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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
SPECIAL LEAVE PETITON (C ) NOS. OF 2009
(Arising out of CC Nos. 3324-3326 OF 2009)
State of Karnataka …Petitioner
Versus
Y. Moideen Kunhi( dead) by Lrs. And Ors. …respondents
JUDGMENT
Dr. ARIJIT PASAYAT, J
1. The special leave petitions are directed against the judgment and order
dated 7.11.1990 in Writ Petition No.40425 of 1982 and Writ Petition
No.10920 of 1983 and order dated 26.9.2007 in Review Petition No.817 of
2004 passed by a learned Single Judge of the Karnataka High Court. It
appears that there is a delay of more than nearly 6500 days against the
original order and about 300 days so far as the review petition is concerned.
2. Before dealing with the question of delay it is necessary to take note
of the State’s case before the High Court.
3. The records disclose that the agricultural lands to the extent of 50.89
acres, 30.00 acres, 462.00 acres, 3485.83 were purchased through registered
partnership firm M/s Y. Moideen Kunhi & Company. All the lands are sub-
divisions of Sy. No.146 of Neriya Village, Puttur Taluk.
4. The declaration under Section 66 (4) of the Karnataka Land Reforms
Act, 1961(hereinafter referred to as the `Act’) was filed by the three
partners of the firm i.e.. respondent Nos. 1,2 and 3 herein for determination
of the excess holding. In the very declaration it is stated that the lands being
the plantation lands, are exempted under Section 104 of the Act. It is further
mentioned therein that all the declarants are the partners of the firm, having
1/3rd share in the properties purchased and that the declarants have furnished
the declaration without prejudice to their contentions that the provision of
the Act and the provisions of the Karnataka Ordinance No. 11 of 1975 are
not applicable to the aforesaid lands. The Land Tribunal, Belthangady by the
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order dated 27.9.1982, held that the declarants are holding the lands to an
extent of 368.16 acres in excess of the ceiling limit. The tribunal opined that
2820 acres are exempted lands. After deducting the tenanted lands and
exempted lands, the Tribunal ultimately held that an area of 530.16 acres has
to be taken into consideration for the purpose of determining excess holding.
After deducting 10 units for each of the declarants, the Tribunal held that an
area of 368.16 acres is the excess land. Thereafter the Land Tribunal suo
motu initiated review proceedings under Section 122 A of the Act for
reviewing its order dated 27.9.1982. The review proceedings were also
dropped on 10.11.1982.
5. The order of the Land Tribunal was questioned before the High Court
by the three declarants in W.P. no. 40425/1982. So also the State of
Karnataka challenged the order of the Land Tribunal by filing W.P. No.
10920 of 1983. During the course of hearing, the three declarants withdrew
W.P. No, 40425/1982. However, W.P. No. 10920/1983 filed by the State of
Karnataka was dismissed by the High Court on 7.11.1990 on merits holding
that there is no error in the order passed by the Land Tribunal.
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6. It was contended on behalf of the State that the Tahsildar being the
Secretary of the Land Tribunal should have sent the declaration filed under
Section 66 of the Act by the three declarants, to the Deputy Commissioner to
be dealt with under the provision of Section 79B of the Act, to consider the
question by the registered partnership firm is valid or not; instead he
proceeded to submit the report to the Land Tribunal which has no
jurisdiction to decide the question about the lands purchased by the firm, the
Tahsildar should not have been merely dependant upon the certificates of the
Cardamom Board and Rubber Board to conclude that the lands in question
are plantation lands, the Tahsildar has fraudulently prepared the inspection
report according to which he visited the lands in question within a day and
that he could not visit every nook and corner of the lands in question, that
the Land Tribunal should also not have entertained the declaration filed
under Section 66 of the Act as the lands have been purchased and held by
the registered firm, that the Tribunal also says that the members of the Land
Tribunal inspected the lands within one day, which is a make believe affair;
that the statement made before the High Court in W.P. No. 42774/1982 that
the excess lands have been surrendered, is also a fraud practiced on the
Court inasmuch as the declarants have not actually surrendered the excess
lands; that the learned Judge who decided W.P. No. 10920/1983 has opined
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that the Tahsildar being the Government official, there was no need to send
notice to the State or other officials, that when the Tahsildar who is directly
concerned with the case has practiced fraud, learned Judge should have
issued notice to the Deputy Commissioner or Revenue Secretary; that the
learned Judge while disposing of W.P. No. 10920/1983 has opined that the
declarants claim the lands not as partners but in their personal capacity
which is an error apparent on the face of the record as the declaration itself
has been filed as the partners of firm; that fraud vitiates everything and
therefore the order passed by the Tribunal as well as by the High Court in
W.P. No. 10920/1983 are null and void as they are obtained by the
declarants by practicing fraud. Therefore the review petition was filed.
7. Stand of the respondents on the other hand was that no fraud was
committed by the respondents or by the Secretary of the Land Tribunal.
Error of judgment cannot be equated to fraud and since there was a delay of
14 years in filing the review petition even after the Deputy Commissioner
allegedly discovered the alleged fraud on 10.2.2003 the delay in filing the
review petition which was in fact filed on 8.10.2004 has not been explained.
It was their stand that non filing of the appeal by the State will not amount to
fraud by the officials of the State.
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8. The High Court found that there was no element of fraud and,
therefore, the review petition was dismissed. However, liberty was given to
the State or the Tribunal to get the land to the extent of 368.16 acres
surrendered in accordance with law.
9. The State found that the allegation of fraud related to non surrender of
the land. Stand of the respondents was that lands were surrendered by the
declarants before the surveyor of the State who had accepted the possession.
The High Court accepted that the land was surrendered before the Tribunal
as is required under law. It was further observed that if the State felt that the
lands surrendered by the respondents are not suitable, it is open to the State
to initiate action under Section 67 (3A) of the Act. Liberty was given to the
Tribunal or the State to initiate steps for getting the land surrendered in
accordance with Section 67 by initiating necessary proceedings.
10. It is submitted by learned counsel for the appellant that this Court
while dealing with an application for condonation of delay especially those
filed by governments, has held that adoption of strict standard of proof
sometimes fails to protect public justice, and it would result in public
mischief by skilful management of delay in the process of filing an appeal.
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11. It is submitted that many government matters are delayed by either
the nature of the bureaucratic process or by deliberate manipulation of the
same by taking advantage of loopholes in the conduct of litigation.
12. By way of an example only reference is invited to Chapter 3 of a
report for the year 2003 of the Comptroller and Auditor General of India.
The chapter entitled REVIEW ON HANDLING OF APPEAL CASES IN
THE CENTRAL EXCISE DEPARTMENT reads in pertinent part as under:
3.5 Analysis of adverse decisions due to departmental lapses
3.5.1 Dismissal of Appeals on account of delay
in filing of appeals
13. As per instructions issued by the Board in October 1991, the
Commissioner of Central Excise, must ensure that all the documents
including the original certified copy of the CEGAT order, photocopies of
the order-in-original & order-in-appeal alongwith application for
condonation of delay are enclosed with the proposal sent to the Board for
filing civil appeal before the this court. The time limit prescribed for
review by the Commissionerate is 10 days from the date of receipt of
certified copy of the order. The processing of case at the Board’s office
includes drafting, vetting and finalisation of appeal. The jurisdictional
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Commissioner within 60 days may file the appeal from the date of receipt
of the CEGAT orders in the Commissionerate of Central Excise.
14. Test check of the records, in 16 Commissionerates of Central Excise,
revealed that 32 appeals filed by the department involving revenue of
Rs.50.41 crore were dismissed by this Court and 3 cases involving Rs.2.00
crore by CEGAT on account of abnormal delays in filing of the appeals.
Audit scrutiny revealed that delays had occurred at all the stages viz. receipt
of certified copy, submission of papers to the Board, examination of papers
at Board’s office, drafting of appeal by the Panel Counsel; and filing of
appeal by the CCE. The total period of delay varied. from 119 to 691 days.
Some of the illustrative cases are discussed below: –
(i) Delay by Panel Counsel
The CEGAT set aside (March 1997) an order issued by CCE in April
1992 confirming demand of Rs.29.13 crore and penalty of Rs.2 crore,
against M/s. National Organic Chemicals. India Limited, in Mumbai VI
Commissionerate of Central Excise, for invoking Section 11A without
adequate evidence of intention to evade duty. This Court on 15 January,
1999 dismissed the appeal filed by the department against the CEGAT order
dated 5 March 1997, on account of delay in filing of appeal by seven
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months. The period of delay included four months taken by the Panel
Counsel in drafting the appeal.
(ii) Delay by the Board
In the case of M/s. Time Pharma, involving revenue of Rs.1.83 crore ,
the Commissionerate of Central Excise Mumbai II (now Mumbai III)
received certified copy of the CEGAT’s order after 14 days on 4 February
1997 and sent comments to the Board after 23 days as against prescribed
period of 10 days. Although the Board decided before 17 April 1997 to go in
appeal, the appeal was filed only on 5 June 1998. This court dismissed the
appeal on the ground that there was an inordinate delay of about 360 days in
filing the appeal without giving any satisfactory explanation. The
Commmissionerate of Central Excise attributed the delay to the Board.
(iii) Supplementary appeal filed after six years Mumbai II
Commissionerate of Central Excise, filed an appeal in CEGAT on 14 June,
1993 against an order of the Commissioner dated 31 March 1992 regarding
irregular availment of SSI exemption and consequent availment of Modvat
credit at higher rates by a group of six assessees (M/s. Azo Dye Chem and
five others). The appeal was, however, filed in respect of only one assessee
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whereas the case was against all the six manufacturing units and fourteen
others being Directors and Managers of the said units. After six years, on the
instructions from Junior Departmental Representative, the supplementary
appeals alongwith application for condonation of delay in filing appeals
against the others were filed in CEGAT on 11 October 1999 under section
35 E (4) of the Act. However, CEGAT dismissed these appeals on 21 July,
2000 borrowing a Larger Bench decision dated 12 July, 2000 in the same
case where it was held that CEGAT has no power to condone the delay.
The main appeal filed in time (14 June 1993) was also dismissed by CEGAT
on 21 July, 2000 on the ground that no appeal had been filed against the
other noticee. The revenue involved in this case was Rs.1.18 crore.
(iv) Frivolous reasons for condonation
In Hyderabad I Commissionerate of Central Excise, two appeals filed
by the department against order of Commissioner (Appeals) on whether
certain products manufactured by the assessees (M/s.Neyland Laboratories
Limited and M/s. Aurbindo Pharma Ltd.) are bulk drugs under `Drugs and
Cosmetics Act’, were dismissed (17 August 2002) by CEGAT as time
barred as there was a delay of 48 days in filing the appeals. The reasons put
forth by the department that the new Collector of Central Excise needed time
to familiarize to the work were not accepted. Failure to file an appeal before
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CEGAT in time resulted in dismissal of the appeal involving revenue of
Rs.81.81 lakh.
15. It is submitted that even with the introduction of safeguards against
delay in the process, in an occasional case delay occurs which is inexplicable
in normal circumstances. The question is whether such delay, should result
in the negation of the state’s claim and at the cost of the interest of the
members of the public whose cause has not been carefully espoused. It is
submitted by the appellant-State that in such cases, delay must be visited
with consequences but the interest of the inhabitants of the State must be
protected.
In State (NCT of Delhi) v. Ahmed Jaan 2008 (11) SCALE 455 it was
held as follows:
….It is axiomatic that decisions are taken by officers/ agencies
proverbially at slow pace and encumbered process of pushing
the files from table to table and keeping it on table for
considerable time causing delay – intentional or otherwise – is a
routine. Considerable delay of procedural red-tape in the
process of their making decision is a common feature.
Therefore, certain amount of latitude is not impermissible. If
the appeals brought by the State are lost for such default no
person is individually affected but what in the ultimate analysis
suffers, is public interest. …..In the event of decision to file
appeal needed prompt action should be pursued by the officer
responsible to file the appeal and he should be made personally
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responsible for lapses, if any. Equally, the State cannot be put
on the same footing as an individual. The individual would
always be quick in taking the decision whether he would pursue
the remedy by way of an appeal or application since he is a
person legally injured while State is an impersonal machinery
working through its officers or servants”
Further at para 15 this court held that:
“… The above position was highlighted in State of Haryana v.
Chandra Mani and Ors. 1996 (3) SCC 132; Special Tehsildar,
Land Acquisition, Kerala v. K V.Ayisumma (1996 (10) SCC
634) and State of Nagaland v. Lipok AO and Ors. (2005 (3)
SCC 752). It was noted that adoption of strict standard of
proof sometimes fail to protract public justice, and, it would
result in public mischief by skilful management of delay in the
process of filing an appeal.”
16. This Court has in appropriate cases even condoned delays of over
30 years in filing of SLPs. In Nand Kishore v. State of Punjab 1995 (6)
SCC 614 this court held:
“………13. The step of the three-member Bench so taken reveal its mind
as reflected in the above proceedings. Their Lordships wanted to do
substantial justice. It was thought better to advise the petitioner to file
special leave petition. As we view this order, having invited the
petitioner to file the special leave petition, it is no longer advisable or
appropriate for us to retrace back the step put forward by the three-
member Bench. It is significant to recall that the writ application was
dismissed on 5-2-1962 and the moment Moti Ram Deka case appeared
on the scene, the appellant or 24-2-1964, within limitation, brought
forward his suit which got strengthened by Gurdev Singh case appearing
within a couple of months of its filing. The appellant-special leave
petitioner was thus bona fide pursuing an appropriate remedy for all
these years. In these circumstances, we think that an appropriate case for
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condonation of delay of the intervening period has been made out. We,
therefore, allow CC 11644 of 1991 and condone the long durated delay
in these exceptional circumstances. On doing so, we grant leave to
appeal. The appeal thus arising and the Civil Appeal No. 632 of 1975
may now be disposed of together….”
17. On perusal of the explanation offered it is clear that the officials who
were dealing with the matter have either deliberately or without
understanding the implications dealt with the matter in a very casual and
lethargic manner. It is a matter of concern that in very serious matters action
is not taken as required under law and the appeals/petitions are filed after
long lapse of time. It is a common grievance that it is so done to protect
unscrupulous litigants at the cost of public interest or public exchequer.
This stand is more noticeable where vast tracts of lands or large sums of
revenue are involved. Even though the courts are liberal in dealing with the
belated presentation of appeals/applications, yet there is a limit upto which
such liberal attitude can be extended. Many matters concerning the State
Government and the Central Government are delayed either by the nature of
bureaucratic process or by deliberate manipulation of the same by taking
advantage of loopholes in the conduct of litigation. Several instances have
come to the notice of this Court where as noted above appeals have been
filed where the revenue involved runs to several crores of rupees. It is true
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that occasionally delay occurs which is inexplicable in normal
circumstances.
18. The case at hand is a classic example where the circumstances are the
same. More than 4000 acres of land are involved out of which, according to
the State, nearly 3500 acres constitute forest land. Ultimately, the Court has
to protect the public justice. The same cannot be rendered ineffective by
skillful management of delay in the process of making challenge to the order
which prima facie does not appear to be legally sustainable.
19. The expression `sufficient cause’ as appearing in Section 5 of the
Indian Limitation Act, 1963 (in short the `Limitation Act’) must receive a
liberal construction so as to advance substantial justice as was noted by this
Court in G. Ramegowda, Major etc. v. The Special Land Acquisition
Officer, Bangalore (AIR 1988 SC 897). Para 8 of the judgment reads as
follows:
“8. …….The law of limitation is, no doubt, the same for a
private citizen as for governmental authorities. Government,
like any other litigant must take responsibility for the acts or
omissions of its officers. But a somewhat different complexion
is imparted to the matter where Government makes out a case
where public interest was shown to have suffered owing to acts
of fraud or bad faith on the part of its officers or agents and
where the officers were clearly at cross-purposes with it.
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Therefore, in assessing what, in a particular case,
constitutes “sufficient cause” for purposes of Section 5, it
might, perhaps, be somewhat unrealistic to exclude from the
considerations that go into the judicial verdict, these factors
which are peculiar to and characteristic of the functioning of the
government. Governmental decisions are proverbially slow
encumbered, as they are, by a considerable degree of procedural
red tape in the process of their making. A certain amount of
latitude is, therefore, not impermissible. It is rightly said that
those who bear responsibility of Government must have “a little
play at the joints”. Due recognition of these limitations on
governmental functioning — of course, within reasonable limits
— is necessary if the judicial approach is not to be rendered
unrealistic. It would, perhaps, be unfair and unrealistic to put
government and private parties on the same footing in all
respects in such matters. Implicit in the very nature of
governmental functioning is procedural delay incidental to the
decision-making process. In the opinion of the High Court, the
conduct of the law officers of the Government placed the
Government in a predicament and that it was one of those cases
where the mala fides of the officers should not be imputed to
Government. It relied upon and trusted its law officers. Lindley,
M.R., in the In re National Bank of Wales Ltd. (1899) 2 Ch. 629
at p.673 observed, though in a different context:
“Business cannot be carried on upon principles of
distrust. Men in responsible positions must be trusted by
those above them, as well as by those below them, until
there is reason to distrust them.”
20. Keeping in view the importance of questions of law which are
involved we are inclined to condone the delay subject to payment of
exemplary costs which we fix at rupees ten lakhs to be paid within a period
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of 8 weeks to the respondents. The delay is condoned subject to the
payment of the aforesaid amount as costs. After making the payment the
receipt thereof shall be filed before this Court alongwith an affidavit. Only
after the payment is made the special leave petitions shall be listed for
admission. We make it clear that we have not expressed any opinion on
the merits of the case.
21. It is imperative that the State shall immediately initiate action as
available in law against every person responsible for the alleged fraud and
delay in persuing the remedies, fix responsibility and recover the amount
paid as costs from them. Needless to say orders shall be passed in this
regard by the competent authority after grant of opportunity to the concerned
person(s). If any, action under criminal law(s) is to be taken, same shall be
taken.
……………………………………J.
(Dr. ARIJIT PASAYAT)
……………………………………J.
(ASOK KUMAR GANGULY)
New Delhi,
May 04, 2009
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