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2014 DIGILAW 1743 (BOM)

Essel Propack Ltd. v. State of Maharashtra

2014-08-05

A.S.CHANDURKAR, A.S.OKA

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Judgment : Oral Judgment: (A.S. Chandurkar, J.) 1. Notice for final disposal of the Writ Petition was issued as per order dated 29.1.2014. Though in the Writ Petition, there is a challenge to the assessment and the demand notice dated 26.5.2008 as well as the order dated 1.3.2012 passed by the learned District Judge-5, Thane refusing to condone the delay, the challenge in the Writ Petition has been confined to the order dated 1.3.2012 refusing to condone the delay. Hence, in view of the limited challenge raised in the present Writ Petition, the same is taken up for being decided finally as per the aforesaid order. The respondent Nos.2 to 4 are duly served with the notice for final disposal of the Writ Petition. 2. Rule. Rule made returnable forthwith and heard finally. None appears for the respondent Nos.2 to 4 though served. 3. By this Writ Petition filed under Article 226 of the Constitution of India, the petitioner seeks to challenge the order dated 1.3.2012 passed by the learned District Judge-5, Thane in Civil Misc. Application No.218 of 2011 rejecting the application for condonation of delay in filing Municipal Appeal under provisions of Section 411 of the Bombay Provincial Municipal Corporations Act, 1949 (for short, "the said Act"). 4. The facts insofar as they are relevant to consider the aforesaid challenge are that :-The petitioner is a Company engaged in the manufacture of various plastic items. Its factory is located at village Pawne, Navi Mumbai. It is a case of the petitioner that it had imported certain components for the assembly of machineries within its jurisdiction. In that context, on 26.5.2008 a notice of demand of cess was issued by the authorities of the Navi Mumbai Municipal Corporation. The petitioner had filed Writ Petition No.4900 of 2008 challenging the aforesaid demand notice. However on 4.12.2008, the said Writ Petition was permitted to be withdrawn with a liberty to file an appeal under provisions of the said Act. The petitioner filed an appeal on 16.12.2008 along with an application for condonation of delay. Said appeal however came to be dismissed on 17.2.2009 as the petitioner failed to remove the objections therein. The petitioner thereafter filed an application for recalling the order dated 17.2.2009. Said application came to be dismissed on 29.10.2010 and the petitioner thereafter filed First Appeal along with application for condonation of delay in filing said First Appeal. Said appeal however came to be dismissed on 17.2.2009 as the petitioner failed to remove the objections therein. The petitioner thereafter filed an application for recalling the order dated 17.2.2009. Said application came to be dismissed on 29.10.2010 and the petitioner thereafter filed First Appeal along with application for condonation of delay in filing said First Appeal. By an order dated 20.7.2011, the application for condonation of delay was rejected on the ground that the appeal before the High Court itself was not maintainable. The petitioner's remedy of challenging the said order by filing an appropriate proceeding was kept open. Thereafter the petitioner filed aforesaid Civil Misc. Application on 20.8.2011 and the same came to be dismissed on 1.3.2012 on the ground that the petitioner had failed to make out sufficient cause for condoning the delay in filing said appeal. It is said decision which is challenged in the present Writ Petition. 5. Shri Prakash Shah, the learned Advocate appearing for the petitioner submitted that the learned District Judge-5, Thane erred in rejecting the application for condonation of delay. It was submitted that sufficient cause had been shown for the delay as caused in preferring the appeal under Section 411 of the said Act. It was submitted that the delay as caused was on account of the reasons beyond control of the petitioner and that the petitioner had been diligently prosecuting its remedy under the said Act. It was further submitted that the petitioner had approached this Court on two occasions but the proceedings were directed to be presented before the lower Appellate Court on account of a remedy in that regard being available. It was therefore submitted that the delay as caused was not deliberate and the same ought to have been condoned in the interest of justice. It was further submitted that though the petitioner had raised an objection to the demand made in the year 2008, till date there was no adjudication on the same. The learned Counsel therefore urged that the delay in filing the aforesaid appeal be condoned and the appeal itself be directed to be decided on merits. 6. As stated above, despite notice being issued to the respondent Nos.2 to 4 for final disposal of the Writ Petition, the said respondents have not appeared to contest the present Writ Petition. The record indicates that the said respondents were served as on 28.4.2014. 6. As stated above, despite notice being issued to the respondent Nos.2 to 4 for final disposal of the Writ Petition, the said respondents have not appeared to contest the present Writ Petition. The record indicates that the said respondents were served as on 28.4.2014. The Writ Petition was thereafter listed on 2.5.2014 after which it came to be adjourned to 14.7.2014. 7. Shri V.P. Malvankar, the learned AGP appears for the respondent No.1. Said respondent is a formal party to the Writ Petition. 8. The facts on record indicate that on 26.5.2008, a demand was made by the Municipal Authorities for an amount of Rs.17,24,546/-. This demand was immediately challenged by the petitioner by filing Writ Petition No.4900 of 2008 before this Court on 24.6.2008. In view of an objection raised by the Municipal Authorities in their reply, the petitioner was permitted to withdraw the said Writ Petition and liberty was granted to it to file an appeal within a period of two weeks from 4.12.2008. Pursuant to aforesaid liberty, the petitioner filed an appeal under Section 406 of the said Act on 17.12.2008 along with an application for condonation of delay. The record indicates that notice was ordered to be issued on the application for condonation of delay. However, the said matter remained under objection and till 17.2.2009 the office objections were not removed. Hence on said date the learned in-charge Civil Judge, Senior Division, Thane dismissed the proceedings under provisions of Order VII Rule 11 of the Code of Civil Procedure. The petitioner thereafter on 16.4.2009 filed an application for recall of the order dated 17.2.2009. The rozanama dated 30.10.2009 indicates that on said day the Counsel for both the sides were heard and the matter was adjourned to 20.11.2009. The matter was thereafter again adjourned on various occasions and ultimately on 29.10.2010 on account of absence of the applicant and his counsel, the application for recall of the order came to be rejected. The petitioner being aggrieved by said order approached this Court again by filing First Appeal along with an application for condonation of delay. The learned Single Judge on 20.7.2011, after noting that an appeal against the impugned order was maintainable before the District Court under provisions of Section 411 of the said Act held that the said First Appeal was not maintainable in this Court. The learned Single Judge on 20.7.2011, after noting that an appeal against the impugned order was maintainable before the District Court under provisions of Section 411 of the said Act held that the said First Appeal was not maintainable in this Court. The proceedings were disposed of by keeping the remedy of the petitioner open. 9. Thereafter 20.8.2011 the petitioner approached the District Court by filing the proceedings under Section 411 of the said Act along with an application for condonation of delay. It is on said application that the impugned order has been passed whereby delay in filing said proceedings has not been condoned. 10. From the above sequence of events, it will be clear that the petitioner had immediately taken necessary steps to challenge the demand notice dated 26.5.2008. Though legal redress was immediately taken, the same was not in a Court having jurisdiction. The petitioner first approached this Court directly and thereafter filed proceedings in the Court of the learned Civil Judge, Senior Division at Thane. On account of failure to remove the office objections, the proceedings there came to be dismissed. In the application for recall of said order, the Counsel for the parties were heard but subsequently said application also came to be rejected on the ground that the petitioner and his Counsel were absent after 30.10.2009. Again the petitioner approached this Court despite the fact that a remedy under provisions of Section 411 of the said Act was available with the District Court. 11. The aforesaid facts clearly indicate that the delay, as caused, cannot be attributed to the inaction on the part of the petitioner. The petitioner had approached this Court against the demand notice on the basis of advise as received. Thereafter though the Court of learned Civil Judge, Senior Division, Thane was approached the proceedings came to be dismissed on account of failure to remove office objections, which again cannot be directly attributed to the petitioner. Thereafter though the counsel for the petitioner was heard on 30.10.2009, said proceedings also came to be dismissed on account of subsequent absence of the Counsel. The petitioner cannot be blamed for the absence of his Counsel. Moreover, the petitioner approached this Court by filing First Appeal on the basis of the advise as received. 12. Thereafter though the counsel for the petitioner was heard on 30.10.2009, said proceedings also came to be dismissed on account of subsequent absence of the Counsel. The petitioner cannot be blamed for the absence of his Counsel. Moreover, the petitioner approached this Court by filing First Appeal on the basis of the advise as received. 12. It is therefore clear that there is no deliberate attempt on the part of the petitioner of not availing the statutory remedy within the prescribed time. Though legal redress was taken, it was before the forums not having jurisdiction to entertain the same. Moreover, legal redress was taken before such forums on the basis of advice as received. As held by the Supreme Court in the case of Rafiq & Anr. Vs. Munshilal & Anr., AIR 1981 SC 1400 , a litigant cannot be made to suffer on account of fault of his Counsel. The present is a case where the facts are evident from the record and show diligence on the part of the petitioner. It can therefore be said that reasonable and sufficient cause was shown by the petitioner to have the delay condoned. The learned Judge of the lower Appellate Court however has refused to condone the delay on the ground that the same was unexplained. It is further observed that there was inordinate delay of 687 days. 13. As noted above, from the material on record it is clear that the petitioner had taken immediate steps for challenging the notice of demand issued to it. The facts further indicate that for one reason or the other said challenge could not be adjudicated on merits. Considering the sequence of events referred to above from June, 2008 onwards, we are satisfied that the delay as caused in preferring the proceedings under Section 411 of the said Act before the District Court deserves to be condoned. Moreover, the Municipal Authorities who are respondent Nos.2 to 4 have chosen not to contest the present proceedings. Hence, we pass the following order : ORDER i. The order dated 1.3.2012 passed by the learned District Judge-5, Thane in Civil Misc. Application No.218 of 2011 is quashed and set aside; ii. The delay in filing the proceedings under Section 411 of the said Act stands condoned; iii. Rule is made absolute in aforesaid terms with no order as to costs.