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2017 DIGILAW 423 (UTT)

Rajesh Kumar v. State of Uttarakhand

2017-08-01

K.M.JOSEPH, V.K.BIST

body2017
JUDGMENT : K.M. Joseph, In this Special Appeal, the Office had noted that there is a delay of three days. As the learned counsel for the appellants had disputed that there was delay, this Court by order dated 03.03.2017 directed that the Office will further report as to how the calculation of three days of delay has been made. Thereupon, the following Office Note has been put up: “Dt. 07.03.2017 Hon’ble Court This Special Appeal has been filed in the registry on dt. 10.02.2017 i.e. the last day of winter vacation. The prescribed time of limitation has expired on dated 06.02.2017 after excluding two days required for copying. Thus, the present appeal when filed was barred by the limitation of three days. According to section 10 (1) of the General Clause Act 1897 in ‘Computation of time’, it is mentioned, ‘where by any Central Act or Regulation made after the commencement of this Act, any act or proceeding is directed or allowed to be done or taken in any Court or office on a certain day or within a prescribed period, then, if the Court of office is closed on that day or the last day of the prescribed period, the act or proceeding shall be considered as done or taken in due time if it is done or taken on the next day afterwards on which the Court or office is open’. Further, the learned counsel for the appellant desires to take the benefit of the period of vacation, however, the court or office was not closed on dt. 10.02.2017. If the applicant would have filed his appeal on dt. 13.02.2017 i.e. the reopening day of vacation, then only he could have availed the benefit of exclusion of the period of vacation. But the benefit of days of vacation could not be given retrospectively on the last vacation date i.e. 10.02.2017, when his appeal was filed. Submitted.” 2. Thereupon, we heard Mr. Bhagwat Mehra, learned counsel on behalf of the appellants and Mr. Hari Mohan Bhatia, learned Brief Holder on behalf of the State. 3. According to the learned counsel for the appellants, there is no delay. This is for the following reasons: The impugned judgment was rendered on 05.01.2017. The application for copy of the judgment was made on 06.01.2017. The date of posting of the notice on the notice board is noted as 07.01.2017. 3. According to the learned counsel for the appellants, there is no delay. This is for the following reasons: The impugned judgment was rendered on 05.01.2017. The application for copy of the judgment was made on 06.01.2017. The date of posting of the notice on the notice board is noted as 07.01.2017. The copy of the judgment was delivered on 10.01.2017. We may, incidentally, notice that it has been scaled in the presence of the Officer only on 09.01.2017. The Appeal came to be filed on 10.02.2017. There are two provisions, which we must refer to. The first provision is Section 10 of the General Clauses Act, 1897, which reads as follows: “Section 10. Computation of Time—(1) Where, by any Central Act or Regulation made after the commencement of this Act, any act or proceeding is directed or allowed to be done or taken in any court or office on a certain day or within a prescribed period, then, if the court or office is closed on that day or the last day of the prescribed period, the act or proceeding shall be considered as done or taken in due time if it is done or taken on the next day afterwards on which the Court or office is open: Provided that nothing in this section shall apply to any act or proceeding to which the Indian Limitation Act 1877 (15 of 1877) applies. (2) This section applies also to all Central Acts and Regulations made on or after the fourteenth day of January 1887.” 4. We may also advert to Section 4 of the Indian Limitation Act, which reads as follows: “4. Expiry of prescribed period when court is closed.— Where the prescribed period for any suit, appeal or application expires on a day when the court is closed, the suit, appeal or application may be instituted, preferred or made on the day when the court reopens. Explanation.— A court shall be deemed to be closed on any day within the meaning of this section if during any part of its normal working hours it remains closed on that day.” 5. According to learned counsel for the appellants, the Court was closed for winter vacations from 14.01.2017 and the Court reopened on 13.02.2017. Explanation.— A court shall be deemed to be closed on any day within the meaning of this section if during any part of its normal working hours it remains closed on that day.” 5. According to learned counsel for the appellants, the Court was closed for winter vacations from 14.01.2017 and the Court reopened on 13.02.2017. According to learned counsel for the appellants, the Appeal was filed within time as he had filed the Appeal on 10.02.2017, in order that the Appeal may come up for consideration on 13.02.2017. It is pointed out that 11.02.2017 was a second Saturday and a holiday. As already noticed, the judgment was rendered on 05.01.2017. Both Section 4 of the Limitation Act and Section 10 of the General Clauses Act are based on the principle that a party prevented from doing an act, by an act of the Court, can do so at the first subsequent opportunity. Thus, if the period for performance of an act expires on the date, which is a holiday, the doing of the act on the next date, on which the Court or Offices open would suffice. The rationale of the general principle is that the law does not compel the performance of an impossible act. 6. Section 4 of the Limitation Act does not extend or enlarge the period of limitation. See in this regard the following discussion in the case of Maqbul Ahmad and others Vs. Onkar Pratap Narain Singh and others reported in AIR 1935 Privy Council 85: “It is to be noted that there is a marked distinction in form between S. 4 and S. 14. The language employed in S. 4 indicates that it has nothing to do with computing the prescribed period. What the section provides is that, where the period prescribed expires on a day when the Court is closed, notwithstanding that fact, the application may be made on the day that the Court reopens; so that there is nothing in the section which alters the length of the prescribed period; whereas in S. 14 and other sections of a similar nature in the Act, the direction begins with the words : “In computing the period of limitation prescribed for any application,” certain periods shall be excluded.” 7. This judgment has been followed in a large number of decisions in the High Courts. This judgment has been followed in a large number of decisions in the High Courts. The provision actually amounts to a concession that what could not be done as a result of the Court being closed, the act may be performed on the day the Court reopens. Rule 10 of Chapter V of the Allahabad High Court Rules governing this Court also reads as follows: “10. Judge on duty during vacation. –(1) Criminal work shall continue to be dealt with during the vacation by such Judges as may be appointed for the purpose by the Chief Justice. They may also exercise original, appellate, revisional, civil or writ jurisdiction vested in the Court in fresh matters which in their opinion require immediate attention. Such jurisdiction may be exercised even in cases which are under the Rules cognizable by two or more Judges, unless the case is required by any other law to be heard by more than one Judge.” 8. In fact, the answer to the question depends upon the understanding of the notification for the winter vacation during which the appeal came to be filed. The same reads as follows: “HIGH COURT OF UTTARAKHAND, NAINITAL Order No. 03 Dated: 11-01-2017 In exercise of the powers conferred under Rule 10 Chapter V of the Rules of the Court, 1952, as applicable to the High Court of Uttarakhand, Hon’ble the Chief Justice, High Court of Uttarakhand is pleased to nominate the following Judges of High Court of Uttarakhand as Vacation Judge, who will exercise the powers conferred under Sub rule (1) of Rule 10 of the above mentioned Rules:- Name of the Hon’ble Judges Duration 1. Hon’ble Mr. Justice V.K. Bist 16.01.2017 to 22.01.2017 2. Hon’ble Mr. Justice Servesh Kumar Gupta 23.01.2017 to 29.01.2017 3. Hon’ble Mr. Justice U.C. Dhyani 30.01.2017 to 05.02.2017 4. Hon’ble Mr. Justice Sudhanshu Dhulia 06.02.2017 to 12.02.2017 The Vacation Judge will hold Court on every day except Saturday, Sunday and other Gazetted Holidays from 11.00 a.m. onwards and will take urgent matters only, except contempt matters. No application will be entertained in pending Civil Cases. The fresh cases filed on 13.01.2017 will be taken up on the re-opening of the Court i.e. 13.02.2017.” It is quite clear that Rule 10 read with the notification contemplates only the hearing of urgent matters. No application will be entertained in pending Civil Cases. The fresh cases filed on 13.01.2017 will be taken up on the re-opening of the Court i.e. 13.02.2017.” It is quite clear that Rule 10 read with the notification contemplates only the hearing of urgent matters. The Hon’ble Apex Court considered this question in many cases arising under the Representation of Peoples Act. In the case of Simhadri Satya Narayana Rao Vs. M. Buddha Prasad reported in 1994 Supp 1 SCC 449, the Hon’ble Apex Court was dealing with the question arising out of a situation when the High Court of Andhra Pradesh was closed for Sankranthi vacation from January 2nd to 12.01.1990 (both days inclusive). The election petition was filed on the reopening day on 15.01.1990. 13th and 14th of January, 1990 were holidays being second Saturday and Sunday. The notification issued by the High Court, inter alia provided as follows: “Notice is hereby given that the High Court of Andhra Pradesh will remain closed for Sankranthi Vacation, 1990 from Tuesday the 2nd January to Friday the 12/01/1990 (both days inclusive).” 9. It further provided that vacation Judges will sit on certain dates to dispose of applications of urgent nature unless otherwise notified. Paragraph no. 9 of the said judgment reads as follows: “9. The first para of the notification, which is the operative part, states that "the High Court of Andhra Pradesh will remain closed for Sankranthi vacation, 1990 from Tuesday the 2nd January to Friday the 12th January 1990 (both days inclusive)". The notification nowhere states that the Registry of the High Court would remain open. Notice to the effect that "the High Court of Andhra Pradesh will remain closed" cannot be understood by layman-litigant to mean that it would still be open for filing purposes. After the operative part which declares the closure of the High Court for Sankranthi vacation, the subsequent paras specifically indicate the matters which could be filed during the vacation. It is stated that two Hon’ble Judges would be the vacation Judges for the specified period and they would dispose of applications of urgent nature. The designation of two Assistant Registrars as vacation officers and the provision of notice of urgent applications to the vacation officers a day earlier of sitting of the vacation Judges, goes to show that the Registry was not functioning in the ordinary course. The designation of two Assistant Registrars as vacation officers and the provision of notice of urgent applications to the vacation officers a day earlier of sitting of the vacation Judges, goes to show that the Registry was not functioning in the ordinary course. A bare reading of the notification leaves no manner of doubt that the Andhra Pradesh High Court remained closed for all purposes except for applications of urgent nature for which vacation Judges and vacation officers were designated. There was no provision for filing of election petitions in the notification and as such the filing of the election petition by the respondents on reopening day of the High Court by invoking Section 10 of the General Clauses Act, was justified.” 10. The reasoning of the High Court was contained in paragraph no. 12 of the judgment, which reads as follows: “12. The Andhra Pradesh High Court which issued the Sankranthi vacation notification interpreted the same in the following words: It, therefore, follows that the notification referred to above, dated December 29, 1989 did not permit either of the Hon’ble Judges or the Registry to receive the election petitions during the Sankranthi vacation. As mentioned already, the notification says that the High Court of Andhra 454 Pradesh will remain closed for the Sankranthi vacation from January 2, 1990 to January 12, 1990 (both days inclusive). The nomination does not clarify that the Judges of the High Court alone would refrain from work between January 2, 1990 and January 12, 1990 and that the Registry would function normally during the said period of vacation. The notification does not even further specify that the vacation officers are authorised to receive any papers presented to them other than notices of applications of urgent nature. In the light of the specific wording contained in that notification, I bold that the High Court of Andhra Pradesh remained closed for the Sankranthi vacation from January 2, 1990 to January 12, 1990 which means that the Registry of the High Court also remained closed during the said period. It is submitted by the learned counsel for the petitioners that the High Court Registry was open during the vacation and received as many as 25 election petitions. It is not necessary in these applications to consider whether the Registry was competent to receive those 25 election petitions during the vacation. It is submitted by the learned counsel for the petitioners that the High Court Registry was open during the vacation and received as many as 25 election petitions. It is not necessary in these applications to consider whether the Registry was competent to receive those 25 election petitions during the vacation. This is not a relevant consideration for the disposal of these applications. What all is necessary to consider in these applications is whether in the light of the wording contained in the notification dated December 29, 1989, the High Court remained closed between January 2, 1990 to January 12, 1990 so as to enable the election petitioners to invoke Section 10 of the General Clauses Act. The learned counsel for the petitioners referring to the wording contained in Section 10 of the General Clauses Act tried to draw a distinction between the closure of the ’court’ and ’office’ on the last day of limitation and tried to submit that what all has been closed is the High Court but not the office. There is no scope to draw such an inference from the notification. As I have mentioned already, the High Court of Andhra Pradesh, remained closed for the Sankranthi vacation and the notification does not give room for any distinction being made between the court and the office which means the Registry of the High Court." 11. This reasoning was upheld by the Hon’ble Apex Court. 12. In the case of Nachiyappa Mudali and Ors. Vs. Ayyasami Ayyar reported in (1882) ILR 5 Mad 189, the Full Bench of Madras High Court was dealing with the 5th Section of the Limitation Act, which is parallel to Section 4 of the present Limitation Act. We may refer to paragraph nos. 9 and 10 of the said judgment. They read as follows: “9. The date on which the time for appeal expired was the 1st July and it is not denied that, in pursuance of the notification, the offices of the Courts were open and the officer appointed to receive the plaints and petitions attended twice in the week after the 1st July and before the 22nd July, and that the petition might have been presented on a date earlier than the 22nd July. 10. The Appellants contended that the petition was presented within time, in advertence to the provisions of Act XV of 1877, Section 5. 10. The Appellants contended that the petition was presented within time, in advertence to the provisions of Act XV of 1877, Section 5. The Judge held that the Court was open for the purpose of receiving plaints and petitions on the days specified in the notification and that the appeal was barred by limitation. It is objected that the terms “a day on which the Court is closed” and “the day on which the Court reopens” in Section 5 do not refer to a day occurring during the period when the sittings of the Courts are adjourned for the annual vacation. The terms on which the appellant’s Counsel relies must be construed in reference to the purpose contemplated by the section. The judicial sittings of the Court may be adjourned; but the offices of the Court may still remain open for the presentation of pleadings. The Court may be open for this purpose although the Judge is not engaged in judicial functions or is not present in the Court-house or in the place where the Court is held. The Court may also be open although there may be a temporary vacancy in the office of Judge. These contingencies were foreseen and provided for (so far as it was necessary to do so) by a series or rules issued by the Court in 1869 and still in force, and the view then entertained by the Court has the sanction of general usage in British India and in England. In this view, the Court reopened on the first day, after the 1st July, on which the offices of the District Court were opened and a proper officer attended to receive the plaints and petitions that might be presented. In the course of the argument, a further objection was taken that the notification did not refer to appeals. Although the term “petition” is applied in the Procedure Code, Section 592, to an application for the admission of an appeal, it is not now generally used to describe that application, and, if the appellants were misled by the terms of the notification, this circumstance would be a sufficient cause to excuse the delay in the presentation of the appeal. We remit for trial by the Judge the following issue: Was the delay in the presentation of the appeal occasioned by a misconception of the appellant’s part of the terms of the notification?” 13. We remit for trial by the Judge the following issue: Was the delay in the presentation of the appeal occasioned by a misconception of the appellant’s part of the terms of the notification?” 13. In the case of re Thokkudubivyanu Immaniyelu and others reported in AIR (35) 1948 Madras 521, the Division Bench of the Court was dealing with the question whether a Review petition was presented in time. The judgment was rendered on 24.01.1947. The period of limitation expired on or about 22.06.1947. The date occurred when the Court was in recess. The Court stood closed from 28th April till 4th July (both days inclusive). The Court reopened, however, on 5th July, a Saturday. On the said date the Office was open and Plaint, Appeals, Petitions and other proceedings were presented and could have been presented. But the petition was presented on the 7th of July. The contention taken was though the Court was open on 5th of July, there were no actual sitting or judicial work carried out; no Judges sat to adjudicate. The contention of the petitioner that therefore, petitioner must be treated as taking benefit of Section 4 of the Limitation Act, treating 7th of July as the day, on which the Court reopened was rejected. Therein, the Court referred to (1882) ILR 5 Mad 189, which we have already referred. The Chief Justice proceeded to hold as follows: “4. In the present instance, there is no question of the Court being open on a day during which the Court was in recess. But the question is whether, when the Court reopened on 5th July, that was the date when the petition in this instance should have been presented. It seems to me an a fortiori case in the light of the above two decisions that the petition should have been presented on the day the Court re-opened. I say it is an a fortiori case inasmuch as, in the two decisions quoted, a petition which was presented during the Court’s recess but on a day later than that when it should have been presented to the office when open for that purpose during the recess was held to be barred by limitation. I say it is an a fortiori case inasmuch as, in the two decisions quoted, a petition which was presented during the Court’s recess but on a day later than that when it should have been presented to the office when open for that purpose during the recess was held to be barred by limitation. During the argument, reference was made by learned counsel for the petitioner to two decisions reported in short notes of 69 M. L. J. 22 (C. M. P. No. 4070 of 1934) and short notes of 43 L. W. 58 (S. R. NO. 633 of 1936). Each decision was of a single Judge. I do not think it necessary to say anything further than that I am unable to agree with those decisions which are in conflict with the earlier ones, to which reference has been previously made, and they cannot be taken as pronouncements which should be followed regarding the date when an appeal, petition or other proceeding can be instituted, during or at the conclusion of a recess of any Court.” 14. Neither Section 4 of the Limitation Act nor Section 10 of the General Clauses Act is concerned with extending the period of limitation and it merely extends a concession to do a thing. We must first ascertain as to when the period of limitation expired in this case. A period of 30 days is provided to prefer a special appeal. The judgment was rendered on 05.01.2017. The appellants had applied for the judgment on the next day, namely, 06.01.2017. The judgment was ready on 07.01.2017. Delivery of the judgment was taken on 10.01.2017. The appeal was filed admittedly on 10.02.2017. The period of 30 days would expire on 06.02.2017. Therefore, the appeal filed on 10.02.2017 is beyond the period of limitation. Even discounting the time taken by the appellants to take delivery, taking into consideration the fact that the stamping took place on 09.01.2017 and noting that the delivery was taken on 10.01.2017, since the Appeal is filed on 10.02.2017, it is clearly filed beyond the period of limitation. Therefore, the question would be whether the appeal could be said to be filed within time, based on the principle of Section 10 of the General Clauses Act and Section 4 of the Indian Limitation Act, namely, it was filed on the next working day. Therefore, the question would be whether the appeal could be said to be filed within time, based on the principle of Section 10 of the General Clauses Act and Section 4 of the Indian Limitation Act, namely, it was filed on the next working day. It is to be remembered that the Court remained closed on account of winter vacations, which commenced from the 14th of January, 2017 and the Court reopened on 13th of February, 2017. 15. The argument of Mr. Bhagwat Mehra, learned counsel for the appellants is that the Office remained open on 10.02.2017 for the purposes of filing and the appellants wanted their appeal to come up on the day, on which the Court actually reopened after the vacations. We have noticed the purport of Rule 10 of Chapter V of the High Court Rules. During the vacations, when the High Court is closed, it remained open essentially for receipt and consideration of urgent matters in certain matters. Under Rule 10 of Chapter V of the High Court Rules, criminal work continues as usual. The vacation Judges also hear original, appellate, revisional, civil or writ jurisdiction in fresh matters, which in their opinion require immediate attention. The matter of the appellants could indeed be described as a fresh matter in the appellate jurisdiction. It was open to the appellants to, in fact, move the Vacation Bench citing urgency and it would have been for the Court to consider the matter, as it thought fit. It is not as if the appellants invoked the vacation jurisdiction of the High Court. According to the appellants, they wanted the matter to come up on the day the regular Court would sit after the vacation, namely, 13.02.2017. Therefore, the two questions which we must consider now is when the Courts closed for vacation and when the Courts would be said to have reopened. Going by the Rule, it is clear that the Courts were practically closed for all purposes except for consideration of urgent matters, as mentioned hereinbefore and also of course for the conduct of criminal work. We are aware of the principle that notwithstanding the fact that the Judges may not actually sit or carry out work, if the office remained open for the purposes of receipt of papers relating to matters then it could not be said that the Courts are closed. 16. We are aware of the principle that notwithstanding the fact that the Judges may not actually sit or carry out work, if the office remained open for the purposes of receipt of papers relating to matters then it could not be said that the Courts are closed. 16. For instance, in this case, if the office was open up to 07.02.2017, on which day the period of limitation expired for the filing of the Appeal, then filing of the Appeal on 10.02.2017 on the basis that on the said day office remained open and the appellants wish to have the matter considered on 13.02.2017 may not confer the concession contemplated in Section 4 of the Limitation Act. This is for the reason that Section 4 of the Limitation Act does not extend the period of limitation. It is only a concession to do a thing on a particular day. It may sound harsh but the way of the law must be followed in these matters. 17. We passed order dated 19.06.2017, wherein we asked the Office to report the following: (i) Whether the Office was opened on 7th, 8th and 9th February, 2017. (ii) Whether it was opened for receipt of only urgent matters, or also ordinary matters, without any urgency, could be filed on those dates.” 18. The Registry submitted the following note on 22.06.2017: “In compliance of Hon’ble Court’s order dt. 19.06.2017, it is most humbly submitted:- (i) The registry of the court remained open on 7th, 8th and 9th of February 2017 for the whole day with the regular filing time from 10 A.M. to 1:30 P.M. (ii) Further, the office remained open on these dates for filing of urgent matters only. However, ordinary matters were also entertained in the registry during the vacation court but they were not being listed before the Hon’ble Court unless supported with the urgency application.” 19. On a perusal of the note, it is clear that the Registry remained open on 7th, 8th & 9th of February, 2017 with regular filing time from 10:00 a.m. to 1:30 p.m. It is further revealed that the office remained open on these dates for filing of urgent matters only; but the office further reported that ordinary matters were also being entertained, though not listed unless supported with an urgency application. It is to be noted that the Notification issued for the vacation has specifically stated that the court would remain closed from 14th January, 2017 to 12th February, 2017. We have already noticed the relevant Rule. The Rule makes it clear that criminal matters will continue to be considered during vacation. Further, certain matters, namely, original, appellate, revisional, civil or writ jurisdiction in fresh matters, which in their opinion require immediate attention, are also mentioned. The office also remained open essentially for the said purpose, namely, receiving the matters in the office so that, after processing and noticing an urgency application, the same would be listed before the court for judicial consideration by the court. 20. Therefore, in this sense, the court would be said to have reopened only on 13th February, 2017. If the court has re-opened only on 13th February, 2017, since the period of limitation has expired during the period of vacation and invoking of Section 4 involves only availing of a concession extended by the law to do a thing on a particular day only, the filing of the appeal on 10th February, 2017 would not entitle the appellant to avail the benefit of Section 4 of the Limitation Act or Section 10 of the General Clauses Act. It is to be noticed that, even as per the office note, the appeal could have been filed even as an ordinary filing and it was being received even on 7th, 8th & 9th of February, 2017. If that is so, though the courts may have been closed, the office could be said to have been open on the said dates. 21. It is true that the Court did not call for and there is no note from the Registry regarding whether the Office was open on 06.02.2017. 06.02.2017 was a Monday and not a holiday and we think we can safely presume that as was the case on 07.02.2017, 08.02.2017 and 09.02.2017 when the Office was open even for the purpose of ordinary filing, as per the note of the Office, on 06.02.2017 also, the Office would have been open. Even if the Office was not open on 06.02.2017 certainly it was open on 07.02.2017, 08.02.2017 and 09.02.2017. Therefore, we cannot hold that filing of the Appeal on 10.02.2017 would suffice. 22. Even if the Office was not open on 06.02.2017 certainly it was open on 07.02.2017, 08.02.2017 and 09.02.2017. Therefore, we cannot hold that filing of the Appeal on 10.02.2017 would suffice. 22. It is true that the original note of the Office was that the Appeal is barred as the benefit of Section 4 of the Limitation Act or Section 10 of the General Clauses Act or rather Section 10 of the Limitation Act could have been given only if the Appeal was filed on 13.02.2017. If the Court reopened only on 13.02.2017 and the Office also remained closed for receipt of ordinary matters, on the reopening of the Courts, after winter vacations then certainly the appellant could have filed the appeal only on 13.02.2017. If the Office, however, remained open even during the vacation for receipt of ordinary matters, then having regard to the principle underlying Section 10 of the General Clauses Act or Section 4 of the Limitation Act, the appellant cannot claim that the appeal is filed within time for the reasons given in paragraph nos. 20 and 21 hereinbefore. 23. Therefore, we would uphold the objection of the office and hold that the appeal is barred. It is, however, always open to the appellant to file an application for condonation of delay.