7 Sep 2010

Delay in Departmental appeals should also be within limit: High Court

Delay in filing of appeal is one of the major reasons as to why such appeals are not entertained and dismissed at the very threshold. While equality demands that both Government and private litigants should be treated at the same platform and only those instances were delay is for a justifiable reason that it be condoned. However the law has taken a different turn as far as its applicability in India is concerned. The Supreme Court time and again has held that relative leniency be shown while dealing with applications for condonation of delay in Governmental appeals in as much as the Government officers are required to follow cumbersome procedure for filing appeals. 

However we recently came across a decision the Bombay High Court has declared that this is not an inflexible rule. In as much as one of the judges who gave that decision is now elevated to the Supreme Court and also that the decision represents a much-needed shift from the traditional rule, highlighting the breeding of incompetency behind such rules, we though it fit to rub up the decision on this blog. 

The Bench observed on the policy of law to this effect as under;
12. The law of limitation is normally to be construed strictly as it has the effect of vesting for one and taking away right from the other. To condone the delays in a mechanical or a routine manner may amount to jeopardizing the legislative intent behind Section 5 of the Limitation Act. Statutes of limitation are designed to effectuate a beneficent public purpose viz. to prevent the taking away from one what he has for long been permitted to consider his own and on the faith of which he plans his life, habits and expenses. Long dormant claims are often more of cruelty than of justice in them. This principle is more based on public policy. Its aim being to secure the quiet of the community and to prevent oppression. These rules have been viewed by some as an infamous power created by positive law to decrease litigation and encourage dishonest defences. This may not be wholly true but still the limitation vests a definite right in a party after a lapse of period prescribed under law. It interpose a statutory bar after a certain period giving quietus to the rights arising from a judgment which is sought to be impugned. In other words, the law of limitation is thus founded on public policy. It is enshrined in the maxim “interest reipublicae ut sit finis litium(it is for the general welfare that a period be part to litigation). The very scheme of proper administration of justice pre-supposes expediency in disposal of cases and avoidance of frivolous litigation. Where the parties chose to sleep over their rights for prolonged periods without any just cause, can hardly  claim equity in justice particularly faced with the statutory provisions of Section 5 of the Act. In construing enactments which provide period of limitation for institution of proceedings, the purpose is to intimate people that after lapse of certain time from a certain event, a proceeding will not be entertained where a strict grammatical construction is normally the safe guide. Law is not an exercise in linguistic discipline but the substance of legislative intention can also not be frustrated merely by uncalled for equity or sympathy.  (Reference : U.N. Mitra's L aw of Limitation and Prescription, 12th Edition 2006).
13. In the case of Banarasi Das vs. Income Tax Officer, AIR 1964 SC 1742, the Supreme Court clearly stated the principle that the provisions introduced to open up liability which had become barred by lapse of time will be subject to the rule of strict construction. This principle has prevailed may be with some variation relatable to the sufficiency of cause shown by the parties.
14. Even in the case of J. K. Cotton Spinning & Weaving Mills vs. Collector of Central Excise, AIR 1998 SC 1270, it was held that a limited provision within which steps have been taken for recovery of duties not levied or not paid or short levied or short paid or erroneously refunded, is again subject to the rule of strict construction.
15. To law of limitation, the argument of hardship or alleged injustice has to be applied with greater care. The argument “ab inconvenientisaid Lord Moulton, “is one which requires to be used with great caution”. (Reference : Principles of Statutory Interpretation by Justice G.P. Singh, 11th Edition 2008).
16. The essence of the above enunciated principle thus reflects a simple but effective mandate that a provision must be construed on its plain and simple language. The provision of limitation should be construed strictly but at best its application could be liberalised where actual sufficient cause in its true sense is shown by an applicant who has acted bona fide and with due care and caution. An interpretation or application of the statutory provisions which would frustrate its very object necessarily has to be avoided.
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20. The law of procedure undisputedly takes in its ambit and scope the need to act expeditiously and not to delay the progress of the legal proceedings. The law of limitation stricto senso is not law of procedure simplicitor but has the effect of creating a legal bar in exercise of a right which otherwise would have been available to a party but for lapse of time. As already noticed, the law of limitation is based on public policy and helps effective and proper administration of justice. It is expected of every litigant and particularly the litigants who have large litigation who have their own legal department and channels, to act within the period of limitation. It is only by way of an exception and upon showing sufficient cause that Appeals, if otherwise permissible, could be entertained beyond the prescribed period of limitation. It also be noticed that in the case of State of West Bengal vs. Administrator, Howrah Municipality, AIR 1972 SC 749, the Supreme Court held that expression “sufficient cause” should receive a liberal construction so as to advance the purpose of justice particularly when there is no motive behind delay. This necessarily implies that parties must act bonafidely, expeditiously and with due care. A casual or a negligent litigant who has acted with utter irresponsible attitude, cannot claim the condonation of delay in law when the right has accrued to the other side.
21. How long the Courts will condone defaults as a matter of course in Government departmental cases. In recent times, the Supreme Court and various High Courts have fairly applied the principle of public accountability and trust to the action of the Government officers/officials. It is expected of the concerned authorities to formulate their system and working methodology in a way which would endeavour to achieve the object of timely disposal of administrative files as opposed to `I will deal with the matter at leisure and my convenience'. The practice of bureaucratic delay was dealt with by the Supreme Court with a pious hope that curse of Lord Curzon will not haunt wheels of administration in the case of State of Kerala vs Kumari T.P. Roshana and another, (1979) I SCC 572. The Court held as under :-
“45. We are aware that these various directions and orders call for high pressure activisation. Perhaps, we may emphasise the need for guarding against the slow march of bureaucratic movement embodied in Lord Curzon's lament respecting the administration of his time, a state of affairs wholly opposed to the dynamic fulfilment of the imperatives cast by the Constitution upon the nation and its institutions. Said Lord Curzon in a despatch to the Secretary of State :
Your despatch of August 5 arrived. It goes to Foreign Department. Thereupon Clerk No. 1 paraphrases and comments upon it over 41 folio pages of print of his own composition, dealing solely with the Khyber suggestions in it. Then comes Clerk No. 2 with 31 more pages upon Clerk No. 1. Then we get to the region of Asst. Secretaries, Dy. Secretaries and Secretaries. All these gentlemen state their worthless views at equal length. Finally we get to the top of the scale and we find the Viceroy and Military Member, with a proper regard for their dignity, expanding themselves over a proportionate space of print. Then these papers wander about from Department to Department and amid the various Members of Council. I am grappling with this vile system in my own department, but it has seated itself like the Old Man of the Sea upon the shoulders of the Indian Government and every man accepts, while deploring the burden.
Hopefully, we part with this case with the though that there will be no occasion for any party to move for extension of time or to prove that the curse Lord Curzon spelt out still haunts the wheels of administration. The appeal is allowed; so also the writ petition – in the manner and to the extent we have directed. The parties will bear their costs. The decisional guidelines herein given will, we dare say, so help dispose of the many writ petitions pending in the High Court. The journey to the Supreme Court is not always necessitous for final justice.
22. Despite use of such frank language, the expectation of the Courts that the Departments would file their Appeals in time and deal with such matters administratively with expeditiousness have resulted in fox pass. There is hardly any improvement. On the contrary, the period of delay has increased from days to months and months to years. Quantum of litigation by itself may justify in given cases part of delay, but this cannot be an excuse of panacea to all delays in the different Departments of the Government.
23. In performance of their functions, public officers or public servants have the duty to act judiciously, fairly and expeditiously. An officer can hardly justify that a file would lie on his table for months or days together and he would not act on the said file just because he claims to be pre-occupied. Another argument advanced on behalf of the Department was that there are time bar cases and in that rush the officers are not able to act. Firstly, there is no specific averment in this regard with any dates in the affidavit filed in support of the Notice of Motion. Secondly, the time barring cases are completed by 31st March or immediately thereafter, while all these cases relate to the period subsequent to March of the respective assessment year. Pre-occupation of an officer or officials can be a reasonable excuse, but for a short period and nothing justifies the inaction for a pretty long period running into months. If such an excuse is to be permitted in law, then the Courts would have to completely ignore the law of limitation. Public interest imposes an obligation upon the Department as a whole to act in a channalised manner and to ensure that every appeal which is sought to be preferred by the Department is not rendered barred by time that too by inordinate and unexplained delays. In fact, some of the cases before us, particularly where the delay is more than a year, ex facie reflects negligence and callous attitude of shifting responsibilities. If the file was pending with the lawyer, there is not even an averment that the lawyer who retained the file for few months was contacted or any officer of the Department went to the lawyer to either take back the papers or to get the draft ready for filing in the Court of competent jurisdiction. It is too far fetched an excuse to be put forth before the Court of law that the lawyers retained the files for months together and the Department was so helpless that it could take no steps to file its appeals within a reasonable time. The expression “sufficient cause” will always have relevancy to reasonableness. The actions which can be condoned by the Court should fall within the realm of normal human conduct or normal conduct of a litigant. It is neither expected nor it can be a normal conduct of a public servant or a litigant that they would keep the files unmoved, unprocessed for months together on their tables. Some extent of public accountability and responsibility will have to be the basis for looking into such conduct. The consequences of such inordinate delay can be very fatal besides rendering remedy barred by law also leads to loss of public exchequer. This aspect of the matter introduces larger responsibility and consciousness in the conduct of the affairs of the revenue department. Certain amount of leverage or relaxation for departmental functions would be permissible, but this cannot be extended to the limits protecting negligence and irresponsibility simplicitor.

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