Bombay High Court
Champalal Harakchand vs Chief Executive Officer (C.E.O.) Sra on 3 May, 2024
Author: Sandeep V. Marne
Bench: Sandeep V. Marne
2024:BHC-OS:7124
Sonali Mane WPL-12524-2024.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION (L) NO. 12524 OF 2024
Champalal Harakchand .. Petitioner
Versus
Chief Executive Officer (C.E.O.) SRA & Ors. .. Respondents
Dr. Abhinav Chandrachud a/w Mr. Arun Panicker & Mr. Vinay Nair for the
Petitioner.
Mr. Mayur Khandeparkar a/w Mr. Chirag Thakkar & Anubha Singh i/b
Nimish Lotlikar, for Respondent No.4.
Mr. Jagdish G. Aradwad (Reddy), for SRA, Respondent No.1.
Mr. Amogh Singh a/w Mr. Santosh Pathak i/b Law Origin, for Respondent
No.2.
Mr. Sagar Patil, for MCGM, Respondent No.3.
Mr. Abhijit P. Kulkarni a/w Mr. Gourav Shahane, for AGRC, Respondent No.5.
CORAM : SANDEEP V. MARNE J.
RESERVED ON : 22 APRIL 2024.
PRONOUNCED ON : 3 MAY 2024.
JUDGMENT :-
1) Rule. Rule is returnable forthwith. With the consent of the learned counsel appearing for parties, Petition is taken for hearing. Digitally signed by MANE MANE SONALI SONALI DILIP 1/29 DILIP Date:
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2) This Petition raises the issue as to whether the Apex Grievance Redressal Committee constituted under the provisions of Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act, 1971 (the Slum Act) is clothed with power to condone the delay for entertaining Appeals filed under Section 35(1A) of Slum Act. The issue arises in the light of challenge raised by Petitioner to Order dated 23 February 2024 passed by the Apex Grievance Redressal Committee (AGRC) by which delay of 62 days in filing Appeal has been condoned. Petitioner claims that AGRC is not vested with power under provisions of Slum Act to condone delay while entertaining appeals filed under Section 31(1A) of the Act.
3) Briefly stated, facts of the case are that land bearing C.T.S. No. 1973 (pt) of Ghatkopar, admeasuring 5780.10 sq. mtrs. is occupied by members of Respondent No.4-Society. The Society resolved to redevelop the said land by implementing Slum Rehabilitation Scheme (SRS). The larger portion of CTS No. 1973 (pt) admeasuring 8457.6 sq. mtrs. was declared as Slum Area under Section 4 of the Slum Act by the Competent Authority on 23 October 1980. Respondent No.4-Society made Application to the Additional Collector for acquisition of entire land admeasuring 8457.6 sq. mtrs. A report was submitted to the Government of Maharashtra for acquisition of the land. The Government called for certain clarification and ultimately Respondent No.4-Society restricted its claim for acquisition of land admeasuring 3592 sq. mtrs. and the same was acquired on 20 May 2003. It appears that, MMRDA acquired land admeasuring 1170 sq. mtrs. out of 3592.07 sq. mtrs. for Andheri-Kurla Road and 78 Slum Dwellers residing in the said acquired portion of land by MMRDA were allotted permanent alternate accommodations at Govandi. There was apparently some confusion about acquisition of the exact portion of land and finally after some litigation, it appears that, balance portion of land admeasuring 2/29 ::: Uploaded on - 03/05/2024 ::: Downloaded on - 16/05/2024 06:13:22 ::: Sonali Mane WPL-12524-2024.doc 2188.03 sq mtrs. was yet to be acquired. Accordingly, Respondent-Society filed application dated 24 March 2014 for acquisition of land admeasuring 2188.03 sq. mtrs. under Section 14(1) of the Slum Act. The Respondent No.4-Society also applied on 7 June 2016 for declaration of land admeasuring 2188.03 sq. mtrs. as Slum Rehabilitation Area under Section 3C of the Slum Act. SRA declared the said portion of land as Slum Rehabilitation Area on 26 August 2016. Petitioner filed Writ Petition No.54 of 2017, which was disposed of by granting an opportunity of hearing while deciding Society's Application for acquisition under Section 14(1) of the Slum Act. In the above background proceedings were conducted before CEO/SRA for acquisition of land admeasuring 2188.03 sq. mtrs. The proceedings were opposed by Petitioner. After hearing parties, CEO/SRA rejected the application dated 24 May 2014 for acquisition of land admeasuring 2188.03 sq. mtrs. by passing Order dated 13 December 2021.
4) Aggrieved by Order dated 13 December 2021, Respondent No.4- Society filed Appeal before AGRC on 14 March 2022. The same was numbered as Appeal No.87 of 2022. There was delay of 62 days in filing the Appeal and for condonation of which, Respondent No.4 filed an Application. Petitioner opposed the Application for Condonation of Delay by filing reply on 23 August 2023 and contended inter alia that AGRC does not have power to condone delay under the provisions of the Slum Act. The AGRC, however, proceeded to pass Order dated 23 February 2024 allowing the Application for Condonation of Delay. Petitioner has filed present Petition challenging AGRC's Order dated 23 February 2024.
5) Dr. Chandrachud the learned counsel appearing for Petitioner would submit that AGRC has not been clothed with the power to condone delay under the provisions of the Slum Act. He would submit that the AGRC 3/29 ::: Uploaded on - 03/05/2024 ::: Downloaded on - 16/05/2024 06:13:22 ::: Sonali Mane WPL-12524-2024.doc has the power to hear Appeals under Section 35(1A) of the Slum Act, under which provision, any person aggrieved by an Order of CEO of SRA is required to file Appeal within 30 days of the said Order before the AGRC. By contrast, according to Dr. Chandrachud, the Tribunal established under provisions of the Slum Act, has the power to hear Appeals under Section 4(3) of the Slum Act. Any person aggrieved by a declaration of any area as Slum Rehabilitation Area can file an Appeal before the Tribunal within 30 days. That under Section 45(1A) of the Slum Act, provisions of Sections 4, 5, 12 and 14 of the Limitation Act, 1963 are made applicable to the Tribunal. However, there is no comparable provision making the said provisions of the Limitation Act applicable to the AGRC under Section 35(1A) of the Slum Act.
6) Dr. Chandrachud would further submit that under Section 29(2) of the Limitation Act 1963, when any special or local law prescribes for an Appeal, a period of limitation different from that under the said Act, the provisions of Sections 4 to 24 of the said Act apply to such special or local law unless they are "expressly excluded" by such law. Relying on judgments of the Apex Court in Fairgrowth Investments Ltd. Vs. The Custodian 1, Union of India Vs. Popular Construction and Gopal Sardar Vs. Karuna Sardar3, Dr. 2 Chandrachud would contend that it is settled law that exclusions of Sections 4 to 22 of Limitation Act can be inferred "by necessary implication".
7) Dr. Chandrachud would further submit that where a power to condone delay has been referred to in one part of a statute but not in another part of the same statute, it is required to be inferred that the legislature has consciously excluded that power in the latter part of the 1 (2004) 11 SCC 472 2 (2001) 8 SCC 470 3 (2004) 4 SCC 252 4/29 ::: Uploaded on - 03/05/2024 ::: Downloaded on - 16/05/2024 06:13:22 ::: Sonali Mane WPL-12524-2024.doc statute. That since the Slum Act specifically makes Section 5 of the Limitation Act applicable to the Tribunal, but not to AGRC, it must be considered that there is conscious exclusion of provisions of the Limitation Act as far as AGRC is concerned under Section 29(2) of the Limitation Act.
8) Dr. Chandrachud would further submit that the principle of conscious exclusion of provisions of Limitation Act by necessary implication has been applied by the Apex Court in cases where the statute in question is a complete and self-contained code. That in the present case it is common ground that the Slum Act is a complete code in matters concerning Slums in the State of Maharashtra.
9) Dr. Chandrachud would further submit that though the limitation period provided under a special or local statute excludes the Limitation Act 1963 and may be too short or harsh, it is not for Courts to hold that such provisions are therefore directory. It has been held by the Apex Court in Damodaran Pillai and Ors. Vs. South Indian Bank that even 4 Civil Courts do not have an inherent power to condone delay and that hardship faced by litigation in filing proceedings cannot be taken into account in such cases. He would also rely upon judgment of the Apex Court in Commissioner of Customs and Central Excise Vs. M/s. Hongo India Private Limited & Anr.5 In support of his contention that it is the duty of the Court to respect legislative intent and that the Court cannot extend the period of limitation by adopting a liberal interpretation in such cases. He would submit that various judgments were cited before AGRC to demonstrate lack of power to condone delay under provisions of the Slum Act, but AGRC has not discussed applicability of the said judgments.
4 (2005) 7 SCC 300 5 (2009) 5 SCC 791 5/29 ::: Uploaded on - 03/05/2024 ::: Downloaded on - 16/05/2024 06:13:22 ::: Sonali Mane WPL-12524-2024.doc 10) Without prejudice, Dr. Chandrachud would submit that the
impugned Order is unreasoned as the AGRC has failed to record even a single reason for condoning the delay in filing the Appeal.
11) Mr. Khandeparkar the learned counsel appearing for Respondent No.4-Society would oppose the Petition. He would submit that the AGRC has rightly exercised the power of condonation of delay and has condoned insignificant delay of 62 days in filing the Appeal. He would submit that Respondent No.4 filed Appeal No.87 of 2022 before AGRC at a time when the Slum Act as amended by 2017 Amendment Act was in operation and Section 35(1A)(b) applied to the case and that at the relevant time there was no period of limitation prescribed for filing the Appeal. To buttress the submission that no period was stipulated for filing Appeals prior to 2023 amendment, Mr. Khandeparkar would submit that limitation of 30 days was introduced for the first time by way of Section 35(1A)(b). That provisions of Section 35(1A)(b) is a substantive amendment and not a procedural one and therefore since the limitation period was introduced for the first time by 2023 amendment, such amendment would necessarily have to operate prospectively.
12) Mr. Khandeparkar would further submit that the expression "to the filing of every Appeal" appearing in Section 45 (1A) is not controlled by or relatable to the Special Tribunal. That the Appeal which can be filed under Section 3C(2) or under various other available remedies as stipulated in Clause 4 to the Amendment Act of 2023 are now to be filed only before AGRC and not before the Special Tribunal. That there is no Appeal that is now contemplated under the Slum Act which can be filed before Special Tribunal. That the Act now preserves two forms of Appeals viz. (i) Appeal under Section 4(3) to the Tribunal in the context of Slum Area and 6/29 ::: Uploaded on - 03/05/2024 ::: Downloaded on - 16/05/2024 06:13:22 ::: Sonali Mane WPL-12524-2024.doc
(ii) Appeal to the AGRC under various provisions, including but not limited to Sections 3C, 12, 13 etc. That therefore the expression "every Appeal"
cannot be read in the context of the Special Tribunal alone. That Sub Clause (1A) of Section 45 employs the word "or" which is required to be read disjunctively in the manner as contemplated by the Supreme Court in Guru Nank Dev University Vs. Sanjay Kumar Katwal and Anr. 6
13) Mr. Khandeparkar would further submit that since Limitation Act deprives or restricts the right of an aggrieved party to have recourse to legal remedy and that therefore where the language is ambiguous, the construction which preserves the remedy must be preferred over the one which bars or defeats it. In support, he would rely upon judgment in Lala Balmukund (Dead) Through LR. Vs. Lajwanti And Others.7
14) In the alternative, Mr. Khandeparkar would submit that omission to substitute the words "Special Tribunal" by "Apex Grievance Redressal Committee" under sub-clause B of Clause (iv) of Section 3D is a drafting error. That the Amendment Act of 2023 established AGRC under Section 34A with retrospective effect from 8 March 2017 and the amendment contemplated filing of all Appeals before AGRC, which were to otherwise lie before the Special Tribunal. Therefore, it is an obvious inadvertence on the part of the draftsman in omitting to substitute AGRC in place of Special Tribunal in the context of Section 45(1A). That it is inconceivable that the Tribunal hearing of Appeal under Section 45 can condone delay but AGRC while hearings various Appeals would not have power to condone delay.
Relying judgment of the Apex Court in Bhasker And Anr. Vs. Ayodhya Jewellers8, Mr. Khandparkar would submit that there is well recognised 6 (2009) 1 SCC 610 7 (1975) 1 SCC 725 8 (2023) 9 SCC 281 7/29 ::: Uploaded on - 03/05/2024 ::: Downloaded on - 16/05/2024 06:13:22 ::: Sonali Mane WPL-12524-2024.doc exception to the rule of Courts not adding or omitting words in cases involving drafting mistakes. He would therefore submit that the power of condonation of delay for AGRC is required to read into the statute in the event it is found that the same is not expressly provided for. Mr. Khandeparkar would pray for dismissal of the Appeal.
15) In rejoinder, Dr. Chandrachud would contend that the submission on behalf of Respondent No.4 for reading of the word "or" in Section 45(1A) of the Slum Act disjunctively would amount to re-writing the statute, which is impermissible. That the judgment of the Apex Court in Bhasker (supra) is inapplicable to the facts of the instant case as the Apex Court therein has determined the starting point of limitation for filing an Application under Order 21 Rule 95 of the Code of Civil Procedure 1908. That in the case before the Apex Court, computation of limitation from the date of confirmation of sale was resulting in absurdity in cases where application for recovery of possession cannot be filed in absence of issuance of certificate under Order 21 Rule 95. The Apex Court therefore thought it fit to set right the inconsistency or anomaly between Order 21 Rule 95 of the Code and Article 134 of the Limitation Act. That in the present case there is no absurdity upon plain and liberal interpretation of Section 45(1A) of the Slum Act and that therefore the judgment in Bhasker has no relevance to the facts of the present case.
16) So far as the submission about non-prescription of period of limitation as on the date of filing of Appeal on 14 March 2022 is concerned, Dr. Chandrachud would contend that the said submission is not founded on any pleadings of Respondent No.4. He would submit that the argument is otherwise fallacious as the procedural laws are presumed to be retrospective in nature, unless there is a clear indication that this was not the intent of 8/29 ::: Uploaded on - 03/05/2024 ::: Downloaded on - 16/05/2024 06:13:22 ::: Sonali Mane WPL-12524-2024.doc legislature. He would rely on the judgment of the Apex Court in Tata Sons Pvt. Ltd. Vs. Siva Industries and Holdings Ltd. And Ors. 9 in support of his contention that though some of the Sections of 2023 amendment to the Slum Act specified date from which the provisions are applicable, Section 6 thereof does not specify any such date and therefore the said provision would apply to all pending Appeals prior to the coming into force of the Amendment Act. Had the legislature intended to make the provision prospective, it would have said that it shall come into force on the date on which the statute is published in the Official Gazette. He would further submit that prior to 2023 amendment, there was no provision for filing of Appeal before AGRC against Order passed by CEO/SRA under Section 14 of the Slum Act. That the remedy of Appeal became available only after 2023 Amendment. That therefore if submission of Respondent No.4 is accepted, the Appeal itself would not be maintainable. That in any case, this submission cannot be raised for the first time before this Court, having failed to raise the same before AGRC. Dr. Chandrachud would therefore pray for setting aside Order dated 23 February 2024 passed by the AGRC.
17) Rival contentions of the parties now fall for my consideration.
18) To decide the issue involved in the present Petition about availability of power to AGRC to condone delay in filing of Appeal, it would be necessary to first take into consideration various provisions of the Slum Act. In the present case, the Respondent No.4-Society is aggrieved by the Order passed by CEO/SRA on 13 December 2021 rejecting its Application for acquisition of land admeasuring 2188.03 sq. mtrs. out of C.T.S No.1973 (pt) of Village Ghatkopar, Mumbai, Sub Urban District. Aggrieved by the Order dated 13 January 2021 the Respondent No.4-Society filed Appeal before 9 (2023) 5 SCC 421 9/29 ::: Uploaded on - 03/05/2024 ::: Downloaded on - 16/05/2024 06:13:22 ::: Sonali Mane WPL-12524-2024.doc AGRC on 14 March 2022. As on the date of filing of appeal by Respondent No. 4 before AGRC, the Slum Act was yet to be amended for incorporation of machinery of AGRC therein, which was available till introduction of Amendment Act, 2023 by way of Government Resolution. Constitution of AGRC under the provisions of the Slum Act is made by Amendment Act, 2023 retrospectively w.e.f. 8 March 2017. Section 5 of the Amendment Act 2023, reads thus:
5. Insertion of new sections 34A and 34B in Mah. XXVIII of 1971.
After section 34 of the principal Act, (1) the following section shall be inserted and shall be deemed to have been inserted with effect from the 8th March 2017, namely :--
"34A. Constitution of Apex Grievance Redressal Committee.
(1) The State Government shall, by notification in the Official Gazette, constitute, the Apex Grievance Redressal Committee consisting of the Chairperson and such number of members as the Government may deem fit, for the purposes of exercising the powers and performing the functions as may be assigned to it under this Act.
(2) The Apex Grievance Redressal Committee shall exercise the powers and perform the functions, as follows, namely :--
(i) to hear and dispose off appeals against orders of the Chief Executive Officer or any Officer to whom the powers are delegated by the Chief Executive Officer, as provided under this Act ;
(ii) any issues or matters referred to it by the State Government.
(3) The qualifications of the Chairperson and the members of the Apex Grievance Re-
dressal Committee, the procedure to be followed for transacting its business and quo- rum for its meetings, shall be such as may be prescribed.";
19) Remedy of filing appeals before the AGRC is created under amended Section 35(1A), which reads thus:
35. Appeals.
(1) -----
(1A) Any person,--
(a) aggrieved by any notice, order or directions issued or given by the Appellate Authority under sub-section (1), within a period of thirty days from the date of issue of such notice, order or direction, before the Grievance Redressal Committee;10/29 ::: Uploaded on - 03/05/2024 ::: Downloaded on - 16/05/2024 06:13:22 :::
Sonali Mane WPL-12524-2024.doc
(b) aggrieved by any notice, direction, circular, decision, order, permission or approval issued or given by the Chief Executive Officer of Slum Rehabilitation Authority or any Officer to whom the powers are delegated by the Chief Executive Officer, may file an appeal within thirty days of receipt of such notice, direction, circular, decision, order, permission or approval, before the Apex Grievance Redressal Committee.
Thus, Section 35(1A) now provides a remedy to any person to file an Appeal before AGRC, if he/she is aggrieved by any notice, direction, circular, decision, order, permission or approval issued or given by CEO of SRA or by any other officer exercising delegated power. Such Appeal is required to be filed within a period of 30 days from the date of receipt of such notice, order, etc.
20) In contrast to remedy of filing Appeal before AGRC under Section 35(1A) of the Slum Act, there is a separate and distinct remedy under sub-section 3 of Section 4 of the Slum Act for filing Appeal before the Tribunal against an Order passed by the Competent Authority declaring any area to be a Slum Area. It would be relevant to reproduce sub-sections 1 and 3 of Section 4 which reads thus:
4. Declaration of slum areas.
(1) Where the Competent Authority is satisfied that--
(a) any area is or may be a source of danger to the health, safety or convenience of the public of that area or of its neighbourhood, by reason of the area having inadequate or no basic amenities, or being insanitary, squalid, overcrowded or otherwise; or
(b) the buildings in any area, used or intended to be used for human habitation are--
(i) in any respect, unfit for human habitation; or
(ii) by reasons of dilapidation, overcrowding, faulty arrangement and design of such building, narrowness or faulty arrangement of streets, lack of ventilation, light or sanitation facilities or any combination of these factors, detrimental to the health, safety or convenience of the public of that area, the Competent Authority may, by notification in the Official Gazette, declare such area to be a slum area. Such declaration shall also be published in such other manner (as will give due publicity to the declaration in the area) as may be prescribed.] [Explanation.--For the purposes of clause (b), the expression "buildings" shall not include,--
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(a) cessed buildings in the island City of Mumbai as defined in clause (7) of section 2 of the Maharashtra Housing and Area Development Act, 1976, or old buildings belonging to the Corporation;
(b) buildings constructed with permission of the relevant authority at any point of time;
(c) any building in an area taken up under the Urban Renewal Scheme.
(2) ----
(3) Any person aggrieved by a declaration made under sub-section (1) may, within thirty days after the date of such declaration in the Official Gazette, appeal to the Tribunal. No such appeal filed after the expiry of thirty days as aforesaid shall be entertained.
21) Section 45 deals with provisions relating to the Tribunal and sub-section (1A) of Section 45 provides for Application of provisions of Limitation Act to the filing of Appeals or Applications to the Tribunal. Section 45 (1A) reads thus:
"45. Provisions relating to the Tribunal.
(1) In exercising the jurisdiction conferred upon it by or under this Act the Tribunal shall have the powers of a civil court for the purpose of taking evidence on oath, affir-
mation or affidavit, or summoning and enforcing the attendance of witnesses, of com- pelling discovery and the production of documents and material objects, requisitioning any public record or any copy thereof from any court of office, issuing commissions for the examination of witness or documents, and for such other purpose as may be pre- scribed 1[including the power to grant stay and any other powers of a Civil Court] which may be vested in the Tribunal; and the Tribunal shall be deemed to be a civil court for all the purposes of section 195,480 and 482 of the Code of Criminal Proce - dure, 18985 and its proceedings shall be judicial proceedings within the meaning of sections 193, 219 and 228 of the Indian Penal Code.
(1A) The provisions of sections 4, 5, 12 and 14 of the Limitation Act, 1963 shall apply to the filing of every appeal or application made to the Tribunal, under this Act."
Thus, under Section 45(1A), provisions of Section 5 of the Limitation Act are made applicable to the appeals filed or applications made to the Tribunal under the Slum Act. Section 5 of the Limitation Act confers power on Civil Court to condone delay in filing appeal or any application. Dr. Chandrachud's submission of absence of power of condonation of delay to AGRC is essentially premised on non-inclusion of appeal filed before AGRC in Section 12/29 ::: Uploaded on - 03/05/2024 ::: Downloaded on - 16/05/2024 06:13:22 ::: Sonali Mane WPL-12524-2024.doc 45(1A) for application of provisions of Limitation Act. Before considering the submission, it would be necessary to complete the overview of necessary provisions of the Slum Act.
22) By 1996 Amendment to the Slum Act, Chapter I-A came to be inserted in the Slum Act, which contains Section 3A to 3Z-7 and the Chapter deals with "Slum Rehabilitation Scheme". Section 3C provides for Declaration of Slum Rehabilitation Area and provides for remedy of Appeal before the Apex Grievance Redressal Committee to any person who is aggrieved by declaration of any area as Slum Rehabilitation Area.
23) Section 3D provides for certain modifications in respect of applicability of other Chapters of Slum Act upon publication of Slum Rehabilitation Scheme under Section 3B(1). For the purpose of determination of issue involved in the present Petition, it would be necessary to take note of provision in clause (xi) of Section 3D(e). The said provision reads thus:
3D. (e)(xi) throughout section 45, including in the marginal note, for the words "the Tribunal", wherever they occur, the words "the Special Tribunal" shall be substituted;
24) Thus, in relation to Slum Rehabilitation Scheme, the word "Tribunal" appearing in Section 45(1A) has been replaced by the word "Special Tribunal".
25) It is Petitioner's case that since provisions of Section 45(1A) do not apply to AGRC and since there is no other provision in the Slum Act extending provisions of Section 5 of the Limitation Act to Appeals filed before AGRC under Section 35(1A), the legislature has consciously omitted 13/29 ::: Uploaded on - 03/05/2024 ::: Downloaded on - 16/05/2024 06:13:22 ::: Sonali Mane WPL-12524-2024.doc the power to condone delay of Appeals filed before AGRC. On the contrary it is the contention of Respondent No.4-Society, that the power of condonation of delay, by extending of provisions of Limitation Act under Section 45(1A), would also apply to Appeals filed before AGRC.
26) Before proceeding further, it would be necessary to deal with two contentions raised by Mr. Khandeparkar. Firstly, he has contended that power of condonation of delay in respect of Appeals filed before AGRC can be traced in Section 45(1A) itself. This submission is premised a contention that the expression "to the filing of every appeal", cannot be controlled or relatable to the Special Tribunal alone. It is also contended that use of the word "or" in Section 45(1A) is required to be read disjunctively. I am unable to agree with the submissions of Mr. Khandeparkar in this regard. If the word "or" is read disjunctively, the same would mean that the provisions of Limitation Act would apply only to 'application' made to the Tribunal whereas the same would not apply to 'every appeal' filed under the Slum Act.
Thus, such interpretation would mean that provisions of Limitation Act would not apply to 'appeal' filed to the Tribunal. Such interpretation of treating the word "or" disjunctively would lead to an absurdity. He has relied upon the judgment of the Apex Court in Guru Nanak Dev University (supra) in which the issue was about interpretation of eligibility criteria in the Recruitment Rules, which provided for Bachelor's degree with not less than 45% marks "or" Master's Degree. The Apex Court held in para 9 of the judgment as under:
"9. The prescription of eligibility criteria is very clear. It requires a Bachelor's degree with not less than 45 marks or a Master's degree. The university's contention that the candidate must have a Bachelor's degree and only if his marks are less than 45% in the Bachelor's degree course, the Master's degree was to be considered, would mean that the word "or" should be substituted by the words "in the event of the candidate not having 45 marks in Bachelor's degree". Reading such words into the provision is impermissible. The word "or" is disjunctive. No doubt, in some 14/29 ::: Uploaded on - 03/05/2024 ::: Downloaded on - 16/05/2024 06:13:22 ::: Sonali Mane WPL-12524-2024.doc exceptional circumstances, the word "or" has been read as conjunctive as meaning 'and', where the context warranted it. But the word "or" cannot obviously be read as referring to a conditional alternative, when such condition is not specified. In view of the provision relating to eligibility being unambiguous and using the word "or", it is clear that a Master's degree without a Bachelor's degree will satisfy the eligibility requirement.
27) In Guru Nanak Dev University, if the word "or" was to be used conjunctively, the same would have resulted in a situation where a candidate would have needed both Bachelor's degree with 45% marks as well as Master's degree. In fact, use of the word "or" disjunctively required either a Bachelor's degree with not less than 45% marks or in the alternative, a Master's degree. Therefore, the Apex Court held that a person possessing Master's degree would not require a Bachelor's degree. The judgment, in my view, has no application to the present case as use of the word "or"
disjunctively under Section 45(1A) would result in an absurd situation were provisions of the Limitation Act could not apply to appeals filed before the Tribunal.
28) Secondly, Mr. Khandeparkar has contended that the Appeal in the present case was filed by Respondent No.4-Society on 14 March 2022 when 2023 Amendment was yet to be introduced. According to Mr. Khandeparkar, prior to the 2023 Amendment, an aggrieved person was entitled to maintain an Appeal before the AGRC without prescription of any period of limitation. In this connection it would be necessary to take note of unamended of provisions of Section 35(1A) which then provided as follows:
35. Appeals.
(1A) Any person,--
(a) aggrieved by any notice, order or directions issued or given by the Appellate Authority under sub-section (1), within a period of thirty days from the date of issue of such notice, order or direction;
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(b) for the purpose of resolving dispute in relation to matters regarding the declaration of Slum Rehabilitation Area under section 3C and order of slum clearance under section 12 or order under section 13 against the owner or developer not undertaking and completing the project as per the permission and approval so also within the stipulated time frame or order regarding eviction of the slum dweller from Slum Rehabilitation Area under section 3D, by the Chief Executive Officer and about eligibility of slum dweller, eligible slum dweller being denied tenement, transit accommodation being unavailable or not provided and likewise.
may file an appeal before the Grievance Redressal Committee constituted by the State Government, by notification in the Official Gazette, for such area and consisting of the Chairperson and such number of members as the Government may deem fit. The qualifications of the Chairperson and the members of the Committee and the procedure to be followed for transacting its business shall be such as may be prescribed.
29) On the contrary, it is Dr. Chandrachud's contention that unamended Section 35(1A) did not provide for filing of Appeal in respect of against an Order passed under Section 14 of the Slum Act. Dr. Chandrachud would also contend that this issue is also neither raised in the Petition nor argued before AGRC. It is also required to be noted that contrary to the contention sought to be raised that no period of limitation applied to Appeal filed by Respondent No.4, an Application for condonation of delay was filed by Respondent No.4-Society on an assumption that limitation period of 30 days was applicable for filing of Appeal under Section 35(1A).
30) Here it must be noted that various provisions of 2023 Amendment have been made applicable with retrospective effect by prescribing a date in respect of various provisions. To illustrate some of the provisions are made applicable from 8 March 2017. However, Section 6 of the 2023 Amendment Act does not provide that the amendment to Section 35(1A) will apply from a particular date. That the legislature has thus not made the provisions of Section 35(1A) applicable prospectively and would ordinarily apply retrospectively.
16/29 ::: Uploaded on - 03/05/2024 ::: Downloaded on - 16/05/2024 06:13:22 :::Sonali Mane WPL-12524-2024.doc 31) Furthermore if the argument of Mr. Khandeparkar is to be
accepted, no Appeal could have been filed before AGRC prior to 2023 amendment as AGRC itself did not have any statutory recognition prior to the 2023 Amendment. The remedy of filing Appeal under Section 35(1A) to AGRC was created for the first time in the Slum Act by 2023 Amendment. In my view, therefore, the submission that no period of limitation was applicable to the Appeal filed by Respondent No.4-Society cannot be accepted.
32) Reverting to the main controversy in hand about absence of power of condonation of delay to AGRC for entertaining appeals filed under amended Section 35(1A), it is seen that most of the appeals dealing with implementation of SRS now lie before AGRC. Very few appeals now lie before the Tribunal. Despite this position, the Legislature has not made any provision for applying provisions of Limitation Act to appeals filed before AGRC, while applying them to appeals/applications filed before the Tribunal. In my view, there appears to be a drafting error while amending the provisions of Slum Act by 2023 Amendment, whereby AGRC was constituted under Section 34A and provision for filing of Appeal to AGRC was made in Section 35(1A). As observed above, in relation to Slum Rehabilitation Scheme under Chapter I-A, the word "Tribunal" appearing in Section 45(1A) has been substituted by the word "Special Tribunal" under Section 3D(e)(xi). Thus, in relation to various remedies to be exercised in relation to Slum Rehabilitation Scheme under Chapter I-A instead of exercising remedies before the Tribunal, the same could be exercised before the Special Tribunal. However, after the 2023 Amendment, now the remedy of Appeal is mostly exercisable before the AGRC. In that view of the matter, appropriate amendment was required to be effected in Section 3D(e)(xi) by substituting the word "the Tribunal" by the words "the Apex Grievance Redressal 17/29 ::: Uploaded on - 03/05/2024 ::: Downloaded on - 16/05/2024 06:13:22 ::: Sonali Mane WPL-12524-2024.doc Committee". Such amendment would have ensured power of condonation of delay in respect of Appeals filed before AGRC. The other method could have been to effect direct amendment under Section 45(1A) by including Appeals filed before AGRC therein so as to apply provisions of Limitation Act to such Appeals. In my view, therefore omission to clothe power of condonation of delay on AGRC appears to be more of a drafting error than a conscious decision. I am fortified in my view as there appears to be no plausible reason why the legislature would provide for power of condonation of delay in respect of appeals/applications filed before the Tribunal but not to empower AGRC with similar power while deciding various Appeals filed before AGRC under provisions of the Slum Act.
33) Dr. Chandrachud has contended that there is conscious exclusion of AGRC's power to condone delay by the legislature. Dr. Chandrachud has relied upon judgment of the Apex Court in Gopal Sardar (supra) in support of his contention that where power to condone delay is granted in one part of the statute but not in another, it must be construed that there is conscious exclusion of such power in the latter part of the statute. Gopal Sardar involved an issue about applicability of provisions of Section 5 of Limitation Act to the application made under Section 8 of West Bengal Land Reforms Act 1955 conferring right of purchase by co-sharer or contiguous tenant. The Apex Court crystallized the issue in para 5 of the judgment as under:
"5. In the light of the submissions made by the learned counsel for the parties in both these appeals, basically the only short question that arises for consideration is whether Section 5 of the Limitation Act is applicable to an application made under Section 8 of the Act having regard to Section 29(2) of the Limitation Act. Ultimate result in these appeals depends on the answer to this question."
34) The Apex Court thereafter went on to observe that West Bengal Land Reforms Act, 1955 is a self-contained Code and noticed that provisions 18/29 ::: Uploaded on - 03/05/2024 ::: Downloaded on - 16/05/2024 06:13:22 ::: Sonali Mane WPL-12524-2024.doc of Section 5 of the Limitation Act were not made applicable in relation to the application to be filed under Section 8 of the West Bengal Land Reforms Act. On the contrary, Section 5 of the Limitation Act was made applicable in respect of Appeal filed under Sections 14H and 19 of the said Act. In this context, the Apex Court has held in para 7 and 8 as under:
7. In Section 8 of the Limitation Act there is reference to suits to enforce rights of pre-emption stating therein that nothing in Section 6 or Section 7 applies to suits to enforce rights of pre-emption, or shall be deemed to extend, for more than three years from the cessation of the disability or the death of the person affected thereby, the period of limitation for any suit or application. In Article 97 of the Schedule appended to the Limitation Act under the heading suits relating to miscellaneous matters there is reference to enforcement of rights of pre-emption. Thus, there is reference to suits in Section 8 and Article 97 of the Limitation Act, but there is no reference to an application for enforcement of right of pre-emption. Having regard to the fact that the Act is a self-contained Code in relation to the enforcement of rights of pre-emption and looking to the provisions of the Limitation Act, as stated above, it appears to us that when one applies for enforcement of rights of preemption under Section 8 of the Act, the proceedings initiated are in the nature of a suit. The words "application" and "suit"
have been defined in Section 2(b) and 2(l) of the Limitation Act. "Application" includes a petition but "suit" does not include an appeal or an application. The Division Bench of the Calcutta in Serish Maji, after elaborate consideration, referring to various decisions and on analysis of different provisions, in paras 25 to 50 of the judgment has concluded that a proceeding initiated by an application of Section 8 is to be construed as a "suit" for the purpose of the Limitation Act. We have good reason to approve the said view. This being the position, Section 5 of the Limitation Act is not attracted to the proceedings initiated under Section 8 of the Act. The right conferred under Section 8 is a statutory right. Even otherwise, in our view, the position as regards to applicability of Section 5 of the Limitation Act to an application under Section 8 of the Act does not get altered. As already stated above, the Act is a self contained Code inasmuch as the Act provides to enforce the rights of pre-emption, forum is provided, procedure is prescribed, remedies including the appeals and revisions are provided, penalties are indicated for non-compliance of the orders and powers are given for restoration of land. Further period of limitation is also specifically prescribed to make an application under Section 8 of the Act and for preferring appeals or revisions under the provisions of the Act. All these and few other provisions are clear enough to indicate that the Act is a complete Code in itself dealing with the rights of pre-emption. Second proviso to Section 14H specifically provides for the application of Section 5 of the Limitation Act in the matter of preferring an appeal or revision. Section 14-O(1) specifically enables the appellate authority to allow to prefer an appeal even after the expiry of the period of limitation prescribed on showing sufficient cause. Similarly second proviso to Section 19(2) of the Act expressly provides for application of Section 5 of the Limitation Act to an appeal to be preferred under the said Section. Section 51A of the Act deals with preparation and revision of record-of-rights. Rule 26 of the Rules framed under the Act provides that every appeal under Section 51A of the Act is to be filed within one month from the date of passing of the order appealed against. The proviso to the said Rule states that an appeal may be admitted after the said period if the appellant satisfies that he had sufficient reasons for not preferring the appeal within the said period. Thus either Section 5 of the Limitation Act or its principles have been expressly and specifically incorporated in the various Sections afore-mentioned. In contrast although Section 8 of the Act prescribes period of limitation for applying to 19/29 ::: Uploaded on - 03/05/2024 ::: Downloaded on - 16/05/2024 06:13:22 ::: Sonali Mane WPL-12524-2024.doc enforce pre-emption rights, it does not speak of application of Section 5 of the Limitation Act or its principles. If in the same Act, consciously and expressly, the Legislature has made provision for application of Section 5 of the Limitation Act or its principles expressly and specifically to other proceedings such as appeal or revision etc. and such a provision is not made for initiation of the proceedings under Section 8 of the Act, it necessarily follows that the Legislature did not intend to give benefit of Section 5 to the Limitation Act having regard to the nature of rights of pre-emption which is considered a weak right. In a recent decision of this Court in Mattoo Devi v. Damodar Lal in para 8 it is stated thus: (SCC p.335) "8. On the basis of the aforesaid, Subba Rao, J. with his usual felicity of expression observed that the general law of pre-emption does not recognise any right to claim a share in the property sold when there are rival claimants and pre-emption is a right to acquire the whole of the property sold in preference to other persons. The learned Judge further relied upon the decision in the case of Gobind Dayal v. Inayatullah as also the decision of the Lahore High Court in the case of Mool Chand v. Ganga Jal and summarised the law pertaining to the right of pre-emption in the manner as below : (AIR p.841, para 11) "(1) The right of pre-emption is not a right to the thing sold but a right to the offer of a thing about to be sold. This right is called the primary or inherent right. (2) The pre-emptor has a secondary right or a remedial right to follow the thing sold. (3) It is a right of substitution but not of repurchase i.e. the pre- emptor takes the entire bargain and steps into the shoes of the original vendee. (4) It is a right to acquire the whole of the property sold and not a share of the property sold. (5) Preference being the essence of the right, the plaintiff must have a superior right to that of the vendee or the person substituted in his place. (6) The right being a very weak right, it can be defeated by all legitimate methods, such as the vendee allowing the claimant of a superior or equal right being substituted in his place."
(emphasis supplied)
8. There is yet another good reason for insisting that right of pre-emption must be exercised within the period specified under Section 8 of the Act so that the rights of purchasers of a land cannot be eclipsed for a long time. Right of pre-emption was sought to be exercised after six years and four years from the dates of transfer respectively as against the period of four months prescribed under Section 8 of the Act without any scope for extension of that period. Sub-section (3) was added to Section 8 of the Act by the West Bengal Land Reforms (Amendment) Act, 1972 w.e.f. 15.2.1971. Prior to 15.2.1971, an application under Section 8 was required to be made to the "Revenue Officer specifically empowered by the State Government in this behalf". This phrase was substituted by the phrase "Munsif having territorial jurisdiction" by the aforementioned amendment. Even after this amendment when an application is required to be made before the Munsif Court, no amendment was made to Section 8 of the Act either to apply Section 5 of the Limitation Act or its principles so as to enable a party to make an application after the expiry of the period of limitation prescribed on showing sufficient cause for not making an application within time. The Act is of 1955 and for all these years, no provision is made under Section 8 of the Act providing for condonation of delay. Thus, when Section 5 of the Limitation Act is not made applicable to the proceedings under Section 8 of the Act unlike to the other proceedings under the Act, as already stated above, it is appropriate to construe that the period of limitation prescribed under Section 8 of the Act specifically and expressly governs an application to be made under the said Section and not the period prescribed under Article 137 of the Limitation Act.
(emphasis and underlining supplied)
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35) Thus one of the reasons why the Apex Court held that there is
conscious exclusion of application of Section 5 of Limitation Act while initiating proceedings under Section 8 of the West Bengal Land Reforms Act for enforcing pre-emption right was the right of pre-emption being a 'weak right'. Thus, the Apex Court has gone into the purpose why power of condonation of delay is not provided for exercising right of pre-emption under Section 8 of the West Bengal Land Reforms Act. Another factor considered by the Apex Court in Gopal Sardar for inferring conscious exclusion of power of condonation of delay for filing proceedings for right of pre-emption under Section 8, was amendment effected to Section 8 in 1972, which changed the empowered authority from revenue officer to munsif and once again did not think it appropriate not to make applicable provisions of Section 5 of Limitation Act applicable to proceedings under Section 8. In my view therefore, the ratio of the judgment of the Apex Court in Gopal Sardar (supra) cannot be made applicable to the statutory scheme of the Slum Act. Firstly, in the context of the statutory scheme of the Slum Act, exercise of right by filing appeal under Section 35(1A) thereof, can, by no stretch of imagination, be considered as 'weak right' as compared to the right in respect of which appeal can be filed under Section 45 before the Tribunal. Secondly, it is not as if the remedy of filing appeal before AGRC was always present since inception without provision for condonation of delay and that despite amendments, the legislature consciously did not confer that power of AGRC. Thus the factors which were present in Gopal Sardar on account of which, the Apex Court has inferred conscious exclusion of power of condonation of delay for filing proceedings under Section 8 of West Bengal Land Reforms Act, are not to be found in the statutory scheme of the Slum Act. In my view, therefore the judgment of the Apex Court in Gopal Sardar would have no application to the present case.
21/29 ::: Uploaded on - 03/05/2024 ::: Downloaded on - 16/05/2024 06:13:22 :::Sonali Mane WPL-12524-2024.doc 36) Also of relevance is the fact that the provisions of Slum Act have
been extensively amended from time to time. The amendments are so exhaustive that it sometimes becomes difficult to comprehend the exact scheme of the statute. AGRC was constituted by a Government Resolution without any statutory recognition. 2023 Amendments to the Slum Act were effected essentially with a view to bring AGRC within its statutory framework, which is the reason why some of the sections of Amendment Act are retrospectively inserted from 8 March 2017. It therefore cannot be stated that while creating forum of filing Appeal before AGRC under section 35(1A), there is conscious exclusion on the part of the legislature from applying provisions of Limitation Act to such Appeals. As observed above, the omission to add the words "the Apex Grievance Redressal Committee" either in Section 3D(e)(xi) or Section 45(1A) appears to be a drafting error rather than conscious omission or exclusion.
37) Dr. Chandrachud has also relied upon judgment of the Apex Court Fairgrowth Investments Ltd. (supra) wherein the issue was about vesting of power of condonation of delay in Special Court in filing Petition under Section 4(2) of the Special Court (Trial of Offences Relating to Transactions in Securities) Act, 1992. The Apex Court, referring to the decision in Gopal Sardar held in para 17 as under:
17. This brings us to the question whether the power to condone the delay in filing a petition under Section 4(2) exists in the Special Court. We have held that the statute itself does not provide for it. A possible source of the power could be Section 5 of the Limitation Act, 1963, provided it applies to the Act. Section 29(2) of the Limitation Act, 1963 provides for the application of the provisions of Section 4 to Section 24 of the 1963 Act including Section 5, to any special or local law which prescribes a period of limitation in respect of any suit, appeal or application different from the period prescribed under the Limitation Act. In other words, the general rule as far as special and local Acts are concerned, is that the specified provisions including Section 5 of the Limitation Act will apply provided the Special or Local Act provides a period of limitation different from that prescribed under the Limitation Act. There is an additional requirement viz that the Special/Local Act does not expressly exclude the application of the Limitation Act . It has been held in 22/29 ::: Uploaded on - 03/05/2024 ::: Downloaded on - 16/05/2024 06:13:22 ::: Sonali Mane WPL-12524-2024.doc Union of India V. Popular Construction Co. that the word 'exclusion' also includes 'exclusion by necessary implication'. This proposition of law is not in dispute. The only question is does the Act expressly or necessarily exclude the provisions of Limitation Act? We think it does. The fact that it has provided for a power to condone delay under Section 10(3) of the Act, shows that Parliament had consciously excluded the power of the Court in relation to Section 4(2). This view also finds support in the decision of this Court in Gopal Sardar V. Karuna Sardar.
The statutory provision under consideration in that case was Section 8 of the West Bengal Land Reforms Act, 1955. It was held: (SCC p.265, para 13) "When in the same statute in respect of various other provisions relating to filing of appeals and revisions, specific provisions are made so as to give benefit of Section 5 of the Limitation Act and such provision is not made to an application to be made under Section 8 of the Act, it obviously and necessarily follows that the legislature consciously excluded the application of Section 5 of the Limitation Act.
38) The Apex Court has relied on Gopal Sardar while holding that presence of power of condonation of delay in Section 10(3) and absence of similar power under Section 4(2) amounts of exclusion by necessary implication for the purpose of Section 29 of the Limitation Act. I have already held that the ratio in Gopal Sardar cannot be imported while considering the provisions of Slum Act. The judgment in Fairgrowth Investments Ltd. considers additional factor of Section 29 of the Limitation Act, which provides thus:
29. Savings.--
(1) Nothing in this Act shall affect section 25 of the Indian Contract Act, 1872 (9 of 1872).
(2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in sections 4 to 24 (inclusive) shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special or local law. (3) Save as otherwise provided in any law for the time being in force with respect to marriage and divorce, nothing in this Act shall apply to any suit or other proceeding under any such law.
(4) Sections 25 and 26 and the definition of "easement" in section 2 shall not apply to cases arising in the territories to which the Indian Easements Act, 1882 (5 of 1882), may for the time being extend.
39) Thus under Section 29(2) of the Limitation Act, Section 5 would apply, as a general rule, to all appeals or applications filed under special or 23/29 ::: Uploaded on - 03/05/2024 ::: Downloaded on - 16/05/2024 06:13:22 ::: Sonali Mane WPL-12524-2024.doc local Acts. However an exception is made to this general rule, by using the expression 'to the extent to which, they are not expressly excluded by such special or local law'. Relying on Fairgrowth Investments Ltd. and Popular Constructions Co. (supra) Dr. Chandrachud has contended that the exclusion under Section 29(2) need not be express and that the same can also be by 'necessary implication'. However considering the nature of various amendments effected in the Slum Act, particularly the Amendment of 2023 retrospectively constituting AGRC and creating the remedy of appeal before it under Section 35(1A), I am unable to hold that failure to extend provisions of Section 5 of Limitation Act to appeals filed before AGRC under Section 35(1A) is either by way of express exclusion or even by necessary implication. On the contrary, the same appears to be a mere drafting error while extensively amending the provisions of the Slum Act from time to time.
This clear from the fact that when the legislature changed the remedial forum from 'Tribunal' to 'Special Tribunal' while previously amending the Slum Act, effected the necessary amendment so that the word 'Tribunal' under Section 45(1A) would be read as 'Special Tribunal'. There is nothing to infer that the legislature intended even by implication to exclude appeals filed before AGRC from Section 45(1A). Therefore in my view provisions of Section 29(2) can also be invoked in the present case for holding that section 5 of Limitation Act would apply to appeals filed under Section 35(1A) before AGRC.
40) Dr. Chandrachud has relied upon judgment in Damodaran Pillai (supra) in support of his contention that power to condone delay is not inherent and needs to be conferred expressly. There can be no dispute about this proposition. However, in view of the finding recorded by me that failure to apply provisions of Limitation Act is a drafting error while amending the 24/29 ::: Uploaded on - 03/05/2024 ::: Downloaded on - 16/05/2024 06:13:22 ::: Sonali Mane WPL-12524-2024.doc provisions of Slum Act, in my view, the judgment in Damodaran Pillai (supra) would have no application to the present case.
41) Dr. Chandrachud has also relied upon the judgment of the Apex Court in Commissioner of Customs and Central Excise (supra) in support of his contention that liberal interpretation cannot be made for extending the period of limitation. Again, this is a general proposition and would be irrelevant while deciding the issue at hand.
42) Dr. Chandrachud's contention about Slum Act being a complete and self-contained code is not disputed by Mr. Khandeparkar and therefore it is not necessary to discuss the judgments in Girnar Traders and Kantabai Vasant Ahir (supra). The submission about the Slum Act being a self- contained Code is made in the context of application of ratio of judgment in Gopal Sardar which I have held to be inapplicable to the present case.
43) In my view, in addition to invoking the provisions of Section 29(2) of the Limitation Act, the situation occurring in the present case can also be dealt by applying the ratio of the Apex Court judgment in Bhasker (supra). The Apex Court has dealt with the issue where incongruous situation was noticed in respect of starting point of limitation for filing an application under Rule 95 of Order 21 of the Code of Civil Procedure 1908 for seeking possession of purchased property under auction sale. Under Section 134 of the Limitation Act starting point of limitation for making application under Rule 95 of Order 21 is the date when the sale becomes absolute. However Rule 94 Order 21 requires issuance of sale certificate to the purchaser. The Apex Court thus encountered a situation where Rule 95 of Order 21 mandates making of application for possession of auctioned property only after issuance of sale certificate, whereas Article 134 of the 25/29 ::: Uploaded on - 03/05/2024 ::: Downloaded on - 16/05/2024 06:13:22 ::: Sonali Mane WPL-12524-2024.doc Limitation Act provides for starting point of limitation from the date of confirmation of sale. In the light of above position, the Apex Court held in para 11, 15, 17, 18, 19, 20, 21 and 22 as under:
"11. Thus, on the one hand, Rule 95 of Order 21 mandates that an application for possession of the auctioned property can be made by the auction-purchaser only after a sale certificate in accordance with Rule 94 of Order 21 is issued. But on the other hand, the starting point for making an application under Rule 95 of Order 21, in accordance with Article 134 of the Limitation Act, is the date on which the sale is made absolute in accordance with Rule 95 of Order 21. It is the obligation of the executing court to issue the sale certificate as per Rule 94 of Order 21 CPC. In practice, we often notice a substantial delay in issuing the sale certificate. In this case, the delay is of more than six months. In many cases, there is a procedural delay in issuing the sale certificate for which no fault can be attributed to the auction-purchaser.
15. We have already noted the twin conditions which should be fulfilled as a condition precedent for enabling the executing court to pass an order of delivery of possession in favour of the auction-purchaser. One of the two conditions is that the auction-purchaser who applies under Rule 95 of Order 21 CPC for delivery of possession, must possess a sale certificate issued under Rule 94 of Order 21 CPC. Once there is a confirmation of an auction-sale in accordance with sub-rule (1) of Rule 95 of Order 21 CPC, the executing court, in the absence of the prohibitory order of a superior court, is under an obligation to issue a sale certificate to the auction-purchaser in accordance with Rule 94 of Order 21 CPC. However, the law does not provide for a specific time-limit within which, a certificate under Rule 94 of Order 21 CPC should be issued. In a given case, there can be a long procedural delay in issuing the sale certificate for which the auction-purchaser cannot be blamed. In the present case, the delay is of more than six months.
17. Therefore, in our prima facie view, the order of confirmation of sale under sub-rule (1) of Rule 95 of Order 21 CPC does not give a cause of action to the auction-purchaser to apply for possession by invoking Rule 95 of Order 21 CPC. He cannot make such an application unless the executing court issues a sale certificate. Though CPC does not permit an application under Rule 95 of Order 21 to be filed before the sale certificate is issued, Article 134 of the Limitation Act proceeds on the footing that cause of action becomes available to the auction-purchaser to apply for possession on the basis of the order of confirmation of sale made under sub-rule (1) of Rule 95 of Order 21 CPC.
18. Therefore, there is an apparent inconsistency between the provisions of Rule 95 of Order 21 CPC and Article 134 of the Limitation Act. The question is whether the rule of purposive interpretation can be used to set right the inconsistency or anomaly. We may note here that even if the delay is on the part of the executing court in the issue of the sale certificate, the delay in filing an application under Rule 95 of Order 21 cannot be condoned as Section 5 of the Limitation Act is not applicable to the applications filed under Order 21.26/29 ::: Uploaded on - 03/05/2024 ::: Downloaded on - 16/05/2024 06:13:22 :::
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19. In paras 20 and 21 of the decision of this Court in Afcons Infrastructure Lid. v. Cherian Varkey Construction Co. (P) Ltd., the issue of purposive interpretation has been discussed in detail. The said two paragraphs read thus:
"20. The principles of statutory interpretation are well settled. Where the words of the statute are clear and unambiguous, the provision should be given its plain and normal meaning, without adding or rejecting any words. Departure from the literal rule, by making structural changes or substituting words in a clear statutory provision, under the guise of interpretation will pose a great risk as the changes may not be what the legislature intended or desired. Legislative wisdom cannot be replaced by the Judge's views. As observed by this Court in a somewhat different context:
'6.... When a procedure is prescribed by the legislature, it is not for the court to substitute a different one according to its notion of justice. When the legislature has spoken, the judges cannot afford to be wiser.' (See Shri Mandir Sita Ramji v. State (UT of Delhi), SCC p. 301, para 6.)
21. There is however an exception to this general rule. Where the words used in the statutory provision are vague and ambiguous or where the plain and normal meaning of its words or grammatical construction thereof would lead to confusion, absurdity, repugnancy with other provisions, the courts may, instead of adopting the plain and grammatical construction, use the interpretative tools to set right the situation, by adding or omitting or substituting the words in the statute. When faced with an apparently defective provision in a statute, courts prefer to assume that the draftsman had committed a mistake rather than concluding that the legislature has deliberately introduced an absurd or irrational statutory provision. Departure from the literal rule of plain and straight reading can however be only in exceptional cases, where the anomalies make the literal compliance with a provision impossible, or absurd or so impractical as to defeat the very object of the provision. We may also mention purposive interpretation to avoid absurdity and irrationality is more readily and easily employed in relation to procedural provisions than with reference to substantive provisions." (emphasis supplied)
20. As a normal rule, while interpreting the statute, the court will not add words or omit words or substitute words. However, there is a well-recognised exception to this rule which is found in a decision of the House of Lords in Inco Europe Ltd. v. First Choice Distribution', wherein the Court held thus: ".....The court must be able to correct obvious drafting errors. In suitable cases, in discharging its interpretative function the court will add words, or omit words or substitute words. Some notable instances are given in Professor Sir Rupert Cross's admirable opuscule, Statutory Interpretation, 3rd Edn. (1995). pp. 93-105. He comments at p. 103:
'In omitting or inserting words the judge is not really engaged in a hypothetical reconstruction of the intentions of the drafter or the legislature, but is simply making as much sense as he can of the text of the statutory provision read in its appropriate context and within the limits of the judicial role.' 27/29 ::: Uploaded on - 03/05/2024 ::: Downloaded on - 16/05/2024 06:13:22 ::: Sonali Mane WPL-12524-2024.doc This power is confined to plain cases of drafting mistakes. The courts are ever mindful that their constitutional role in this field is interpretative. They must abstain from any course which might have the appearance of judicial legislation. A statute is expressed in language approved and enacted by the legislature. So the courts exercise considerable caution before adding or omitting or substituting words. Before interpreting a statute in this way the court must be abundantly sure of three matters: (1) the intended purpose of the statute or provision in question; (2) that by inadvertence the draftsman and Parliament failed to give effect to that purpose in the provision in question; and (3) the substance of the provision Parliament would have made, although not necessarily the precise words Parliament would have used, had the error in the Bill been noticed. The third of these conditions is of crucial importance. Otherwise any attempt to determine the meaning of the enactment would cross the boundary between construction and legislation." (emphasis supplied)
21. The principle laid down in the said decision was reiterated by this Court Surjit Singh Kalra v. Union of India. In para 19, this Court held thus: "19. True it is not permissible to read words in a statute which are not there, but 'where the alternative lies between either supplying by implication words which appear to have been accidentally omitted, or adopting a construction which deprives certain existing words of all meaning, it is permissible to supply the words' (Craies Statute Law, 7th Edn., p. 109). Similar are the observations in Hameedia Hardware Stores v. B. Mohan Lal Sowcar, SCC pp. 542-25 where it was observed that the court construing a provision should not easily read into it words which have not been expressly enacted but having regard to the context in which a provision appears and the object of the statute in which the said provision is enacted the court should construe it in a harmonious way to make it meaningful. An attempt must always be made so to reconcile the relevant provisions as to advance the remedy intended by the statute. (See: Sirajul Haq Khan v. Sunni Central Board of Waqfto, AIR p. 204, para 16: SCR p. 1299.)"
22. Coming back to the relevant provisions of Order 21 CPC, on a conjoint reading of sub-rule (1) of Rule 92 of Order 21 and Rule 94 of Order 21 CPC, it is apparent that the order of confirmation of sale under sub-rule (1) of Rule 92 of Order 21 culminates into a grant of a sale certificate under Rule 94 of Order
21. The date of sale to be incorporated in the sale certificate is the date of passing of the order of sale confirmation. The very fact that Rule 94 of Order 21 incorporates a requirement of issuing a sale certificate shows that the legislature was of the view that mere order of confirmation of auction may not be sufficient. The certificate is ultimately the evidence of the fact that the auction in favour of the person to whom a certificate is issued, has been confirmed by the executing court.
44) In Bhasker, the Apex Court has thus held that though as the normal Rule, Court will not add words or omit words or substitute words while interpreting the statute, there is well recognised exception to the rule 28/29 ::: Uploaded on - 03/05/2024 ::: Downloaded on - 16/05/2024 06:13:22 ::: Sonali Mane WPL-12524-2024.doc where the Court can correct obvious drafting errors. I have already held that omission to apply provisions of Limitation Act to Appeals filed before AGRC is an obvious drafting error. Applying the ratio of the Apex Court in Bhasker, I am of the view, that in order to avoid confusion and absurdity it is necessary to read power of condonation of delay in the Slum Act for filing of Appeals before AGRC under Section 35(1A) of the Slum Act.
45) I am therefore of the view that the contention sought to be canvassed on behalf of Petitioner that AGRC is not clothed with power of condonation of delay in filing Appeals before it, deserves to be repelled.
46) So far as merits of the decision of AGRC is concerned, the period of delay is only of 62 days. AGRC has exercised discretion in condoning the delay. There is no material on record to show that exercise of discretion by AGRC is not sound. I am therefore, not inclined to interfere in the merits of the decision of AGRC in condoning insignificant delay of 62 days.
47) After considering overall conspectus of the case, I do not find any error in the impugned Order passed by the AGRC. Writ Petition must fail. It is accordingly dismissed. There shall be no orders as to cost. Rule is discharged.
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