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2016 DIGILAW 624 (CAL)

Calcutta Municipal Corporation v. Cricket Association of Bengal

2016-08-09

ARIJIT BANERJEE, MANJULA CHELLUR

body2016
JUDGMENT : Manjula Chellur, J. The above appeal pertains to demand of advertisement tax imposed by Calcutta Municipal Corporation so far as the advertisements undertaken within the Eden Garden grounds by the respondent Cricket Association of Bengal. We are not disposing of the appeal on merits since there is serious dispute with regard to the so-called 'sufficient cause' shown by the appellant Corporation in filing the present appeal with delay of 299 days while challenging the impugned order passed by the learned Single Judge on 24th April, 2015. 2. Tax on advertisements amounting to a sum of Rs.51,18,440/- was demanded by the Calcutta Municipal Corporation. Aggrieved by the same a writ petition in the nature of mandamus and certiorari was sought by the respondent Association. 3. After hearing the respective parties, judgment and order came to be passed on 24th April, 2015. According to the affidavit in support of this, the above application was filed by Arghya Sikder, Manager of the Advertisement Department of the Calcutta Municipal Corporation. According to him, communication of the order dated 24th April, 2015 was received in the second week of May, 2015 and he had a discussion with Chief Municipal Law Officer regarding the next course of action. It is further stated that the Chief Municipal Law Officer instructed the Deputy Municipal Law Officer to secure views of the learned Advocate who was engaged in the above matter. Accordingly, learned Junior Advocate dealing with the matter was asked to give her valued opinion somewhere in the last week of May, 2015. Since the Junior Advocate was busy with the other matters, she could not look into the matter instantly but on perusal of the order requested the Law Department to forward the matter to the Advertisement Department of the Corporation to obtain its stand since it pertains to advertisement tax. Since the Advertisement Department itself had requested the Law Department to explore the possibility of challenging the impugned order, the Advertisement Department again approached the learned Junior Advocate in the last of week of August, 2015 for her opinion so as to avoid further delay. At that juncture, learned Junior Advocate enquired about the application for certified copy of the order and further instructed to obtain such certified copy, if it was not at all applied for. At that juncture, learned Junior Advocate enquired about the application for certified copy of the order and further instructed to obtain such certified copy, if it was not at all applied for. No certified copy was applied for till then as they were only waiting for the opinion to prefer appeal. However, on going through the papers of the case, learned Advocate was of the opinion that the matter involves important legal questions as the amount demanded was huge. Learned Junior Advocate requested the Law Department in the first week of September, 2015 to obtain legal opinion from the Senior Advocate for preferring an appeal. 4. Thereafter, the Law Department is said to have forwarded all the papers including the order of the High Court to learned Senior Advocate Mr. D. Chakraborty in the third week of September, 2015 who in turn gave his opinion for preferring an appeal in the second week of October, 2015. The Law Department requested the Senior Advocate to draw memo of appeal and forward the same to the Law Department for approval. Meanwhile, Puja Vacation commenced and the Court re-opened only on 16th November, 2015. 5. In the second week of December, 2015, learned Senior Advocate after completing the draft of the memorandum of appeal forwarded the same to the Law Department and the Law Department in turn after holding discussion with the Officers of Licence Department, Advertisement Department decided to sit with the learned Senior Advocate for overall discussion. This discussion could happen only in the month of January, 2016 i.e. 14th January, 2016. There was modification of some of the grounds of appeal as per the opinion of the learned Senior Advocate. Meanwhile, necessary enquiry was made as regards obtaining certified copy, however, there was no clear information with certainties whether certified copy of the order was applied for when instructed. The application for obtaining certified copy was made on 5th February, 2016 which came to be issued only on 19th February, 2016. After re-drafting of the memorandum of appeal and completion of all formalities, only in the last week of March, 2016, it was got ready. The condonation of delay application was again prepared with all the details and in the facts and circumstances mentioned above, according to the appellants, delay of 299 days has occurred in preferring the appeal. 6. After re-drafting of the memorandum of appeal and completion of all formalities, only in the last week of March, 2016, it was got ready. The condonation of delay application was again prepared with all the details and in the facts and circumstances mentioned above, according to the appellants, delay of 299 days has occurred in preferring the appeal. 6. As against this, one of the Honorary Joint Secretaries of the respondent no.1 Association who is well acquainted with the facts and circumstances of the matter has filed an affidavit-in-opposition. According to the respondent Association, the so-called sufficient cause for the delay in filing the appeal is only for the sake of explaining the delay and on the other hand, there has been gross and deliberate breach, delay and laches on the part of the appellants in approaching the Court. Therefore, they dispute each and every explanation or statement given. According to them, 'sufficient cause' for delay has to be explained on day to day basis, which is obviously not explained to have justification for their delay. Since limitation is a statutory provision and condonation of such delay is an exception that could be granted only if proper and sufficient grounds are shown for such delay, but the entire application indicates only the negligence on the part of the appellants and its Officers in dealing with the matter in a lethargic manner. If hardship and inconvenience is caused to a particular party, no such explanation could be allowed. Since no bona fide mistake is forthcoming from the explanation and on the other hand, action of the Officers and the agents of the appellants would indicate wilful and callous behaviour in dealing with the matter, the explanation is only to circumvent the statutory provision and not genuine. All the averments made in paragraphs 13 to 16 of the application are denied and they seek dismissal of the application since it lacks bonafides. 7. In reply, the appellant's Mr. Arghya Sikder once again filed affidavit denying gross and deliberate breach, delay and laches on the part of the appellants in approaching the Court. He reiterates the same statement made in the condonation of delay application and contends that there was no negligence on the part of either of the Officers or agents of the appellants/Corporation. Arghya Sikder once again filed affidavit denying gross and deliberate breach, delay and laches on the part of the appellants in approaching the Court. He reiterates the same statement made in the condonation of delay application and contends that there was no negligence on the part of either of the Officers or agents of the appellants/Corporation. According to them, there was no justification in seeking day to day explanation for the purpose of condonation of delay and according to the appellants, the affidavit-in-opposition is thoroughly misconceived and further they contend that there was a very good case so far as merits of the appeal are concerned. According to them, respondent wants to avoid reconsideration of all the important legal questions with reference to the facts of the appeal. With the above explanation, they seek for condonation of delay. 8. Learned Senior Counsel Mr. Pronob Kumar Dutta arguing for the appellants contend that the Court should decide the matter on merits whenever it has to consider the sufficient cause in support of condonation of delay. According to them, when State is an applicant, on account of impersonal machinery coupled with bureaucratic methodology in which the system works, the Court has to understand the process of decision making since officers and agents move at very slow pace as they are encumbered with the process of pushing the files from table to table (intentional or otherwise). In other words, according to learned Senior Counsel it is a routine and, therefore, certain amount of latitude is always expected. If such latitude of the officers/agents is taken into consideration to negative the cause of the State, ultimately it is public interest which is at jeopardy and not the individual officer or the agency they rely upon. Therefore, one has to adopt a pragmatic approach in justice oriented process and decide the case on merits unless the case is hopelessly without merit. He places reliance on the case of State of Haryana v. Chandra Mani and Ors., (1996) 3 SCC 132 in support of his contention. He further contends that while considering the movement of file from table to table, which is kept, on table for a considerable time resulting in delay, Court cannot seek explanation on day to day basis. He also relies upon (1987) 2 SCC 107 Collector, Land Acquisition, Anantanag and & Anr. v. Mst. Katiji & Ors. He further contends that while considering the movement of file from table to table, which is kept, on table for a considerable time resulting in delay, Court cannot seek explanation on day to day basis. He also relies upon (1987) 2 SCC 107 Collector, Land Acquisition, Anantanag and & Anr. v. Mst. Katiji & Ors. to contend that substantial justice to parties while disposing of matters on merits should be the foundation while deciding the condonation of delay application. The sufficient cause employed is adequately a huge circle wherein Courts have to interpret the same in a meaningful manner subserving ends of justice. One cannot have a pedantic approach in expecting every day's delay being explained. He also relies upon (2015) 3 SCC 569 , Executive Officer Antiyur Town Panchayat v. G. Arumugam (Dead) by legal representatives to contend that larger public interest should always be the criterion in deciding the sufficient cause while considering an application for condonation of delay, howsoever, huge may be the delay. 9. Per contra learned counsel representing the respondent brought to our notice 1994 Supp. (2) SCC 603 (Commissioner of Wealth Tax, Bombay v. Amateur Riders Club, Bombay) in support of his contention that mere explanation of delay by mentioning the dates of movement of files between the officers concerned and the counsel is nothing but a stereo type manner which clearly indicates indifference to the subject, therefore, the contention of the appellants that there was sufficient cause for the delay cannot be accepted. He also refers to (2008) 17 SCC 448 (Pundlik Jalam Patil (Dead) by LRS. v. Executive Engineer, Jalgaon Medium Project and Another) to contend that it amounts to abuse of process of court by public authority if such public authority in order to get rid of bar of limitation takes resort to false plea. In such circumstances respondent authority cannot take advantage of its negligence. He also referred to (2012) 5 SCC 157 (Maniben Debraj Shah v. Municipal Corporation of Brihan, Mumbai) to contend that under certain conditions, however genuine the case of the party on merits, condonation of delay cannot be allowed if the explanation for delay is non specific and especially when it is created for the purpose of the explanation. With these arguments placed before us we also went through the files maintained by the appellants-corporation. 10. With these arguments placed before us we also went through the files maintained by the appellants-corporation. 10. On 20th May, 2015 on the photocopy of the impugned judgment a note is seen which says 'whether appeal to be preferred or not.' Thereafter only on 25th May, 2015 itself there is a note by one Sima Chakraborty, learned advocate advising to prefer appeal. On the letterhead of Sima Chakraborty, learned advocate on 3rd September, 2015 there is acknowledgement by the Corporation authority wherein Sima Chakraborty has requested to seek opinion from the senior advocate. Draft of appeal was sent for approval by Sima Chakraborty on 15th December, 2015. Again on 6th January, 2016 there is a note to send the draft for approval to Mr. Ghosh, learned advocate of the Corporation. Later after corrections on 10th March, 2016 draft was sent. 11. The entire file clearly indicates how the matter was dealt with indifferent attitude totally ignoring the huge demand of taxes against the respondent/writ petitioner. Even the certified copy was applied for much later than the date of impugned order somewhere in the month of February 2016. It is very clear from records at every stage with reference to above dates, the matter was treated very lightly. Except explaining the dates saying who said what the entire explanation given in the affidavit and on perusal of the papers maintained so far as seeking opinion to prefer appeal clearly indicate how the matter was dealt with, that is totally in an indifferent manner. The impersonal manner in which the attention was given clearly indicate except explaining the note making, file pushing and passing on the responsibility to others nothing seriously was thought of. The way the papers are handled from office to office, reluctance in taking immediate action is clearly indicated. But the fact remains whether this can be a valid reason to reject the prayer seeking condonation of delay. Definitely it is very difficult to approve laxity with which the papers were handled from stage to stage which ultimately resulted in delay of 299 days. The total demand is more than 50 lakhs. The amount demanded as tax on advertisement is not one time liability, it keeps recurring whenever such advertisements are done or annually as the case may be. The total demand is more than 50 lakhs. The amount demanded as tax on advertisement is not one time liability, it keeps recurring whenever such advertisements are done or annually as the case may be. Therefore, it is not absolving the liability of more than 50 lakhs once or loss of huge amount of tax once. So far as the appellants are concerned, they are dealing with public money and public property. No doubt the delay is on account of indifferent attitude since the matter is not personal. Action was taken at snail's pace since the matter is not personal. We are convinced that there have been serious lapses on the part of the officers/agents concerned who had to take a final call in preferring an appeal. 12. Under these circumstances should we condone the delay? If the application is not allowed it would affect definitely public exchequer thereby the appellant Corporation will be deprived of huge money, if they are successful so far as their stand before this Court. Time and again the Apex Court of this Country has said certain amount of latitude no doubt is always expected from this bureaucratic approach of the officers since they work in an impersonal bureaucratic set up but how long this would continue. In spite of constituting legal cells to examine the matter and to take final call on the matter huge delay is being caused. No doubt, the very nature of foundation of governmental machinery requires serious re-look into the matter. However, one cannot forget that pragmatic approach should be there in justice oriented process. At one blush one cannot totally reject the very claim of the appellants as explained in the memorandum of appeal. Though there cannot be separate standards to determine 'sufficient cause' shown by the State vis-a-vis private litigant since the public cannot directly approach the Court on behalf of the governmental machinery there has to be pragmatic approach since the imprompt action to be pursued by the officers/agents would affect the interest of public at large. We are of the opinion it is not the Corporation as such who is responsible for the delay but the officers/agents handling the matters are responsible for the latitude with which they have taken the entire exercise. We are of the opinion it is not the Corporation as such who is responsible for the delay but the officers/agents handling the matters are responsible for the latitude with which they have taken the entire exercise. The files clearly indicate delay has occurred only on account of indifferent attitude of the officers concerned in not showing the anxiety to take a final call in spite of huge money being involved in the matter. Ultimately it would lead to defeat of justice by causing delay only on account of impersonal manner in which they dealt with the files. The victim is justice and the same cannot be allowed. The deliberate lapses and inaction on the part of the officers cannot be a ground to sacrifice justice. In order to make the ends of justice meet since large public interest is involved, we are of the opinion we have to take a lenient view in the matter. Further we are of the opinion that there has to be serious action against those persons who are responsible for the present situation on account of absence of timely action. Such inaction of the officers is to be curbed and the way we can express our displeasure is by imposing costs while condoning the delay in filing the appeal. We direct the appellant/corporation to take action against those erring officials and also to recover the costs imposed by us from those officers who are responsible for the delay. They did not even bother to apply for certified copy of the impugned order till February 2016. 13. In the light of the above discussion and reasoning we allow the application for condonation of delay being G.A. 973 of 2016 on payment of cost of Rs.1,00,000/-. Arijit Banerjee, J. - I agree.