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Madhya Pradesh High Court · body

2009 DIGILAW 767 (MP)

M ISHAQ M GULAM v. STATE OF M P

2009-07-03

DIPAK MISRA, R.K.GUPTA

body2009
Judgment ( 1. ) INVOKING the extra-ordinary jurisdiction of this Court under article 226 and 227 of the Constitution of India, the petitioner has called in question the defenciability and legal substantiality of the order dated 17. 4. 2009 passed by the M. P. Commercial Tax Appellate Board, Bhopal (for short, the Board) whereby the Board has declined to condone the delay of one month and 17 days in filing the application under Section 70 of the M. P. Commercial Act. 1994 (for brevity, 1994 act), to make a reference to the High Court on certain questions of law. ( 2. ) THE facts which are requisite to be stated are that for the assessment year 1976-77 and 1978-79 the assessee-petitioner was assessed to entry tax by the concerned assessing officer. Being dissatisfied with the order of assessment, the petitioner preferred the appeal before the Deputy Commissioner who by order dated 24. 3. 1998 rejected the appeal. Being aggrieved by the aforesaid order, the assessee preferred the second appeal before the Board of Revenue, After constitution of the Appellate Board, the appeals were transferred to the Appellate board. The appellate board by Order dated 28. 5. 2005 rejected the appeals bearing registration nos. A 1533 / CTT / 03 (Entry Tax) and A 15341 /ctt / 03 (Entry tax ). ( 3. ) AFTER the appeals were dismissed, an application was filed under Section 70 of 1994 Act seeking reference on certain questions of law to the High Court as there was delay of one month and 17 days, the application under Section 66 of the Act was filed for condonation of delay. Be it noted, section 66 of the Act clearly stipulates that the Section 5 of the Limitation Act shall apply to application for revision and reference. After dealing with the application for reference, the board came to hold that there was no justification or warrant to condone the delay inasmuch as the assessee-petitioner has been extremely negligent of his own interest and he can not ask for relief on the basis of such conduct on his part being of this view, he declined to extend the period of limitation and rejected the application preferred under Section 70 of the Act. ( 4. ) WE have heard Mr. H. S. Shrivastava, learned Senior Counsel along with mr. Sandesh Jain, learned counsel for the appellant and Mr. ( 4. ) WE have heard Mr. H. S. Shrivastava, learned Senior Counsel along with mr. Sandesh Jain, learned counsel for the appellant and Mr. Deepak Awasthy, learned Government Advocate. ( 5. ) QUESTIONING the correctness of the order, it is contended by Mr. Shrivastava, learned counsel that the Board has erroneously expressed the view that the assessee-petitioner was negligent of his own interest, though the appropriate steps were taken to file the application under Section 70 along with the application under Section 66 of the Act seeking condonation of delay. It is submitted by Mr. Shrivastava, learned senior counsel that in the application under Section 66 of the act is appropriate and adequate reasons were ascribed but the exception has been taken to the facts and credence has not been given to the fact that letters sent by the advocate were misplaced. It is urged by him that the Board has taken an ultra- technical view whereas there has to be liberal approach as regards the entertainment of application under Section 5 of the Limitation Act for the purpose of condonation of delay. ( 6. ) MR. Deepak Awasthy, learned Government Advocate resisting the aforesaid submission contended that the Board has ascribed the adequate reasons while refusing the application for condonation of delay and this Court should not exercise its extra-ordinary jurisdiction to interfere with the same. It is proponed by Mr. Awasthy that the plea that the letters sent by the counsel of the assessee were misplaced, it is difficult to lend credence and hence, the reasonings given by the board are absolutely flawless. ( 7. ) TO appreciate the rivalised submissions, raised at the bar, it is condign to refer to the application filed under Section 66 of the Act. It is submitted in the petition that the order of the Board was communicated on 15. 6. 2005 to the counsel for the applicant and counsel had sent the intimation on 20. 6. 2005 to the petitioner about the receipt of the order passed in the appeal by the Board and asked him to come to his office to file a reference. The Board, as is manifest, after narrating the facts in paragraphs 3 and 4 of the order, has held as follows: "3. 6. 2005 to the petitioner about the receipt of the order passed in the appeal by the Board and asked him to come to his office to file a reference. The Board, as is manifest, after narrating the facts in paragraphs 3 and 4 of the order, has held as follows: "3. It is laid down under Section 70 of the Act that an application for reference should be made within 60 days from the date of communication of the order of the Board. According to his own admission the order of the Board was communicated to the counsel of the applicant on 15. 6. 2005. The applicants case is that communications sent by the counsel to him were misplaced and only the last communication on 19. 9. 2005 was noticed and acted upon. 4. We have heard both the parties. Clearly the applicant has been extremely negligent of his own interest and he can not ask for relief on the basis of such conduct on his part. There has been considerable substantial time log between preparation of papers and their submission. We, therefore, decide that the limitation for this application under Section 70 of the Act can not be extended since there are neither any extenuating circumstances nor a reasonable ground for doing so. ( 8. ) THE question that emanates for consideration is whether the Board is justified in refusing to condone the delay in filing the application. In this context, we may refer with profit to the decision rendered in Collector, Land Acquisition, anantnag and another Vs. Mst. Katiji and ors AIR 1987 SC 1353 wherein their Lordships have held thus: "3. The legislature has conferred the power to condone delay by enacting S. 5 of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on merits. The expression sufficient cause employed by the legislature is adequately elastic to enable the Court to apply the law in a meaningful manner which subserves the ends of justice that being the life-purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably approach in matters instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. It is common knowledge that this Court has been making a justifiably approach in matters instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that : -1. Ordinarily a litigant does not stand to benefit by lodging an appeal late. 2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties. 3. "every days delay must be explained" does not mean that a pedantic approach should be made. Why not every hous delay, every second delay? The doctrine must be applied in a rational common sense pragmatic manner. 4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non deliberate delay. 5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of malafides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk. 6. It must be grasped that judiciary is respected not on account of its power to legalise injustice on technical grounds but because it is capable of removing injustice and is expected to do so. ( 9. ) IN G. Ramegowda, Major Vs. The Special Land Acquisition Officer, bangalore AIR 1988 SC 897 , a two-Judge bench of the Apex Court has expressed thus: "the law of limitation is, no doubt, the same for a private citizen as for Governmental authorities. Government, like any other litigant must take responsibility for the acts or omissions of its officers. But a somewhat different complexion is imparted to the matter where Government makes out a case where public interest was shown to have suffered owing to acts of fraud or bad faith on the part of its officers agents and where the officers were clearly at cross-purposes with it. But a somewhat different complexion is imparted to the matter where Government makes out a case where public interest was shown to have suffered owing to acts of fraud or bad faith on the part of its officers agents and where the officers were clearly at cross-purposes with it. Therefore, in assessing what, in a particular case, constitutes sufficient cause for purposes of S. 5 it might, perhaps, be somewhat unrealistic to exclude from the considerations that go into the judicial verdict, these factors which are peculiar to and characteristic of the functioning of the Government. Governmental decisions are proverbially slow encumbered, as they are, by a considerable degree of procedural-red-tape in the process of their making. A certain amount of latitude is, therefore, not impermissible. (quoted from the placitum)" ( 10. ) IN State of Andhra Pradesh and ors. Vs. Mcdowell and Co. and ors air 1996 SC 1623 , a three Judge Bench of the Apex Court while dealing with the conception of the condonation of delay has expressed the view as under: ". . . When the State is an applicant, praying for condonation of delay, it is common knowledge that on account of impersonal machinery and the inherited bureaucratic methodology imbued with the note-making, file pushing, and passing on the -buck ethos, delay on the part of the State is less difficult to understand though more difficult to approve, but the state represents collective cause of the community. It is axiomatic that decisions are taken by officer/agencies proverbially at slow pace and encumbered process of pushing the file from table to table and keeping it on table for considerable time causing delay-intentional or otherwise-is a routine. Considerable delay of procedural red tape in the process of their making decision is a common feature. Therefore, certain amount of latitude is not impermissible. If the appeals brought by the state are lost for such default no person is individually affected but what in the ultimate analysis suffers, is public interest. The expression sufficient cause should, therefore, be considered with pragmatism in justice-oriented approach rather than the technical detection of sufficient cause for explaining every days delay. The factors which are peculiar to and characteristic of the functioning of the governmental conditions would be cognizant to and require adoption of pragmatic approach injustice oriented process. The expression sufficient cause should, therefore, be considered with pragmatism in justice-oriented approach rather than the technical detection of sufficient cause for explaining every days delay. The factors which are peculiar to and characteristic of the functioning of the governmental conditions would be cognizant to and require adoption of pragmatic approach injustice oriented process. The Court should decide the matters on merits unless the case is hopelessly without merit. No separate standards to determine the cause laid by the State vis-a-vis private litigant could be laid to prove strict standards of sufficient cause. The government at appropriate level should constitute legal cells to examine the cases whether any legal principles are involved for decision by the Courts or whether cases require decision or give appropriate permission settlement. In the event of decision to file appeal needed responsible to file the appeal and he should be made personally responsible for lapses, if any. Equally, the State cannot be put on the same footing as an individual. The individual would always be quick in taking the decision whether he would pursue the remedy by way of an appeal or application since he is a person legally injured while State is an impersonal machinery working through its officers or servants ( 11. ) TRUE it is, the last decision was rendered in the context of latitude to be shown by the State Government because of the methodology imbued with the process of filing of appeal but the fact remains that their Lordships have expressed that there has to be justice-oriented approach in the matter of condonation of delay. The Court of law unless finds that the litigation is absolutely frivolous or is filed with the motive to procrastinate the proceeding it should adopt a liberal approach while dealing with the application for condonation of delay because the litigant comes to the court to get the lis to be adjudicated. The Court would also duty bound to deal with the factum of delay. To elaborate, if there is enormous delay and there is no acceptable explanation which would come in the realm of sufficient cause, needless to emphasise, the application for condonation of delay has to pave the path of dismissal but when there is some delay and it has been acceptably explained, the legal forum should not adopt a hyper-technical approach to throw the lis on the threshold. In the case at hand, the application for reference to the High Court was filed. There is delay of one month and 17 days. The explanation was given that the letters sent by the counsel were misplaced. Regard being had to the explanation preferred in regard to the delay; we are of the considered opinion the Board would have been well advised to condone the delay and address itself to the merits of the case and that would have been in the fitness of thing. ( 12. ) IN view of the aforesaid reasons, we quash the order dated 17. 4. 2009 passed in Ref. Appli. No. 63/ctab/05 (E T) as contained in Annexure P-I and direct the board to deal with the application under Section 70 of the Act on merits. There shall be no order as to costs. C. C. as per rules. Order accordingly.