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2016 DIGILAW 2044 (HP)

Heera Mani v. State of H. P.

2016-09-22

TARLOK SINGH CHAUHAN

body2016
JUDGMENT : Tarlok Singh Chauhan, Judge ( Oral ) The moot question involved in this petition is whether the provisions of Section 12 (2) of the Limitation Act are applicable to the appeals filed under Clause 12 of the Scheme for the appointment of Anganwari Worker/Helper (for short Scheme). 2. The learned Commissioner, Mandi, vide impugned decision dated 18.9.2015 dismissed the appeal by holding that the provisions of the Limitation Act were not applicable to the proceedings carried out under the Scheme. It is apt to reproduce the relevant observation which reads thus: “…After perusal of the record and hearing both parties I come to the conclusion that Limitation Act is not applicable in these cases as also held by the Hon’ble High Court of H.P. Shimla in the CWP cited above, hence the appeal is dismissed being time barred as this court does not have the power to condone delay of even one day, as per the High Court’s orders. The copy of this order be sent to the lower Court while returning the record of lower Court. The case file of this Court be consigned to GRR after due completion.” 3. Sections 12 (2) and 29(2) of the Limitation Act, read thus: “12.(2): In computing the period of limitation for an appeal or an application for leave to appeal or for revision or for review of a judgment, the day on which the judgment complained of was pronounced and the time requisite for obtaining a copy of the decree, sentence or order appealed from or sought to be revised or reviewed shall be excluded.” “29(2). Where by special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4 to 24 (inclusive) shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special or local law.” 4. Adverting to the question as to whether the Limitation Act applies in respect of proceedings being prosecuted in Courts appropriate or to quasi judicial proceedings also, it would be noticed that the said question is no longer res integra in view of the judgment rendered by the Hon’ble Supreme Court in M.P. Steel Corporation vs. Commissioner of Central Excise (2015) 7 SCC 58 wherein it was reiterated that the proceedings of the Limitation Act apply in respect of the proceedings being prosecuted in the Courts appropriate i.e. Courts as understood in the strict sense of being part of the Judicial Branch of the State. 5. However, it was clarified that the principles underlying the provisions of the Limitation Act may be applied to quasi-judicial tribunals so long as there is nothing in relevant statutory scheme that rules out or bars applicability of such principles. This in turn was based on the principles that the Courts always lean in favour of advancing the cause of justice where a clear case is made out for doing so, since justice and reason is at the heart of all legislation. 6. That apart, the respondents have failed to point out any clause in the Scheme which may bar the applicability of the principles of Limitation Act, more particularly, the provisions as contained in Section 12 (2) thereof. It is a settled legal position that the law does not compel the impossible. There is well known legal maxim “lex non cogit ad impossibilia” which means the law cannot compel a man to do what he cannot possibly perform. There can be no dispute that the litigant can have no access or control to have the certified copy prepared, that too, within the statutory period prescribed for filing of the appeal. This virtually would be calling upon to a person to perform an act which is impossible for him. 7. Furthermore, there is really no answer to the question that in case the certified copy of the decision is not made available within the prescribed period of limitation for filing of the appeal, would it mean that the right of the aggrieved party to file an appeal is lost?. Obviously, that cannot be the intention of the law. 8. The maxim of law ‘impotentia excusat legem’ is intimately connected with another maxim of law ‘lex non cogit ad impossibilia’. Obviously, that cannot be the intention of the law. 8. The maxim of law ‘impotentia excusat legem’ is intimately connected with another maxim of law ‘lex non cogit ad impossibilia’. ‘Impotentia execusat legem’ is that when there is a necessary or invincible disability to perform the mandatory part of the law that impotentia excuses. The law does not compel one to do that which one cannot possibly perform. “Where the law creates a duty or charge, and the party is disabled to perform it, without any default in him, and has no remedy over it, there the law will in general excuse him”. Therefore, when it appears that the performance of the formalities prescribed by a statute or Scheme etc. has been rendered impossible by circumstances over which the person interested has no control, the circumstances will be taken as a valid excuse. 9. For all the aforesaid reasons, I find that the impugned order dated 18.9.2015 passed by learned Commissioner, Mandi is not sustainable and the same is accordingly set-aside. The parties through their counsel are directed to appear before the Commissioner on 7.10.2016 and the learned Commissioner is requested to decide the case as expeditiously as possible and in no event later than 30th November, 2016. 10. With the aforesaid observations, the petition stands disposed of, so also the pending applications if any.