Bombay High Court
Muncipal Corporation Of Greater Mumbai vs Mahendra Builders And 10 Ors on 10 January, 2023
Author: K. R. Shriram
Bench: K. R. Shriram
2023:BHC-OS:317-DB
This Order is modified/corrected by Speaking to Minutes Order dated 22/02/2023
Rajeshri Aher 1/13 903 ia 604 of 2020.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
INTERIM APPLICATION NO.604 OF 2020
IN
APPEAL (ST) NO.29 OF 2020
Municipal Corporation of
Greater Mumbai ... Applicant
In the matter between
Municipal Corporation of
Greater Mumbai ... Appellant
Versus
Mahendra Builders and Ors. ... Respondents
....
Mr. A.Y. Sakhare, Senior Advocate a/w Mr. Ajit Kenjale and Ms. K.H.
Mastakar, Advocates for Applicant.
Mr. Aspi Chinoy, Senior Advocate a/w Mr. Rohan Dakshini, Ms. Shweta
Jaydev, Ms. Pooja Vasandani, Ms. Azraa Millwalla and Ms.
Abhyarthana Singh i/b M/s. Rashmikant & Partners, Advocates for
Respondent No.1.
Mr. Venkatesh Dhond, Senior Advocate a/w Mr. Cyrus Ardeshir, Mr.
Ziyad Madon and Mr. Chirag Sarawagi i/b Mr. Tushar Goradia,
Advocates for Respondent No.2.
Mr. Vinayak Mane, Head Clerk and Mr. Rupesh Girhepuje, Head Clerk
from Estate Department of Applicant-MCGM present.
....
CORAM : K. R. SHRIRAM &
RAJESH S PATIL, JJ.
DATED : 10th JANUARY 2023
P.C.:
This Application is for condonation of a delay of 315 days in filing the Appeal. In the Interim Application, the only explanation ::: Uploaded on - 18/01/2023 ::: Downloaded on - 28/05/2023 20:11:59 ::: This Order is modified/corrected by Speaking to Minutes Order dated 22/02/2023 Rajeshri Aher 2/13 903 ia 604 of 2020.doc for the delay is, "however, the papers of the proceedings were misplaced with other brief and therefore the present Appeal could not be filed within stipulated period". As recorded in the order dated 5 th December 2022, when Court expressed its dissatisfaction on the lack of explanation, Mr.Sakhare sought leave of the Court to file further affidavit-in-support. Paragraph 1 of the said order dated 5th December, 2022, reads as under:
"When we expressed to Mr. Sakhare that there is no explanation whatsoever in the Interim Application and not just insufficient explanation. Mr. Sakhare sought leave of the court to file further affidavit in support. Leave granted. The affidavit to be filed will contain all details which would include : (a) complete details for the period of delay; (b) an explanation as to how the papers got misplaced; (c) who misplaced it, with name and designation; (d) when the papers were found and from where and (e) also what action has been taken against the concerned officer/staff."
2 Applicant through one Mrs.Jyoti Mane has filed a further affidavit affirmed on 15th December 2022. Though not stated in so many words, Applicant has stated that the delay was on account of departmental/administrative procedure involved. 3 The misplacement of the file, as stated in the Interim Application has also been explained. In the Interim Application, Applicant has stated as noted earlier, that for the entire period the file ::: Uploaded on - 18/01/2023 ::: Downloaded on - 28/05/2023 20:11:59 ::: This Order is modified/corrected by Speaking to Minutes Order dated 22/02/2023 Rajeshri Aher 3/13 903 ia 604 of 2020.doc was misplaced, and, hence, the delay of 315 days. From the further affidavit, it appears that the file was misplaced only for about 10 days. In paragraph 5 it is stated that on or about 19 th August 2019 the then Deputy Law Officer made inquiry with one Mr.Shingade, the then Assistant Law Officer about the status of the Appeal matter and as to the filing of the Appeal. In paragraph 6, it is stated that Mr.Shingade made search and realized that papers are misplaced from his table and after due search of the proceedings ultimately, in last week of August 2019, found the same which were mixed with some other proceedings. Therefore, the delay in effect appears to be not more than 10 to 12 days, i.e., from 19th August 2019 to end of August 2019. Therefore, we agree with the submission of Mr.Chinoy that the Application itself has been made on totally false statement.
4 The Apex Court in Pundlik Jalam Patil (Dead) By LRS. Vs. Executive Engineer, Jalgaon Medium Project & Anr. 1, has held that when an incorrect statement is made in an application seeking condonation of delay, that itself is sufficient to reject the Application without any further inquiry as to whether the averments made in the application reveal sufficient cause to condone the delay. The Apex 1 (2008) 17 SCC 448 ::: Uploaded on - 18/01/2023 ::: Downloaded on - 28/05/2023 20:11:59 ::: This Order is modified/corrected by Speaking to Minutes Order dated 22/02/2023 Rajeshri Aher 4/13 903 ia 604 of 2020.doc Court held, "that a party taking a false stand to get rid of the bar of limitation should not be encouraged to get any premium on the falsehood on his part by condoning of delay".
Paragraph 11 and 12 of the said judgment reads as under:
"11. Whether the respondent made incorrect statement in the application seeking condonation of delay? There is no dispute whatsoever that the respondent being the beneficiary of the acquisition has been duly impleaded as a party-respondent in the reference cases as is required in law. It not only appeared in the matter through a properly instructed counsel but also filed its written statement opposing the claim for enhancement of compensation but did not choose to lead any evidence whatsoever. In the application filed in the High Court the plea taken by the respondent is as under:
"The applicant submits that, although the applicant being the acquiring body, was arrayed as the opponent in the said reference, the Opponent 4 herein (original Opponent
1) SLAO or his subordinate contested the said reference by filing a written statement. Therefore, this applicant was unaware about the stand taken by SLAO as well as the impugned judgment and award."
This averment in the application on the face of it is totally incorrect.
12. The Law & Judiciary Department as early as on 13-4- 2000 i.e. to say within the period of 15 days from the date of the award of the Reference Court communicated its decision to acquiesce in the decision of the Reference Court and communicated the same to all the concerned including the beneficiary of the acquisition. It is not the case that the Executive Engineer did not receive the said communication. Having received the said communication, the respondent did not act in the matter and initiated any steps for filing the appeals if it was really aggrieved by the decision of the Reference Court. There is no doubt whatsoever in our mind that the respondent made totally incorrect statement in the application filed in the High Court. We express our reservation as to the manner in which a public authority conducted itself in its anxiety to ::: Uploaded on - 18/01/2023 ::: Downloaded on - 28/05/2023 20:11:59 ::: This Order is modified/corrected by Speaking to Minutes Order dated 22/02/2023 Rajeshri Aher 5/13 903 ia 604 of 2020.doc somehow get the relief from the court. In our considered opinion, incorrect statement made in the application seeking condonation of delay itself is sufficient to reject the application without any further inquiry as to whether the averments made in the application reveal sufficient cause to condone the delay. That a party taking a false stand to get rid of the bar of limitation should not be encouraged to get any premium on the falsehood on its part by condoning delay. [See Binod Bihari Singh v. Union of India]"
(Emphasis supplied) 5 The next point that appears from the affidavit of applicant is that the delay was due to departmental/administrative procedures.
The Apex Court in the case of Post Master General And Others Vs. Living Media India Limited And Another 2, was considering an application to condone delay of about 427 days. In that application also the applicant, i.e., a Postal Department had given reasons for the delay and one of the reason was that the delay was not intentional, but, was on account of the departmental/administrative procedure involved in filing the Petition for special leave. It was also submitted that unlike the private ligation, matters relating to the Government are required to be considered at various levels and then only a decision is taken. For the said reasons, the delay caused in filing the Petition was a result of all necessary and unavoidable office formalities and was bonafide and not deliberate or intentional. The Apex Court held that 22012(3)SCC 556 ::: Uploaded on - 18/01/2023 ::: Downloaded on - 28/05/2023 20:11:59 ::: This Order is modified/corrected by Speaking to Minutes Order dated 22/02/2023 Rajeshri Aher 6/13 903 ia 604 of 2020.doc the law of limitation binds everybody equally including Government and defence by Government of impersonal machinery and inherited bureaucratic methodology cannot accepted in view of modern technology being used and available. Absence of diligence cannot be a reason to condone delay as condonation of delay is an exception and should not be used as an anticipated benefit for Government Department. The Court also held that usual explanation that file was kept pending due to procedural red tape, cannot be accepted.
6 Paragraphs 22, 26 to 29, read as under:
"22. In CWT vs. Amateur Riders Club, there was a delay of 264 days in filing the SLP by the Commissioner of Wealth Tax, Bombay. The explanation for the delay had been set out in the petitioner's own words as under: (SCC p. 604, para 2) "2. ...(g) The Advocate-on-Record got the special leave petition drafted from the drafting Advocate and sent the same for approval to the Board on 24-6-1993 along with the case file.
(h) The Board returned the case file to the Advocate-on-
Record on 9-7-1993 who re-sent the same to the Board on 20-9-1993 requesting that draft SLP was not approved by the Board. The Board after approving the draft SLP sent this file to CAS on 1-10-1993."
After incorporating the above explanation, this Court refused to condone the delay by observing thus: (SCC p. 604, para 3) "3. ... .... Having regard to the law of limitation which binds everybody, we cannot find any way of granting relief. It is true that Government should not be treated as any other private litigant as, indeed, in the case of the ::: Uploaded on - 18/01/2023 ::: Downloaded on - 28/05/2023 20:11:59 ::: This Order is modified/corrected by Speaking to Minutes Order dated 22/02/2023 Rajeshri Aher 7/13 903 ia 604 of 2020.doc former the decisions to present and prosecute appeals are not individual but are institutional decisions necessarily bogged down by the proverbial red tape. But there are limits to this also. Even with all this latitude, the explanation offered for the delay in this case merely serves to aggravate the attitude of indifference of the Revenue in protecting its common interests. The affidavit is again one of the stereotyped affidavits making it susceptible to the criticism that the Revenue does not seem to attach any importance to the need for promptitude even where it affects its own interest.
[emphasis supplied]
26. In spite of affording another opportunity to file better affidavit by placing adequate material, neither the Department nor the person-in-charge has filed any explanation for not applying the certified copy within the prescribed period. The other dates mentioned in the affidavit which we have already extracted, clearly show that there was delay at every stage and except mentioning the dates of receipt of the file and the decision taken, there is no explanation as to why such delay had occasioned. Though it was stated by the Department that the delay was due to unavoidable circumstances and genuine difficulties, the fact remains that from day one the Department or the person/persons concerned have not evinced diligence in prosecuting the matter to this Court by taking appropriate steps.
27. It is not in dispute that the person(s) concerned were well aware or conversant with the issues involved including the prescribed period of limitation for taking up the matter by way of filing a special leave petition in this Court. They cannot claim that they have a separate period of limitation when the Department was possessed with competent persons familiar with court proceedings. In the absence of plausible and acceptable explanation, we are posing a question why the delay is to be condoned mechanically merely because the Government or a wing of the Government is a party before us.
28. Though we are conscious of the fact that in a matter of condonation of delay when there was no gross negligence or deliberate inaction or lack of bona fides, a liberal concession has to be adopted to advance substantial ::: Uploaded on - 18/01/2023 ::: Downloaded on - 28/05/2023 20:11:59 ::: This Order is modified/corrected by Speaking to Minutes Order dated 22/02/2023 Rajeshri Aher 8/13 903 ia 604 of 2020.doc justice, we are of the view that in the facts and circumstances, the Department cannot take advantage of various earlier decisions. The claim on account of impersonal machinery and inherited bureaucratic methodology of making several notes cannot be accepted in view of the modern technologies being used and available. The law of limitation undoubtedly binds everybody, including the Government.
29. In our view, it is the right time to inform all the government bodies, their agencies and instrumentalities that unless they have reasonable and acceptable explanation for the delay and there was bona fide effort, there is no need to accept the usual explanation that the file was kept pending for several months/years due to considerable degree of procedural red tape in the process. The government departments are under a special obligation to ensure that they perform their duties with diligence and commitment. Condonation of delay is an exception and should not be used as an anticipated benefit for the government departments. The law shelters everyone under the same light and should not be swirled for the benefit of a few."
7 Post Master General (Supra) came to be considered once again by the Apex Court in State of Uttar Pradesh and Ors. Vs. Sabha Narain and Ors.3, where paragraph 3 reads as under:
"3. We have repeatedly discouraged State Governments and public authorities in adopting an approach that they can walk in to the Supreme Court as and when they please ignoring the period of limitation prescribed by the statutes, as if the Limitation statute does not apply to them. In this behalf, suffice to refer to our judgments in the State of M.P. v. Bherulal and State of Odisha v. Sunanda Mahakuda. The leeway which was given to the Government/public authorities on account of innate inefficiencies was the result of certain orders of this Court which came at a time when technology had not advanced and thus, greater indulgence was shown. This position is no more prevalent and the current legal position has been 3 2022 SCC 266 ::: Uploaded on - 18/01/2023 ::: Downloaded on - 28/05/2023 20:11:59 ::: This Order is modified/corrected by Speaking to Minutes Order dated 22/02/2023 Rajeshri Aher 9/13 903 ia 604 of 2020.doc elucidated by the judgment of this Court in Postmaster General v. Living Media India Ltd. Despite this, there seems to be little change in the approach of the Government and public authorities."
(Emphasis supplied) 8 Therefore one thing is clear from the law as laid down by the Apex Court is that the defence of bureaucratic methodology cannot be and should not be accepted by the Courts and when there is absence of diligence by department in prosecuting a matter, delay cannot be condoned. It is also clear that the condonation of delay is an exception and should not be used as an anticipated benefit for Government department by offering usual explanation that file was kept pending due to procedural red tape. In the present case, apart from the incorrect statement as recorded earlier by us there is also bureaucratic indifference. There is no proper explanation for not filing the Appeal on time.
9 It is Appellant's case as stated in the further affidavit that the impugned order came to be passed on 11 th February, 2019, certified copy was applied for on 21 st February 2019 and the same was received on 25th February 2019. On 27th February, 2019, the legal department put up a note for preferring the Appeal and on 8 th March ::: Uploaded on - 18/01/2023 ::: Downloaded on - 28/05/2023 20:11:59 ::: This Order is modified/corrected by Speaking to Minutes Order dated 22/02/2023 Rajeshri Aher 10/13 903 ia 604 of 2020.doc 2019 the Legal Department put up a note for preferring Appeal and on 8th March 2019, the Legal Department got the draft of the Appeal prepared and the draft was forwarded to the office of Assistant Commissioner (Estate) for approval. On 19 th March, 2019, the file and draft appeal was forwarded to Deputy Law Officer of Supreme Court for opinion/approval.
10 A month later, draft Appeal was once again forwarded by Legal department to Assistant Commissioner (Estate) for further action. On 16th April 2919 the Assistant Commissioner (Estate) directed Legal Department to forward the file and the draft Appeal to Senior Counsel and to discuss the matter with him and on 23 rd April 2019, file was forwarded to Legal Department for necessary corrections in the draft Appeal. Thereafter, in May vacation the Assistant Law Officer, who was in-charge of the office was transferred to another ward. He was transferred only for a period of one week and was brought back to the parent department. He came back to the parent department on 21st June 2019. Subsequently, on 19th August 2019, Assistant Commissioner (Estate) sought opinion in respect of certain properties. It is rather strange because the file had been ::: Uploaded on - 18/01/2023 ::: Downloaded on - 28/05/2023 20:11:59 ::: This Order is modified/corrected by Speaking to Minutes Order dated 22/02/2023 Rajeshri Aher 11/13 903 ia 604 of 2020.doc forwarded to Assistant Commissioner (Estate) for approval way back on 8th March 2019 and on 15 th April, 2019, the draft was once again forwarded to the Assistant Commissioner (Estate) for further action by the legal department and on his instructions on 23 rd April 2019, file was forwarded for necessary corrections in the draft Appeal. Therefore it is not clear as to why the Assistant Commissioner (Estate) was sitting over the file. Further, as noted earlier, the misplacement of files was only for 10 days.
11 On 11th September 2019, the Deputy Law Officer once again forwarded the draft Appeal to the Assistant Commissioner (Estate) for further course of action and on 19 th September, 2019, the State Department informed the Legal Department to go through the directions given by the Assistant Commissioner (Estate) The draft Appeal which was approved by the senior counsel as well was submitted to Assistant Commissioner (Estate) and Deputy Municipal Commissioner (Improvements) for their approval vide correspondence dated 12th December 2019. We fail to understand why it is again sent to Assistant Commissioner (Estate) when he has already considered the file on 15th/16th April 2019, and on 23 rd April 2019 file was ::: Uploaded on - 18/01/2023 ::: Downloaded on - 28/05/2023 20:11:59 ::: This Order is modified/corrected by Speaking to Minutes Order dated 22/02/2023 Rajeshri Aher 12/13 903 ia 604 of 2020.doc forwarded to Legal Department for necessary corrections made to the draft Appeal by the senior counsel. Therefore, it is quite clear that the Applicant has treated the entire matter very casually and the explanation offered for the delay only exposes the attitude of indifference by Applicant in protecting its own interest. It cannot be in dispute that the persons concerned were well aware or conversant with the issues involved including the prescribed period of limitation for taking up the matter by way of filing Appeal in this Court. Applicant cannot claim that it has a separate period of limitation when it possesses a huge legal team with competent persons familiar with Court proceedings.
12 In the light of the Judgment of the Apex Court in Post Master General (Supra) read with the judgment of the Apex Court in State of Uttar Pradesh and Others (Supra) , we cannot grant any leave to Applicant on account of innate inefficiency and unexplained delay. 13 Application therefore dismissed.
14 From the further affidavit it appears that the fault lies at the door of Assistant Commissioner (Estate). It will do Applicant a ::: Uploaded on - 18/01/2023 ::: Downloaded on - 28/05/2023 20:11:59 ::: This Order is modified/corrected by Speaking to Minutes Order dated 22/02/2023 Rajeshri Aher 13/13 903 ia 604 of 2020.doc wealth of good if action is taken against the concerned officer after conducting an inquiry. What action is to be taken, we are not commenting upon and that is upon the corporation to decide in public interest.
15 Consequently Appeal also dismissed.
(RAJESH S. PATIL, J.) (K. R. SHRIRAM, J.)
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