Gujarat High Court
Ahmedabad Electricity Company Limited vs Municipal Corporation Of The City Of ... on 1 August, 2002
Equivalent citations: (2003)1GLR397
Author: N.G.Nandi
Bench: N.G. Nandi, R.P. Dholakia
JUDGMENT N.G.Nandi, J.
1. The applicant Ahmedabad Municipal Corporation ('Corporation' for short) by filing Misc. Civil Application No. 1410 of 2001 prays for review of the order dated 30-4-1999 passed in Special Civil Application No. 3143 of 1998 by Division Bench of this High Court. Vide order dated 31-8-2001, rule was issued. The opponent Ahmedabad Electricity Company ('Company' for short) in MCA No. 1410 of 2001 has filed Civil Application No. 209 of 2002 and prayed for revocation of order dated 31-8-2001 issuing rule in MCA No. 1410 of 2001; and to dismiss the said MCA as barred by limitation. Thereafter, the applicant of MCA No. 1410 of 2001 filed Civil application No. 3095 of 2002, without prejudice to the contentions raised in the review application as well as the contentions raised at the time of oral submissions seeking condonation of delay which has occurred in filing the review application, i.e. MCA No. 1410 of 2001.
2. It is submitted by Mr. B.P. Tanna, learned senior counsel for the Corporation that in so far as calculating, limitation period to review proceedings is concerned, the powers of the Court under Article 226 of the Constitution of India are prerogative powers and neither provisions of Civil Procedure Code nor provisions of the Limitation Act would have any applicability when it comes to review an order passed under exercise of powers under Article 226 of the Constitution. It is further contended that, when there is no limitation prescribed for filing writ petition under Article 226 of the Constitution, there is no question of applicability of limitation for filing application seeking review of the order passed in writ petition under Article 226 of the Constitution. It is submitted that, exercising the plenary powers vested in the Writ Court, the question of condonation of delay would not arise whenever if the Court is of the opinion that the provisions as regards limitation for filing review application is applicable, and in that event the Court should condone the delay caused in filing application seeking review of the order passed under Article 226 of the Constitution.
3. It is submitted by Mr. K.B. Pujara, learned counsel for the Company that the certified copy of the judgment & order was applied for on 3-5-1999, and the copy was ready for delivery on 28-5-1999, still however, MCA No. 1410 of 2001 has been filed on 20-11-2000 and thus it appears that the said application for review was filed after a period of 500 days. It is further contended that, the review application is governed by Limitation Act,1963. Section 3(1) of the said Act contains Bar of Limitation and that every suit instituted, appeal preferred and application made after the prescribed period shall be dismissed although there is no limitation set up as a defence. It is further contended that, Article 124 of the Schedule to the Limitation Act provides that review of judgment by a Court other than Supreme Court, the period of limitation is 30 days from the date of decree or order and that the Rules 60, 65, 66, 67 and 188 of the Gujarat High Court Rules, 1993, provide for an application for condonation of delay to be accompanied to any such application preferred after prescribed period of limitation and,that, in the instant case, no application seeking condonation of delay was filed by the Corporation along with review application.
4. In the instant case it is not disputed that in Special Civil Application No. 3143 of 1998 the order came to be passed on 30-4-1999. As stated by advocate for the Company, certified copy of the order was applied for on 3-5-1999 and the copy was ready for delivery on 28-5-1999, whereas review application (MCA No. 1410 of 2001) came to be filed on 20-11-2000 involving delay of more than 500 days in filing the review application.
Under Article 124 of the Schedule of Limitation Act provides for review of judgment/order by a Court other than Supreme Court, the period of limitation is 30 days from the date of decree or order.
5. On behalf of the Corporation reliance is placed on the decision in the case of PALLAV SHETH VS. CUSTODIAN AND OTHERS, reported in AIR 2000, S.C. 2763. While considering the provisions of Article 215 of the Constitution and Section 20 of Contempt of Courts Act (70 of 1991) the Supreme Court has held that, " the law prescribing period for initiation of contempt proceedings cannot be taken as to abrogate or stultify constitutional powers." Supreme Court observed that, " there can be no doubt that the Supreme Court and High Courts are Courts of Record and the Constitution has given them the powers to punish for contempt. This power cannot be abrogated or stultified. But if the power under Article 129 and Article 215 is absolute, can there be any legislation indicating the manner and to the extent that the power can be exercised ? If there is any provision of the law which stultifies or abrogates the power under Article 129 and Article 215 there can be little doubt that such law would not be regarded as having been validly enacted." The point involved here being altogether different, the principle enunciated in the case of Pallav Sheth (supra) is not attracted.
6. While considering powers of the High Court under Article 226 of the Constitution of India, the Supreme Court in case of STATE OF MADHYA PRADESH AND ANOTHER VS. BHAILAL BHAI AND OTHERS, reported in A.I.R. 1964, S.C. pg. 1006, observed that, the power to give relief under Art. 226 is a discretionary power. This is specially true in the case of power to issue writs in the nature of mandamus. Among the several matters which the High Courts rightly take into consideration in the exercise of that discretion the delay made by the aggrieved party in seeking this special remedy and what excuse there is for it. Supreme Court further observed that, it may, however be stated that, as a general rule if there has been unreasonable delay the Court ought not ordinarily to lend its aid to a party by this extraordinary remedy of mandamus.......... In para-(21) it has been observed that, the provisions of the Limitation Act do not as such apply to the granting of relief under Art. 226. However, maximum period fixed by the legislature as the time within which the relief by a suit in a civil court must be brought may ordinarily be taken to be a reasonable standard by which delay in seeking remedy under Art. 226 can be measured. The Court may consider the delay unreasonable even if it is less than the period of limitation prescribed for a civil action for the remedy but where the delay is more than this period, it will almost always be proper for the Court to hold that it is unreasonable.
7. In case of STATE OF U.P. VS. JAWAHAR LAL in case of STATE OF U.P. VS. JAWAHAR LAL BHARGAVA AND ANOTHER, reported in A.I.R. 1975, All. 101 (F.B.), it has been held that, even assuming that the power to review its decisions under Art. 226 of the Constitution inheres in the High Court and provisions of Order 47, Civil P.C. do not strictly apply to writ proceedings, exercise of that power is discretionary. An application inviting the High Court under Art. 226 to review its decision when it is filed after a long lapse of time without any proper explanation for the delay, High Court would be justified in rejecting the application on that ground alone as that would be sound exercise of discretion.
8. While considering the case of dismissal of writ petition under Article 226 of the Constitution of India by the High Court on the ground of delay in case of STATE OF U.P. VS. BAHADUR SINGH AND OTHERS, reported in A.I.R. 1983, S.C. pg. 845, Supreme Court observed that the High Court considered the period of 90 days for filing the writ petition and computing limitation on this basis found that the petition was delayed by 42 days, the Supreme Court observed that, ' Frankly speaking no such period of limitation prescribed by any statute nor any such provision was brought to our notice, but only known principle is that the Court may not examine stale causes as the Court helps the vigilant and not the indolent. It is a rule devised on the principle of judicial circumspection and has to be applied wisely........ In a proceeding under land ceiling law, the departmental authority has to be apprised, of adverse decision, and further decision has to be taken whether the case is one required to be taken to higher Court,not that the departmental authorities charged with a duty to implement the law should not be vigilant; but one aspect cannot be overlooked that a departmental authority may delay the moving of higher Court for oblique motives and the public interest may suffer if such cause is thrown out merely on the ground of some delay which is also explainable..........'. Consequently the Supreme Court set aside the order dismissing the petition on the ground of delay and allowed the appeal and set aside the decision of the High Court.
In case of R.S. MAKASHI AND OTHERS V. I.M. MENON AND OTHERS, reported in AIR 1982 S.C. pg. 101, while considering the question of delay and laches in challenging the Government resolution passed on the contention that the fundamental rights of the petitioners under Article 14 & 16 of the Constitution of India were violated, Supreme Court in para-19 observed that, it was not open to the Court to shut out the petitioners from putting forward their challenge against the rules on the ground of delay or laches since such course would tantamount to "condoning the continuance of invalid rules or statutes". Supreme Court held that the challenge raised by the petitioners against seniority principles laid down in the Government resolution of March 22, 1968 ought not to have been rejected by the High Court on the ground of delay and laches and the writ petition in so far as it related to the prayer for quashing of the said Government resolution should have been dismissed.
9. We are conscious that, this court while considering the application seeking review of an order passed under Article 226 of the Constitution of India has the plenary power and in exercise of plenary power High Court exercise the discretion. It is true that there is no limitation provided for filing an application for review of an order passed under Article 226 of the Constitution. However, as observed in an unmistakable terms in case of State of M.P. Vs. Bhailal Bhai (supra) by the Bench comprising 5 Judges of the Honourable Supreme Court that, though the provisions of the Limitation Act do not as such apply to granting of relief under Article 226 of the Constitution, same principle in our opinion would apply in case of application seeking review of order passed under Article 226 of the Constitution . As pointed out earlier in the said judgment Supreme Court has also observed that, however the maximum period fixed by the legislature as the time within which the relief by suit in Civil Court must be brought may ordinarily taken to be a reasonable standard by which the delay in seeking remedy under Article 226 can be measured. In the instant case, as pointed earlier Article 226 of the Schedule to the Limitation Act prescribed is a period of 30 days for filing review application. On the same analogy of principle laid down in the case of State of M.P. Vs. Bhailal Bhai (supra) the maximum period fixed by the legislature as the time within which the relief for a review application must be prayed may be ordinarily be taken to be a reasonable standard by which delay in seeking the remedy of review can be measured. In the instant case, the period of limitation under Article 124 of Schedule to the Limitation Act is 30 days, however, the application seeking review has been filed after a delay of 500 days which is much more.
In the case of COMMISSIONER OF WEALTH TAX,BOMBAY VS. AMATEUR RIDERS CLUB, BOMBAY, 1994 Supp. (2) SCC, pg. 603, while dealing with Special Leave Petition under Article 136 of the Constitution, which was delayed by 264 days, where in the explanation of delay only mention is dates of movements of documents between the office concerned and the counsel. Supreme Court held that, such explanation to be stereotyped and indicative of indifference and the condonation of delay was refused. In the instant case as seen above the reasons seeking condonation of delay as pointed out above is far from being satisfactory.
10. In the instant case the delay is sought to be explained by saying that, pursuant to the order dated 30-4-1999 in Special Civil Application No. 3143 of 1998 the writ of the High Court has been received by the department on 14-5-1999. That, after receipt of writ of this Court, the then Assessor & Tax Collector of the Corporation was of the opinion that, said judgment would have to be challenged as it would cause loss to the Corporation. That the Corporation consulted the advocate appearing for it in the original writ petition and that, the concerned advocate vide letter dated 18-5-2000 intimated to the Corporation that he was of the opinion that the judgment deserves to be challenged before the Honourable Supreme Court. That, as the then Assessor & Tax Collector of the Corporation was of the opinion that as this High Court had inadvertently committed an error which was apparent on the face of the judgment, therefore review application could be filed. The then Assessor & Tax Collector had sought opinion of the advocate appearing in the review application and advocate was of the opinion that the view of the then Assessor & Tax Collector was proper. Thereafter the concerned advocate for the purpose of filing review application, called for certain original documents from the Corporation which were supplied to the advocate after some delay. That the advocate also called for original papers of writ petition which were lying with the advocate appearing in the writ petition, which papers were collected from the said advocate and were kept at the Corporation premises and later on same were given to the advocate who has filed the review application MCA No. 1410 of 2001 on 20-11-2000.
It would be appreciated that the advocate who appeared for the Corporation in Special Civil Application No. 3143 of 1998 as back as on 18-5-2000 had intimated the Corporation that he was of the opinion that the judgment deserves to be challenged before Honourable Supreme Court. Even then no appeal/review application is filed within reasonable time therefrom, and the review application came to be filed on 20-11-2000. As observed in the case of State of U.P. Vs. Bahadur Singh (supra) the only known principle is that the court may not examine stale cases as the Court helps the vigilant and not the indolent. Therefore, we are of the view that, even under the plenary powers the Court cannot take cognizance of a relief which is inordinately delayed, viz. morethan 500 days, and when the delay caused is not satisfactorily explained. In view of the above discussions both the Civil Applications are decided accordingly.
11. Assuming that despite the inordinate delay MCA No. 1410 of 2001 can be entertained and merits gone into, we proceed to consider said MCA seeking review of the order dated 30-4-1999 in Special Civil Application No. 3143 of 1998.
As far as MCA No. 1410 of 2001 seeking review of the order dated 30-4-1999 passed in Special Civil Application No. 3143 of 1998 is concerned, it has been submitted by Mr. K.B. Pujara, advocate for the company that, this Court has no power to review said order in as much as Order-47, Rule 1 Civil Procedure Code would not apply to the writ proceedings and that the application seeking review of the order is not maintainable. It is true that, strictly speaking, provisions of Code of Civil Procedure do not apply to writ petition.
As against this, it is submitted by Mr. B.P. Tanna, Sr. Advocate for the Corporation, that, the writ Court inheres power to review its order in its plenary jurisdiction to prevent miscarriage of justice. In the case of SHIVDEO SINGH AND OTHERS VS. STATE OF PUNJAB AND OTHERS, AIR 1963, S.C. PG. 1909, Bench comprising 5 Judges of the Supreme Court while dealing with an application of a third party for review of an order passed under Article 226 of the Constitution, held that, second writ petition by B (not a party to the earlier writ proceedings) was maintainable and the High Court had not acted without jurisdiction in reviewing its previous order at the instance of B who was not a party to the previous proceedings. It is further held that, there is nothing in Article 226 of the Constitution to preclude a High Court from exercising the power of review which inheres in every Court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it. In entertaining B's petition the High Court thereby did what the principles of natural justice required it to do.
It would be seen from the case of Shivdeo Singh & others (supra) the second writ petition under Article 226 of the Constitution was filed by a person who was not a party to the original writ petition, and by virtue of previous writ petition for cancellation of order of allotment passed by Director of Rehabilitation in favour of petitioner B, High Court cancelled the order though he was not a party to the writ proceedings and subsequently a person who was not party in the earlier proceedings filed petition under Article 226 for impleading him as a party to writ petition filed by the petitioner of the previous writ petition and rehearing the whole matter. It is in light of these facts Supreme Court held that second writ petition by a third party to the first writ petition was maintainable and the High Court had not acted without jurisdiction in reviewing its previous order at the instance of the petitioner in second writ petition who was not a party to the previous writ proceedings. There can be no disagreement with the proposition that there is nothing in Article 226 of the Constitution to preclude High Court from exercising power of review which inheres in every Court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it and on the ground of principles of natural justice the petition for review can be entertained under the plenary jurisdiction by the writ Court.
Thus, it can be deduced that High Court can exercise power of review which it inheres as the Court having plenary jurisdiction depending upon the facts of each case.
12. Now, coming to the merits it has been contended by Mr. B.P. Tanna for the Corporation that the impugned order dated 30-4-1994 in Special Civil Application No. 3143 of 1998 refers to Rule 21 of the Rules in Chapter-VIII of the Schedule to the Bombay Provincial Municipal Corporation Act (BPMC Act), and reliance was placed only on Rule- 21A and not on Rule 21, and the focus & concentration was on Rule 21-A of the said Rules and not of 21-B, which was the contention of the Corporation and that, the Division Bench while passing the impugned order ought to have considered Rule 21-A having regard to the fact that the impugned order flows from exercise of powers under Rule 21-A of the Rules and not under Rule 21-B. It is further contended that the averments of the petitioner as well as reliance placed by High Court on Rule 21 was out of context as the rule in question was Rule 21-A and no other rule/rules. Mr. Tanna has also invited our attention to the Special Notices which form part of record of Special Civil Application No. 3143 of 1998 and contended that the reason given overleaf of the Special Notices, English translation would read as "BECAUSE OF THE NEW CONSTRUCTION HAS TAKEN PLACE" which in the submission of Mr. Tanna would attract applicability of Rule 21-A alone and not Rule 21-B. It may be noted at this juncture that, we do not find any affidavit-in-reply filed in Special Civil Application No. 3143 of 1998 on behalf of the Corporation contending that it is Rule 21-A under which the Special Notices have been issued by the Corporation and that Rule 21-B has no application, controverting the say of the Company as regards applicability of Rule 21-B of the Rules. Perusal of the Special Notices from the file of Special Civil Application No. 3143 of 1998 suggest that, at the top, it is stated that the Special Notice has been issued according to the Schedule Chapter-VIII Rule 15 (2) and 20 (2) of BPMC Act. 13. In case of MEERA BHANJA (Smt) Vs. NIRMALA KUMARI CHOUDHURY (Smt), reported in (1995) 1 SCC, pg. 170, while dealing with the Civil Appeal the Supreme Court, in para-8 it has been observed that :-
" It is well settled that the review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of Order 47, Rule 1, CPC. In connection with the limitation of the powers of the court under Order 47, Rule 1, while dealing with similar jurisdiction available to the High Court while seeking to review the orders under Article 226 of the Constitution of India, this Court, in the case of Aribam Tuleshwar Sharma V. Aribam Pishak Sharma, speaking through Chinnappa Reddy,J, has made the following pertinent observations (SCC p.390, para 3) " It is true as observed by this Court in Shivdeo Singh v. State of Punjab, there is nothing in Article 226 of the Constitution to preclude the High Court from exercising the power of review which inheres in every Court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it. But, there are definitive limits to the exercise of the power of review. The power of review may be exercised on the discovery of new and important matter or evidence which, after the exercise of due diligence was not within the knowledge of the person seeking the review or could not be produced by him at the time when the order was made; it may be exercised where some mistake or error apparent on the face of the record is found; it may also be exercised on any analogous ground. But, it may not be exercised on the ground that the decision was erroneous on merits. That would be the province of the court of appeal. A power of review is not to be confused with appellate power which may enable an appellate court to correct all manner of errors committed by the subordinate court. "
In para-9 it is observed "... So far as that aspect is concerned, it has to be kept in view that an error apparent on the face of record must be such an error which must strike one on mere looking at the record and would not require any long-drawn process of reasoning on points where there may conceivably be two opinions. We may usefully refer to the observations of this Court in the case of Satyanarayan Laxminarayan Hegde v. Mallikarjun Bhavanappa Tirumale, wherein, K.C. Das Gupta,J, speaking for the Court has made the following observations in connection with an error apparent on the face of the record:-
" An error has to be established by a long-drawn process of reasoning on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of the record. Where an alleged error is far from self-evident and if it can be established, it has to be established, by lengthy and complicated arguments, such an error cannot be cured by a writ of certiorari according to the rule governing the powers of the superior court to issue such a writ. "
14. As pointed out earlier, Mr. Tanna by referring to Special Notices issued by the Corporation contended that the reason namely "new construction has taken place" so as to attract applicability of Rule 21-A. But there is no affidavit-in-reply filed by the Corporation in Special Civil Application No. 3143 of 1998 controverting the say of the petitioner that Rule 21-B of the Rules applies, and further contending that it is Rule 21-A of the Rules which is attracted in the case. There is no reference to Rule 21-A in the impugned judgment. It is not suggested from the impugned judgment sought to be reviewed that, while in course of the argument on behalf of the Corporation learned counsel contended before the Division Bench that it is Rule 21-A which is invoked by the Corporation while issuing Special Notices and that Rule 21-B has no application to the case. In our view the principle enuntiated in the case of Meera Bhanja (Smt) (supra) will be clearly applicable to the present case and the powers of Court under Order 47 Rule 1 CPC is similar to the jurisdiction available to the High Courts while seeking review of the order under Article 226 of the Constitution of India.
15. If the contention raised on behalf of the Corporation is accepted, same would tantamount to allowing the review on the ground which was not raised before the Division Bench in Special Civil Application No. 3143 of 1998. Perusal of the impugned order suggests that the Corporation was represented by an advocate and submissions were advanced before the Division bench. Order dated 30-4-1999 in Special Civil Application No. 3143 of 1998 came to be passed on the basis of the decision in the case of ANAND MILLS CO. LTD. VS.MUNICIPAL CORPORATION FOR THE CITY OF AHMEDABAD, reported in 1993 (2) GLH, pg. 897, wherein similar question namely applicability of Rule 21-B of the Rules was involved. Thus, on merits also we do not find any point in the request seeking review of the order dated 30-4-1999 passed in Special Civil Application No. 3143 of 1998, in as much as, learned counsel appearing for the Corporation has not pointed out error apparent on the face of the record as laid down in the case of Meera Bhanja (Smt) (supra), and Misc. Civil Application No. 1410 of 2001 is liable to be dismissed on merits also.
16. In the result, Civil Application No. 3095 of 2002 along with Misc. Civil Application No. 1410 of 2001 stand dismissed. Rule in MCA No. 1410 of 2001 stands discharged. In view of the order in Civil Application No. 3095 of 2002, no specific order is necessitated in Civil Application No. 209 of 2002. Civil Application disposed of accordingly. No order as to costs.