> of the Limitation
\nAct is applicable to an appeal filed in the High Court under section
\n78<\/a> of the Act or as to whether there is any power vested in the High
\nCourt under the provisions of the Gujarat Value Added Tax Act for
\ncondoning the delay caused in filing an appeal under section 78<\/a> of
\nthe Act.\n<\/p>\n
10.\tIn
\nthis regard, it may be germane to refer to certain statutory
\nprovisions. Section 78<\/a> of the Act, insofar as the same is relevant
\nfor the present purpose, reads thus:\n<\/p>\n
“[78]\tAppeal
\nto High Court.\n<\/p>\n
[1]\tAn
\nappeal shall lie to the High Court from Court every order passed in
\nappeal by the Tribunal, if the High Court is satisfied that the case
\ninvolves a substantial question of law.\n<\/p>\n
[2]\txxx<\/p>\n
[3]\txxx<\/p>\n
[6]\tAn
\nappeal under this section may be filed within ninety days from the
\ndate of communication of the order of the Tribunal and shall be
\naccompanied with a fee of rupees two hundred.\n<\/p>\n
[7]\tIn
\nrespect of such matters not provided in this section, the provisions
\nof Code of Civil Procedure, 1908, which applies to the second appeal
\nto High Court under section 100<\/a> of the said Code shall, so far as may
\nbe, apply to the second appeal under this section.”\n<\/p>\n
11.\tOn
\na plain reading of section 78<\/a> of the Act, it is apparent that
\nsub-section (6) thereof provides for preferring an appeal within
\nninety days from the date of communication of the order of the
\nTribunal. The language employed in the provision is an appeal under
\nthe section may be filed within ninety days. The expression used is
\n“may” and not “shall”, hence, prima facie, it
\nappears that the provision is directory rather than mandatory in
\nnature. Sub-section (7) of section 78<\/a> of the Act provides that in
\nrespect of such matters not provided under the section, the
\nprovisions of Code of Civil Procedure, 1908, which applies to the
\nsecond appeal to High Court under section 100<\/a> of the said Code shall,
\nso far as may be, apply to the second appeal under this section.
\nThus, the said provision provides that the provisions of the Code of
\nCivil Procedure as applicable to second appeals to High court under
\nsection 100 of the Code shall apply to second appeals under section
\n78<\/a> in respect of such matters not provided under the section. Section
\n100 of the Code provides for second appeals to the High Court, where
\nthe High Court is satisfied that the case involves a substantial
\nquestion of law. The procedural provisions in respect of second
\nappeal are provided under Order XLII of the Code, which deals with
\nappeals from appellate decrees. Sub-rule (1) of Order XLII of the
\nCode provides that rules of Order XLI shall apply, so far as may be,
\nto appeals from appellate decrees. Rule 3(A) of Order XLI provides
\nthat when an appeal is presented after the expiry of the period of
\nlimitation specified thereof, it shall be accompanied by an
\napplication supported by affidavit setting forth the facts on which
\nthe appellant relies to satisfy the court that he had sufficient
\ncause for not preferring appeal within such period. Sub-rule (2)
\nthereof provides that if the Court sees no reason to reject the
\napplication without issue of a notice to the respondent, notice
\nthereof shall be issued to the respondent and the matter shall be
\nfinally decided by the Court before it proceeds to deal with the
\nappeal under rule 11 or rule 13, as the case may be.  Thus, rule 3(A)
\nof Order XLI of the Code specifically provides for condoning the
\ndelay in case an appeal is presented after the period of limitation
\nwhen the Court is satisfied that the appellant had sufficient cause
\nfor not preferring the appeal within such period.\n<\/p>\n
12.\tAs
\nnoted hereinabove, sub-section (7) of section 78<\/a> of the Act opens
\nwith the words “In respect of such matters not provided in this
\nsection”. On a plain reading of the said expression, it is
\napparent that the provisions of second appeal under section 100 of
\nthe Code shall apply in respect of such matters which are not
\nprovided under section 78<\/a> of the Act.  Thus, since section 78<\/a> of the
\nAct does not make any provision in the matter of condonation of
\ndelay, the provisions of section 100 of the Code which would include
\nprovisions of Order XLII of the Code, would be applicable and the
\nprovisions of rule 3(A) of Order XLI which provides for condoning the
\ndelay where sufficient cause is made out, would also be applicable.
\nIn the circumstances, the contention that there is no provision for
\ncondoning the delay in case where an appeal is filed under section 78<\/a>
\nof the Act does not merit acceptance.\n<\/p>\n
13.\tThe
\nquestion is also required to be examined from another angle. Section
\n84<\/a> of the Act, which provides for “Extension of limitation in
\ncertain cases”, reads as follows :\n<\/p>\n
“[84]
\nExtension of period of limitation in certain cases.\n<\/p>\n
An
\nappellate authority may admit any appeal or permit the filing of a
\nmemorandum of cross objections under section 73<\/a> and the Tribunal may
\nadmit an application under section 75<\/a> or under section 78<\/a> after the
\nperiod of limitation laid down in the said sections, if the appellant
\nor the applicant satisfies the appellate authority or the Tribunal,
\nas the case may be, that he had sufficient cause for not preferring
\nthe appeal or filing a memorandum of cross objections or making the
\napplication, within such period.”\n<\/p>\n
14.\tThus,
\nsection 84<\/a> of the Act provides for admitting any appeal or permitting
\nfiling of memorandum of cross objection under section 73<\/a> of the Act
\nby the appellate authority and admitting of an application under
\nsection 75<\/a> or section 78<\/a> by the Tribunal after the period of
\nlimitation laid down under the said sections, if the appellant or the
\napplicant satisfies the appellate authority or the Tribunal, as the
\ncase may be, that he had sufficient cause for not preferring the
\nappeal or filing the memorandum of cross objections or making
\napplication within such period. Thus, section 84<\/a> of the Act provides
\nfor extension of period of limitation in relation to any appeal or
\ncross objections under section 73<\/a>, and applications under sections 75<\/a>
\nand 78<\/a> of the Act.\n<\/p>\n
15.\tSection
\n73<\/a> of the Act provides for an appeal from every original order, not
\nbeing an order mentioned in section 74<\/a>, passed under the Act or the
\nrules, shall lie, (a) if the order is made by an Assistant
\nCommissioner or Commercial Tax Officer or any other officer
\nsubordinate thereto, to the Deputy Commissioner, (b) if the order is
\nmade by a Deputy Commissioner, to the Joint Commissioner; (c) if the
\norder is made by a Joint Commissioner, Additional Commissioner or
\nCommissioner, to the Tribunal. Thus, the appeals under section 73<\/a> of
\nthe Act shall lie to the Deputy Commissioner, to the Joint
\nCommissioner or to the Tribunal, as the case may be, depending upon
\nthe authority whose order is subject matter of appeal.\n<\/p>\n
16.\tSection
\n75<\/a> of the Act makes provisions for revision by the Commissioner of
\nhis own motion within three years or on an application made to him
\nand by the Tribunal on an application made to it against the order of
\nthe Commissioner as provided under the said section. Section 78<\/a> of
\nthe Act makes provision for appeal to High Court.\n<\/p>\n
17.\tOn
\na close reading of section 84<\/a> of the Act, it appears that there are
\ncertain lacunas in the drafting of the said provision. As noted
\nhereinabove, section 73<\/a> provides for appeal to the appellate
\nauthority as well as the Tribunal; section 75<\/a> provides for revision
\nby the Commissioner as well as the Tribunal whereas section 78<\/a>
\nprovides for appeal to the High Court. However, section 84<\/a> speaks of
\nadmitting an appeal or cross objection under section 73<\/a> by the
\nappellate authority and admitting an application under section 75<\/a> or
\n78 by the Tribunal after the period of limitation. Thus, though
\nsection 73<\/a> or section 75<\/a> provide for an appeal and revision both to
\nthe Commissioner and the Tribunal, section 84<\/a> of the Act provides for
\nextension of limitation in case of an appeal to the appellate
\nauthority under section 73<\/a> and application to the Tribunal under
\nsection 75<\/a> and 78<\/a> of the Act. As noted hereinabove, section 78<\/a> of the
\nAct does not provide for making any application to the Tribunal but
\nprovides for appeal to the High Court.\n<\/p>\n
18.\tSub-section
\n(3) of section 73<\/a> of the Act provides that subject to the provisions
\nof section 84<\/a>, no appeal shall be entertained unless it is filed
\nwithin sixty days from the date of communication of the order
\nappealed against. Thus all appeals under section 73<\/a> of the Act,
\nwhether to the appellate authority or the Tribunal are subject to
\nsection 84<\/a> of the Act. But from the language of section 84<\/a>, it
\nappears as if the same applies only in respect of appeals to the
\nappellate authority under section 73<\/a> of the Act.\n<\/p>\n
19.\tAs
\nnoticed above, section 84<\/a> specifically provides for admitting an
\napplication under section 78<\/a> of the Act by the Tribunal after the
\nprescribed period of limitation.  Whereas, section 78<\/a> of the Act
\nprovides for appeal (not application) to the High Court. No power is
\nvested in the Tribunal under section 78<\/a> of the Act. Thus, if section
\n84<\/a> of the Act is construed literally, the same results into an
\nabsurdity, inasmuch as the words section 78<\/a> are rendered meaningless.
\nIt appears that though the intention of the legislature was to make
\nthe provisions of section 84<\/a> applicable to appeals to the High Court
\nunder section 78<\/a> of the Act, due to some error on the part of the
\ndraftsman, the words “the High Court may admit an appeal”
\nhave been accidentally omitted before the words “under section
\n78<\/a>“. Since section 78<\/a> has in fact been included in section 84<\/a>
\nof the Act, unless such an interpretation is adopted, namely, that
\nthe legislature has through inadvertent error, left out the words
\n“the High Court may admit an appeal” in the said
\nprovisions, the words “under section 78<\/a> of the Act” would
\nbecome meaningless. Though it is not permissible to read words in a
\nstatute which are not there, but where the alternative lies between
\neither supplying by implication words which appear to have been
\naccidentally omitted, or adopting a construction which deprives
\ncertain existing words of all meaning, it is permissible to supply
\nthe words. In the present case, unless the words “and the High
\nCourt may admit an appeal” are read to be existing before the
\nwords “under section 78<\/a>“, the words “under section
\n78<\/a>” would lose all meaning. In the circumstances, adopting a
\npurposive interpretation, the words “the High Court may admit
\nan appeal” have to be read into section 84<\/a> of the Act.\n<\/p>\n
20.\tThe
\nSupreme Court in the case of Surjit Singh Kalara v. Union of
\nIndia<\/a>, (1991) 2 SCC 87, has held thus:\n<\/p>\n
“19.\n<\/p>\n
True it is not permissible to read words in a statute which are not
\nthere, but “where the alternative lies between either supplying
\nby implication words which appear to have been accidentally omitted,
\nor adopting a construction which deprives certain existing words of
\nall meaning, it is permissible to supply the words” (Craies
\nStatute Law, 7th edn., p. 109). Similar are the
\nobservations in Hameedia Hardware Stores v. B.
\nMohan Lal Sowcar<\/a> where it was observed that the court
\nconstruing a provision should not easily read into it words which
\nhave not been expressly enacted but having regard to the
\ncontext in which a provision appears and the object of the statute in
\nwhich the said provision is enacted the court should construe it in a
\nharmonious way to make it meaningful. An attempt must always be made
\nso to reconcile the relevant provisions as to advance the remedy
\nintended by the statute. (See: Sirajul Haq Khan v.
\nSunni Central Board of Waqf<\/a>.)<\/p>\n
21.\tThus,
\nreconciling the relevant provisions, it is apparent that section 84<\/a>
\nof the Act provides for extension of period of limitation even in
\nrespect of appeal to the High Court under section 78<\/a> of the Act.\n<\/p>\n
22.\tIn
\nGujarat Urja Vikas Nigam Ltd. v. Essar Power Ltd<\/a>.,(2008) 4
\nSCC 755,  the Supreme Court reiterated the aforesaid
\nview and held thus:\n<\/p>\n
52.
\nNo doubt ordinarily the literal rule of interpretation should be
\nfollowed, and hence the court should neither add nor delete words in
\na statute. However, in exceptional cases this can be done where not
\ndoing so would deprive certain existing words in a statute of all
\nmeaning, or some part of the statute may become absurd.\n<\/p>\n
53.
\nIn the chapter on “Exceptional Construction” in his book
\non Interpretation of Statutes, Maxwell writes:\n<\/p>\n
“WHERE
\nthe language of a statute, in its ordinary meaning and grammatical
\nconstruction, leads to a manifest contradiction of the apparent
\npurpose of the enactment, or to some inconvenience or absurdity,
\nhardship or injustice, presumably not intended, a construction may be
\nput upon it which modifies the meaning of the words, and even the
\nstructure of the sentence. This may be done by departing from the
\nrules of grammar, by giving an unusual meaning to particular words,
\nby altering their collocation, by rejecting them altogether,
\nor by interpolating other words, under the influence, no doubt, of an
\nirresistible conviction that the legislature could not possibly have
\nintended what its words signify, and that the modifications thus made
\nare mere corrections of careless language and really give the true
\nmeaning.”\n<\/p>\n
54.
\nThus, in Surjit Singh Kalra v. Union of India<\/a>
\nthis Court has observed that sometimes courts can supply words which
\nhave been accidentally omitted.\n<\/p>\n
55.
\nIn G.P. Singh’s Principles of Statutory Interpretation,
\n9th Edn., 2004 at pp.\u00a0\t71-74 several decisions of this Court and
\nforeign courts have been referred to where the court has added words
\nto a statute (though cautioning that normally this should not be
\ndone).\n<\/p>\n
23.\tIn
\nthe light of the aforesaid discussion, the contention raised on
\nbehalf of the respondent that the High Court has no power to condone
\nthe delay in respect of an appeal preferred under section 78<\/a> of the
\nAct, does not merit acceptance and is, accordingly, rejected.\n<\/p>\n
24.\tInsofar
\nas the reasons stated for the delay caused in filing the appeal are
\nconcerned, it is apparent that the delay has been occasioned on
\naccount of procedural  delay which is inherent in most matters which
\nare filed by the Government, namely, various stages at which the
\napproval is required for the purpose of filing appeal.  The apex
\ncourt in case of State of Haryana v. Chandramani<\/a>, (1996)
\n3 SCC 132, held thus:\n<\/p>\n
“It
\nis notorious and common knowledge that delay in more than 60 per cent
\nof the cases filed in this Court — be it by private party or
\nthe State — are barred by limitation and this Court generally
\nadopts liberal approach in condonation of delay finding
\nsomewhat sufficient cause to decide the appeal on merits. It is
\nequally common knowledge that litigants including the State are
\naccorded the same treatment and the law is administered in an
\neven-handed manner. When the State is an applicant, praying for
\ncondonation of delay, it is common knowledge that on account of
\nimpersonal machinery and the inherited bureaucratic methodology
\nimbued with the note-making, file-pushing, and passing-on-the-buck
\nethos, delay on the part of the State is less difficult to understand
\nthough more difficult to approve, but the State represents collective
\ncause of the community. It is axiomatic that decisions are taken by
\nofficers\/agencies proverbially at slow pace and encumbered process of
\npushing the files from table to table and keeping it on table for
\nconsiderable time causing delay — intentional or otherwise —
\nis a routine. Considerable delay of procedural red-tape in the
\nprocess of their making decision is a common feature. Therefore,
\ncertain amount of latitude is not impermissible. If the appeals
\nbrought by the State are lost for such default no person is
\nindividually affected but what in the ultimate analysis suffers, is
\npublic interest. The expression “sufficient cause”
\nshould, therefore, be considered with pragmatism in justice-oriented
\napproach rather than the technical detection of sufficient cause for
\nexplaining every day’s delay. The factors which are
\npeculiar to and characteristic of the functioning of the governmental
\nconditions would be cognizant to and requires adoption of pragmatic
\napproach in justice-oriented process. The court should decide the
\nmatters on merits unless the case is hopelessly without merit.”\n<\/p>\n
25.\tIn
\nG. Ramegowda, Major v. Spl. Land
\nAcquisition Officer<\/a>, (1988) 2 SCC 142, the
\nSupreme Court held that no general principle saving the party from
\nall mistakes of its counsel could be laid. The expression “sufficient
\ncause” must receive a liberal construction so as to advance
\nsubstantial justice and generally delays in preferring the appeals
\nare required to be condoned in the interest of justice where no gross
\nnegligence or deliberate inaction or lack of bona fides is imputable
\nto the party seeking condonation of delay. In litigations to which
\nGovernment is a party, there is yet another aspect which, perhaps,
\ncannot be ignored. If appeals brought by Government are lost for such
\ndefaults, no person is individually affected; but what, in the
\nultimate analysis, suffers is public interest. The decisions of
\nGovernment are collective and institutional decisions and do not
\nshare the characteristics of decisions of private individuals. The
\nlaw of limitation is, no doubt, the same for a private citizen as for
\ngovernmental authorities. Government, like any other litigant must
\ntake responsibility for the acts or omissions of its officers. But a
\nsomewhat different complexion is imparted to the matter where
\nGovernment makes out a case where public interest was shown to have
\nsuffered owing to acts of fraud or bad faith on the part of its
\nofficers or agents and where the officers were clearly at
\ncross-purposes with it. It was, therefore, held that in assessing
\nwhat constitutes sufficient cause for purposes of Section 5<\/a>, it
\nmight, perhaps, be somewhat unrealistic to exclude from the
\nconsideration that go into the judicial verdict, these factors which
\nare peculiar to and characteristic of the functioning of the
\nGovernment. Government decisions are proverbially slow encumbered, as
\nthey are, by a considerable degree of procedural red-tape in the
\nprocess of their making. A certain amount of latitude is, therefore,
\nnot impermissible. It is rightly said that those who bear
\nresponsibility of Government must have “a little play at the
\njoints”. Due recognition of these limitations on governmental
\nfunctioning — of course, within reasonable limits — is
\nnecessary if the judicial approach is not to be rendered unrealistic.
\nIt would, perhaps, be unfair and unrealistic to put Government and
\nprivate parties on the same footing in all respects in such matters.
\nImplicit in the very nature of governmental functioning is procedural
\ndelay incidental to the decision-making process. The delay of over
\none year was accordingly condoned.\n<\/p>\n
26.\tExamining
\nthe facts of the present case in the light of the principles
\nenunciated in the above referred decisions, this Court is of the view
\nthat the applicant has sufficiently explained the delay that has been
\ncaused in preferring the tax appeal and that there is no willful
\nnegligence on the part of the applicant, nor has the applicant ever
\ngiven up the cause. In the circumstances, the delay caused in filing
\nthe appeal deserves to be condoned.\n<\/p>\n
27.\tFor
\nthe foregoing reasons, the application succeeds and is, accordingly,
\nallowed. The delay of 110 days caused in filing Tax Appeal (Stamp)
\nNo.789 of 2010 is hereby condoned.  Rule is made absolute,
\naccordingly, with no order as to costs.\n<\/p>\n
[HARSHA
\nDEVANI, J.]<\/p>\n
[H.B.ANTANI,
\nJ.]<\/p>\n
parmar*\/hki<\/p>\n
\t\t   \u00a0\u00a0\u00a0<\/p>\n
\t\t   Top<\/p>\n","protected":false},"excerpt":{"rendered":"
Gujarat High Court State vs M\/S on 18 January, 2011 Author: Harsha Devani,&Nbsp;Honourable H.B.Antani,&Nbsp; Gujarat High Court Case Information System Print 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16,8],"tags":[],"class_list":["post-258543","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nState vs M\/S on 18 January, 2011 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/state-vs-ms-on-18-january-2011\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"State vs M\/S on 18 January, 2011 - Free Judgements of Supreme Court & High Court | Legal India\" \/>\n<meta property=\"og:url\" content=\"https:\/\/www.legalindia.com\/judgments\/state-vs-ms-on-18-january-2011\" \/>\n<meta property=\"og:site_name\" content=\"Free Judgements of Supreme Court & High Court | Legal India\" \/>\n<meta property=\"article:publisher\" content=\"https:\/\/www.facebook.com\/LegalindiaCom\/\" \/>\n<meta property=\"article:published_time\" content=\"2011-01-17T18:30:00+00:00\" \/>\n<meta property=\"article:modified_time\" content=\"2018-03-06T23:53:59+00:00\" \/>\n<meta property=\"og:image\" content=\"https:\/\/i0.wp.com\/www.legalindia.com\/judgments\/wp-content\/uploads\/sites\/5\/2025\/09\/legal-india-icon.jpg?fit=512%2C512&ssl=1\" \/>\n\t<meta property=\"og:image:width\" content=\"512\" \/>\n\t<meta property=\"og:image:height\" content=\"512\" \/>\n\t<meta property=\"og:image:type\" content=\"image\/jpeg\" \/>\n<meta name=\"author\" content=\"Legal India Admin\" \/>\n<meta name=\"twitter:card\" content=\"summary_large_image\" \/>\n<meta name=\"twitter:creator\" content=\"@legaliadmin\" \/>\n<meta name=\"twitter:site\" content=\"@Legal_india\" \/>\n<meta name=\"twitter:label1\" content=\"Written by\" \/>\n\t<meta name=\"twitter:data1\" content=\"Legal India Admin\" \/>\n\t<meta name=\"twitter:label2\" content=\"Est. reading time\" \/>\n\t<meta name=\"twitter:data2\" content=\"22 minutes\" \/>\n<script type=\"application\/ld+json\" class=\"yoast-schema-graph\">{\"@context\":\"https:\\\/\\\/schema.org\",\"@graph\":[{\"@type\":\"Article\",\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/state-vs-ms-on-18-january-2011#article\",\"isPartOf\":{\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/state-vs-ms-on-18-january-2011\"},\"author\":{\"name\":\"Legal India Admin\",\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/#\\\/schema\\\/person\\\/0bfdffe9059fb8bb24a86d094609c5ea\"},\"headline\":\"State vs M\\\/S on 18 January, 2011\",\"datePublished\":\"2011-01-17T18:30:00+00:00\",\"dateModified\":\"2018-03-06T23:53:59+00:00\",\"mainEntityOfPage\":{\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/state-vs-ms-on-18-january-2011\"},\"wordCount\":4263,\"commentCount\":0,\"publisher\":{\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/#organization\"},\"articleSection\":[\"Gujarat High Court\",\"High Court\"],\"inLanguage\":\"en-US\",\"potentialAction\":[{\"@type\":\"CommentAction\",\"name\":\"Comment\",\"target\":[\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/state-vs-ms-on-18-january-2011#respond\"]}]},{\"@type\":\"WebPage\",\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/state-vs-ms-on-18-january-2011\",\"url\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/state-vs-ms-on-18-january-2011\",\"name\":\"State vs M\\\/S on 18 January, 2011 - 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