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2017 DIGILAW 728 (GUJ)

Noormohammad Kalubhai Pattani v. State of Gujarat

2017-04-04

B.N.KARIA, M.R.SHAH

body2017
JUDGMENT : M.R. Shah, J. 1. All these applications under Section 5 of the Limitation Act has been preferred by the common applicant Noormohammad Kalubhai Pattani-original petitioner requesting to condone the huge delay of 698 days in preferring the respective Letters Patent Appeals challenging respective orders passed by the learned Single Judge passed in Special Civil Application Nos. 1498 of 2015, 1499 of 2015 and 1500 of 2015, by which, the learned Single Judge has dismissed said Special Civil Applications. 2. We have heard Shri Prabhav Mehta, learned advocate for the respective applicants- original petitioners. We have also considered the averments made in the application/applications in support of the prayer to condone the delay. However, considering the averments made in the application in support of the prayer to condone the huge delay of 698 days, we are of the opinion that no sufficient cause has been shown to condone the huge delay of 698 days. As such, it can be said that there is no explanation explaining the huge delay of 698 days in preferring the present Letters Patent Appeals. Except submitting that the applicant could not comprehend legal advise in proper perspective and also could not make necessary financial arrangement to challenge the order dated 23.3.2015 within the period of limitation, there is no explanation whatsoever. The explanation given by the applicant stated in para 3 of the application cannot be said to be sufficient explanation to condone the huge delay of 698 days. 3. We are conscious that ordinarily the Courts have liberally condoned the delay and are also expected to adopt justice oriented approach rather than giving any undue importance to the technicalities. We are also not oblivious of the fact that the delay is not to be explained by the litigant on literal sense on day-to-day basis. However, we cannot disregard the vital requirement of law that when there is no justification for delay, the substantial law of limitation cannot be marred advancing the cause of liberal approach. 4. It will not be out of place to refer to the judgment of the Apex Court rendered in case of Lanka Venkateshwarlu (D) by L.Rs. v. State of A.P. & Ors., reported in AIR 2011 SC 1199 wherein the delay was caused and there was insufficient explanation. 4. It will not be out of place to refer to the judgment of the Apex Court rendered in case of Lanka Venkateshwarlu (D) by L.Rs. v. State of A.P. & Ors., reported in AIR 2011 SC 1199 wherein the delay was caused and there was insufficient explanation. The Apex Court set-aside the order of the High Court in condoning the delay, by holding that the concept of liberal approach and justice oriented approach cannot be employed to jettison the substantial law of limitation. In the words of the Apex Court - "26. We are at a loss to fathom any logic or rationale, which could have impelled the High Court to condone the delay after holding the same to be unjustifiable. The concepts such as liberal approach, justice oriented approach, substantial justice cannot be employed to jettison the substantial law of limitation. Especially, in cases where the Court concludes that there is no justification for the delay. In our opinion, the approach adopted by the High Court tends to show the absence of judicial balance and restraint, which a Judge is required to maintain whilst adjudicating any lis between the parties. We are rather pained to notice that in this case, not being satisfied with the use of mere intemperate language, the High Court resorted to blatant sarcasms. The use of unduly strong intemperate or extravagant language in a judgment has been repeatedly disapproved by this Court in a number of cases. Whilst considering applications for condonation of delay under Section 5 of the Limitation Act, the Courts do not enjoy unlimited and unbridled discretionary powers. All discretionary powers, especially judicial powers, have to be exercised within reasonable bounds, known to the law. The discretion has to be exercised in a systematic manner informed by reason. Whims or fancies; prejudices or predilections cannot and should not form the basis of exercising discretionary powers." 4.1. The Apex Court in a decision, rendered in case of Balwant Singh [Dead] v. Jagdish Singh & Ors., reported in 2010 AIR SCW 4848 has given the test for a sufficient cause and what is to be seen is as to whether the party by the exercise of due care and attention could have avoided the delay. The Apex Court in a decision, rendered in case of Balwant Singh [Dead] v. Jagdish Singh & Ors., reported in 2010 AIR SCW 4848 has given the test for a sufficient cause and what is to be seen is as to whether the party by the exercise of due care and attention could have avoided the delay. It reiterated that sufficient powers and discretion is available with the Courts for applying this law in a meaningful manner but sufficient cause would mean presence of legal and adequate reasons. 4.2. It would be profitable to reproduce the relevant observations of the Apex Court in this case : "14. In the case of Union of India v. Tata Yodogawa Ltd., [1988 (38) Excise Law Times 739 (SC)], this Court while granting some latitude to the Government in relation to condonation of delay, still held that there must be some way or attempt to explain the cause for such delay and as there was no whisper to explain what legal problems occurred in filing the Special Leave Petition, the application for condonation of delay was dismissed. Similarly, in the case of Collector of Central Excise, Madras v. A.MD. Bilal and Co., [1999 (108) Excise Law Times 331 (SC)] : (1999 AIR SCW 4740), the Supreme Court declined to condone the delay of 502 days in filing the appeal because there was no satisfactory or reasonable explanation rendered for condonation of delay. The provisions of Order 22, Rule 9, CPC has been the subject-matter of judicial scrutiny for considerable time now. Sometimes the Courts have taken a view that delay should be condoned with a liberal attitude, while on certain occasions the Courts have taken a stricter view and wherever the explanation was not satisfactory, have dismissed the application for condonation of delay. Thus, it is evident that it is difficult to state any straight-jacket formula which can uniformly be applied to all cases without reference to the peculiar facts and circumstances of a given case. It must be kept in mind that whenever a law is enacted by the legislature, it is intended to be enforced in its proper perspective. It is an equally settled principle of law that the provisions of a statute, including every word, have to be given full effect, keeping the legislative intent in mind, in order to ensure that the projected object is achieved. It is an equally settled principle of law that the provisions of a statute, including every word, have to be given full effect, keeping the legislative intent in mind, in order to ensure that the projected object is achieved. In other words, no provisions can be treated to have been enacted purposelessly. Furthermore, it is also a well-settled canon of interpretative jurisprudence that the Court should not give such an interpretation to provisions which would render the provision ineffective or odious. Once the legislature has enacted the provisions of Order 22, with particular reference to Rule 9, and the provisions of the Limitation Act are applied to the entertainment of such an application, all these provisions have to be given their true and correct meaning and must be applied wherever called for. If we accept the contention of the Learned Counsel appearing for the applicant that the Court should take a very liberal approach and interpret these provisions (Order 22, Rule 9 of the CPC and Section 5 of the Limitation Act) in such a manner and so liberally, irrespective of the period of delay, it would amount to practically rendering all these provisions redundant and inoperative. Such approach or interpretation would hardly be permissible in law. Liberal construction of the expression 'sufficient cause' is intended to advance substantial justice which itself presupposes no negligence or inaction on the part of the applicant, to whom want of bona fide is imputable. There can be instances where the Court should condone the delay; equally there would be cases where the Court must exercise its discretion against the applicant for want of any of these ingredients or where it does not reflect 'sufficient cause' as understood in law. [Advanced Law Lexicon, P. Ramanatha Aiyar, 2nd Edition, 1997] The expression 'sufficient cause' implies the presence of legal and adequate reasons. The word 'sufficient' means adequate enough, as much as may be necessary to answer the purpose intended. It embraces no more than that which provides a plenitude which, when done, suffices to accomplish the purpose intended in the light of existing circumstances and when viewed from the reasonable standard of practical and cautious men. The sufficient cause should be such as it would persuade the Court, in exercise of its judicial discretion, to treat the delay as an excusable one. The sufficient cause should be such as it would persuade the Court, in exercise of its judicial discretion, to treat the delay as an excusable one. These provisions give the Courts enough power and discretion to apply a law in a meaningful manner, while assuring that the purpose of enacting such a law does not stand frustrated. We find it unnecessary to discuss the instances which would fall under either of these classes of cases. The party should show that besides acting bona fide, it had taken all possible steps within its power and control and had approached the Court without any unnecessary delay. The test is whether or not a cause is sufficient to see whether it could have been avoided by the party by the exercise of due care and attention. [Advanced Law Lexicon, P. Ramanatha Aiyar, 3rd Edition, 2005]." 4.3. In yet another recent decision of the Apex Court rendered in case of Postmaster General & Ors. v. Living Media India Limited & Anr., reported in [ (2012) 3 SCC 563 ], in absence of plausible and acceptable explanation, the Court refused to condone the delay mechanically only because it was a Government Wing, by observing thus - "27. It is not in dispute that the persons concerned were well aware or conversant with the issues involved including the prescribed period of limitation for taking up the matter by way of filing a special leave petition in this Court. They cannot claim that they have a separate period of limitation when the Department was possessed with competent persons familiar with court proceedings. In the absence of plausible and acceptable explanation, we are posing a question why the delay is to be condoned mechanically merely because the Government or a wing of the Government is a party before us." 5. As observed herein above, from the explanation rendered by the applicant, it can be noted that same is in general terms. In absence of any specific details and explanation, the explanation in general terms does not satisfy us. Therefore, in absence of any satisfactory explanation coming put forth for condonation of huge delay of 698 days, we are of the opinion that no liberal attitude requires to be adopted; particularly considering the inordinate delay in preferring the applications. 6. Under the circumstances, as such the present applications for condonation delay deserve to be dismissed. Therefore, in absence of any satisfactory explanation coming put forth for condonation of huge delay of 698 days, we are of the opinion that no liberal attitude requires to be adopted; particularly considering the inordinate delay in preferring the applications. 6. Under the circumstances, as such the present applications for condonation delay deserve to be dismissed. However, to satisfy ourselves prima facie whether there is any merit in the Letters Patent Appeals, we have also gone through and considered the impugned order/orders passed by the learned Single Judge. It is required to be noted that the respective petitions/petition came to be filed by the applicants- original petitioners also after inordinate delay. The case of the original petitioners was not considered by the State Government in the year 1986, 1987 and 1989 as well as in the year 2004. That thereafter, pursuant to the order passed by the learned Single Judge passed in the year 2011 another order came to be passed by the State Government in the year 2012, which came to be challenged after a period of 4 years. At this stage, it is required to be noted that the prayer was to direct the State Government to grant mining lease for Lime Stone in respect of land bearing survey No. 88 paiki admeasuring acres 80.00 guntha situated at village Akolvadi, Tal: Talala. As observed by the learned Single Judge certain area is situated in the forest of Gir where the mining lease is not permitted. Considering the aforesaid facts and circumstances when the learned Single Judge has refused to exercise the powers under Article 226 of the Constitution of India and has consequently dismissed the petitions/petition, we are, prima facie, of the opinion that same does not warrant any interference in exercise of intra court appellate jurisdiction. Under the circumstance, even otherwise the appeal lack merits. 7. Be that as it may, as observed herein above, there is no satisfactory explanation explaining the huge delay of 698 days and there is inordinate, unexplained delay of 698 days, respective applications of the applicant requesting to condone the huge delay of 698 days deserve to be dismissed and are accordingly dismissed. Under the circumstances, all these applications for condonation of delay fail and they are accordingly dismissed. Consequently, Letters Patent Appeals (ST) Nos. 511 of 2017 to 513 of 2017 as well as Civil Application (ST) Nos. Under the circumstances, all these applications for condonation of delay fail and they are accordingly dismissed. Consequently, Letters Patent Appeals (ST) Nos. 511 of 2017 to 513 of 2017 as well as Civil Application (ST) Nos. 3443 of 2017, 3447 of 2017 and 3445 of 2017 deserve to be dismissed and are accordingly dismissed.