Madras High Court
The Commissioner And Secretary ... vs Sri Vittal Combines on 27 August, 2020
Author: Senthilkumar Ramamoorthy
Bench: A.P.Sahi, Senthilkumar Ramamoorthy
C.M.P.No.7455 of 2020
in W.A.SR.No.3896 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 27.08.2020
CORAM :
THE HON'BLE MR.A.P.SAHI, CHIEF JUSTICE
AND
THE HON'BLE MR.JUSTICE SENTHILKUMAR RAMAMOORTHY
C.M.P.No.7455 of 2020
in W.A.SR. No.3896 of 2019
1 THE COMMISSIONER AND SECRETARY (REVENUE)
GOVERNMENT OF TAMILNADU
FORT ST. GEORGE, CHENNAI-9.
2 THE SPECIAL COMMISSIONER
AND COMMISSIONER OF LAND REFORMS
CHEPAUK, CHENNAI-5.
3 THE ASSISTANT COMMISSIONER
URBAN LAND TAX AND CEILING
(T.NAGAR), 345, ARCOT ROAD
KODAMBAKKAM, CHENNAI-24. .. Petitioners
Vs
SRI VITTAL COMBINES
A REGISTERED PARTNERSHIP FIRM
REP.BY ITS PARTNER
KHALID A.K.BUHARI
HAVING THEIR OFFICE AT
M.K.M.CHAMBERS, THIRD FLOOR
NO.42, KODAMBAKKAM HIGH ROAD
NUNGAMBAKKAM
CHENNAI – 34. .. Respondent
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C.M.P.No.7455 of 2020
in W.A.SR.No.3896 of 2019
PRAYER: Petition under Section 5 of the Limitation Act to condone the
delay of 4288 days in filing the above Writ Appeal against the order
dated 29.1.2007 made in W.P.No.33142 of 2004.
For Petitioners : Mr.V.Jayaprakash Narayanan
State Government Pleader
ORDER
(Order of the Court was made by The Hon'ble Chief Justice) Heard Mr.V.Jayaprakash Narayanan, learned State Government Pleader at length on the issue of delay and laches in the filing of this appeal.
2. The judgment impugned herein is dated 29.1.2007, arising out a claim by the respondent/writ petitioner for treating it to have been exempted from the provisions of the Tamil Nadu Urband Land (Ceiling and Regulation) Act, 1978, by taking advantage of the Repeal Act, 1999. The writ petition was allowed recording that actual physical possession had not been taken over in the circumstances indicated in the impugned judgment itself.
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3. The present appeal came to be presented on 7.1.2019, i.e., almost after 12 years of passing of the impugned judgment. The appeal is accompanied by a delay condonation application supported by an affidavit, and the affidavit dated 31.12.2018 proceeds to explain the laches and delay in paragraphs (7) to (10), which are extracted herein under:
“7. It is submitted that all the works under the Tamil Nadu Urban Land (Ceiling and Regulation) Act, 1978 (Tamil Nadu Act No.24 of 1978) and the Tamil Nadu Urban Land Tax Act, 1966 (Tamil Nadu Act 12 of 1966) are the two main Acts having two separate jurisdictions and all the works under the tax of the other jurisdiction was attached with only one officer, the Assistant Commissioner of Urban Land Tax, Mylapore disbanding one Assistant Commissioner.
Due to this, the officer has been over burdened and compelled to attend to all the works of 2 jurisdictions. Since 2003, there was a ban for direct recruitment and the assistants of the respective units, who worked in the office on deputation were also recalled by their parent units. The subsequent retirements, VRS and ban in the recruitment ___________ Page 3 of 22 http://www.judis.nic.in C.M.P.No.7455 of 2020 in W.A.SR.No.3896 of 2019 increased the vacancies. Also 50% in the subordinate cadre mainly Revenue Inspector Post, Assistant posts had fallen vacant, and thereafter proposals have been sent to the Government for filling up the said vacancies and they have to be filled up by the Tamil Nadu Public Service Commission. It is submitted that totally 653 posts were disbanded in the department including 34 officers and due to this over all works of the department was affected. Hence, the delay is neither willful and nor wanton and due to the above stated facts.
8. It is submitted that in the above said Writ Petition order was passed on 29.01.2007 and the copy of the order was received by this office on 26.03.2007. The opinion of the Government Pleader was sought for filing Writ Appeal vide Special Commissioner and Commissioner letter dated: 30.04.2007 The Government in their letter No.43204/ULC II (2)/ 2004-16, dated: 20.04.2007 requested to send a report in the light of G.O.Ms.No. 111, Revenue dated 3.3.07. Finally, the Government Pleader in his opinion No.131/2010, dated: 26.02.2010 had opined that this case is not a fit case for filing writ appeal.
___________ Page 4 of 22 http://www.judis.nic.in C.M.P.No.7455 of 2020 in W.A.SR.No.3896 of 2019 But the Government in Letter No.43204/ULC I1(2)/2004-38, dated 07.05.2012 directed the Commissioner of Urban Land Ceiling and Urban Land Tax, to prepare and send the grounds of Writ Appeal etc., for the approval of the Government. Hence the Government Pleader was again addressed by the Director of Urban Land Ceiling & Urban Land Tax on 25.05.2012 requesting to prepare and send the grounds of Writ Appeal etc., so as to get the approval of the Government. The Government Pleader in opinion No.1017/2012 dated: 13.07.2012 has opined that it is a fit case for filing Writ Appeal. The draft grounds of Appeal, stay and delay affidavit sent to the Government Pleader by the Assistant Commissioner (Urban Land Tax) T.Nagar on 28.5.2014 for vetting. But, the Government Pleader stated that a new opinion as on date has to be obtained. Hence again a letter was sent to the then Government Pleader on 28.7.2014 and he requested additional documents to offer his opinion vide his letter dated 29.12.2016. In the meantime, reminders were sent to the Government Pleader and concern official met him with connected records. The Government Pleader in his letter dated: 19.04.2018 have requested to give proper reasons for delay from ___________ Page 5 of 22 http://www.judis.nic.in C.M.P.No.7455 of 2020 in W.A.SR.No.3896 of 2019 2007 to condone delay. Subsequently the Assistant Commissioner (Urban Land Tax) T.Nagar prepared the Grounds of Appeal, delay and stay affidavit and the Government Pleader approved the same on 10.07.2018 and we have filed appeal on 7.01.2019. In the meantime, delay has occurred in filing the Appeal. Hence, there is a delay of 4288 days in filing the Writ Appeal.
9. It has also been stated that the Supreme Court of India in its judgment in Ramnath Sao (alias) Ramnath Sahu and Others (V) Gobardhan Sao and others (AIR 2002 SC 1201) it had held as follows:-
'Length of delay is no matter acceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be unconscionable due to a want of acceptable explanation whereas in certain cases, delay of very long range can be condoned as the explanation there of is satisfactory'.
10. It s submitted that the delay in filing the appeal is neither wiful nor wanton but only due to the ___________ Page 6 of 22 http://www.judis.nic.in C.M.P.No.7455 of 2020 in W.A.SR.No.3896 of 2019 administrative reasons as stated above. It is submitted that if the delay is not condoned, the petitioners will be put to irreparable loss and hardship, on the other hand no prejudice will be caused to the respondent if the delay is condoned. Hence, it is just and necessary to condone the delay of 4288 days in filing the Writ Appeal.
In the circumstances stated above, it is therefore humbly prayed that this Hon'ble Court may be pleased to condone the delay of 4288 days in filing this above Writ Appeal against the order dated 29.01.2007 passed by this Hon'ble Court in W.P.No.33142 of 2004 and thus render justice.”
4. We have heard the matter on an earlier occasion and we passed the following order on 16.7.2020:
“There is a delay of 4288 days in filing the appeal.
2. Prima facie, we are not satisfied with the reasons shown and even otherwise, the delay has to be explained keeping in view the law laid down by the Apex Court in the case of Esha Bhattacharjee vs Managing Committee of Raghunathpur Nafar Academy ___________ Page 7 of 22 http://www.judis.nic.in C.M.P.No.7455 of 2020 in W.A.SR.No.3896 of 2019 and Others reported in (2013) 12 SCC 649.
3. Learned Government Advocate prays for six weeks time o study the matter and assist the Court on the issue of delay.
List the matter on 27.08.2020.”
5. In response thereto, an additional affidavit, which does not bear a date, has been placed before us and the same is reproduced herein under:
“I, Tmt. N.Amudha, D/o E. Narayanan aged about 49 years, residing at No.27, "Rajus Coral", 'E1' First Floor, Vellala Street, Ayanavaram, Chennai - 600023 do hereby solemnly and sincerely affirm and state as follows:
1. I am the Assistant Commissioner, Urban Land Tax, T.Nagar, the 3rd Appellant herein and I am well acquainted with the facts of the case from the records.
I am filing this affidavit on behalf of the other petitioners/appellant herein.
2. It is submitted that the above writ appeal has been filed against the order of this Hon'ble High Court, dated ___________ Page 8 of 22 http://www.judis.nic.in C.M.P.No.7455 of 2020 in W.A.SR.No.3896 of 2019 29.01.2007, in W.P No 33142/2004.
3. It is submitted that the prayer in the Writ Petition was filed for the issuance of a Writ of Certiorari to call for the records of the first respondent relating to the property owned by the petitioner firm M/s.Vittal Combines, in S.Nos.116/1, 116/2A and 116/2B, measuring approximately 3450 sq. mtrs. in the proceedings G.O.Ms.No.344, Revenue (ULC 2-2) Department, dated 26.7.2004 and quash the same, after the publication of 11(3) notification in Tamil Nadu Government Gazette on 18.11.1981, the lands vested with the Government. The possession was taken and handed over to the Revenue Authorities on 11.10.1991. Subsequently the excess Vacant land measuring an extent of 3450 sq. mts. in S.No 116/part of Saligramam village was allotted to the Special Training Institute (Backward Classes), Madras vide G.O.Ms.No.1212, Revenue Department, dated 28.10.1992. The above case falls well within the saving clause provided under Section 3 of the Tamil Nadu Urban Land (Ceiling and Regulation) Repeal Act, 1999 (Act 20/1999).
4. It is necessary to state that in G.O.(D) No.51, Revenue (R1) Department, dated 01.02.1996, ___________ Page 9 of 22 http://www.judis.nic.in C.M.P.No.7455 of 2020 in W.A.SR.No.3896 of 2019 exemption was granted to the respondent/petitioner herein for retaining the excess vacant land measuring 3450 sq.mts in S.No. 116 (part) of Saligramam Village under section 21(1)(a) of the Tamil Nadu Urban Land (Ceiling and Regulation) Act 1978 to be utilised for certain specific purposes and on fulfilling certain conditions. It is submitted that when the urban land owner applied for a change of project and for extension of time, the Government had rejected the request vide G.O.Ms.No.344, Revenue (ULC 2-2) Department, dated 26.07.2004.
5. It is submitted that the possession of the excess vacant land was handed over to the Revenue Inspector of the office of the Tahsildar, Egmore-Nungambakkam Taluk on 11.10.1991 (i.e.) well before the Repeal Act 20 of 1999, after observing all the formalities laid down in the Act 24 of 1978. The Repeal Act 20 of 1999 does not applicable to the present case since all the formalities have been completed well before the Repeal Act 20/99 came into force.
6. It is submitted that without considering the above facts, the learned Hon'ble Judge by his order dated 29.01.2007, allowed the writ petition with the observation that all pending proceedings with regard to ___________ Page 10 of 22 http://www.judis.nic.in C.M.P.No.7455 of 2020 in W.A.SR.No.3896 of 2019 the land in question would abate and the land in question would continue to vest with the owner. Aggrieved by the same, the present Writ Appeal is filed. I crave leave of this Hon'ble Court to treat the Memorandum of Grounds of Appeal as part and parcel of this affidavit.
7. It is submitted that in the above said Writ Petition order was passed on 29.01.2007 and due to the following reasons, there occurred a delay of ......... days in fixing the present Appeal.
S.No. Date Events
1. 29.01.2007 Hon'ble High Court order in W.P.
22142/2004
2. 03.03.2004 Government issued G.O.Ms.No.111 Revenue ULC.I(1) Department to the effect that all actions taken under sub section (2) of Section 21 of Tamil Nadu Urban Land (Ceiling and Regulation0 Act 1978 shall abate and further action be dropped.
3. 30.04.2007 Spl. Commissioner/Commissioner of (ULC & ULT) vide Lr.No.2228/2005/G3 had requested the Govt. Pleader for Opinion.
4. 12.10.2009 Director of (ULC&ULT) Lr.No.2228/ 2005/G3 to Govt. Pleader requesting Opinion.
5. 08.02.2010 Assistant Commissioner urban land tax T.Nagar Lr.No.C/878/2004 to Govt.
Pleader requesting Opinion with
Enclosures.
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S.No. Date Events
6. 26.02.2010 The Govt. Pleader vide Opinion No.131/2010 gave the opinion stating to be not fit for filing writ appeal.
7. 07.05.2012 Govt. letter No.43204/ULCII(2)/2004- 38 instructing to prepare Draft writ appeal, condonation of Delay affidavit & stay affidavit.
8. 25.05.2012 Director of (ULC&ULT) to Govt. Pleader in Lr.No.2228/2005/G3 preparing of Draft writ appeal, condonation of delay and stay petition.
9. 02.07.2012 As the Government issued instructions to file writ appeal and as the Govt.
Pleader had opined that it is not a fit case for filing, a letter was sent by Assistatn Commissioner (ULT) T.Nagar in Lr.No.C/878/94 dated 2.7.2012 to the Govt. Pleader requesting his opinion.
10. 13.07.2012 Govt. Pleader opinion No.1017/2012 (fit case for filing writ appeal)
11. 20.02.2014 Assistant Commissioner Urban Land Tax T.Nagar Lr.No.C/878/2004 to Govt. Pleader for vetting the grounds of appeal, stay, delay, affidavit.
12. 04.06.2014 Assistant Commissioner Urband Land Tax T.Nagar Lr.No.C/878/2004 Commissioner stating that Opinion has to be Obtained from present Govt.
Pleader.
13. 28.07.2014 Commissioner of (ULC&ULT) Lr.No.2228/2005/G3 to Govt. Pleader requesting Opinion.
14. 29.12.2016 Additional records called for by Govt.
Pleader to offer his opinion.
15. 19.04.2018 Govt. Pleader opinion No.4715/2017 ___________ Page 12 of 22 http://www.judis.nic.in C.M.P.No.7455 of 2020 in W.A.SR.No.3896 of 2019 S.No. Date Events
16. 11.07.2018 Assistant Commissioner Urban Land Tax T.Nagar Lr.No.C/878/2004 to Principal Secretary/ Commissioner (ULC&ULT) for approval of Grounds of appeal, delay and stay affidavit.
17. 26.12.2018 Assistant Commissioner (Urband Land Tax) T.Nagar Lr.No.C/878/2004 to Govt. Pleader for filing of writ appeal.
8. It is submitted that the present Writ Appeal was filed on 02.01.2019. The same was returned on 10.01.2019 for rectification of certain defects Further after rectification the same the Appeal was represented on 18.03.2020.
9. It is submitted that the Assistant Commissioner Urban Land Tax), Mylapore has been loaded to see all the works under Tamil Nadu Urban Land (Ceiling and Regulation) Act 1978 and Tamil Nadu Urban Land Tax Act 1966, in both T.Nagar & Mylapore Zones subsequent to the disbandment of post of Assistant Commissioner (Urban Land Tax), T.Nagar after the repeal of Tamil Nadu Urban Land (Ceiling and Regulation) Act 1978. Due to this the officer has been over burdened and compelled to attend to all the works of two jurisdictions. All the subordinates were newly recruited and hence they were not trained in works ___________ Page 13 of 22 http://www.judis.nic.in C.M.P.No.7455 of 2020 in W.A.SR.No.3896 of 2019 related to the Department Due to which the delay occurred. The same is neither will nor wanton and only due to the above said reasons. I humbly submit that due to the administrative reasons the delay occurred and if the delay is not condoned, great prejudice will be caused.
It is humbly prayed that this Hon'ble Court may be pleased to condone the delay of 4288 days in filing the above Writ Appeal against the order dated 29.01.2007 made in W.P.No..33142 of 2004 and thus render justice.”
6. In support of the contention, Mr.Jayaprakash Narayanan has cited the judgment of the Apex Court in the case of Ram Nath Sao v.
Gobardhan Sao, AIR 2002 SC 1201 to contend that a pedantic and hyper-technical view should not be taken and the explanation should be liberally construed, where the petitioners have come out with an affidavit explaining each day's delay and the administrative process which consumed this time. He submits that the reduction in staff of the Urban Land Ceiling Department led to this process as well as the communications referred to above, which were being bona fidely pursued for the purpose of filing of this appeal.
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7. He contends that the efforts to present the appeal were genuine and the time taken was justifiably explained in terms of the principles which have been indicated in paragraph (9) of the judgment in the case of Brijesh Kumar and others v. State of Haryana and others, (2014) 11 SCC 351, which in turn refers to the principles that were enunciated by the Apex Court in the case of Esha Bhattacharjee v. Raghunathpur Nafar Academy, (2013) 12 SCC 649.
8. We have considered the submissions raised and we, therefore, proceed to first deal with the initial affidavit filed by Mr.K.Naganatha Thevar, Deputy Secretary to Government, Revenue and Disaster Management Department, in support of the delay condonation petition.
The first explanation given in paragraph (7) of his affidavit is that about 50% staff in the subordinate cadre has fallen vacant and as a result of the huge reduction in staff, the overall work of the department was affected and, hence, the delay was neither willful nor wanton. In paragraph (8), an attempt was made to explain the communication between the Government Officials and the Government ___________ Page 15 of 22 http://www.judis.nic.in C.M.P.No.7455 of 2020 in W.A.SR.No.3896 of 2019 Pleaders in deciding to file an appeal and further vetting the contents of the appeal and other documents, which ultimately culminated in the letter of the Government Pleader dated 19.4.2018, whereafter it was approved on 10.7.2018 and the appeal came to be presented on 7.1.2019.
9. The aforesaid contention on behalf of the State that all the departments are suffering from shortage of staff is bereft of any bona fides as it does not say that all legal pursuits by the department had been halted and no file relating to such pending legal matters was moving in the department. The explanation is neither satisfactory nor even worth believing as it is not the case of the appellants that no files on the legal side were ever pursued for all these twelve years.
10. The subsequent affidavit has been filed by one Mrs.N.Amudha, Assistant Commissioner, Urban Land Tax, and we find an endorsement of the signature of Assistant Commissioner (Head Quarters), Urban Land Ceiling and Urban Land Tax, where the explanation commences from paragraph (7) onwards, extracted herein above. This affidavit gives the dates and events, and displays the ___________ Page 16 of 22 http://www.judis.nic.in C.M.P.No.7455 of 2020 in W.A.SR.No.3896 of 2019 comfortable speed with which the communication ensued between the different officials of the Government Department as well as the Government Pleader. The judgment after having been delivered on 29.1.2007 was sent to the Government Pleader for opinion on 30.4.2007. It appears that there was no opinion received and it took two years thereafter to the Director again seeking an opinion from the Government Pleader vide letter dated 12.10.2009. This was followed by a reminder on 8.2.2010 and the Government Pleader is stated to have given his opinion on 26.2.2010 that this was not a fit case for filing a writ appeal. Thus, with the passage of three years, it was ultimately opined by the Government Pleader not to file an appeal.
11. The train of events then gradually commences with a Government letter being issued after more than two years on 7.5.2012 with a request to draft a writ appeal and a delay condonation affidavit, followed by a letter of the Director on 25.5.2012 and again a letter of the Assistant Commissioner dated 2.7.2012. The Government Pleader's opinion is said to have been extended on 13.7.2012 and then there is a halt of almost two years in between, when the Assistant Commissioner sends his request to the Government Pleader for vetting ___________ Page 17 of 22 http://www.judis.nic.in C.M.P.No.7455 of 2020 in W.A.SR.No.3896 of 2019 the grounds of appeal. Information is sent on 4.6.2014 by the Assistant Commissioner, Urban Land Tax, to the Commissioner that opinion has to be obtained from the current Government Pleader, whereafter a request was sent on 28.7.2014 to the Government Pleader. Again there is a substantial time gap of almost more than two years, whereafter on 29.12.2016, additional records were called for by the Government Pleader to enable him to offer his opinion. The opinion was tendered by the Government Pleader almost one and half years thereafter on 19.4.2018, and again the documents are despatched by the Assistant Commissioner on 11.7.2018 to the Principal Secretary for approval of grounds of appeal and other documents. It takes almost five months for the Assistant Commissioner to return back to the Government Pleader for filing of the appeal, which is prepared, drafted and filed in January, 2019.
12. We may refer to the law as explained in the case of Esha Bhattacharjee (supra) where the following principles are of relevance to the present controversy. Paragraphs 21.4, 21.13 and 22.4 (d) are extracted hereunder:
“21.4 (iv) No presumption can be attached to ___________ Page 18 of 22 http://www.judis.nic.in C.M.P.No.7455 of 2020 in W.A.SR.No.3896 of 2019 deliberate causation of delay but, gross negligence on the part of the counsel or litigant is to be taken note of.
21.13 (xiii) The State or a public body or an entity representing a collective cause should be given some acceptable latitude.
22.4 (d) The increasing tendency to perceive delay as a non-serious matter and, hence, lackadaisical propensity can be exhibited in a nonchalant manner requires to be curbed, of course, within legal parameters.
The march of chronology as indicated above reflects gross negligence on the approach of the entire department including its legal system.
Even assuming that some latitude should be given, we cannot perceive this inordinate delay of more than twelve years as a non-serious matter. The tendency of such disposition on behalf of the authorities indicates a too large grossly disproportionate generous approach of the State towards legal matters. It is difficult for this Court to approve of this approach adopted by the appellants in explaining the delay in filing ___________ Page 19 of 22 http://www.judis.nic.in C.M.P.No.7455 of 2020 in W.A.SR.No.3896 of 2019 of this appeal. It is for this reason that the Apex Court in the case of Brijesh Kumar (supra) refused to interfere with the judgment of the High Court that had declined to condone the delay of more than ten years clearly indicating the distinction between a simple delay and an inordinate delay.
13. The speed at which the events took place, as explained, can be either described as the speed of a tortoise or a turtle under some erroneous impression that it will ultimately win the race, but in fact is worse than a snail's pace. In our opinion, this huge inordinate delay of more than 12 years has been explained in a more comfortable way than expected, and with gaps as indicated above, where initially the opinion was against filing of an appeal, and subsequently opinion was granted for filing of the appeal, whereafter the preparation of documents and the entire effort made appears to be halting like a marriage procession, and then ultimately reaching its destination in a relaxed mood as if a Court of law is meant to be approached at any convenient time. This approach of convenience by offering such an explanation shows the casual and cavalier fashion of the petitioners in treating a matter to be urgent enough to have been given the shape of ___________ Page 20 of 22 http://www.judis.nic.in C.M.P.No.7455 of 2020 in W.A.SR.No.3896 of 2019 an appeal after 12 years. This explanation neither contains any sufficient cause, nor is satisfactory enough to invoke any of the principles that have been relied on by the learned counsel for the petitioners. To the contrary, the judgment in the case of Esha Bhattacharjee (supra) as well as Brijesh Kumar and others (supra) that has been pointed out by the learned State Government Pleader militates against the petitioners instead of supporting them and, therefore, in view of the principles and the conclusion drawn in the said decisions, on the facts of the present case, we do not find any reason to entertain this appeal or to condone the delay, as we are more than satisfied that there are no bona fide or genuine efforts indicated for the purpose of filing the appeal after 12 years. The explanation is, accordingly, rejected.
14. The delay condonation petition is dismissed and the Writ Appeal (SR) stands rejected.
(A.P.S., CJ.) (S.K.R., J.)
27.08.2020
Index : Yes
sasi
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in W.A.SR.No.3896 of 2019
THE HON'BLE CHIEF JUSTICE
AND
SENTHILKUMAR RAMAMOORTHY,J.
(sasi)
C.M.P.No.7455 of 2020
in W.A.SR. No.3896 of 2019
27.08.2020
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