Bombay High Court
Suresh Devikisan Oza vs The State Of Maharashtra And ... on 23 November, 2021
Bench: Ravindra V. Ghuge, S. G. Mehare
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CIVIL APPLICATION NO.12645 OF 2014
IN
REVIEW APPLICATION NO.234 OF 2014
IN
WRIT PETITION NO.921 OF 2012
Suresh s/o Devikisan Oza ...Applicant
Versus
The State of Maharashtra and Others ...Respondents
...
Mr. R.N. Dhorde, Senior Counsel h/f Mr. V.R. Dhorde, Advocate for the
Applicant.
Ms. M.A. Deshpande, AGP for Respondent Nos.1 to 3.
Mr. V.S. Bedre, Advocate for Respondent No.4.
Mr. A.V. Hon, Advocate for Respondent No.5.
Mr. V.D. Sapkal, Senior Counsel h/f Mr. S.T. Chalikwar, Advocate for
Respondent No.6.
...
CORAM : RAVINDRA V. GHUGE &
S.G. MEHARE, J.J.
RESERVED ON : 17th NOVEMBER, 2021
PRONOUNCED ON : 23rd NOVEMBER, 2021
ORDER (PER S.G. MEHARE, J.) :
1. The present is an application to condone 591 days delay in
preferring the application to review the judgment and order dated
07.03.2013 passed by this High Court in W.P. No. 921/2012.
2. The new fact that the Final plot no.5 initially allotted to the
applicant was included and was the part of the frst variation of the
Town planning scheme no.1 at Shrirampur, was discovered from his
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friend Shri Porwal in October 2014. He received the relevant
document under the Right to Information Act from the Arbitrator. Then
the applicant applied for copies of the document and relevant maps to
the Arbitrator on 21.10.2014 under the Right to Information Act.
However, he had not received those documents till flling the present
application. The applicant approached the lawyer with the photocopies
of those documents in the Diwali Vacations in October 2014.
3. After the dismissal of his W.P. No. 921/2012, the applicant
had undergone the heart operation on 13/14.04.2013 and was
bedridden. The applicant's daughter had also sufered paralysis.
Hence due to ailments and family problems, the applicant was not in
contact with Mr. Porwal, who has fled a W.P. No. 5274/2012 for the
same grievance. It is pending. The situation was beyond the control
of the applicant. It is not deliberate. It is prayed to condone the delay
in the interest of justice.
4. The learned Senior Counsel for the respondent/non-
applicant Shri Sapkal, has strongly opposed the application. He
referred to the order passed by the Hon'ble Apex Court in the Petition
for Special Leave to Appeal (Civil) No. 28409/2013 dated 20.09.2013
and vehemently argued that the applicant's petition which was fled
against the order of this Court, passed in W.P. No. 921/2012, dated
07.03.2013 was allowed to be withdrawn with liberty to approach the
State Government for appropriate relief. However, the applicant
approached this Court with a Review Petition. Hence, the application
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deserves to be dismissed. The delay is not satisfactorily explained.
Therefore, it is not liable to be condoned. To bolster his argument, he
relied on National Spot Exchange Limited Vs. Anil Kohli,
Resolution Professional for Dunar Foods Limited, 2021 SCC
Online SC 716.
5. The learned Senior Counsel Shri Dhorde for the applicant
would submit that the Arbitrator made the false statement in the original
writ petition. Hence, it culminated in dismissal of his petition. Soon
after knowing about the new facts and evidence in October 2014, the
present application and Review Application was fled within a month.
The substantial right of the applicant is involved in the petition. No one
shall sufer for the wrongs committed by others.
6. The law is settled that the length of the delay is not material,
but the reasons stated for the condonation of delay. In other words, for
condonation of delay, the reasons adduced must be proper,
convincing, and acceptable.
7. The Hon'ble Apex Court in the Landmark case of Collector
Land Acquisition, Anantnag V Mst Katiji and Ors, 1987 AIR
1353, has pronounced that 'when substantial justice and technical
considerations are pitted against each other, cause of substantial
justice deserves to be preferred for the other side cannot claim to have
vested right in injustice being done because of a non-deliberate delay.
Further, the law is also settled that a justice-oriented approach is
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necessary while deciding the application under section 5 of the
Limitation Act. A liberal view must be taken in considering an
explanation ofered for the delay if reasonable cause is ofered.
Condonation of the delay is a matter of discretion of the Court.
However, it must be recognized that discretion is the discretion of law
and not the subjective discretion of the Judge.
8. In National Spot Exchange cited (supra), the appellant had
preferred the appeal before the NCLT under Section 61 (2) of the IB
Code. Under said Section, the appeal was required to be preferred
within a period of 30 days. The proviso to the said Section further
provides that the appellate Tribunal may allow the appeal to be fled
after the expiry of the said period of 30 days if it is satisfed that there
was sufcient cause for not fling the appeal, but such period shall not
exceed 15 days. Considering the provisions for preferring the appeal
under the said Code, the law is laid down that the appellate Tribunal
has no jurisdiction at all to condone the delay exceeding 15 days from
the period of 30 days, as contemplated in Section 61(2) of the IB Code.
Where the specifc provisions for the appeal and the powers to
condone the delay were specifcally provided in the Act, the
Tribunal/Court cannot travel beyond the limitations imposed. Where
the legislature prescribes a particular limitation for appeal and
determines the specifc period of limitation and powers to condone the
delay, the general provisions of Sections 4, 5, and 12 of the Limitation
Act would not apply.
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9. The Review Petition should be fled within 30 days. Since it
is a general provision, the provisions of the Limitation Act would apply
to the present petition. Considering the provisions of law applicable to
the review petition before the High Court, the judgment of National
Spot Exchange cited (supra) cannot assist the non-applicant.
10. We do not fnd substance in the objection that the Hon'ble
Apex Court granted the permission to withdraw the Special Leave
Petition with liberty to only approach the Government and this restrains
the petitioner from approaching this Court for review of the judgment
and order of this Court. The applicant approached this Court soon
after getting the knowledge of the documents and new facts. We do
not fnd that there is a deliberate delay in fling the present application.
The applicant had sufcient reason not to approach the Court within the
time prescribed for preferring the Review Application. There can be no
bar in these circumstances, in fling a review petition.
11. For the above reasons, the application is allowed. The
delay caused in preferring the Review Application is condoned. The
Registry is directed to register the Review Petition.
(S.G. MEHARE, J) (RAVINDRA V. GHUGE, J)
Mujaheed//
