BHORUKA ALUMINIUM LIMITED, MYSORE v. UNION OF INDIA
1993-02-18
K.A.SWAMI, N.D.V.BHATT
body1993
DigiLaw.ai
K. A. SWAMI, C. J. ( 1 ) THIS appeal is preferred against the order dated 3-2-1993 passed by the learned single judge in writ petition No. 21339 of 1989 on the interlocutory application filed by the respondents for extension of time. The learned single judge has allowed the application and extended the time by another two weeks from the date of the order. The order of the learned single judge reads thus: "this court had passed an order on 13-12-1990 setting aside the order made by the collector and remanded the matter to him to make fresh order in accordance with law with certain directions as to the proceedings within a period three months from 13-12-1990. Inasmuch as the respondent could not make such an order within that time, another application was made for extension of time and that application was allowed. It is now submitted that as the respondent could not have passed an order within that period also for the reasons set out in la. No. I and in the affidavit in support of the la, two weeks time is prayed for. The time shall stand extended by another two weeks from today. La. I is disposed of accordingly. ( 2 ) THE contention of Shri chander kumar, learned counsel appearing for the appellants is that on the expiry of three months from the date of receipt of the order dated 13-12-1990 passed in writ petition No. 21339 of 1989, the collector ceased to have jurisdiction to adjudicate as he was granted time by this court to adjudicate within three months from the date of receipt of the orders. Therefore, the court had no jurisdiction to extend time for passing an order de novo; because on the expiry of three months a right was accrued to the appellants to seek refund of the amount of Rs.
Therefore, the court had no jurisdiction to extend time for passing an order de novo; because on the expiry of three months a right was accrued to the appellants to seek refund of the amount of Rs. 28,52,556/- which was paid under protest before the order of adjudication was passed, and the same was set aside in the writ petition No. 21339 of 1989; that by reason of extension of time for passing the Order, the right to seek refund of the said amount has been affected and it has rendered infructuous the writ petition No. 356 of 1993 filed by the appellants on 6-1-1993 for issue of a writ in the nature of mandamus to the respondents to refund the aforesaid amount and in which the Rule has been issued. It is also further contended that the order under appeal amounts to review of the order dated 15-12-1992, as by the order dated 15-12-1992 a similar application was dismissed. Therefore, it is contended that there are no grounds for review; hence the learned single judge has acted in excess of the jurisdiction in extending the time. ( 3 ) ON the contrary, it is contended by the learned senior standing counsel for the central government that the extension of time for adjudication does not amount to review of the earlier order; it is an order passed in exercise of the inherent jurisdiction of the court in aid of justice; and therefore there is no question of review as the original order passed on 13th december, 1990 stands undisturbed. It is also further contended that the appeal has become infructuous because pursuant to the order dated 3-2-1993 the collector has passed an order of adjudication on 5-2-1993 and it has also been served upon the appellants. A copy of the order passed on 5-2-1993 was also produced before us. When a copy of the order was produced before us, we specifically asked the learned counsel appearing for the appellants as to whether he would like to reserve the right to urge the contentions raised in the appeal instead of seeking decision at the hands of this court. Learned counsel submitted that the contentions may be decided. Therefore, we now proceed to examine the correctness of the contentions urged before us. ( 4 ) IT is relevant to notice that prior to adjudication made on 31-7-1989 in c. no. V/ch.
Learned counsel submitted that the contentions may be decided. Therefore, we now proceed to examine the correctness of the contentions urged before us. ( 4 ) IT is relevant to notice that prior to adjudication made on 31-7-1989 in c. no. V/ch. 76/15/134/88 c. 1 by the collector of central excise, central revenues building, queen's road, Bangalore, a sum of Rs. 28,52,556/- was paid by the appellants under protest and that amount was adjusted towards the assessment dated 31-7-1979 referred to above. The validity of the aforesaid order of assessment was challenged in writ petition No. 21339 of 1989. Learned single judge of this court allowed the writ petition, quashed the order dated 31-7-1989 passed by the collector of central excise and remanded the case for fresh consideration. The operative portion of the order dated 13-12-1990 reads thus:"in the circumstances the order Annexure 'k' passed by the collector of central excise, on 31-7-1989 is quashed. The matter is remanded to him to make a fresh order in accordance with law and after complying with the request made by the petitioner furnishing all the necessary extracts and other information referred to in the letter dated 25-7-1989 and suitably reply his letter. Since the petitioner has deposited the disputed duty even before adjudication; the collector is directed to make the de novo order within three months from the date of receipt of this order. " ( 5 ) FROM the aforesaid order it is thus clear that the collector was directed toadjudicate the matter within a period of three months from the date of receipt of the order because a sum of Rs. 28,00,000/- and odd paid by the appellants earlier to the order of adjudication was with the central government. The collector did not make adjudication within the time allowed by this court. According to the respondents, the order of this court was received on 7-1-1991. Thus the time granted by this court expired on 7-4-1991. An application for extension of time was filed only on 24-1-1992. That application was considered and an order was passed by this court on 3rd november, 1992 in the following terms:"in the circumstances set fourth in la. I, it is appropriate to extend the time granted by this court for completing the adjudication of the proceedings by a period of 8 weeks from the date of the order made earlier.
That application was considered and an order was passed by this court on 3rd november, 1992 in the following terms:"in the circumstances set fourth in la. I, it is appropriate to extend the time granted by this court for completing the adjudication of the proceedings by a period of 8 weeks from the date of the order made earlier. "a reading of the aforesaid order makes it clear that though the learned single judge held that it was necessary to extend the time, but however while passing the order in the last portion of the order extension was granted for 8 weeks from the date of the order made earlier. The earlier order is the one passed on 13-12-1990 which granted three months time. Therefore, it is clear that the words 'made earlier' appear to be a mistake or a typographical error, because the order itself makes it clear that the intention of the court was to extend time by 8 weeks from the date of the order. This was realised by the respondents. Therefore, they made an application on 4-1-1993. Before the application dated 4-1-1993 was made, it may also be relevant to notice, there was a memo filed by the respondents for posting the matter for being spoken to, on the ground that there was an error in the order. However, that memo was opposed to by the appellants herein; therefore, the learned single judge passed an order on 15th december, 1992 as follows: "heard. No orders are necessary. " ( 6 ) THE objection, according to the learned standing counsel for the central government, raised by the appellants was that no order could be passed on a memo; therefore the respondents filed an application on 4-1-1993 for extension of time. This was allowed on 3-2-1993. 6. 1, the order passed by the learned single judge on 3-2-1993 has already been reproduced. Thus, it is clear that the mistake that had occurred in the order dated 3-11-1993, came to be rectified by extending time by 8 weeks from the date of the order. The contention of Sri chander kumar, learned counsel appearing for the appellants is that the learned single judge had no jurisdiction to extend time and similarly the contention that it amounts to review cannot at all be accepted.
The contention of Sri chander kumar, learned counsel appearing for the appellants is that the learned single judge had no jurisdiction to extend time and similarly the contention that it amounts to review cannot at all be accepted. RA> ( 7 ) IT may be relevant to notice that any time specified by this court for exercise of jurisdiction by the authorities functioning within the jurisdiction of this court is not final and it can be extended from time to time. In extending the time for passing necessary orders in exercise of legitimate jurisdiction of the authorities functioning within the jurisdiction of this court, this court will not be reviewing its earlier order; it will only be enabling the authorities to exercise their jurisdiction. Such orders as observed by the Supreme Court are in essense procedural orders in terrorem to avoid dilatory tactics by the litigants and also to avoid delay on the part of the authorities to complete the proceedings. They do not however completely estop the court from taking note of events and circumstances which happened within the time fixed. It is also relevant to notice that the power to extend time from time to time vests in the court in order to do Justice to the litigants, if sufficient cause is shown. (see mahanth ram das v ganga das, AIR 1961 SC 882 ). At this stage, it may also be relevant to notice para 8 of the judgment of the Supreme Court in shivdeo singh and others v State of Punjab and others, AIR 1963 SC 1909 , which reads thus:" (S) the other contention of Mr. Gopal singh pertains to the second order of khosla, j. , which, in effect, reviews his prior order. Learned counsel contends that article 226 of the Constitution does not confer any power on the high court to review its own order and, therefore, the second order of khosla, j. Was without jurisdiction. It is sufficient to say that there is nothing in article 226 of the Constitution to preclude a high court from exercising the power of review which inheres in every court of plenary jurisdiction to prevent miscarriage of Justice or to correct grave and palpable errors committed by it. Here the previous order of khosla, j. , affected the interests of persons who were not made parties to the proceedings before him.
Here the previous order of khosla, j. , affected the interests of persons who were not made parties to the proceedings before him. It was at their instance and for giving them a hearing that khosla, j. , entertained the second petition. In doing so, he merely did what the principles of natural Justice required him to do. It is said that the respondents before us had no right to apply for review because they were not parties to the previous proceedings. As we have already pointed out, it is precisely because they were not made parties to the previous proceedings, though their interests were sought to be affected by the decision of the high court, that the second application was entertained by khosla, j. " ( 8 ) THERE fore, we do not see any justification to accept the contention of the learned counsel that the learned single judge has acted in excess of the jurisdiction in extending time. However, Sri chander kumar, learned counsel appearing for the appellants placed reliance on a decision of a learned single judge of this court in mahabala shetty and others v nagamma shedthi and others, 1968 (2) mys. L. j. 264, in which the learned single judge has held that Section 148 of the Code of Civil Procedure will not apply for extension of time for payment of the amount as directed by the court, because such a time was neither allowed nor prescribed by the code. In this case, it is not necessary even to take aid of Section 148 of Code of Civil Procedure. Further, if we have to take aid of Section 148, c. p. c. , we can say that this decision is quite contrary to the decision of the Supreme Court in mahanth ram das case, referred to by us earlier. Therefore, we are of the view that the said decision requires to be overruled. It is, accordingly, overruled. ( 9 ) WE now take up the contention that the order impugned amounts to review.
Therefore, we are of the view that the said decision requires to be overruled. It is, accordingly, overruled. ( 9 ) WE now take up the contention that the order impugned amounts to review. We have already pointed out that the order extending time to pass an order by the authority in exercise of its jurisdiction, does not amount to reviewing the earlier order because the earlier order stands in tact and what is granted is only the time for compliance with the direction issued in the earlier Order, and such extension is necessary in order to do justice, as already pointed out above. Learned counsel placed reliance on a decision of the Supreme Court, in p. n. eswara iyer, etc. V the registrar, Supreme Court of india, AIR 1980 SC 808 and contended that the review of judgment is a serious step and reluctant resort to it is proper only where a glaring omission of patent mistake or like grave error has crept in earlier by judicial fallibility; that a mere repetition, through different counsel, of old and overruled argument, a second trip over ineffectually covered ground or minor mistakes of inconsequential import are obviously insufficient; and that the very strict need for compliance with these factors is the rationable behind the insistence of counsel's certificate which should not be a routine affair or a habitual step. It is not possible to apply the aforesaid decision to the case on hand because, as we have already pointed out, it does not amount to review. The mere fact that the application was rejected on an earlier occasion will not in any way prevent the court to extend time on a subsequent application. The whole object of such exercise is to do Justice and to ensure that there is no failure of justice. It may be relevant to notice that in a case like this if the court were to take a view that on the date of expiry of the period granted earlier the authority which is required to adjudicate ceases to have a jurisdiction to adjudicate an incalculable injury would be caused, and there will be a failure of Justice if time is not extended. ( 10 ) HERE is a case where payment is due, amounting to several lakhs.
( 10 ) HERE is a case where payment is due, amounting to several lakhs. It was never the intention of the court when it had passed the order dated 13-12-1990 that if the adjudication is not made within the time stipulated i. e. , 3 months from the date of the Order, the authority will be ceased to have jurisdiction. In fact, it is not possible to interpret or hold that the court enjoys the jurisdiction which enables it to take away the jurisdiction of authorities, who are statutorily empowered to pass orders of adjudication. The court can only fix time for adjudication and the jurisdiction of fixing the time should not be exercised in such a way, so as to disable the authorities from passing the orders. Therefore, we are of the view, looked from any angle, that this is not a case in which it can be said that the learned single judge has acted in excess of jurisdiction in extending the time. On the contrary, if the learned single judge were to refuse to extend time, it would have resulted in failure of Justice amounting to deprivation of the revenue of several lakhs of rupees to the state exchequer. ( 11 ) ADDED to this, as already pointed out, the adjudication order has beenpassed on 5-2-1993, a copy of which has been served on the appellants. It is open to them to challenge the same by way of an appeal. ( 12 ) THERE fore, we see no ground to admit the appeal. It is accordingly dismissed. However, in the facts and circumstances of the case, there will be no order as to costs. --- *** --- .