Gujarat High Court
The Municipal Corporation Of Ahmedabad vs Manish Enterprises Ltd. on 26 June, 1992
Equivalent citations: AIR1993GUJ145, (1992)2GLR1252, AIR 1993 GUJARAT 145
Author: C.K. Thakker
Bench: C.K. Thakker
ORDER C.K. Thakker, J.
1. This Civil Application is filed by the applicant-Municipal Corporation, for condonation of delay in filing the First Appeal. Being aggrieved by the order passed by the Chief Judge of the Small Cause Court at Ahmedabad in Municipal Valuation Appeal No. 13690/1988, decided on January 17, 1991, that appeal is filed by the Corporation in this Court on April 18, 1991. The appeal is filed under the provisions of Section 411 of the Bombay Provincial Municipal Corporation Act, 1949 (hereinafter referred to as the 'BPMC Act'). Under the said provision, an appeal could be filed within a period of 30 days from the date of the order impugned. There is delay of 38 days in filing the appeal on the part of the appellant Corporation. This Civil Application is, therefore, filed by the applicant-appellant for getting the delay condoned. Since no sufficient particulars and material facts have been narrated by the applicant in the application for condonation of delay, further affidavit was filed explaining the delay by one Mr. M.S. Shah, Dy. Accountant of the applicant Corporation on November 15, 1991. Even that affidavit was also not sufficient and therefore, additional affidavit by one Mr. L.B. Patel, Assessor and Collector of the applicant-Corporation was filed on June 23, 1992. This application has been hotly contested by the other side by filing an affidavit-in-reply. I have heard the parties a number of decisions have also been cited by the Learned Counsel for the parties.
2. Looking to the record and affidavits filed on behalf of the applicant-Corporation, it appeals that the order was passed by the trial Court on January 17, 1991. Immediately on the next day, i.e. on January 18, 1991, certified copy thereof was applied, which was ready on February 11, 1991 and delivered on the same day. In the first affidavit it was stated that after receiving the certified copy of the order, the clerk of the Advocate submitted that copy in the Advocates' department of the Corporation and it was sent to the Tax Department by the Advocates' department on March 12, 1991. The period between February 11, 1991 and March 12, 1991 has been explained in that affidavit in the following terms:
"I would like to draw the kind attention of this Hon'ble Court that there are number of matters related to the valuation Appeals in the advocates' department and the advocates' department is receiving approximately 200 judgments in a day. Thus, a large number of MVA Appeals and the orders passed thereupon received everyday. The clerk working in the advocates' department sorts out the bunch of certified copies and hands over to the concerned advocates appearing in the matter and thereafter the concerned advocate submits the copy of the judgment to the head of the advocates' department along with his remarks. There were about 2000 matters pending for Law Officer's opinion. The head of the department after looking into the matter, if he thinks fit, gives his remarks and thereafter the matter goes to the tax department. The tax department is a very big department and there are also a large number of MVA Appeals pending at various stages. The concerned officer of the tax department, after receiving the papers from the advocates' department examines the matter and sends it to the Assessor and Tax Collector along with his remarks. The Assessor & Tax Collector sends it to the Dy. Municipal Commissioner for appropriate action and thereafter the file returns to the concerned officer of tax department and thereafter he sends it to the Legal Department. The Legal Department, after examining the matter, sends it to the concerned advocate in the High Court of Gujarat. Thus the process of filing the First Appeal is very long."
It is the case of the applicant-Corporation that after receiving the certified copy along with remarks by the Tax department on March 12, 1991, the Tax department processed the file up to the Deputy Municipal Commissioner level and sent it to the Legal department on March 21, 1991. The Legal department examined the matter and sent the papers to the advocate of the High Court, in the last week of March 1991 and the appeal was filed on April 18, 1991. By filing the second affidavit, delay between March 21, 1991 and April 18, 1991 was attempted to be explained thus: The legal department of the Corporation issued a letter on March 29, 1991 to the advocate Mr. J.P. Bhatt asking him to appear on behalf of the Corporation in the matter. Necessary papers were also sent to him. The advocate received those papers on March 31, 1991. After going through the papers, the advocate called the officer concerned for discussion and further instructions in the first week of April 1991. The Assistant dealing with such matters approached the advocate in the second week of April 1991 and supplied the necessary information. Thereafter the appeal was prepared and filed as stated above on April 18, 1991.
3. Mr. J.P. Bhatt, Ld. Counsel for the applicant submitted that in the facts and circumstances of the case, delay of 38 days in filing the First Appeal requires to be condoned by exercising discretion in favour of the applicant. He submitted that as per settled principle of law, the expression "sufficient cause" within the meaning of Section 5 of the Limitation Act, 1963 (hereinafter referred to as 'Act') requires to be construed liberally and to advance the cause of justice. Reliance was placed on the decision of the Hon'ble Supreme Court of India in the case of Collector, Land Acquisition v. Katiji, reported in AIR 1987 SC 1353 and also decisions of this Court the case of Ahmedabad Electricity Co. v. Electric Mazdoor Sabha reported in 1989 (2) GLH p. 256 : (AIR 1990 Guj 80). He submitted that looking to the facts on record, it clearly appears that there was neither inaction nor negligence nor want of bona fides on the part of the applicant in approaching this Court. Immediately after the pronouncement of judgment on 17th January, certified copy was applied on 18th January and as soon as it was ready for delivery, it was taken on the same day. He conceded that the advocates' department took considerable time in going through the judgment and in preparing remarks. However, relying on the facts mentioned in para 1 of the first affidavit as extracted hereinabove, Mr. Bhatt submitted that it cannot be said that there was inaction or negligence on the part of the Corporation or any officer of the Corporation. He further submitted that in accordance with the procedure of the Corporation, papers were sent to the legal department and after going through the relevant papers as well as the remarks submitted by the advocates' department, they were sent to the advocate, High Court, for the purpose of filing an appeal. The advocate in the High Court felt it necessary to discuss the matter further since he wanted certain additional information. He, therefore, in the first week of April 1991, called the officer, who supplied the necessary information in the second week of April and the appeal was filed in the 3rd week of April, Mr. Bhatt, therefore, prayed that this is a fit case wherein delay should be condoned.
4. Mr. N.J. Modi, Ld. Counsel for the opponent, on the other hand, submitted that by no stretch of imagination this can be said to be a fit case, for condonation of delay. He submitted that at all levels, there was delay and that too, gross and unexplained delay exhibiting total carelessness and inaction. Mr. Modi submitted that even though certified copy was ready for delivery and in fact delivered on February 11, 1991, it was kept lying on the table for about a month i.e. up to March 12, 1991. Except vague statements in para 1, no facts and material particulars have been mentioned by the deponent either in the first affidavit or even in the subsequent affidavit. Therefore, the delay of about one month remained unexplained. He also submitted that there is no explanation as to why the papers sent by the tax department on March 12, 1991 reached the legal department of the Corporation as late as on March 21, 1991. Likewise there is no explanation why the papers were sent by the legal department to the advocate in the High Court belatedly on March 29, 1991. Regarding subsequent period and the second affidavit, he submitted that there was no reason for the advocate of this Court to call the officer personally in the first week of April 1991 papers have been received by him. The advocate could have telephoned on March 31, 1991 or immediately thereafter. Similarly, the officer concerned ought to have rushed to the advocate immediately after receiving the information and not in the next week. Even thereafter there was delay in filing appeal, since the appeal was filed on the last day of third week of April, 1991. Mr. Modi also submitted that no particulars have been mentioned by the applicant by giving the details as to how the papers were sent, who was the officer concerned, who was called and attended the office of the advocate of the High Court and why such delay occurred. He also submitted that no affidavit is filed by the advocate with whom the file remained idle for about one month from February 11, 1991 to March 12, 1991. Even the name of the advocate has not been mentioned in any of the affidavits. He submitted that the advocate was expected to know particularly when as mentioned in the affidavits, he was having a number of Municipal Valuation Appeals that an appeal was required to be filed within 30 days i.e. on or before March 13, 1991. In spite of that, he did not do anything and therefore, the application should be dismissed with special costs.
5. In support of the above submission, Mr. Modi placed considerable reliance on the decision of the Hon'ble Supreme Court of India in the case of Ajitsingh v. State of Gujarat, reported in AIR 1981 SC 733 : (1981 Cri LJ 293), wherein the Supreme Court held that while exercising discretion in condoning delay under Section 5 of the Act, the Court should also consider the conduct of the party before the limitation expired. Mr. Modi also relied on the decision of a single Judge of this Court in Civil Application No. 2699/1991 in First Appeal Stamp No. 18611/1990 decided on 7-10-1991, and also upon a number of other decisions. I do not intend to burden my judgment by referring to all those cases, but a mention must be made to two decisions of the High Court of Allahabad in the case of State of Uttar Pradesh v. Phota, reported in AIR 1991 All 229 and State of Uttar Pradesh v. Surendranath, reported in AIR 1992 All 127. In Phota's case (supra), after considering the case law on the point, "precise legal position" as understood by a single Judge of the Allahabad High Court has been summarised thus :
"(i) State and the private individual both stand on the same fooling and should be treated alike. In the case of the State however, while construing the cause shown the Court should be alive to the impersonal nature of State machinery loaded as it is with inherited bureaucratic methodology inspired with note-making, file-pushing, and passing on the buck ethos. Thus some delay may be inevitable and this should receive a more liberal consideration and is not to be viewed in a pedantic manner.
(ii) Approach in considering the cause shown should be such which would advance the cause of substantial justice rather than throttle it.
(iii) The party which seeks condonation must also bear the burden of showing that despite all necessary steps being taken to file the appeal within time it failed due to cause beyond its control. There must be absence of negligence or inaction and also no lack of bona fide, should be attributable to it.
(iv) Only on crossing these hurdles can an application for condonation succeed. However, each case deserves to be decided on its own facts and circumstances and no strait-jacket formula can be prescribed."
Relying on the above principles and particularly the etalicized (here underline) portion of principle 3, Mr. Modi submitted that according to the well established principle of law, the party who seeks condonation of delay must show that despite necessary steps taken to file appeal within time, he failed to do so due to cause 'beyond his control'. Mr. Modi submitted that applying the above principle, it cannot be said that sufficient cause has been shown by the applicant and that the applicant could not file appeal within time due to circumstances 'beyond his control. In the alternative he submitted that even if the connotation "sufficient cause" is construed liberally, in the facts and circumstances of the present case, delay has not been properly explained and there is total carelessness, culpable negligence and inaction on the part of the applicant and on that ground also, the Court may not exercise discretion in favour of the applicant.
6. Looking to the leading decisions of the Supreme Court in Ramlal v. Rewa Coalfield Ltd., reported in AIR 1962 SC 361 : (1961 All LJ 815), State of West Bengal v. Howrah Municipality reported in AIR 1972 SC 749; Sandhya Rani v. Sudha Rani reported in AIR 1978 SC 537, Collector of Land Acquisition v. Katiji, reported in AIR 1987 SC 1353 and G. Ramagowda v. Special Land Acquisition Officer, Bangalore, reported in AIR 1988 SC 897, the principle appears to be that the connotation "sufficient cause" should receive a liberal construction so as to advance substantial justice and ordinarily, delay in preferring appeal should be condoned, when no negligence or inaction or want of bonafide is imputable to a party. Mr. Modi, no doubt, submitted that relying on various decisions of the Supreme Court including Katiji's case (supra), the High Court of Allahabad carved out principles extracted above. Mr. Modi, however, could not cite any judgment either of the Hon'ble Supreme Court or of this Court wherein the expression "sufficient cause" under Section 5 of the Act has been construed as cause 'beyond the control' of a party. The judgment of the High Court of Allahabad is not binding on this Court. However, without expressing any opinion about the correctness or otherwise of the interpretation adopted by the High Court of Allahabad, would prefer to decide the point on the basis of the statutory provisions and the decisions of the Supreme Court than on the basis of the principles deduced by the High Court of Allahabad, following the decisions of the Supreme Court.
7. In my opinion, the Court has to bear in mind the principle of 'substantial justice' and if the expression 'sufficient cause' has to receive liberal construction, in the facts and circumstances of the case, sufficient cause can be said to have been made out by the applicant. For that purpose, in my opinion, it is altogether immaterial whether the advocate could have telephoned the officer concerned; whether the said officer could have immediately rushed to the advocate in the High Court; or whether the appeal could have been filed little earlier. The question is whether there is inaction, negligence or want of bona fides as observed by the Supreme Court. According to me, it cannot be said that any of the above elements is present in the instant case. 'Sufficient Cause' has been made out by the applicant Corporation in approaching this Court in filing the appeal and accordingly delay is required to be condoned.
8. In my judgment, the legal position cannot be disputed that the provisions of the law of limitation must be applied to all persons equally and uniformly. Government departments and local authorities cannot claim any privilege in that regard and they must be treated on par with private individuals. However, as observed by the Supreme Court, the realities of life also cannot altogether be ignored. Whereas a private individual takes a decision one way or the other almost instantaneously, a democratic government or a bureaucratic department hesitates and halts, discusses and debates, considers and consults, peeps through papers and files, speaks through notes and drafts, moves horizontally and vertically till at last it gravitates towards a conclusion, unmindful and oblivious of urgency and emergency.
9. Looking to the principles laid down by the Hon'ble Supreme Court arid applying them to the case on hand keeping in mind, the hard realities, I have no hesitation in holding that there is no inaction, want of bona fides or negligence on the part of the applicant Corporation in approaching this Court and delay of 38 days should be condoned in the larger interest of justice.
10. In the result, this Civil Application is allowed and the prayer for condonation of delay is granted. Delay is condoned. Rule is made absolute. However, in the facts and circumstances of the case, the applicant Corporation will pay costs of Rs. 500/- to the opponent. The applicant will pay the amount of costs to the opponent on or before September 1, 1992.