Allahabad High Court
Mansoor Beg vs State Of U.P. Thru. Prin. Secy. ... on 9 May, 2019
Author: Devendra Kumar Upadhyaya
Bench: Devendra Kumar Upadhyaya
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH A.F.R. Court No. - 4 Case :- MISC. SINGLE No. - 13158 of 2019 Petitioner :- Mansoor Beg Respondent :- State Of U.P. Thru. Prin. Secy. Transport Deptt. Lko. & Ors. Counsel for Petitioner :- Mohd Nazish Iqbal Counsel for Respondent :- C.S.C.,Akhter Abbas Hon'ble Devendra Kumar Upadhyaya,J.
Heard learned counsel for the petitioner, learned Standing Counsel representing the State-respondents and Sri Akhter Abbas, learned counsel representing the U.P. State Road Transport Corporation.
This petition seeks to challenge the order dated 07.01.2019, passed by the Chairman, State Transport Appellate Tribunal, U.P., Lucknow whereby the application moved by the petitioner seeking condonation of delay in preferring the revision petition under Section 90 of the Motor Vehicles Act, 1998 (herein after referred to as ''MV Act') has been rejected.
In view of the proposed order and also having regard to the order under challenge herein, the Court finds that filing of counter affidavit in this petition would not serve any purpose and, therefore, with the consent of learned counsel appearing for the parties, this petition is being disposed of finally at the admission stage itself.
The petitioner had preferred a revision petition under Section 90 of the MV Act challenging the order dated 16.08.2014, passed by the Regional Transport Authority, Devi Patan Division, Gonda. The revision petition was admitted by the U.P. State Transport Appellate Tribunal (herein after referred to as ''STAT'), vide its order dated 26.09.2014. On perusal of the office report submitted by the office of the STAT, it was revealed that the revision petition filed by the petitioner against the order of Regional Transport Authority, dated 16.08.2014 was within time, however, the order of admission appears to have been reviewed by the STAT and the revision petition was dismissed, vide order dated 30.07.2018, wherein it was held that the revision petition filed by the petitioner was barred by limitation. The said order dated 30.07.2018, passed by the STAT was challenged by the petitioner by way of filing Writ Petition No.26784(MS) of 2018 which was finally disposed of by this Court, vide order dated 18.09.2018. By the said order, this Court while setting aside the order dated 30.07.2018, passed by the STAT, permitted the petitioner to file a separate application for condonation of delay, along with an affidavit, explaining the delay and also provided that in case any such an application is preferred, the Tribunal shall decide the same in accordance with law.
The order dated 18.09.2018 appears to have been passed by this Court on a consideration that the delay in preferring the revision petition was of only 8 days and accordingly, the Court observed while passing the order dated 18.09.2018 that "since the delay is of only 8 days, the revisional court ought not have rejected the revision. In case Tribunal found that a separate application for condonation of delay, along with affidavit should have been filed, it should have given an opportunity to file the same".
In pursuance of the aforesaid order dated 18.09.2018, the petitioner moved an application before the Tribunal seeking condonation of delay in preferring the revision petition against the order dated 16.08.2014, passed by the Regional Transport Authority. The said application is dated 05.11.2018 and was moved under 2nd proviso appended to Section 90 of the MV Act. The application was accompanied by an affidavit. However, the learned Tribunal while passing the order under challenge herein, dated 07.01.2019 has rejected the application seeking condonation of delay in filing the revision petition and accordingly has dismissed the revision petition as well.
Before proceeding to consider the validity and lawfulness of the impugned order dated 07.01.2019, I am compelled to observe that the very approach of the learned Tribunal in considering the application seeking condonation of delay of 8-9 days in filing revision petition, which is reflected from the impugned order itself, cannot, in any manner, be appreciated. This observation is being made by this Court not on consideration of the fact that there was delay of only 8-9 days but Court finds itself constrained to make such observation for the reason that the manner in which the application seeking condonation of delay in this case has been approached and decided by the STAT is against the all known cannons of law as pronounced and enunciated by Hon'ble Supreme Court in various judgments where issue relating to limitation and prescriptions and its condonation has been considered.
The STAT in its order has exhaustively quoted a judgment pronounced by Hon'ble Supreme Court in the case of Basawaraj and another Vs. Special Land Acquisition Officer, reported in [(2013)14SCC 81]. It has also quoted yet another judgment of Hon'ble Supreme Court delivered in the case of Brijesh Kumar and others Vs. State of Haryana and others, reported in [(2014) 11SCC 351]. After quoting certain extracts of the aforesaid judgments of Hon'ble Supreme Court, the STAT has stated in the impugned order that it is the burden on the revision-applicant to show "sufficient cause" for seeking condonation of delay in filing revision petition and that revision-applicant has miserably failed to establish any sufficient cause for not filing the revision petition within the prescribed period of limitation of 30 days under Section 90 of MV Act.
If the order dated 07.01.2019, passed by the Chairman, STAT is scrutinized closely, the Court finds itself at loss of words to describe the approach and the manner in which the STAT has proceeded and considered the issue regarding condonation of delay in filing the revision petition. I have no hesitation to observe that the order under challenge herein clearly shows that it is based on complete wrong notion and on gross misconception of law relating to condonation of delay.
What is "sufficient cause" has been the subject matter of discussion by this Court as well as by Hon'ble Supreme Court in various cases. In the case of Basawaraj (supra), which has exhaustively been quoted by the Chairman, STAT in the impugned order, it has been observed by Hon'ble Supreme Court that expression "sufficient cause" should receive a liberal interpretation to ensure that substantial justice is done. Hon'ble Supreme Court though has put word of ''caution' in the said judgment itself and has stated that a liberal interpretation should be given only as long as negligence, inaction or lack of bona fides cannot be imputed to the party seeking condonation of delay.
So far as the facts of this case are concerned, it may be noticed that while disposing of Writ Petition No.26784(MS) of 2018, this Court has clearly observed in the order dated 18.09.2018 that the revisional court ought not have rejected the revision on the ground of delay as the delay was only of 8 days and rather if it was found by the Tribunal that a separate application for condonation of delay along with affidavit should be filed, an opportunity for the said purpose ought to have been given to the revision-applicant. Accordingly, in pursuance of the said order dated 18.09.2018, the petitioner filed an application seeking condonation of delay in pursuance of the liberty granted by this Court by the order dated 18.09.2018. Keeping the said liberty granted by this Court, the observation empathetically and repeatedly made by the STAT about the said application having been moved after expiry of a period of 4 years, 1 month and 11 days, appears to be completely unwarranted and it can even be described, to an extent, as disregard to the order dated 18.09.2018 passed by this Court. The facts narrated by the revision-applicant in the application seeking condonation of delay may be mentioned at this juncture in brief. The decision which was subject matter of the revision petition filed by the petitioner under Section 90 of the MV Act, passed by the Regional Transport Authority is dated 16.08.2014. The revision was preferred on 24.09.2014. In the application it was stated by the petitioner that he gained knowledge of the said decision dated 16.08.2014 on 12.09.2014 and accordingly he applied for certified copy of the said decision dated 16.08.2014 on 15.09.2014 and certified copy was thus provided to the petitioner on 16.09.2014 whereupon he came from his residence at Bahraich to Lucknow in the evening and contacted his lawyer for preparation of revision petition who advised him to bring some more documents and accordingly petitioner again contacted his lawyer at Lucknow on 22.09.2014 and submitted all the documents desired by his lawyer. It was, thus, further stated in the application that after getting revision petition prepared through his counsel, the same was filed on 24.09.2014.
The STAT on the basis of analysis of facts narrated by the petitioner in the application seeking condonation of delay in his own manner has held that the petitioner is guilty of lack of bona fide in not pursuing the revision petition. It has also stated in the impugned order that in terms of the provision contained in Rule 60 of the U.P. Motor Vehicles Rules, 1998, the publication of the decision of the Transport Authority i.e. Regional Transport Authority will be deemed to have been made on 16.08.2014, though there is no such evidence.
In paragraphs 7 and 8 of the affidavit filed in support of the application seeking condonation of delay, it was clearly stated by the petitioner that in accordance with Rule 60 of the Motor Vehicles Rules, 1998, no decision was published on the notice board of the Regional Transport Authority and as such petitioner could not have knowledge of the impugned order dated 16.08.2014 prior to 12.09.2014 when he visited the office of Regional Transport Authority.
Objection on behalf of opposite parties before the STAT to the application moved by the petitioner seeking condonation of delay was also filed. However, except for bald denial of the assertions made by the petitioner, no specific denial was made in the said objection about the order dated 16.08.2014 not being published in terms of the provision contained in Rule 60 of the Motor Vehicles Rules, 1998. In this background, the finding recorded/ observation made by the STAT that the said assertion regarding non-publication of the decision dated 16.08.2014 in terms of Rule 60 of the Motor Vehicles Rules cannot be accepted, is highly erroneous as the STAT while giving such finding/recording such observation has stated that it was the burden of the petitioner to have proved that decision dated 16.08.2014 was not published and that the petitioner failed to give any evidence to establish the said fact. The application seeking condonation of delay supported by an affidavit was to be decided on the basis of exchange of pleadings in this regard based on the affidavit alone.
It is also noticeable that the STAT in the impugned order at various places has frequently deprecated the petitioner's application having been moved after 4 years 1 month and 11 days and has stated that the plea that the decision dated 16.08.2014 was not published in terms of Rule 60, was not taken by the petitioner while filing the revision petition as such the same is not available to be taken by him while moving the application seeking condonation of delay Such an approach, as observed above, cannot be appreciated.
As already recorded in the preceding paragraphs of this judgment, the petitioner had moved the application seeking condonation of delay pursuant to the order passed by this Court on 18.09.2018. It is also relevant to point out at this juncture itself that on presentation of revision petition earlier the office of STAT had not noted that the revision petition was barred by limitation and accordingly revision petition was even admitted by the STAT, vide its order dated 26.09.2014 and thereafter, STAT after a gap of about 4 years, vide order dated 30.07.2018 dismissed the revision petition on the ground of same being barred by limitation. Such an approach again is not worth being appreciated. It is not a case where on presentation of the revision petition it was pointed out by the office or by the Tribunal itself that the revision petition was barred by limitation; rather it is a case where the revision petition was initially held to be within the time prescribed and was even admitted. Thus, reiteration of facts that petitioner moved the application seeking condonation of delay after a gap of 4 years, 1 month and 11 days repeatedly in the impugned order, is completely unwarranted and as observed above, the same appears to be clearly in disregard of the order passed by this Court on 18.09.2018 in Writ Petition No. 26784(MS) of 2018.
The Court or Tribunal established under various Legislations should note and always bear in mind while performing the adjudicatory functions that primary function of any court or Tribunal is to adjudicate the dispute between the parties and to advance substantial justice. In the case of N. Balakrishnan Vs. M. Krishna Murthy, reported in [(1998) 7 SCC 123], the Hon'ble Supreme Court has held that "time limit fixed for approaching the court in different situations is not because on expiry of such time a bad cause would transform into a good cause." It has further been held in the said case by Hon'ble Supreme Court that any prescription for limitation is not meant to destroy the rights of parties; rather it is meant to ensure that parties are not able to adopt dilatory tactics, but seek their remedy promptly. The delay of 8-9 days for which, in my opinion, more than sufficient and good cause was shown by the petitioner in the application seeking condonation of delay would not in any manner amount to adopting dilatory tactics. The conduct of the petitioner which can be gathered from perusal of the averments made in the application seeking condonation of delay also does not leave any room to draw any conclusion by a person of common prudence that the petitioner lacked bona fide in pursuing the remedy of revision petition under Section 90 of the MV Act.
The principles relating to condonation of delay and limitation have been elaborately dealt with by Hon'ble Supreme Court in the case of N. Balakrishnan (supra), para 10 and 11 whereof are extracted herein below:
"10. The reason for such a different stance is thus:
The primary function of a court is to adjudicate the dispute between the parties and to advance substantial justice. Time limit fixed for approaching the court in different situations in not because on the expiry of such time a bad cause would transform into a good cause.
11. Rules of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life-span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time, newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. The law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium (it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time."
In paragraph 12 of the said judgment Hon'ble Supreme Court has clearly enunciated the well known legal principle that there is no presumption in law that delay in approaching the court is always deliberate. Their Lordships have further observed that there can be some lapse on the part of the litigant in every case of delay, however, that alone is not enough to turn down the plea and to shut the door of justice to such a litigant. Hon'ble Apex Court in the said judgment has further observed that in case the explanation for sufficient cause is not mala fide or it has not been pleaded as part of a dilatory tactics or strategy, the court must show utmost consideration for condoning the delay. It is of some benefit for all concerned including STAT to quote the observations made by Hon'ble Supreme Court in the case of N. Balakrishnan (supra) in paragraphs 12 and 13 which are as under:
"12. A court knows that refusal to condone delay would result in foreclosing a suitor from putting forth his cause. There is no presumption that delay in approaching the court is always deliberate. This Court has held that the words "sufficient cause" under Section 5 the Limitation Act should receive a liberal construction so as to advance substantial justice vide Shakuntala Devi Jain Vs. Kuntal Kumari and State of West Bengal Vs. Administrator, Howrah Municipality.
13. It must be remembered that in every case of delay, there can be some lapse on the part of the litigant concerned. That alone is not enough to turn down his plea and to shut the door against him. If the explanation does not smack of mala fides or it is not put forth as part of a dilatory strategy, the court must show utmost consideration to the suitor. But when there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time, then the court should lean against acceptance of the explanation. While condoning delay, the Could should not forget the opposite party altogether. It must be borne in mind that he is a looser and he too would have incurred quiet a large litigation expenses. It would be a salutary guideline that when courts condone the delay due to laches on the part of the applicant the court shall compensate the opposite party for his loss."
As to what should be the approach of a Court or Tribunal while considering the limitation and prayer for condonation of delay has been subject matter of discussion by Hon'ble Supreme Court in various judgments, the principle whereof has been enunciated broadly in paragraphs 21 and 22 of the judgment in the case of Esha Bhattacharya Vs. Managing Committee of Raghunathpur Nafar Academy and others, reported in [(2013) 12 SCC 649]. The broad principles laid down by Hon'ble Supreme Court in paragraphs 21 and 22 of the said judgment are extracted herein below :
"21.From the aforesaid authorities the principles that can broadly be culled out are:
21.1. (i) There should be a liberal, pragmatic, justice-oriented, non-pedantic approach while dealing with an application for condonation of delay, for the courts are not supposed to legalise injustice but are obliged to remove injustice.
21.2. (ii) The terms "sufficient cause" should be understood in their proper spirit, philosophy and purpose regard being had to the fact that these terms are basically elastic and are to be applied in proper perspective to the obtaining fact-situation.
21.3. (iii) Substantial justice being paramount and pivotal the technical considerations should not be given undue and uncalled for emphasis.
21.4. (iv) No presumption can be attached to deliberate causation of delay but, gross negligence on the part of the counsel or litigant is to be taken note of.
21.5. (v) Lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact.
21.6. (vi) It is to be kept in mind that adherence to strict proof should not affect public justice and cause public mischief because the courts are required to be vigilant so that in the ultimate eventuate there is no real failure of justice.
21.7. (vii) The concept of liberal approach has to encapsulate the conception of reasonableness and it cannot be allowed a totally unfettered free play.
21.8. (viii) There is a distinction between inordinate delay and a delay of short duration or few days, for to the former doctrine of prejudice is attracted whereas to the latter it may not be attracted. That apart, the first one warrants strict approach whereas the second calls for a liberal delineation.
21.9. (ix) The conduct, behaviour and attitude of a party relating to its inaction or negligence are relevant factors to be taken into consideration. It is so as the fundamental principle is that the courts are required to weigh the scale of balance of justice in respect of both parties and the said principle cannot be given a total go by in the name of liberal approach.
21.10. (x) If the explanation offered is concocted or the grounds urged in the application are fanciful, the courts should be vigilant not to expose the other side unnecessarily to face such a litigation.
21.11. (xi) It is to be borne in mind that no one gets away with fraud, misrepresentation or interpolation by taking recourse to the technicalities of law of limitation.
21.12. (xii) The entire gamut of facts are to be carefully scrutinised and the approach should be based on the paradigm of judicial discretion which is founded on objective reasoning and not on individual perception.
21.13. (xiii) The State or a public body or an entity representing a collective cause should be given some acceptable latitude.
22. To the aforesaid principles we may add some more guidelines taking note of the present day scenario. They are:
22.1. (a) An application for condonation of delay should be drafted with careful concern and not in a haphazard manner harbouring the notion that the courts are required to condone delay on the bedrock of the principle that adjudication of a lis on merits is seminal to justice dispensation system.
22.2. (b) An application for condonation of delay should not be dealt with in a routine manner on the base of individual philosophy which is basically subjective.
22.3. (c) Though no precise formula can be laid down regard being had to the concept of judicial discretion, yet a conscious effort for achieving consistency and collegiality of the adjudicatory system should be made as that is the ultimate institutional motto.
22.4. (d) The increasing tendency to perceive delay as a non-serious matter and, hence, lackadaisical propensity can be exhibited in a nonchalant manner requires to be curbed, of course, within legal parameters."
Hon'ble Supreme Court not once but on several occasions has emphasized on adopting justice-oriented approach by the courts/judicial authorities or Tribunals. In the case of Collector, Land Acquisition, Anantnag and another Vs. Mst. Katiji and others, reported in [(1987) 2SCC 107], it has been held that the power to condone the delay is conferred in order to enable the courts to do substantial justice to the parties by disposing of the matters on merits and further that the expression "sufficient cause" is elastic enough to enable the courts to apply the law in a meaningful manner to subserve the ends of justice. Hon'ble Supreme Court goes on to the extent of observing that to subserve the ends of justice is the life-purpose of existence of the institution of Courts. In the said case, Hon'ble Supreme Court calls for adopting a liberal approach in the matters relating to condonation of delay in instituting the proceedings before the Courts/Tribunal and has thus formulated the following principles:
"1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.
2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.
3. "Every day's delay must be explained" does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay? The doctrine must be applied in a rational common sense pragmatic manner.
4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.
5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.
6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so."
Thus, on a bear reading of the aforesaid legal principles enunciated by Hon'ble Supreme Court, broadly speaking the approach while considering a prayer or application seeking condonation of delay in instituting any proceedings which should be adopted by a court or a judicial forum or tribunal is that it should not proceed on the premise or assumption that delay in approaching the court is always deliberate and that the primary function of the court or an adjudicatory authority is to adjudicate the dispute, rather than to shut its door to a litigant or a party. (Emphasis by the Court) It would be of some relevance to state that what needs to be borne in mind is that the expression "sufficient cause" is adequately elastic so as to apply the law relating to condonation of delay in a meaningful manner to subserve the ends of justice. The approach of the court or tribunal in such a matter should be liberal, non-pedantic and justice-oriented. While there cannot be any presumption of deliberately causing delay, in case the party institutes the proceedings with delay and is found to have acted cursorily or negligently, the said aspect is also to be taken into account by the courts. However, in absence of lack of bona fide or gross negligence or in absence of any attempt by a party to adopt dilatory tactics, the approach of the courts/tribunal should always be to provide opportunity of seeking adjudication of the issue by condoning the delay.
If the impugned order passed by the STAT is analyzed on the aforesaid reasoning given herein above, the same cannot be permitted to be sustained in the eyes of law.
In some what similar matters, this Court has considered similar approach adopted by the STAT while deciding the application seeking condonation of delay in the case of Zila Bus Operators Association and others Vs. State of U.P. and others, Writ-A No. 9993 of 2018. The Court in the said case has held that delay of about 15 days ought to have been condoned when an explanation was offered by the revision-applicant. Similar view has been taken by this Court yet in another case decided on 08.03.2019 in Automotive Parivahan Sahkari Samiti Ltd. And another Vs. State Transport Appellate Tribunal and another (Misc. Single No. 6760 of 2019).
In view of above and also having regard to the averments made in the application moved by the petitioner seeking condonation of delay in preferring the revision petition under Section 90 of the MV Act against the order dated 16.08.2014, passed by the Regional Transport Authority, the writ petition is allowed and the impugned order dated 07.01.2019, passed by the STAT in Revision No.142/2014 as also on the application A-3 seeking condonation of delay, is hereby quashed.
The delay in filing revision petition by the petitioner before the STAT is hereby condoned. STAT is directed to consider the revision petition filed by the petitioner treating the same to be competent revision petition, on merits and in accordance with law.
There will be no order as to costs.
Order Date :- 9.5.2019/Sanjay