Gujarat High Court
Jamnagar Municipal ... vs Navinchandra Hansrajbhai on 1 March, 2013
Author: M.D. Shah
Bench: M.D. Shah
JAMNAGAR MUNICIPAL CORPORATIONTHROUGH COMMISSIONER....Applicant(s)V/SNAVINCHANDRA HANSRAJBHAI LAKHIYAR C/CA/13121/2012 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CIVIL APPLICATION (FOR CONDONATION OF DELAY) NO. 13121 of 2012 In CIVIL REVISION APPLICATION (STAMP NO.) NO. 278 of 2012 ============================================= JAMNAGAR MUNICIPAL CORPORATIONTHROUGH COMMISSIONER....Applicant(s) Versus NAVINCHANDRA HANSRAJBHAI LAKHIYAR & 3....Respondent(s) ============================================= Appearance: MR JAYANT P BHATT, ADVOCATE for the Applicant(s) No. 1 MS. MEGHA CHITALIYA, AGP for the Respondent(s) No. 2 - 3 MR MEHUL S SHAH, ADVOCATE for the Respondent(s) No. 1 MR SURESH M SHAH, ADVOCATE for the Respondent(s) No. 1 RULE SERVED for the Respondent(s) No. 1 - 4 ============================================= CORAM: HONOURABLE MR.JUSTICE M.D. SHAH Date : 01/03/2013 ORAL ORDER
[1] This Civil Application is filed under Section 5 of the Limitation Act to condone delay occurred in filing Civil Revision Application.
[2] Mr.S.M.Shah, learned advocate for the respondent no.1 has vehemently objected this application and submitted that averments made in the application is in reference to section 14 of the Limitation Act and in light of judgment delivered by the Hon ble Supreme Court of India in the case of Ketan Parekh v/s. Special Director, Directorate of Enforcement reported in AIR 2012 SC 683, delay should not be condoned. Mr.Shah has relied on para 21 of the said judgment. Para 21 of the judgment in the case of Ketan Parekh (supra) reads as under :-
21.
The aforesaid three judgments do support the argument of Shri Ranjit Kumar that even though Section 5 of the Limitation Act cannot be invoked for condonation of delay in filing an appeal under the Act because that would tantamount to amendment of the legislative mandate by which special period of limitation has been prescribed, Section 14 can be invoked in an appropriate case for exclusion of the time during which the aggrieved person may have prosecuted with due diligence remedy before a wrong forum, but on a careful scrutiny of the record of these cases, we are satisfied that Section 14 of the Limitation Act cannot be relied upon for exclusion of the period during which the writ petitions filed by the appellants remained pending before the Delhi High Court. In the applications filed by them before the Bombay High Court, the appellants had sought condonation of 1056 days' delay by stating that after receiving copy of the order passed by the Appellate Tribunal, they had filed writ petitions before the Delhi High Court, which were disposed of on 26.7.2010 and, thereafter, they filed appeals before the Bombay High Court under Section 35 of the Act. Paragraphs 1, 2 and 3 of the applications for condonation of delay which are identical in all the cases were as under:
"1.
The Appellant above named has preferred an Appeal against the order dated 2nd August 2007 (hereinafter referred to as the "impugned order") passed by the Respondent No.1 against the Appellant above named. The Appellant states that the impugned order was received by the Appellant on 5th October 2007. The Appellant states that there is a delay of 1056 days in filing the above appeal, the reasons for which are being stated in detail hereunder and, therefore, the Appellant above named prays that the delay in filing the present appeal may please be condoned.
2. RELIEFS SOUGHT :
(a) That this Hon'ble Court be pleased to condoned the delay of 1056 days in filing the said Appeal;
(b) That such further and other reliefs as the facts and circumstances may require.
3. REASONS FOR THE DELAY :
3.1 The Appellant declares that there is delay of 1056 days in filing the appeal as prescribed in the Limitation Act, 1963.
3.2 The Appellant further states that the delay occurred as the Writ Petition was filed before Delhi High Court on 5th November, 2007. The said writ was filed under the provisions of Articles 226 and 227 of the Constitution of India seeking issuance of a writ order or direction in the nature of Mandamus or any other writ for setting aside the impugned order dated 2nd August, 2007, passed by the Appellate Tribunal for Foreign Exchange under Rule 10 of the Adjudicating Proceedings and Appeal, 2000 for Dispensation. In the said Writ proceedings Hon'ble High Court of Delhi had passed an order on 26th July 2010.
Vide the said order dated 26th July, 2010, while relying on the judgment of the Hon'ble Supreme Court, it was held by the Hon'ble Delhi High Court that even an order passed by the Appellate Tribunal in an application seeking dispensation of pre-deposit of the penalty would be appealable under section 35 of the FEMA and that remedy under Article 226 is not available against such an order.
Further, Hon'ble Delhi High Court also held that the present petition cannot be entertained by this Court. It is, however, open to the Appellant's to avail of the appropriate remedy in terms of para 45 of the above judgment of the Supreme Court.
3.3 Hence, pursuant to the said order passed by Hon'ble Delhi High Court the Appellant above named prefers an appeal before this Hon'ble Bombay High Court.
3.4 Under the said circumstances the Appellant most humbly prays that this Hon'ble Court may be pleased to condone the delay.
3.5 It is submitted that the delay, in filing of the present Appeal has not prejudiced the Respondent in any manner, whatsoever, and, therefore, this Hon'ble Court be pleased to condone the said delay.
3.6 It is, further submitted that the delay of 1056 days in filing the present Appeal was bonafide, unintentional and inadvertent."
[3] It is further submitted by Mr.Shah, learned advocate for the respondent no.1 that in para 3 of the present application, it is mentioned that bona fide mistake was committed by the applicants by filing appropriate proceedings before wrong forum and after getting advise from the advocate, the applicant approached this Court with delay condonation application considering section 14 of the Limitation Act. Therefore, it is requested to dismiss the application.
[4] So far as reliance placed by the learned advocate for respondent no.1 decision of the Hon ble Supreme Court in the case of Ketan Parekh (supra) is concerned, in the said case, there was no averment that appellants had been prosecuting before wrong forum and they could not file application and so application was rejected. In the present case, specific averments are made in para 3 of the application that bona fide mistake was committed by the applicants by filing proceedings before the wrong forum. Therefore, this decision is not helpful to the respondent no.1.
[5] Having heard learned advocate for the respective parties and taking into consideration averments made in the application, more particularly para 3 of the application, the application is allowed. Delay caused in filing Civil Revision Application is condoned. Rule is made absolute to the aforesaid extent. No order as to costs.
[M.D.Shah, J.] satish Page 5 of 5