{"id":52197,"date":"2010-09-15T00:00:00","date_gmt":"2010-09-14T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/maganlal-vs-chief-on-15-september-2010"},"modified":"2019-04-10T20:17:07","modified_gmt":"2019-04-10T14:47:07","slug":"maganlal-vs-chief-on-15-september-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/maganlal-vs-chief-on-15-september-2010","title":{"rendered":"Maganlal vs Chief on 15 September, 2010"},"content":{"rendered":"
Gujarat High Court<\/div>\n
Maganlal vs Chief on 15 September, 2010<\/div>\n
Author: H.K.Rathod,&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\n\n \n\n\n\t \n\nSCA\/10643\/2010\t 42\/ 45\tJUDGMENT \n \n \n\n\t\n\n \n\nIN\nTHE HIGH COURT OF GUJARAT AT AHMEDABAD\n \n\n \n\n\n \n\nSPECIAL\nCIVIL APPLICATION No. 10643 of 2010\n \n\n \n \nFor\nApproval and Signature:  \n \nHONOURABLE\nMR.JUSTICE H.K.RATHOD\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 be\n\t\t\treferred 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\nMAGANLAL\nV LODHIYA - Petitioner(s)\n \n\nVersus\n \n\nCHIEF\nCONTROLLING REVENUE AUTHORITY & 2 - Respondent(s)\n \n\n=========================================================\n \nAppearance\n: \nMR\nSANDEEP N BHATT for\nPetitioner(s) : 1, \nNone for Respondent(s) : 1 - 2. \nGOVERNMENT\nPLEADER for Respondent(s) :\n3, \n=========================================================\n\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\tMR.JUSTICE H.K.RATHOD\n\t\t\n\t\n\n \n\n \n \n\n\n \n\nDate\n: 15\/09\/2010 \n\n \n\n \n \nORAL\nJUDGMENT<\/pre>\n
Heard
\n\tlearned advocate Mr.Ashwin Patel with learned advocate Mr.Sandeep N.
\n\tBhatt on behalf of petitioner and learned AGP Mr.Amit Patel on
\n\tbehalf of respondent   State Authority. Brief facts of present
\n\tpetition are as under:-\n<\/p>\n
According
\n\tto petitioner, he had purchased property on 16.02.1999 by registered
\n\tsale deed No.692 by paying requisite stamp duty. Thereafter,
\n\trespondent No.2   Deputy Collector, Stamp Duty Valuation
\n\tOrganization, (City Block -1) had issued notice on 03.01.2002 for
\n\tdetermination of market value of property and petitioner represented
\n\thimself on date of hearing. Thereafter, on 31.01.2002, respondent
\n\tNo.2 – Deputy Collector passed final order under Section 32(A) of
\n\tBombay Stamp Act. Thereafter, on 18.06.2002, petitioner has
\n\tpreferred appeal before respondent No.1   Authority against which
\n\ton 10.05.2006, respondent No.2 has issued order while dismissing
\n\tappeal.\n<\/p>\n
Learned
\n\tadvocate Mr.Ashwin Patel submitted that after order passed by Deputy
\n\tCollector on 31.01.2002, a request was made by petitioner on
\n\t17.05.2002 to Deputy Collector to permit him to pay 12.5% stamp duty
\n\tagainst total amount of deficit stamp duty. This amount requires to
\n\tbe deposited when appeal preferred before Appellate  Authority.
\n\tLearned advocate Mr.Ashwin Patel submitted that after receiving
\n\taforesaid letter dated 06.06.2002, appeal was preferred immediately
\n\twithin 15 days before Appellate Authority, but, answer was given
\n\t(Page-47, Annexure- E ) that appeal is beyond a period of
\n\tlimitation, which is not correct looking to facts on record.
\n\tTherefore, he submitted that respondent No.1 not entertained appeal
\n\tbecause of limitation and therefore, letter dated 10.05.2006
\n\trequired to be quashed and set aside.\n<\/p>\n
Learned
\n\tAGP Mr.Amit Patel submitted that documents as referred in present
\n\tpetition being registered sale deed No.692 by which property was
\n\tpurchased by petitioner on 16.02.1999 and thereafter Deputy
\n\tCollector has issued notice to petitioner on 03.01.2002 under Rule
\n\t4(2) of  Bombay Stamp (Determination of Market Value) Rules, 1984,
\n\tbut, no representation has been made by petitioner as mentioned in
\n\torder dated 31.01.2002 by Deputy Collector. Learned AGP Mr.Amit
\n\tPatel also emphasized that before final order final notice dated
\n\t21.01.2002 was also served to petitioner, even though, no reply was
\n\tfiled and not remained personally present before Deputy Collector.
\n\tTherefore, Deputy Collector has rightly examined matter and
\n\tdetermined proper stamp duty which requires stamp duty for valuation
\n\tof property in question. Therefore, order is passed after giving
\n\treasonable opportunity of hearing to petitioner. According to Deputy
\n\tCollector, total amount of stamp duty comes to Rs.1,33,008\/- but
\n\tstamp duty which was paid by petitioner was Rs.31,900\/-, therefore,
\n\tremaining amount is Rs.1,01,188\/- being deficit stamp duty and with
\n\tfine Rs.250\/-, it come to Rs.1,01,438\/- which requires to be
\n\tdeposited by petitioner, but, it was not deposited and appeal was
\n\tpreferred by petitioner beyond period of limitation. Learned AGP
\n\tMr.Amit Patel submitted that in appeal dated 18.06.2002, which has
\n\tbeen preferred against order dated 31.01.2002 passed by Deputy
\n\tCollector, petitioner had no way mentioned that order dated
\n\t31.01.2002 was not received by petitioner. He also submitted that
\n\trequest for reducing amount of deposit was firstly made on
\n\t17.05.2002, considering date of order 31.01.2002, then, that
\n\tapplication itself is beyond period of limitation, because, at the
\n\trelevant time appeal was required to be filed within a period of 60
\n\tdays from the date of order passed as per Section 32(B) of Bombay
\n\tStamp Act. Therefore, learned AGP Mr.Patel submitted that appeal
\n\twhich was filed on 18.06.2002, was beyond a period of limitation of
\n\t60 days as prescribed under Section 32(B) of Bombay Stamp Act.
\n\tTherefore, respondent Authority rightly gave answer dated 10.05.2006
\n\tto petitioner that appeal preferred by petitioner is not to be
\n\tentertained because it is beyond a period of limitation under
\n\tSection 32(B) of Bombay Stamp Act.\n<\/p>\n
After
\n\tappreciating submissions made by both  learned advocates, relevant
\n\tSections 32(A) and 32(B) are quoted as under:-\n<\/p>\n
\t 32A.Determination
\n\tof market value of property which is the subject matter of
\n\tconveyance, etc. <\/p>\n
\t     1[(1)
\n\tEvery instrument of conveyance, exchange, gift, certificate of sale,
\n\tpartition, partnership, settlement, power of attorney to sell
\n\timmovable property when given for consideration or transfer of lease
\n\tby way of assignment, presented for registration under provisions of
\n\tthe Registration Act, 1908(XVI of 1908) shall be accompanied by a
\n\ttrue copy thereof;2
\n\t[and the statement in such form as may be prescribed by rules] and
\n\tif an officer registering such instrument under the aforesaid Act or
\n\tany person referred to in section 33 before whom such instrument is
\n\tproduced or come in the performance of his functions, has reason to
\n\tbelieve that the consideration set forth therein does not
\n\tapproximate to the market value of the property which is the subject
\n\tmatter of such instrument or as the case may be the market value of
\n\tthe property which is the subject matter of such instrument, has not
\n\tbeen truly set forth therein, he 3[shall
\n\tbefore] registering the instrument or, as the case may be,
\n\tperforming his functions in respect of such instrument, refer the
\n\tinstrument or true copy thereof to the Collector of such district in
\n\twhich either the whole or any part of the property is situated for
\n\tdetermining the true market value of such property and the proper
\n\tduty payable on the instrument under this section]<\/p>\n
\t     4[Provided
\n\tthat for the purpose of this Sub-section, the consideration set
\n\tforth in an instrument executed by the State Government, the Central
\n\tGovernment, a local authority, Gujarat Housing Board, Gujarat Slum
\n\tClearance Board or Gujarat Industrial Development Corporation, shall
\n\tbe deemed to be the true market value of the property which is the
\n\tsubject matter of such instrument.]<\/p>\n
\t     (2)<\/span>
\n\tOn receipt of the instrument under Sub-section (3) of 5[section
\n\t31 or instrument or true copy of instrument under] sub-section (1)
\n\tof this section, the Collector of the district shall, after giving
\n\tthe parties concerned a reasonable opportunity of being heard, and
\n\tin accordance with the rules made by the State Government in this
\n\tbehalf, determine the true market value of the property which is the
\n\tsubject matter of the instrument and the proper duty payable
\n\tthereon.\n<\/p>\n
\t     (3)<\/span><\/p>\n
\tUpon such determination, the Collector of the district shall require
\n\tthe party liable to pay the duty, to make payment of such amount as
\n\tis required to make up the difference between the amount duty
\n\tdetermined under this sub-section and the amount of duty already
\n\tpaid by him and shall also require such party to pay a penalty 6[of
\n\ttwo hundred and fifty rupees] 7[or
\n\tthe amount of the proper duty or of the deficient portion there of
\n\twhichever is less] and on such payment, return the instrument to the
\n\tofficer referred in sub-section (5) of section 31 or, as the case
\n\tmay be, sub-section (1) of this section:\n<\/p>\n
\t     Provided
\n\tthat, no such party shall be required to pay any amount to make up
\n\tthe difference or to pay any penalty under this sub-section if the
\n\tdifference between the amount of the consideration or, as the case
\n\tmay be, the market value as set forth in the instrument and the
\n\tmarket value as determined by the Collector of the district does not
\n\texceed ten percent, of the market value determined by the Collector
\n\tof the district. This proviso deleted w.e.f.11-6-2004.\n<\/p>\n
\t     (4)<\/span><\/p>\n
\tThe Collector of the district may, suo motu or on receipt of
\n\tinformation from any source, within, 8[six
\n\tyears] from the date of registration of any instrument referred to
\n\tin sub-section (1), not being the instrument upon which an
\n\tendorsement has been made under section 32 or the instrument in
\n\trespect of which the proper duty has been determined by him under
\n\tsub-section (3) or an instrument executed before the date of the
\n\tcommencement of the Bombay Stamp (Gujarat Amendment Act, 1982) call
\n\tfor and examine the instrument for the purpose of satisfying himself
\n\tas to the correctness of the consideration or of the market value of
\n\tthe property which is the subject matter of such instrument and the
\n\tduty payable thereon; and if on such examination, he has reason to
\n\tbelieve that the consideration does not approximate to the market
\n\tvalue of such property or, as the case may be, market value of such
\n\tproperty has not been truly and fully set forth in the instrument,
\n\the shall proceed as provided in sub-sections (2) and (3).\n<\/p>\n
\t32B.\n<\/p>\n
\tStatement of the case by the Collector. – (1) Any person
\n\taggrieved by an order of the Collector determining the market value
\n\tunder section 31 or, as the case may be, under section 32A, may,
\n\tafter depositing with the Collector 9[twenty
\n\tfive per cent.] of the amount of duty or, as the case may be, the
\n\tamount of the difference of duty payable by him by application
\n\tpresented 10[within
\n\ta period of ninety days] from the date of such order and accompanied
\n\tby a fee of one hundred rupees, require the Collector to draw up a
\n\tstatement of the case and refer it to the Chief Controlling Revenue
\n\tAuthority and the Collector shall, within sixty days of the receipt
\n\tof such application, draw up a statement of the case and refer it to
\n\tthe Authority:\n<\/p>\n
\t     Provided
\n\tthat where in any particular case the Authority is of the opinion
\n\tthat the deposit of the amount by the applicant will cause undue
\n\thardship to him, the Authority may, in its discretion, either
\n\tunconditionally or subject to such conditions as it may think fit to
\n\timpose, dispense with a part of the amount deposited so however that
\n\tthe part of the amount deposited so however that the party of the
\n\tamount so dispensed with shall not exceed fifty per cent of the
\n\tamount deposited or required to be deposited.\n<\/p>\n
Deputy
\n\tCollector has passed an order on 31.01.2002 under Section 32(A) of
\n\tBombay Stamp Act and remedy of appeal is available under Section
\n\t32(B) of Bombay Stamp Act, which requires to file appeal against
\n\torder of Deputy Collector to Chief Controlling Revenue Authority
\n\twithin 60 days from the date of such order as amendment made
\n\t11.06.2004 not applicable and accompanied by a fee of one hundred
\n\trupees, require Collector to draw up a statement of the case and
\n\trefer it to Chief Controlling Revenue Authority and Collector shall,
\n\twithin sixty days of receipt of such application, draw up a
\n\tstatement of the case and refer it to  Authority. At the time of
\n\tpreferring an appeal before Chief Controlling Revenue Authority, 25%
\n\tof amount of stamp duty requires to be deposited by appellant, which
\n\tcan be reduced, if, it cause undue hardship to appellant with a
\n\tdiscretionary powers exercised by concerned Authority. Therefore,
\n\tlearned AGP Mr.Patel submitted that the period of 60 days which was
\n\tfor filing appeal against order passed by Deputy Collector as per
\n\tSection 32(B) of Bombay Stamp Act to Chief Controlling Revenue
\n\tAuthority is subsequently amended by Gujarat Act No.18 of 2004
\n\t(w.e.f. 11.06.2004) and period is extended up to 90 days, but, at
\n\trelevant time, in the year 2002, this amendment was not in
\n\texistence, therefore, appeal is required to be filed by petitioner
\n\twithin 60 days from 31.01.2002, which was undisputably not filed by
\n\tpetitioner. Therefore, respondent   Authority has rightly not
\n\tentertained appeal because it is beyond a period of limitation
\n\tprescribed under the statutory provision.\n<\/p>\n
Learned
\n\tAGP Mr.Amit Patel submitted that Chief Controlling Revenue Authority
\n\thas no power to condone delay because there is no statutory
\n\tprovision made available in Bombay Stamp Act. He submitted that
\n\tChief Controlling Revenue Authority is not a Court, but, he is a
\n\tpersona designata.\n<\/p>\n
\tHe submitted that whenever time limit is prescribed in statutory
\n\tprovision and there is no provision that Limitation Act is applied,
\n\tthen, such Authority has no jurisdiction to condone delay or
\n\tentertain appeal, which is filed beyond limitation period.
\n\tTherefore, if, there is no provision to condone delay made in
\n\tstatutory provision, then, Authority has no power to entertain the
\n\tappeal, filed beyond a period of limitation. For that learned AGP
\n\tMr.Patel has relied upon two decision of Division Bench of this
\n\tCourt in Letters Patent Appeal No. 2008 of 2009 dated 3.3.2010 and
\n\tLetters Patent Appeal NO. 2009 of 2009 dated 19.3.2009. Observations
\n\tmade by Division Bench of this Court in Letters Patent Appeal No.
\n\t2008 of 2009 on 3.3.2010 are quoted as under:\n<\/p>\n
\t \tDeputy
\n\tCollector, Stamp Duty passed order dated 13.3.2003 under section 32A
\n\tof the Bombay Stamp Act, 1958 determining the market value of the
\n\tproperty.  Being aggrieved, the petitioner preferred appeal on 22nd
\n\tJuly 2003 which was dismissed on 10th April 2006 being
\n\tbarred by limitation.  The petitioner thereafter did not challenge
\n\tthe order dated  13th March 2003 before the Writ Court
\n\tfor six years  and not challenged the appellate order for three
\n\tyears and in 2009, preferred writ petition against those orders
\n\twhich was not entertained by the learned single Judge in view of the
\n\tlatches on the part of the petitioner.\n<\/p>\n
\t     Learned
\n\tadvocate appearing on behalf of the petitioner submitted that under
\n\tthe Rules, the authorities were obliged to serve the order by
\n\tregistered post acknowledgment due.  It was never served on the
\n\tpetitioner particularly when  the petitioner was out of India during
\n\tthat period.\n<\/p>\n
\t     It
\n\thas been brought to the notice of the Court by the learned counsel
\n\tfor the respondent that in the appeal preferred by the petitioner,
\n\the has accepted that the order dated 13th March 2003 was
\n\tforwarded to him.  It is stated in the appeal that he was out of
\n\tIndia.\n<\/p>\n
\t     From
\n\tthe aforesaid facts, it is evident that the copy of the order dated
\n\t13th March 2003 was forwarded to the petitioner on the
\n\tsame day and therefore, the petitioner cannot derive advantage of
\n\tthe ground that it was not forwarded by the authority.  Admittedly,
\n\tthe appeal was barred by limitation and the writ petition was
\n\tpreferred after long delay of 6 years.  In this background, we are
\n\tnot inclined to interfere  with the order passed by the learned
\n\tsingle Judge. In absence of merits, the appeal is dismissed.  Notice
\n\tis discharged.\n<\/p>\n
Observations
\n\tmade by Division Bench of this Court in Letters Patent Appeal
\n\tNo.2009 of 2009 on 19.03.2009
\n\tare quoted as under:-\n<\/p>\n
\t Admittedly,
\n\tthe final order was passed on 22.3.2003, though 25% amount was
\n\tdeposited on 90th day (20.6.2003), but the application against the
\n\tfinal order having preferred on 26.6.2003, being barred by
\n\tlimitation, was rightly rejected by the authorities on 8.4.2006.  We
\n\tfind no ground to interfere with the order passed by the learned
\n\tSingle Judge.\n<\/p>\n
\t\tBoth
\n\tthe appeal and the Civil Application stand dismissed.  No costs.\n<\/p>\n
He
\n\talso relied upon recent decision given by this Court in Special
\n\tCivil Application No.12456 of 2009 dated 27.11.2009 in the case of
\n\tBharatkumar Nanalal Vyas V. Chief Controlling Revenue Authority
\n\tand others. It is also related to same issues, which has been
\n\texamined by this Court that if, appeal is preferred by petitioner
\n\tbeyond a period of limitation, then, Appellate Authority has no
\n\tpower or jurisdiction to condone delay caused in filling appeal,
\n\tbecause, there is no specific statutory provision made in Bombay
\n\tStamp Act. Aforesaid judgment is quoted as under:-\n<\/p>\n
\t By
\n\tway of this application the petitioner has prayed to quash and set
\n\taside the order dated 13.3.2003 passed by the respondent no.2 and\/or
\n\tthe order passed in the appeal dated 4.4.2006 passed by the
\n\trespondent no.1. Further the petitioner has prayed for the direction
\n\tto respondent no.2 to hear the petitioner afresh .\n<\/p>\n
\tThe
\n\tpetitioner purchased a property in Raiya Village in revenue Survey
\n\tNo. 83 of Raiya, Rajkot in consideration of Rs. 4,96,000\/- by
\n\texecuting sale deed and been registered at serial no. 4002 on
\n\t16.8.2001. The said sale deed was sent to the Collector for
\n\tdetermination of value and recovery of the deficit stamp duty under
\n\tthe provision of Section 32(A) of the Bombay Stamp Act.\n<\/p>\n
\tThe
\n\tDeputy Collector, respondent no.2 issued a notice dated 25.2.2002
\n\tand 10.10.2002 under rule 4(2) of the Bombay Stamp  (Determination
\n\tof Market Value) Rules, 1984 to the petitioner and  asked the
\n\tpetitioner for the deficit stamp duty. Without giving reasonable
\n\topportunity for hearing the petitioner the final order under Section
\n\t 32(A) has been passed by the respondent no.2. Against which the
\n\tpetitioner has preferred an appeal before the respondent no.1
\n\tauthority. Which came to be rejected on the ground of delay by order
\n\tdated 4.4.2006. Hence this petition.\n<\/p>\n
\tHeard
\n\tlearned advocates for the respective parties.\n<\/p>\n
\tFrom
\n\tthe evidence on the record, it revealed that the order dated
\n\t13.3.2003 has been challenged by the petitioner by way of appeal,
\n\twhich came to be rejected by the appeal authority on the ground of
\n\tdelay. I am in complete agreement with the reasoning adopted by the
\n\tappeal authority. Therefore  only on the ground of delay this
\n\tapplication deserves to  be dismissed and the same is dismissed
\n\taccordingly.\n<\/p>\n
Learned
\n\tAGP Mr.Patel also submitted that against aforesaid decision, Letters
\n\tPatent Appeal was preferred by appellant being Letters Patent
\n\tAppeal No.1199 of 2010 in Special Civil Application No.12456
\n\tof 2009 and Division Bench of this Court also rejected said
\n\tLetters Patent Appeal by its order dated 14.05.2010. Order passed by
\n\tDivision Bench is quoted as under:-\n<\/p>\n
\t Against
\n\tthe order passed on 30.3.2003 pursuant to the notices dated
\n\t25.2.2002 and 10.10.2002 issued under Rule 4(2) of the Bombay Stamp
\n\t(Determination of Market Value) Rules, 1984 for depositing the
\n\tdeficit stamp duty, the petitioner preferred an appeal under Section
\n\t32(A) of the Bombay Stamp Act.  The appeal was dismissed on 4.4.2006
\n\ton the ground of delay and the same having unsuccessfully
\n\tchallenged, the appellant preferred the present appeal.\n<\/p>\n
\tThe
\n\tlearned counsel appearing on behalf of the appellant submits that in
\n\tmany other cases, taking into consideration  the facts and
\n\tcircumstances, the Court had remitted to the appellate authority to
\n\tdecide the appeal on merits.\n<\/p>\n
\tMr
\n\tAJ Desai, learned AGP appearing on behalf of the respondents submits
\n\tthat though one or other orders might have been passed by the Court,
\n\tbut the appellant cannot derive any benefit of the same as statutory
\n\tperiod of limitation of 90 days having fixed under Section 32B.\n<\/p>\n
\tHaving
\n\theard the counsel for the parties as we find that the period of
\n\tlimitation has been prescribed under the law and the appellant had
\n\tpreferred the appeal beyond the period of limitation, and the law
\n\tdoes not prescribe condonation of delay or to accept the appeal
\n\tafter a period of limitation on any one or other ground, the
\n\tappellant cannot not claim for condonation of delay nor the Court
\n\tcan grant relief condoning such delay in absence of such provision.
\n\tFor the reason aforesaid, we are not inclined to interfere with the
\n\torder passed by the learned Single Judge.  The appeal is dismissed.
\n\tNo costs.\n<\/p>\n
Learned
\n\tAGP Mr.Amit Patel raised a contention that there is delay of four
\n\tyears in filing petition against order dated 10.05.2006. He also
\n\tsubmitted that delay of four years has not been explained in
\n\tpetition, therefore, according to him this being an additional
\n\tground to dismiss present petition only on the ground of delay and
\n\tlatches. He submitted that order dated 10.05.2006 was sent to
\n\tpetitioner at same address which was received by him as per
\n\tendorsement made behind that order and merely copy of order  dated
\n\t10.05.2006 sent to petitioner in response to his letter dated
\n\t28.06.2010, by letter dated 30.06.2010. Means order dated 10.05.2006
\n\twas communicated to petitioner at the relevant time and same was
\n\treceived by petitioner as there is no averments made in petition
\n\tthat communication of order dated 10.05.2006 was not received by
\n\tpetitioner. Therefore, learned AGP Mr.Patel submitted that in
\n\tpresent petition, petitioner challenge communication dated
\n\t30.06.2010, but, in fact, prior to that, order dated 10.05.2006 was
\n\tcommunicated to petitioner and was received by him eventhough not
\n\tchallenged at the relevant time, therefore, there is delay in
\n\tchallenging order dated 10.0.2006 after four years period and
\n\tcommunication by letter 30.06.2010 in which order dated 10.05.2006
\n\twas already communicated to petitioner and same is received by him
\n\tas not denied this fact in present petition, therefore, in fact in
\n\tpresent petition order dated 10.05.2006 is challenged after four
\n\tyears, for that, no explanation or sufficient cause shown by
\n\tpetitioner and for that, no averments made in present petition.
\n\tTherefore, present petition may be dismissed on the ground of delay
\n\tand latches. It is not a case of petitioner that order dated
\n\t10.05.2006 is not received by petitioner at the relevant time and
\n\tendorsement made in communication dated 30.06.2010 not denied in
\n\tpresent petition by petitioner. In support of his submissions,
\n\tlearned AGP Mr.Patel has relied upon one decision of this Court
\n\treported in 2006(2) GLH Page No.472 in case of Gujarat
\n\tWater Resources Development Corporation Limited V. Baldevji Mohanji
\n\tSolanki. Relevant<\/a> para Nos. 6, 6.1, 6.2, 6.3, 6.4, 6.5, 6.6 and
\n\t6.7 are quoted as under:-\n<\/p>\n
 6.\tThe
\nlaw on the question raised in the present petitions, has been
\nexamined by the Apex Court  as well as various High Courts. That has
\nbeen discussed as under :\n<\/p>\n
6.1\tIn
\ncase of  Bishnu Charan Mohantry Vs. State of Orrisa, reported in
\nAIR 1973 Orissa 1999, the following general principles relating
\nto delay and laches has been laid down:\n<\/p>\n
(i)\tThe
\nLimitation Act has no application to writ petitions. Where, however,
\na suit for identical relief would be barred by the law of limitation,
\nthe court would ordinarily refuse to exercise discretion to grant
\nrelief under Article 226.\n<\/p>\n
(ii)\tEven
\nif a suit for the same relief is not barred by limitation under the
\nLimitation Act, yet the High Court may refuse to issue a writ, if
\notherwise the delay is not explainable by satisfactory reasons.\n<\/p>\n
(iii)\tTwo
\nimportant circumstances to be borne in mind in all such cases are :
\nthe length of the delay and the nature of the acts done during the
\ninterval which might affect either party and cause a balance of
\njustice or injustice in taking the one course or the other so far as
\nrelates to the remedy.\n<\/p>\n
(iv)\tWhere
\nby the conduct of the party, the delay might fairly be regarded as
\nequivalent to a waiver of the remedy, the relief under Article 226
\nwould be refused.\n<\/p>\n
(v)\tEven
\nif the conduct or act is not equivalent to a waiver, if the neglect
\nof the petitioner put to opposite party in a situation in which it
\nwould not be reasonable to place him if the remedy is afterwards
\ngranted, the relief under Article 226 should be refused on account of
\ndelay and laches.\n<\/p>\n
(vi)\tUtmost
\nexpedition is the essence for a claim under article 226; and <\/p>\n
(vii)\tno
\nhard and fast rule can be laid down. Each case is to be determined on
\nits own facts and circumstances.\n<\/p>\n
6.2\tThe
\nfurther view has laid down by the Supreme Court  in case of
\nP.S.Sadasivaswamy Vs.  State of Tamil Nadu, reported in (1975)
\n1 SCC 152. Relevant observations of the said decision is quoted
\nas under :\n<\/p>\n
\t It
\nis not that there is any period of limitation for the courts to
\nexercise their powers under Article 226 nor is it that there can
\nnever be a case where the courts cannot interfere in a matter after
\nthe passage of a certain length of time. But it would be a sound and
\nwise exercise of discretion for the courts to refuse to exercise
\ntheir extraordinary powers under Article 226 in the case of persons
\nwho do not approach it expeditiously for relief and who stand by and
\nallow things to happen and then approach the court to put forward
\nstale claims and try to unsettle settled matters,  (emphasis
\nsupplied).\n<\/p>\n
6.3\tIn
\nthe case of  Eastern Coal Fields Ltd. Vs. Central Government
\nIndustrial Tribunal, reported in 2000 III LLJ 3, the Calcutta
\nHigh has held in Para, 6, 7 and 8 as under :\n<\/p>\n
 6.\tHaving
\nheard the learned counsel for the parties we are of the opinion that
\nit is not a fit case where this Court should interfere with the
\nimpugned judgment and order as apart from the fact that the learned
\ntrial Judge has refused to exercise its power of judicial review it
\nhad also  recorded a finding as regards the question of delay in the
\nfollowing terms :\n<\/p>\n
 Before
\nparting with this case it should be noted that though the learned
\nTribunal passed the award as far back as March 28, 1984 th writ
\napplication was not filed before February 8, 1990 on the plea that
\ndelay was due  to the fact that Government permission could not be
\nobtained before February 7, 1989. The explanation is not
\nsatisfactory. The plea of delay on the ground of office formalities
\nis absolutely untenable especially in case of Industrial Disputes
\nwhere there was  illegal termination of service about 20 years ago.
\nIt was submitted on behalf of the respondent union that this long
\ndelay on the part of the management of all the workmen not only the
\nwasting of their valuable years of lives but have also caused death
\nto some of them. It is true, that there is no limitation  in filing
\nthe writ application but that shall not automatically entitle the
\npetitioner to make limitless delay in filing the writ application,
\nespecially, in case of the present nature, where such delay brought
\nuntold miseries to the workmen. There being unreasonable delay in
\nfiling the application on frivolous ground the writ Court would have
\nrefused to grant any relief to the petitioner, even if it had been
\notherwise entitled to it. Th writ petition is liable to be rejected
\non the ground of delay also <\/p>\n
7.\tMr.Ginwala
\nsubmits that delay cannot be considered to be a ground for refusing
\nto exercise its jurisdiction by the High Court in a case where the
\nwrit of prohibition is to be issued. The submission of the learned
\ncounsel cannot be accepted  for more than one reasons. The appellant
\nprimarily has prayed for issuance of a writ of certiorari for
\nquashing of the aforementioned award dated March 28, 1994 passed by
\nthe Industrial Tribunal. Prayer for issuance of a writ of prohibition
\nhad been sought for and the same could be issued only in the event
\nthe primary prayer of the appellant viz. A writ of certiorari would
\nbe issued. It is now a well settled principle of law that the delay
\ndefeats equity. It is further well settled that a person who sleeps
\nover its right cannot claim any equity in enforcing its right before
\na writ Court.\n<\/p>\n
8.\tWrit
\nof certiorari as is well known is a discretionary remedy. A writ
\nCourt does not exercise its jurisdiction under Article 226 of the
\nConstitution of India merely because it is lawful to do so. While
\nexercising its Jurisdiction under Article 226 a writ Court may take
\ninto account  several factors, delay being one of them. As noticed by
\nthe learned trial Judge the concerned workmen were refused employment
\nas far back as in the year 1975 and reference was made by the Central
\nGovernment only on August 1, 1978. The learned Tribunal below made
\nits awards on March 28, 1984. The writ application had been filed
\nonly on February 8, 1990. The only explanation which the appellant
\ngave before the learned Trial Judg was that it was required to obtain
\npermission of the Central Government for filing a writ application
\nwhich could not be obtained before February 7, 1989. the said
\nexplanation, having been offered without any particulars, did not
\nfind favour with the learned trial Judge. He, therefore, refused to
\nexercise its discretion.\n<\/p>\n
6.4\tIn
\ncase of  M.C.D. Vs. Rajkumar & Othrs, reported in 2004 Lab IC
\n2334, the Delhi High Court has held in Para 3 and 4 as under :\n<\/p>\n
 3.\tThis
\nwrit petition challenges the Award dated 10th July,2000.
\nLearned counsel for the petitioner submits that the award was
\npublished on 4th January,2001 and the information relating
\nthereto was received in the office of the petitioner Corporation on
\n14th February,2001. However, the writ petition was filed
\nin this Court only on 18th February,2002. There is no
\nother explanation for the delay and laches in filing the writ
\npetition. Mr.Monga has submitted that in matters relating to the
\nmovement of files in Government Department, files move at their own
\npace and such delay in the movement of the official files occur
\nbecause they are required to go through several channels.
\nConsequently the delay in filing the writ petition is not such which
\nshould dis-entitle the petitioner to approach this Court under
\nArticle 226 of the Constitution.\n<\/p>\n
4.\tIn
\nmy view, institutionalized lethargy cannot be any ground to explain
\nthe laches of more than one year. Merely because the bureaucratic
\nmachinery in MCD moves slowly cannot be a ground for condoning
\nlaches.\n<\/p>\n
6.5\tIn
\ncase of  Bhoop Singh Vs. Union of India, reported in AIR 1992 SC
\n1414, the Apex Court has held in Para.8 as under :\n<\/p>\n
 8.
\nThere is another aspect of the matter. Inordinate and unexplained
\ndelay or laches is by itself a ground to refuse relief to the
\npetitioner, irrespective of the merit of his claim. If a person
\nentitled to a relief chooses to remain silent for long, he thereby
\ngives rise to a reasonable belief in the mind of others that he is
\nnot interested in claiming that relief. Others are then justified in
\nacting on that behalf. This is more so in service matters where
\nvacancies are required to be filled promptly. A person cannot be
\npermitted to challenge the termination of his service after a period
\nof twenty-two years, without any cogent explanation for the
\ninordinate delay, merely because others similarly dismissed had been
\nreinstated as a result of their earlier petitions being allowed.
\nAccepting the petitioner’s contention would upset the entire service
\njurisprudence and we are unable to construe Dharampal in the manner
\nsuggested by the petitioner. Art. 14 or the principle of
\nnon-discrimination is an equitable principle and, therefore, any
\nrelief claimed on that basis must itself be founded on equity and not
\n.be alien to that concept. In our opinion, grant of the relief to the
\npetitioner, in the present case, would be inequitable instead of its
\nrefusal being discriminatory as asserted by learned counsel for the
\npetitioner. We are further of the view that these circumstances also
\njustify refusal of the relief claimed under Art. 136 of the
\nConstitution.\n<\/p>\n
6.6\t\tIn
\ncase of  State of M.P. & Others Vs. Nandlal Jaiswal and Others,
\nreported in AIR 1987 SC 251, the Apex Court has held in Para.23
\nas under :\n<\/p>\n
 23.
\nNow, it is well settled that the power of the High Court to issue an
\nappropriate writ under Article 226 of the Constitution is
\ndiscretionary and the High Court in the exercise of its discretion
\ndoes not ordinarily assist the tardy and the indolent or the
\nacquiescent and the lethargic. If there is inordinate delay on the
\npart of the petitioner in filing a writ petition and such delay is
\nnot satisfactorily explained, the High Court may decline to intervene
\nand grant relief in the exercise of its writ jurisdiction. The
\nevolution of this rule of laches or delay is premised upon a number
\nof factors. The High Court does not ordinarily permit a belated
\nresort to the extraordinary remedy under the writ jurisdiction
\nbecause it is likely to cause confusion and public inconvenience and
\nbring in its train new injustices. The rights of third parties may
\nintervene and if the writ jurisdiction is exercised on a writ
\npetition filed after unreasonable delay, it may have the effect of
\ninflicting not only hardship and inconvenience but also injustice on
\nthird parties. When the writ jurisdiction of the High Court is
\ninvoked, unexplained delay coupled with the creation of third party
\nrights in the meanwhile is an important factor which always weighs
\nwith the High Court in deciding whether or not to exercise such
\njurisdiction. We do not think it necessary to burden this judgment
\nwith reference to various decisions of this Court where it has been
\nemphasised time and again that where there is inordinate and
\nunexplained delay and third party rights are created in the
\nintervening period, the High Court would decline to interfere, even
\nif the State action complained of is unconstitutional or illegal. We
\nmay only mention in the passing two decisions of this Court one in
\nRamanna Dayaram Shetty v. International Airport Authority of India,<\/a>
\n(1979) 3 SCR 1014: (AIR 1979 SC 1628) and the other in Ashok Kumar v.
\nCollector, Raipur,<\/a> (1980) 1 SCR 491 : (AIR 1980 SC 112). We may point
\nout that in R. D. Shetty’s case (supra), even though the State action
\nwas held to be unconstitutional as being violative of Article 14 of
\nthe Constitution, this Court refused to grant relief to the
\npetitioner on the ground that the writ petition had been filed by the
\npetitioner more than five months after the acceptance of the tender
\nof the fourth respondent and during that period, the fourth
\nrespondent had incurred considerable expenditure, aggregating to
\nabout Rs. 1.25 lakhs, in making arrangements for putting up the
\nrestaurant and the snack bar. Of course, this rule of laches or delay
\nis not a rigid rule which can be cast in a straitjacket formula, for
\nthere may be cases where despite delay and creation of third party
\nrights the High Court may still in the exercise of its discretion
\ninterfere and grant relief to the petitioner. But such cases where
\nthe demand of justice is so compelling that the High Court would be
\ninclined to interfere in spite of delay or creation of third party
\nrights would by their very nature be few and far between. Ultimately
\nit would be a matter within the discretion of the Court; ex hypothesi
\nevery discretion must be exercised fairly and justly so as to promote
\njustice and not to defeat it.\n<\/p>\n
6.7\tIn
\ncase of  Delhi Transport Corporation Vs. Jai Bhagwan, reported in
\n2003-I LLJ 1029, the Delhi High Court has held in Para.4 and 5 as
\nunder:\n<\/p>\n
 4.\tMy
\nattention has been drawn by Ms.Bajaj to the judgment of the
\nConstitution Bench in State of Madhya Pradesh Vs. Bhailal, AIR 1964
\nSC 1006. The Apex Court observed that :\n<\/p>\n
\t It
\nis not easy nor is it desirable to lay down any rule for universal
\napplication. It may, however, be stated as a general rule that if
\nthere has been unreasonable delay, the Court ought not to ordinarily
\nlend its aid to a party by this extraordinary remedy of mandamus….
\nIt appears to us, however, that the maximum period fixed by the
\nLegislature as the time within which the relief by a suit in a civil
\ncourt must be brought may ordinarily be taken to be a reasonable
\nstandard by which delay in seeking remedy under Article 226 of the
\nConstitution of India can be measured. This Court may consider the
\ndelay unreasonable, even if it is less than the period of limitation
\nprescribed for a civil action for the remedy but where the delay is
\nmore than this period, it will almost always be proper for the Court
\nto hold that it is unreasonable .\n<\/p>\n
It
\nwill be relevant to bear in mind that the Constitution Bench was
\nconcerned with a situation where the petitioner has voiced the
\ngrievance that he had been assessed to tax under a void statute. Even
\nin those extraordinary circumstances, the Supreme Court has declined
\nto over look the laches. Ms.Kittoo Bajaj also relies on the decision
\nof the Supreme Court in Maharasthra Road State Corporation Vs.
\nBalvant Regular Motor Service, Amravati, AIR 1969 SC 329. In that
\ncase, the Apex Court again articulated that;\n<\/p>\n
\t It
\nis well established that the writ of certiorari will not be granted
\nin a case where there is such negligence or omission on the part of
\nthe applicant to assert his right as, taken in conjunction  with the
\nlapse of time and other circumstances, causes prejudice to the
\nadverse party.\n<\/p>\n
The
\nCourt relied on Lindsey Petroleum Company Vs.   Prosper Armstrong
\nHurd, Arbran Farewell and John Kemp (1874) 5 PC 221 and also
\nspecifically noticed in its earlier decision in Moon Mills Ltd. Vs.
\nM.R.Neher, President, Industrial Court, Bombay, AIR 1967 SC 1450 :
\n1967 -II LLJ 34, Ms.Kittoo Bajaj relies on the observations of the
\nApex Court in Naik Subedar Lachhman Dass Vs. Union of India, AIR 1977
\nSC 1979, there the Court found that the writ petition has been filed
\nafter gross delay for which there was no specific explanation and,
\ntherefore, endorsed the High Court’s decision for a summary dismissal
\nof the action. It may be observed that the laches have not even been
\nattempted to be answered or explained by the DTC.\n<\/p>\n
5.\t\tOn
\nthe issue of delay and laches, Mr.Vibhu Shankar, learned Consel for
\nthe petitioners, has relied heavily on Para.6 of the judgment in Moon
\nMills Ltd. Vs. M.R.Meher, President, Industrial Court, Bombay (Supra)
\nwhich reads as under at p.38 of 1967-II   LLJ 34.\n<\/p>\n
 On
\nbehalf of the respondents Mr. B. Sen, however, pointed out that the
\nconduct of the appellant does not entitle it to the grant of a writ,
\nbecause it has been guilty of acquiescence or delay. It was pointed
\nout that the award of Mr. Bhat was given on April 25, 1958 but an
\napplication to the High Court for grant of a writ was made long after
\non November 16, 1959. We do not think there is any substance in this
\nargument, because the second respondents had made an application,
\ndated August 19, 1958 to the Labour Court for enforcement of the
\naward and the appellant had contested that application by a Written
\nStatement, dated September 15, 1958. The Labour Court allowed the
\napplication on August 4, 1959 and the appellant had preferred an
\nappeal to the Industrial Court on August 31, 1959. The decision of
\nthe Industrial Court was given on October 24, 1959 and after the
\nappeal was dismissed the appellant moved the High Court for grant of
\na writ on November 16, 1959. Mr. B. Sen then put forward the argument
\nthat the appellant itself had acted on the bonus agreement and on
\nOctober 14, 1957 had issued a notice informing its workers that
\n“pursuant to the award of the Industrial Court in terms of the
\nagreement, dated March l, 1956 reached between the Millowners’
\nAssociation, Bombay, and the Rashtriya Mill Mazdoor Sangh, regarding
\npayment of bonus would be paid to them at 4.8 per cent of the total
\nbasic earning during 1956”. On October 27, 1956 the appellant
\nand the Secretary of the second respondents signed a joint statement
\nin which it was stated as follows :\n<\/p>\n
‘Since
\nit has not yet been possible to complete bonus calculations for all
\nthese years, it is hereby agreed between the Rashtriya Mill Mazdoor
\nSangh, Bombay, and the Moon Mills Ltd, Bombay, that under the Bonus
\nAgreement the Moon Mills should pay a bonus at the rate of 4.8 per
\ncent for each of the years 1953, 1954 and 1955 as a tentative
\npayment.’<\/p>\n
It
\nwas, therefore, contended that the appellant itself had agreed with
\nthe second respondents to pay bonus for 1953, 1954, 1955 and 1956
\naccording to the terms of the bonus agreement. It was also pointed
\nout that the appellant had not pressed its objection with regard to
\njurisdiction before the Labour Court or the Industrial Court. But it
\nappears that the decision of this Court in Prakash Cotton Mills case,
\n(1962) 2 SCR 105: (AIR 1961 SC 977), was given on February 16, 1961
\nafter the decision of K. K. Desai, J. on July 1, 1960 and before the
\ndecision of the Letters Patent Bench on February 6, 1962. In the
\ncircumstances of this case, we do not consider that there is such
\nacquiescence on the part of the appellant as to disentitle it to a
\ngrant of a writ under Art. 226 of the Constitution. It is true that
\nthe issue of a writ of certiorari is largely a matter of sound
\ndiscretion. It is also true that the writ will not be granted if
\nthere is such negligence or omission on the part of the applicant to
\nassert his right as, taken in conjunction with the lapse of time and
\nother circumstances, causes prejudice to the adverse party. The
\nprinciple is to a great extent, though not identical with, similar to
\nthe exercise of discretion in the Court of Chancery. The principle
\nhas been clearly stated by Sir Barnes Peacock in Lindsay Petroleum
\nCo. v. Prosper Armstrong Hurd, Abram Farewell, and John Kemp, (1874)
\n5 PC 221 at p. 239, as follows:-\n<\/p>\n
“Now
\nthe doctrine of laches in Courts of Equity is not an arbitrary or a
\ntechnical doctrine. Where it would be practically unjust to give a
\nremedy, either because the party has, by his conduct, done that which
\nmight fairly be regarded as equivalent to a waiver of it, or where by
\nhis conduct and neglect he has, though perhaps not waiving that
\nremedy, yet put the other party in a situation in which it would not
\nbe reasonable to place him if the remedy were afterwards to be
\nasserted, in either of these cases, lapse of time and delay are most
\nmaterial. But in every case, if an argument against relief, which
\notherwise would be just, is founded upon mere delay, that delay of
\ncourse not amounting to a bar by any statute of limitations, the
\nvalidity of that defence must be tried upon principles substantially
\nequitable. Two circumstances, always important in such cases, are,
\nthe length of the delay and the nature of the acts done during the
\ninterval, which might affect either party and cause a balance of
\njustice or injustice in taking the one course or the other, so far as
\nrelated to the remedy.’<\/p>\n
In
\nthe present case, we are of opinion that there is no such negligence
\nor laches or acquiescence on the part of the appellant as may
\ndisentitle it to the grant of a writ.\n<\/p>\n
Recently,
\n\tdelay of two years not condoned by Hon’ble Apex Court in case of
\n\tBalwant Sing(Dead) Vs. Jagdish Singh and Others reported in 2010 AIR
\n\tSCW Page No.4848. The relevant observations made are as under:-\n<\/p>\n
\t      Even
\n\tif the term ‘sufficient cause’ has to receive liberal construction,
\n\tit must squarely fall within the concept of reasonable time and
\n\tproper conduct of the concerned party. The purpose of introducing
\n\tliberal construction normally is to introduce the concept of
\n\t‘reasonableness’ as it is understood in its general connotation. The
\n\tlaw of limitation is a substantive law and has definite consequences
\n\ton the right and obligation of a party to arise. These principles
\n\tshould be adhered to and applied appropriately depending on the
\n\tfacts and circumstances of a given case. Once a valuable right, has
\n\taccrued in favour of one party as a result of the failure of the
\n\tother party to explain the delay by showing sufficient cause and its
\n\town conduct, it will be unreasonable to take away that right on the
\n\tmere asking of the applicant, particularly when the delay is
\n\tdirectly a result of negligence, default or inaction of that party.
\n\tJustice must be done to both parties equally. Then, alone the ends
\n\tof justice can be achieved. If a party has been thoroughly negligent
\n\tin emplementing its rights and remedies, it will be equally unfair
\n\tto deprive the other party of a valuable right that has accrued to
\n\tit in law as a result of his acting vigilantly(Para 13).\n<\/p>\n
\t     Sometimes
\n\tthe Courts have taken a view that delay should be condoned with a
\n\tliberal attitude, while on certain occasions the Courts have taken a
\n\tstricter view and wherever the explanation was not satisfactory,
\n\thave dismissed the application for condonation of delay. Thus, it is
\n\tevident that it is difficult to state any straight-jacket formula
\n\twhich can uniformly be applied to all cases without reference to the
\n\tpeculiar facts and circumstances of a given case. It must be kept in
\n\tmind that whenever a law is enacted by the legislature, it is
\n\tintended to be enforced in its proper perspective. It is an equally
\n\tsettled principle of law that the provisions of a statute, including
\n\tevery word, have to be given full effect, keeping the legislative
\n\tintent in mind, in order to ensure that the projected object is
\n\tachieved. In other words, no provisions can be treated to have been
\n\tenacted purposelessly.   Furthermore, it is also a well settled
\n\tcanon of interpretative jurisprudence that the Court should not give
\n\tsuch an interpretation to provisions which would render the
\n\tprovision ineffective or odious. Once the legislature has enacted
\n\tthe provisions of Order 22, with particular reference to Rule 9, and
\n\tthe provisions of the Limitation Act are applied to the
\n\tentertainment of such an application, all these provisions have to
\n\tbe given their true and correct meaning and must be applied wherever
\n\tcalled for. If we accept the contention of the Learned Counsel
\n\tappearing for the applicant that the Court should take a very
\n\tliberal approach and interpret these provisions (Order 22 Rule 9 of
\n\tthe CPC and Section 5 of the Limitation Act) in such a manner and so
\n\tliberally, irrespective of the period of delay, it would amount to
\n\tpractically rendering all these provisions redundant and
\n\tinoperative.\n<\/p>\n
\tAIR
\n\t2004 SC 4158 Held Per incuriam. (Para 14)<\/p>\n
\t     Delay
\n\tis just one of the ingredients which has to be considered by the
\n\tCourt. In addition to this, Court must also take into account the
\n\tconduct of the parties, bona fide reasons for condonation of delay
\n\tand whether such delay could easily be avoided by the applicant
\n\tacting with normal care and caution. The statutory provisions
\n\tmandate that applications for condonation of delay and applications
\n\tbelatedly filed beyond the prescribed period of limitation for
\n\tbringing the legal representatives on record, should be rejected
\n\tunless sufficient cause is shown for condonation of delay. Thus, it
\n\tis the requirement of law that these applications cannot be allowed
\n\tas a matter of right and even in a routine manner. (Para 16)<\/p>\n
\t(C)
\n\tLimitation Act (36 of 1963), S.5   Condonation of delay
\n\tSufficient cause   Means presence of legal adequate reasons.\n<\/p>\n
\t     The
\n\texpression ‘sufficient cuase’ implies the presence of legal and
\n\tadequate reasons. The word ‘sufficient’ means adequate enough, as
\n\tmuch as may be necessary to answer the purpose intended. It embraces
\n\tno more than that which provides a plentitude which, when done
\n\tsuffices to accomplish the purpose in the light of existing
\n\tcircumstances and when viewed from the reasonable standard of
\n\tpractical and cautious men. The sufficient cause should be such as
\n\tit would persuade the Court, in exercise of its judicial discretion,
\n\tto treat the delay as an excusable one. These provisions give the
\n\tCourts enough power and discretion to apply a law in a meaningful
\n\tmanner, while assuring that the purpose of enacting such a law does
\n\tnot stand frustrated. (Para 14) <\/p>\n
Learned
\n\tAGP Mr.Patel also relied upon one decision of Hon’ble Apex Court
\n\treported in AIR 2009 Supreme Court Weekly Page No.5424 in
\n\tcase of M\/s Chaudharana Steels (P) Ltd. Vs. Commissioner of
\n\tCentral Excise, Allahabad where it was held that Appellate
\n\tAuthority has no power and jurisdiction to condone delay caused in
\n\tfiling appeal. That decision given by Hon’ble Apex Court is quoted
\n\tas under:-\n<\/p>\n
\t1.
\n\t   In this appeal the only question that arises for consideration is
\n\twhether there is power for condonation of delay in filing an appeal
\n\tunder Section 35-G of the Central Excise Act, 1944 (in short the
\n\t`Act’). By judgment delivered in Commissioner of Customs, Central
\n\tExcise, Noida v. Punjab Fibres Ltd., Noida<\/a> (2008 (3) SCC 73) it was
\n\theld that the High Court has no power to condone delay in seeking
\n\treference under Section 35-H of the Act. Doubting correctness of the
\n\tview reference was made to larger Bench. By judgment dated 27.3.2009
\n\ta three-judge Bench in Commissioner of Customs & Central Excise
\n\tv. M\/s. Hongo India (P) Ltd. & Anr. 2009 (4) SCALE 374 concurred
\n\twith the view taken by the two-judge Bench in Punjab Fibres case
\n\t(supra). The decision has full application to the present case also.\n<\/p>\n
\t2.
\n\t   That being so this appeal deserves to be dismissed which we
\n\tdirect.\n<\/p>\n
\tNo
\n\tcosts.\n<\/p>\n
Learned
\n\tAGP Mr.Patel also relied upon decision of Hon’ble Apex Court in
\n\trespect to Section 125 of Indian Electricity Act, where a period of
\n\tappeal has been specified under provision of statute, beyond that,
\n\tif appeal is preferred, then, Appellate Authority has no
\n\tjurisdiction or power to condone it and in such circumstances, where
\n\tperiod of limitation is specified in Act, Appellate Authority has no
\n\tpower or jurisdiction to condone it beyond period specified because
\n\tprovision of Limitation Act, 1963 is not applicable. Hon’ble Apex
\n\tCourt has laid down this principle in case of Chhattisgarh State
\n\tElectricity Board Vs. Central Electricity Regulatory Commission and
\n\tOrs.  reported in AIR 2010 SC Page No.2061. Relevant
\n\tdiscussion made in Para   11, 16, 18 and 19 of aforesaid Judgment
\n\tof Hon’ble Apex Court is quoted as under:-\n<\/p>\n
\t 11.
\n\t  The brief analysis of the scheme of the Electricity Act shows that
\n\tit is a self-contained comprehensive legislation, which not only
\n\tregulates generation, transmission and distribution of electricity
\n\tby public bodies and encourages public sector participation in the
\n\tprocess but also ensures creation of special adjudicatory mechanism
\n\tto deal with the grievance of any person aggrieved by an order made
\n\tby an adjudicating officer under the Act except under Section 127 or
\n\tan order made by the appropriate commission. Section 110 provides
\n\tfor establishment of a Tribunal to hear such appeals. Section 111(1)
\n\tand (2) lays down that any person aggrieved by an order made by an
\n\tadjudicating officer or an appropriate commission under this Act may
\n\tprefer an appeal to the Tribunal within a period of 45 days from the
\n\tdate on which a copy of the order made by an adjudicating officer or
\n\tthe appropriate commission is received by him. Section 111(5)
\n\tmandates that the Tribunal shall deal with the appeal as
\n\texpeditiously as possible and endeavour to dispose of the same
\n\tfinally within 180 days from the date of receipt thereof. If the
\n\tappeal is not disposed of within 180 days, the Tribunal is required
\n\tto record reasons in writing for not doing so. Section 125 lays down
\n\tthat any person aggrieved by any decision or order of the Tribunal
\n\tcan file an appeal to this Court within 60 days from the date of
\n\tcommunication of the decision or order of the Tribunal. Proviso to
\n\tSection 125 empowers this Court to entertain an appeal filed within
\n\ta further period of 60 days if it is satisfied that there was
\n\tsufficient cause for not filing appeal within the initial period of
\n\t60 days. This shows that the period of limitation prescribed for
\n\tfiling appeals under Sections 111(2) and 125 is substantially
\n\tdifferent from the period prescribed under the Limitation Act for
\n\tfiling suits etc. The use of the expression `within a further period
\n\tof not exceeding 60 days’ in Proviso to Section 125 makes it clear
\n\tthat the outer limit for filing an appeal is 120 days. There is no
\n\tprovision in the Act under which this Court can entertain an appeal
\n\tfiled against the decision or order of the Tribunal after more than
\n\t120 days. The object underlying establishment of a special
\n\tadjudicatory forum i.e., the Tribunal to deal with the grievance of
\n\tany person who may be aggrieved by an order of an adjudicating
\n\tofficer or by an appropriate commission with a provision for further
\n\tappeal to this Court and prescription of special limitation for
\n\tfiling appeals under Sections 111 and 125 is to ensure that disputes
\n\temanating from the operation and implementation of different
\n\tprovisions of the Electricity Act are expeditiously decided by an
\n\texpert body and no court, except this Court, may entertain challenge
\n\tto the decision or order of the Tribunal. The exclusion of the
\n\tjurisdiction of the civil courts (Section 145) qua an order made by
\n\tan adjudicating officer is also a pointer in that direction. It is
\n\tthus evident that the Electricity Act is a special legislation
\n\twithin the meaning of Section 29(2) of the Limitation Act, which
\n\tlays down that where any special or local law prescribes for any
\n\tsuit, appeal or application a period of limitation different from
\n\tthe one prescribed by the Schedule, the provisions of Section 3
\n\tshall apply as if such period were the period prescribed by the
\n\tSchedule and provisions contained in Sections 4 to 24 (inclusive)
\n\tshall apply for the purpose of determining any period of limitation
\n\tprescribed for any suit, appeal or application unless they are not
\n\texpressly excluded by the special or local law.\n<\/p>\n
\t16.
\n\t  In view of the above discussion, we hold that Section 5 of the
\n\tLimitation Act cannot be invoked by this Court for entertaining an
\n\tappeal filed against the decision or order of the Tribunal beyond
\n\tthe period of 120 days specified in Section 125 of the Electricity
\n\tAct and its proviso. Any interpretation of Section 125 of the
\n\tElectricity Act which may attract applicability of Section 5 of the
\n\tLimitation Act read with Section 29(2) thereof will defeat the
\n\tobject of the legislation, namely, to provide special limitation for
\n\tfiling an appeal against the decision or order of the Tribunal and
\n\tproviso to Section 125 will become nugatory.\n<\/p>\n
\t18.
\n\t  The next question which requires consideration is as to what is
\n\tthe date of communication of the decision or order of the Tribunal
\n\tfor the purpose of Section 125 of the Electricity Act. The word
\n\t`communication’ has not been defined in the Act and the Rules.
\n\tTherefore, the same deserves to be interpreted by applying the rule
\n\tof contextual interpretation and keeping in view the language of the
\n\trelevant provisions. Rule 94(1) of the Rules lays down that the
\n\tBench of the Tribunal which hears an application or petition shall
\n\tpronounce the order immediately after conclusion of the hearing.
\n\tRule 94(2) deals with a situation where the order is reserved. In
\n\tthat event, the date for pronouncement of order is required to be
\n\tnotified in the cause list and the same is treated as a notice of
\n\tintimation of pronouncement. Rule 98(1) casts a duty upon the Court
\n\tMaster to immediately after pronouncement transmit the order along
\n\twith the case file to the Deputy Registrar. In terms of Rule 98(2),
\n\tthe Deputy Registrar is required to scrutinize the file, satisfy
\n\thimself that provisions of rules have been complied with and
\n\tthereafter, send the case file to the Registry for taking steps to
\n\tprepare copies of the order and their communication to the parties.
\n\tIf Rule 98(2) is read in isolation, one may get an impression that
\n\tthe registry of the Tribunal is duty bound to send copies of the
\n\torder to the parties and the order will be deemed to have been
\n\tcommunicated on the date of receipt thereof, but if the same is read
\n\tin conjunction with Section 125 of the Electricity Act, which
\n\tenables any aggrieved party to file an appeal within 60 days from
\n\tthe date of communication of the decision or order of the Tribunal,
\n\tRule 94(2) which postulates notification of the date of
\n\tpronouncement of the order in the cause list and Rule 106 under
\n\twhich the Tribunal can allow filing of an appeal or petition or
\n\tapplication through electronic media and provide for rectification
\n\tof the defects by e-mail or net, it becomes clear that once the
\n\tfactum of pronouncement of order by the Tribunal is made known to
\n\tthe parties and they are given opportunity to obtain a copy thereof
\n\tthrough e-mail etc., the order will be deemed to have been
\n\tcommunicated to the parties and the period of 60 days specified in
\n\tthe main part of Section 125 will commence from that date.\n<\/p>\n
\t19.
\n\t  The issue deserves to be considered from another angle. As
\n\tmentioned above, Rule 94(2) requires that when the order is
\n\treserved, the date of pronouncement shall be notified in the cause
\n\tlist and that shall be a valid notice of pronouncement of the order.
\n\tThe counsel appearing for the parties are supposed to take
\n\tcognizance of the cause list in which the case is shown for
\n\tpronouncement. If title of the case and name of the counsel is
\n\tprinted in the cause list, the same will be deemed as a notice
\n\tregarding pronouncement of order. Once the order is pronounced after
\n\tbeing shown in the cause list with the title of the case and name of
\n\tthe counsel, the same will be deemed to have been communicated to
\n\tthe parties and they can obtain copy through e-mail or by filing an
\n\tapplication for certified copy.\n<\/p>\n
Learned
\n\tAGP Mr.Patel also relied upon one recent decision in a similar
\n\tcircumstances where contest the application is available to opposite
\n\tparty must have to be  filed within specific time as prescribed in
\n\tstatute, beyond that, Authority has no power or jurisdiction to
\n\tcondone even 1(One) day delay and in such circumstances, provision
\n\tof Limitation Act is not applicable and question of condoning delay
\n\tdoes not arise. For that, he relied upon judgment of Om Prakash
\n\tVs. Ashwani Kumar Bassi being unreported judgment in Special
\n\tCivil Leave Petition (Civil)  No.24430 of 2008 decided on
\n\t27.08.2010 delivered by Hon’ble Mr.Justice Altamas Kabir and Hon’ble
\n\tMr.Justice A.K.Patnaik Relevant discussion made by Hon’ble Apex
\n\tCourt after considering fact and submissions made by respective
\n\tadvocates are in Para   12, 13, 14, 15, 16 and 17, which are
\n\tquoted as under:-\n<\/p>\n
\t 12.
\n\tFrom the materials on record it is clear that the application for
\n\tleave to contest the application under Section 13-B of the 1949 Act
\n\thas to be made within 15 days from the date of service of the
\n\tsummons. In this case, the application for leave to contest the
\n\tapplication was made one day after the said period had expired. The
\n\tissue for consideration before us is whether the Rent Controller was
\n\tright in rejecting the application on the ground that he had no
\n\tjurisdiction to condone the delay under the Act. The matter was
\n\tconsidered at length by the High Court, which, as indicated
\n\thereinabove, came to the conclusion that Section 18-A of the 1949
\n\tAct would have an over- riding effect on all other laws inconsistent
\n\ttherewith and that Sub-Section (8) of Section 18-A of the 1949 Act
\n\tand Section 17 of the Presidency Small Causes Courts Act, 1882, were
\n\tnot attracted to the facts of the case.\n<\/p>\n
\t13.
\n\tThe views expressed by the High Court also formed the subject matter
\n\tof the decision in Prithipal Singh’s case (supra), though in the
\n\tcontext of the Delhi Rent Control Act, 1958, and the rules framed
\n\tthereunder. This Court was of the view that Section 25-B of the
\n\tDelhi Rent Control Act was a complete Code by itself and other
\n\tprovisions could not, therefore, be brought into play in such
\n\tproceedings. In the instant case, the same principle would apply
\n\thaving regard to the fact that the Rent Controller had not been
\n\tconferred with power under Order 9 Rule 13 C.P.C. to recall an
\n\tex-parte order passed earlier.\n<\/p>\n
\t14.
\n\tApart from the above is the view taken by this Court in Prakash
\n\tH.Jain vs. Marie Fernandes [(2003) 8 SCC 431], where it was
\n\tspecifically held that since the Competent Authority under Section
\n\t40 of the Maharashtra Rent Control Act, 1999, was not a court but a
\n\tstatutory authority with no power to condone the delay in filing an
\n\taffidavit and application for leave to contest, the Competent
\n\tAuthority had no other option but to pass an order of eviction in
\n\tthe manner envisaged under the Act.\n<\/p>\n
\t15.
\n\tThe decision in Mukri Gopalan’s case (supra) relied upon by Mr.
\n\tUjjal Singh is distinguishable from the facts of this case. In the
\n\tfacts of the said case, it was the District Judges who were
\n\tdischarging the functions of the Appellate Authority and being a
\n\tCourt, it was held that the District Judge, functioning as the
\n\tAppellate Authority, was a Court and not persona designata and was,
\n\ttherefore, entitled to resort to Section 5 of the Limitation Act.
\n\tThat is not so in the instant case where the Rent Controller
\n\tappointed by the State Government is a member of the Punjab Civil
\n\tServices and, therefore, a persona designata who would not be
\n\tentitled to apply the provisions of Section 5 of the Limitation Act,
\n\t1963, as in the other case. The decision in Gaya Prasad Kar’s case
\n\t(supra) is also of little help to the Petitioner since under the
\n\tWest Bengal Premises Tenancy Act, 1956, powers have been vested in
\n\tthe Rent Controller to extend the time for making deposits of
\n\tarrears of rent, which would make the provisions of the Limitation
\n\tAct applicable in such specific instances.\n<\/p>\n
\t16.
\n\tThe instant case stands on a different footing and, in our view, is
\n\tcovered by the decision of this Court in Gaya Prasad Kar’s case
\n\t(supra), wherein it was held that the Competent Authority had no
\n\tother option but to pass an order of eviction since it had no power
\n\tto condone the delay in filing an application for leave to contest.\n<\/p>\n
\t17.
\n\tSection 13-B is a power given to a Non-Resident Indian owner of a
\n\tbuilding to obtain immediate possession of a residential building or
\n\tscheduled building when required for his or her use or for the use
\n\tof any one ordinarily living with and dependent on him or her. The
\n\tright has been limited to one application only during the life time
\n\tof the owner. Section 18-A(2) of the aforesaid Act provides that
\n\tafter an application under Section 13-B is received, the Controller
\n\tshall issue summons for service on the tenant in the form specified
\n\tin Schedule II. The said form indicates that within 15 days of
\n\tservice of the summons the tenant is required to appear before the
\n\tController and apply for leave to contest the same. There is no
\n\tspecific provision to vest the Rent Controller with authority to
\n\textend the time for making of such affidavit and the application.\n<\/p>\n
\t          The Rent Controller being a creature of statute can only
\n\tact in terms of the powers vested in him by statute and cannot,
\n\ttherefore, entertain an application under Section 5 of the
\n\tLimitation Act for condonation of delay since the statute does not
\n\tvest him with such power.\n<\/p>\n
I
\n\thave considered submissions, made by both learned advocates and I
\n\thave also considered decisions relied upon by learned AGP Mr.Patel
\n\tin this case. Undisputably, appeal was preferred by petitioner,
\n\tbeyond a period of 60 days as order was passed on 31.01.2002,
\n\ttherefore, question is whether in absence of specific provisions for
\n\tcondoning delay, Chief Controlling Revenue Authority being Appellate
\n\tAuthority has power to extend a period of filing appeal or whether
\n\the is having power to condone delay, which is not preferred within
\n\tspecified time. Deputy Collector and Chief Controlling Revenue
\n\tAuthority, both are persona designata having power to
\n\tdetermine valuation of property in case if proper stamp duty is not
\n\tpaid or not properly affixed on various documents which requires to
\n\tbe affixed as per Bombay Stamp Act. Therefore, Deputy Collector and
\n\tChief Controlling Revenue Authority are not a Court, but, both are
\n\tpersona designata Authority and in such circumstances, if
\n\tbefore, persona designata Authority requires to file an
\n\tappeal  in, specific time limit is prescribed under statutory
\n\tprovision of Act, but, if appeal is preferred beyond a period of
\n\tlimitation, then, such persona designata has no jurisdiction
\n\tand in such circumstances Limitation Act cannot be made applicable,
\n\tbecause, there is no provision made available by legislation in the
\n\tBombay Stamp Act to condone delay or entertain appeal beyond period
\n\tof specified time limit.\n<\/p>\n
Therefore,
\n\taccording to my opinion, order which has been passed by respondent
\n\tAuthority on 10.05.2006, not entertaining appeal preferred by
\n\tpetitioner, which has been filed undisputably after 60 days is legal
\n\tand valid and therefore, no interference is required by this Court
\n\tas it has been rightly decided by Appellate Authority   Chief
\n\tControlling Revenue Authority that it has no jurisdiction and power
\n\tto entertain appeal beyond limitation of 60 days. No interference of
\n\tthis Court while exercising power under article 226\/227 of
\n\tConstitution of India is required, therefore, present petition is
\n\tdismissed having no substance, on both grounds, one is, petition is
\n\tpreferred after four years, challenging order passed on 10.05.2006,
\n\twithout giving any explanation or without establishing sufficient
\n\tcause of delay as well as respondent has rightly not entertained
\n\tappeal which is filed beyond specified period prescribed in Act for
\n\twhich Chief Controlling Revenue Authority has no power and
\n\tjurisdiction to condone delay under Section 32(B) of Bombay Stamp
\n\tAct. Therefore, present petition is not having substance and same is
\n\tdismissed.\n<\/p>\n
\tNo
\norder as to costs.\n<\/p>\n
[H.K.RATHOD,
\nJ.]<\/p>\n
..mitesh..\n<\/p>\n
1Sub-sectin
\n\t(1) was substituted by Guj. 13 of 1994, S.7(1)<\/p>\n
2These
\n\twords were inserted by Guj.19 of 2001 S.3 w.e.f. 1-9-2001.\n<\/p>\n
3These
\n\twords were substituted for the words  may either before or after
\n\tby Guj.8 of 2000, S.2<\/p>\n
4Proviso
\n\tin Sub-Sec.(1) inserted by Guj.18 of 2004 Sec.2. w.e.f.11-6-2004.\n<\/p>\n
5These
\n\twords were substituted for the words  section 31 or   Guj.8 of
\n\t2002 S.7(2)<\/p>\n
6The
\n\twords were substituted by Guj.4 of 1991. S.2.\n<\/p>\n
7These
\n\twords were inserted by Guj.13 of 1994. S.7(3)<\/p>\n
8These
\n\twords were substituted for the words  Two years  by Guj.13 of
\n\t1994. S.7(4)<\/p>\n
9As
\n\tper Noti. No. GHM\/2002\/32\/M\/STP\/10\/2002\/690\/H dt.18-4-2002 in
\n\tGujarat Stamp Rules. 1978 in Rules 30-A, for the words  24% the
\n\twords  15% shall be substituted.\n<\/p>\n
10Substituted
\n\tfor  Sixty days  by Guj.18 of 2004 Sec.3 w.e.f. 11-6-2004.\n<\/p>\n
\t\t   \u00a0\u00a0\u00a0<\/p>\n
\t\t   Top<\/p>\n","protected":false},"excerpt":{"rendered":"
Gujarat High Court Maganlal vs Chief on 15 September, 2010 Author: H.K.Rathod,&Nbsp; Gujarat High Court Case Information System Print 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 ========================================================= 1 Whether Reporters of Local Papers may be allowed […]<\/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-52197","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nMaganlal vs Chief on 15 September, 2010 - 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\/maganlal-vs-chief-on-15-september-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Maganlal vs Chief on 15 September, 2010 - 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