Patna High Court
Bihar State Electricity Board, Patna ... vs Baxi S.R.P. Sinha And Anr. on 23 July, 1998
Equivalent citations: AIR1999PAT203, AIR 1999 PATNA 203, (1999) 1 BLJ 275 (1999) 1 PAT LJR 60, (1999) 1 PAT LJR 60
JUDGMENT B.M. Lal, C.J.
1. This is an application under Section 5 of the Limitation Act for condoning the delay of 53 days in filing the Letters Patent Appeal.
2. It is contended that the judgment impugned was passed in the writ petition on 6-11 -96 and the Letters Patent Appeal has been filed on 29-1-97. The appeal was filed after 83 days of the impugned judgment without filing the certified copy of the judgment and, therefore, only 30 days' period which is prescribed for filing the Letters Patent Appeal is liable to be excluded and in this way the appeal is barred by 53 days.
3. It is submitted that respondent No. 1 submitted his representation and he annexed a copy of the judgment and that is how the appellants came to know about the judgment. On 14-11-96 the order was sent to the Electrical Superintending Engineer, who forwarded the same to the Chief Engineer (Commercial) of the head office of the Board. The said order along with the letter of the Electrical Superintending Engineer dated 19-11-96 was received in the office of the Board on the same day. The matter was examined at different levels and thereafter it was placed before the Chief Engineer (Commercial) on 23-11-96. The Chief Engineer (Commercial) examined the same and placed his views on 10-12-96. Thereafter it was sent to the Senior Legal Advisor. On 12-12-96 it was placed before the Member (Finance), who placed his views and endorsed the same to the Senior Legal Advisor on 16-12-96. On 17-12-96 the Senior Legal Advisor recorded his views and endorsed the same to the Member (Finance) again and the Member (Finance) observed that the order impugned has legal ramification and therefore, it may be assailed in Letters Patent Appeal. His views were approved by the Chairman of the Board on 20-12-96. However, again the Board obtained opinion from Sri. R. B. Mahto, Sr. Advocate and the file was sent to him, who recorded his opinion on 11-1-97 and thereafter the file was sent to Mr. P. K. Shahi, Advocate, on 20-1-97 and in this way the appeal was filed on 29-1-97.
4. Surprisingly enough, the file as averred by the appellants, was submitted before the Chief Engineer (Commercial) on 23-11-96 but he placed his views on 10-12-96 and for this long period of 18 days no explanation has been furnished and similarly inordinate delay has been caused in pushing the file from one section of the department to another section and the same has also not been explained.
5. However, respondent No. 1 controverted the above facts contending that the appellants have deliberately misrepresented the facts and the persons swearing the affidavit in support of the limitation petition has filed false affidavit. It is also contended that when the order passed in the writ petition was not complied with by the appellants for a sufficiently long time, the respondent No. 1 filed a contempt proceeding vide MJ.C. No. 183 of 1997 and only thereafter the process for filing the appeal commenced by the appellants. Thus it is submitted that the statements made in the application for condonation of delay are false, mischievous and contrary to the records and, therefore, this Court by order dated 3-3-98 directed enquiry and the file was accordingly handed over to the Registrar of the Court, who conducted the enquiry and submitted the report on 4-4-98. He opined that the averments made in paragraph No. 2 of the application for condonation of delay are definitely incorrect, and the averments made in paragraph No. 3 of the application are somewhat ambiguous because of the language used and the rest of the averments are correct.
6. Thus the short question for condoning the inordinate delay of 53 days is as to whether the appellants have shown sufficient cause and good cause which actually prevented them from filing the appeal in time.
7. Though 'sufficient cause' or 'good cause' is not defined under Section 2 of the Limitation Act but all the same it means and so far has been construed as beyond the control of the party seeking indulgence for extension of period of limitation. But from a bare perusal of the provisions of Section 5 of the Limitation Act and its preamble, it is manifest that the Limitation Act is an exhaustive Code governing the law of limitation in respect of matters specially dealt with by it. That is why the law of limitation is a panacea to prevent disturbance or deprivation of what may have been acquired in equity and justice or what may have been lost by parties own inaction, negligence or laches. In Maqbul Ahmad v. Onkar Narain Singh, AIR 1935 PC 85 it is held that the Courts are not permitted to travel beyond the provisions of the Act or to supplement them. It is also held that the Court cannot grant exemption from limitation on equitable consideration or on the ground of hardship.
8. Thus, the object of the law of limitation is well known that interest of the State requires that there should be an end of the litigation. In Boota Mal v. Union of India, AIR 1962 SC 1716 it has been held that equitable considerations are out of place and the strict grammatical meaning of the words is the only safe guide in interpreting the statute of limitation. Therefore, the statute of limitation like other statutes ought to receive such construction as the language in plain meaning imports.
9. Here in the instant case the file was received by the Chief Engineer (Commercial), who is a responsible officer, on 23-11-96 who gave his opinion on 10-12-96 and that is how he has kept the file with him for about 18 days without furnishing any explanation for the same. Similarly other officers of the Department dealt with the file in the same fashion. Can this action of the appellants be termed as reasonably diligent in prosecuting the appeal. Even if indulgence is shown in such cases the very purpose and objection of the Limitation Act, discussed above, will be frustrated. That is why in State of Haryana v. Chandra Mani,(1996) 3 SCC 132 : (AIR 1996 SC 1623) which is the trump-card for the appellant, the Apex Court has relied upon the decision in the case of Ramlal v. Rewa Coal fields Ltd., AIR 1962 SC 361 : (1961 All LJ 815) which lays down that each day's delay is to he explained satisfactorily, which the appellants have not explained in the case at hand.
10. However, Shri Jha learned counsel appearing for the appellants, relying on the views expressed in the case of State of Haryana v. Chandra Mani (AIR 1996 SC 1623) (supra) submitted that in the State cases, the collective responsibility of the officers is required to be taken into consideration in the light of the fact that on account of impersonal machinery and inherited bureaucratic methodology imbued with note-making, file pushing and passing on the buck ethos, some time is spent and therefore, even if cogent explanation for 53 days' delay is not furnished the same is liable to he condoned and submitted that this is how the Apex Court by taking liberal views has condoned the delay.
11. No doubt by taking liberal views where sufficient cause and good cause have been satisfactorily explained, in view of the provisions of Section 5 of the Limitation Act, the Court can condone the delay because justice oriented approach is necessary while deciding the application for condonation of delay However, it does not follow that the delay must be condoned in every case irrespective of the fact that delay has not been explained satisfactorily. In this regard fundamental rule of guidance for exercise of discretion under Section 5 of the Limitation Act is to see whether the party claiming indulgence has been reasonably diligent in prosecuting his appeal and if delay is sufficiently and satisfactorily explained to some degree liberal view may be taken but it depends upon the facts of each case. It is not that the law of limitation makes distinction between the Government and the private litigant and, therefore, me Government or the instrumentalities of the State is entitled to any special consideration in the matter of condonation of delay under Section 5 of the Limitation Act and that is why in P. K. Ramchandran v. State of Kerala, 1997 (8) JT (SC) 189 ; (AIR 1998 SC 22 76); Hon'ble Dr. Justice A. S. Anand and Hon'ble Mr. Justice K. Venkataswami held that the law of limitation may harshly effect a particular party but it has to be applied with all its rigour when the statute so prescribe and the Courts have no power to extend the period of limitation on equitable grounds. Thus the views expressed three decades before in Buta Mal case (ATR 1935 PC 85) (supra) have been reiterated.
12. Learned counsel relying on the decision in the case of Collector, Land Acquisition, Anantnag v. Mst Katiji, AIR 1987 SC 1353 and in the case of G. Ramegowda, Major etc. v. The Special Land Acquisition Officer, Bangalore, AIR 1988 SC 897 submitted that in both the cases it has been held that the State or its instrumentalities must receive liberal consideration so as to advance substantial justice and generally the delay in preferring appeal is required to be condoned in the interest of justice in the litigation to which the Government is a party as the decision of the Government is collective and institutional decision and does not share the characteristics of decision of private individual. In both the cases time was spent in moving the files from one section to another section.
13. The decision in the case of Collector, Land Acquisition v. Mst. Katiji, AIR 1987 SC 1353 (supra) is a decision by two Judges of the Supreme Court, Hon'ble Mr. Justice M. P. Thakkar and B. C. Ray (as they then were) and the decision in the case of G. Ramegowda v. The Special Land Acquisition Officer, AIR 1988 SC 897 (supra) is decided by Hon'ble Mr. Justice S. Natarajan and Hon'ble Mr. Justice M. N. Venkatachaliah (as they then were) and it appears that by these two decisions the Government and its instrumentalities are carrying an impression that law of limitation perhaps is not applicable to them and the appeal can be filed at leisure by them according to their convenience.
14. But in Union of India v. Tata Yodogawa Ltd. and another : S.L.P. (Civil) No. 3772-73 of 1987 decided on 21-9-1988, reported in 1989 PLJR (SC) 5 the Apex Court has laid down that delay said to be on account of correspondence, processing and routing through sections of the department is not sufficient cause to condone the delay. Thus, this decision has taken a contrary view than that taken in Collector, Land Acquisition v. Mst. Katiji (AIR 1987 SC 1353) (supra) and G. Ramegowda v. The Special Land Acquisition Officer (AIR 1988 SC 897) (supra).
15. In this regard it is necessary to state that where there is conflict of decision, the opinion of the larger Bench must be followed. Thus the decision in the case of Union of India v. Tata Yodogawa Ltd. (1989 Pat LJR 5) (supra) decided by Hon'ble Mr. Justice Sabyasachi Mukharji, Hon'ble Mr. Justice M. H. Kania and Hon'ble Mr. Justice S. Ranganathan (as they then were) -- this decision being of the larger Bench as compared to the decisions rendered in the case of the Collector, Land Acquisition v. Mst. Katiji (AIR 1987 SC 1353) (supra) and in the case of G. Ramegowda v. The Special Land Acquisition Officer (AIR 1988 SC 897) (supra) must be followed as the settled proposition of law is that if there is any conflict between two decisions, the opinion of the larger Bench must prevail. See the decisions in the cases of Union of India v. K. S. Subramanian, AIR 1976 SC 2433: (1976 Lab IC 1551) at p. 2437, Pr. 12; The State of U. P. v. Ram Chandra Trivedi, AIR 1976 SC 2547 : (1976 Lab IC 1647) and Mattulal v. Radhe Lal, AIR 1974 SC 1596 at p. 1602, Pr. 11. Therefore, this decision in the case of Union of India v. Tata Yodogawa Ltd. (1989 Pat LJR 5) (supra) waters down the decision in the case rendered in Collector, Land Acquisition v. Mst. Katiji (AIR 1987 SC 1353) (supra) and G. Ramegowda v. The Special Land Acquisition Officer (AIR 1988 SC 897) (supra) and prevails upon the same and the law laid down is that the delay said to be on account of correspondence, processing and routing through sections of the department is not sufficient cause to condone the delay.
16. No doubt the law laid down by the Supreme Court is a binding precedent on all the Courts in India. But a decision is binding as a precedent in another case if the material facts and the issue in the latter case are identical on all aspects of the case and it must be shown and established by pleadings and if the same is neither pleaded nor established, ipso facto no decision is treated as a binding precedent in another case if the material facts and issued are not identical but different. In Neta Ram v. Jiwan Lal, AIR 1963 SC 499; Hon'ble Mr. Justice M. Hidayatullah, J. (as he then was) speaking for the Bench vide para 9 of the judgment held that no decision is binding as a precedent in another case if the material facts or issue in the latter case are not identical. Therefore, to apply the decisions of the Apex Court as a binding precedent it must be shown on the basis of facts that ratio applies to the facts of the case in dispute and, therefore, it is binding as a precedent. In Rajeshwar Prasad Misra v. The State of West Bengal, AIR 1965 SC 1887 : (1965 (2) Cri LJ 817) it has been held that no doubt the law declared by the Supreme Court binds Courts in India but it should always be remembered that Court does not enact the law. In V. D. Dhanwatey v. The Commissioner of Income-tax, Madhya Pradesh, Nagpur, AIR 1968 SC 683 at p. 696 it has been held that Article 141 recognises and empowers the Apex Court to alter law while interpreting the statute so as to bring the statutory law in harmony with the social changes.
17. It is irony of fate that in this State the officers of the State and its instrumentalities carry an impression that in each and every case the delay caused in filing the appeal is bound to be condoned taking it granted on the basis of a few decisions wherein the delay has been condoned considering the facts of those cases where sufficient cause and good cause were shown and proved. So the impression which they carry about the State cases that the law of limitation is not applicable to them i.e. to the cases of the State and its instrumentalities is nothing but a figment of imagination by misinterpreting the precedent, and that is why at times even no application for condonation of delay is filed, and if filed, filed in a very cryptic manner without explaining each day's delay as required by the law of limitation.
18. Since public exchequer is incurring heavy expenses on the different departments of the State and its instrumentalities in is incumbent upon them to be prompt in discharging their duties and in carrying on their responsibility with due diligence. This is perhaps the sole reason which might have appealed and prevailed their Lordships in Union of India v. Tata Yodogawa Ltd. (1989 Pat LJR 5) (supra) in holding that in moving the file from one section to another and from one office to another office and simply stating that time consumed in moving the file cannot be a sufficient or good ground to extend the period of limitation.
19. Therefore, while dismissing the application, we leave it open to the Electricity Department to initiate proceeding and fix up the responsibility for the delayed filing of the appeal and recover the loss sustained from the personal pocket of the erring officer/officers.
20. Since the application for condonation of delay is rejected, the appeal is also dismissed being barred by limitation.
S.K. Singh, J.
21. I agree.