Bombay High Court
The Municipal Corporation Of Greater ... vs The Indian Hotels Company Ltd on 25 September, 2024
Digitally
signed by
2024:BHC-AS:38624
AARTI
AARTI
GAJANAN
GAJANAN PALKAR
PALKAR Date:
2024.09.28
13:32:11
+0530
9, 30, 32 & 33.IA.9018.24 doc.docx
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
INTERIM APPLICATION NO.9018 OF 2024
IN
FIRST APPEAL (L) NO.15584 OF 2023
AND
INTERIM APPLICATION NO.7168 OF 2024
IN
FIRST APPEAL (L) NO.16462 OF 2023
AND
INTERIM APPLICATION NO.9025 OF 2024
IN
FIRST APPEAL (L) NO.17081 OF 2023
The Municipal Corporation
of Greater Bombay Through
Its Secretary & Anr. .... Applicants
Vs.
The Indian Hotels Company Ltd. .... Respondent
Mr. Drupad Patil a/w. Ms Pallavi Khare for the Applicant/BMC in all
Applications.
Mr. Karl Tamboly a/w. Rajesh Satpalkar & Devansh Gadda i/b. Mulla &
Mulla and Craigie Blunt & Careo for Respondent in all Applications.
CORAM: SOMASEKHAR SUNDARESAN, J.
DATE: SEPTEMBER 25, 2024
Oral Judgment:
1. The core issue that falls for consideration in these Applications
is whether it would be permissible for the Municipal Corporation of
Greater Mumbai ("MCGM") to seek condonation of delay when it has
changed its mind about pursuing this batch of appeals, over five years
after it first decided not to appeal, and then taking another two years to
file these First Appeals. For the reasons set out below, these
Applications for condonation of delay are rejected and consequently, the
First Appeals are dismissed.
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2. The judgment impugned in this batch of First Appeals was
passed on January 13, 2016 (" Impugned Judgement"). On the last
occasion, after hearing the parties at some length in order to appreciate
the materials brought on record in the Respondent's Affidavit-in-Reply
dated September 13, 2024 ("Reply Affidavit"), the request of Learned
Counsel for MCGM to take instructions as to whether it would seriously
press these Applications for Condonation of Delay, was accepted. In my
order dated September 13, 2024, the grounds on which the Condonation
of Delay was sought was extracted. Based on the Reply Affidavit, the
erroneous reference in these Applications to the date of the meeting
when the MCGM's Appeal Committee decided not to appeal, was
noticed - the meeting had been held on June 3, 2016, and not on
December 21, 2019 (as stated in these Applications).
3. Today, Mr. Drupad Patil, Learned Counsel for the Respondent
fairly states that the date referred to in these Applications was indeed
erroneous and that there had been no consideration of the Respondent's
case in the meeting held on December 21, 2019. Mr Patil strenuously
urges that MCGM should be allowed to file a further affidavit in the
matter. His request is primarily based on the desire to set the record
straight on the actual date of the decisions of the Appeal Committee. He
does not confirm what else he would wish to address in the additional
affidavit, but states that if he is given another week's time to review the
file personally, he can decide if anything more needs to be brought on
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9, 30, 32 & 33.IA.9018.24 doc.docx
record.
4. Admittedly, the Appeal Committee of Applicant held its meeting
on June 3, 2016 and took a considered view not to appeal. It is nearly
five years later, at the meeting of the Appeal Committee held on March
17, 2021, that a new view was adopted, namely, to appeal against the
Impugned Judgement. These Applications for condonation of delay,
namely, Interim Application No.9018 of 2024, Interim Application
No.7168 of 2024 and Interim Application No9025 of 2024 were
affirmed on June 14, 2023, June 22, 2023 and June 28, 2023. In other
words, even after the change of opinion on March 17, 2021, these First
Appeals came to be filed more than two years later. Thereby, the total
period of delay for which condonation is sought is seven years and 101
days.
5. It is now clearly evident that the MCGM's decision to appeal is a
highly belated change of opinion, and the action taken on that changed
opinion too has been a highly delayed one. Be that as it may, I am of the
view that no fruitful purpose would be served by having one more
affidavit being filed since it is clear that nothing new about the dates can
be brought to bear to further support these Applications. Besides, I am
not inclined to accept that with such a legacy of delayed actions on these
files, it would not be fruitful to further prolong the matter, by accepting
a request for further time, only to research the file, in order to examine
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9, 30, 32 & 33.IA.9018.24 doc.docx
what more may be brought into a further affidavit.
6. Appeals to this court from decisions of the Chief Judge of the
Small Causes Court are governed by Section 218D of the Mumbai
Municipal Corporation Act, 1888 ("the Act"). The proviso to Section
218D(2) prohibits the High Court from hearing any appeal filed after
one month of the date of decision that is impugned. Seen in that
statutory framework, the very meeting of the Appeal Committee was
held after the expiry of limitation - the Impugned Judgement was
rendered in January 2016 while the Appeal Committee met in June
2016. At that meeting, it was decided not to appeal.
7. Against this backdrop, the reasons set out in these Applications
simply do not lend themselves to acceptance for condoning the delay in
these matters. The law is now well declared that mere reliance on
"bureaucratic methodologies" for deciding whether to appeal, is no
ground to seek condonation of delay. Towards this end, the following
observations of the Supreme Court in Postmaster General vs. Living
Media India Ltd.1 are instructive:-
"27. It is not in dispute that the person(s) 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.
(2012) 3 SCC 563
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9, 30, 32 & 33.IA.9018.24 doc.docx
28. Though we are conscious of the fact that in a matter of
condonation of delay when there was no gross negligence or
deliberate inaction or lack of bona fides, a liberal concession has
to be adopted to advance substantial justice, we are of the view
that in the facts and circumstances, the Department cannot take
advantage of various earlier decisions. The claim on account of
impersonal machinery and inherited bureaucratic methodology
of making several notes cannot be accepted in view of the modern
technologies being used and available. The law of limitation
undoubtedly binds everybody, including the Government.
29. In our view, it is the right time to inform all the government
bodies, their agencies and instrumentalities that unless they have
reasonable and acceptable explanation for the delay and there
was bona fide effort, there is no need to accept the usual
explanation that the file was kept pending for several
months/years due to considerable degree of procedural red tape
in the process. The government departments are under a special
obligation to ensure that they perform their duties with diligence
and commitment. Condonation of delay is an exception and
should not be used as an anticipated benefit for the government
departments. The law shelters everyone under the same light and
should not be swirled for the benefit of a few."
[Emphasis Supplied]
8. Following the said decision (rendered in 2012), the Supreme
Court once again had occasion (this time in 2020) to reiterate the
declared law. Inter alia quoting the aforesaid extracts, the Supreme
Court in State of Madhya Pradesh & Ors. vs. Bherulal 2 stated the
following:-
"2. We are constrained to pen down a detailed order as it
appears that all our counselling to the Government and
(2020) 10 SCC 654
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9, 30, 32 & 33.IA.9018.24 doc.docx
government authorities has fallen on deaf ears i.e. the Supreme
Court of India cannot be a place for the Governments to walk in
when they choose ignoring the period of limitation prescribed.
We have raised the issue that if the government machinery is so
inefficient and incapable of filing appeals/petitions in time, the
solution may lie in requesting the legislature to expand the time
period for filing limitation for government authorities because of
their gross incompetence. That is not so. Till the statute subsists,
the appeals/petitions have to be filed as per the statutes
prescribed.
3. No doubt, some leeway is given for the government
inefficiencies but the sad part is that the authorities keep on
relying on judicial pronouncements for a period of time when
technology had not advanced and a greater leeway was given to
the Government [LAO v. Katiji]. This position is more than
elucidated by the judgment of this Court in Postmaster General
v. Living Media (India) Ltd. wherein the Court observed as
under: (Postmaster General case, SCC pp. 573-74, paras 27-30)
*****
5. A preposterous proposition is sought to be propounded that if
there is some merit in the case, the period of delay is to be given
a go-by. If a case is good on merits, it will succeed in any case. It
is really a bar of limitation which can even shut out good cases.
This does not, of course, take away the jurisdiction of the Court
in an appropriate case to condone the delay."
[Emphasis Supplied]
9. What is most piquant is that a Learned Single Judge of this
Court, in a case involving the same parties as in the instant case, and in
fact, in one of the very matters covered by the Appeal Committee at the
same meeting held on March 17, 2021, rejected the request for
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9, 30, 32 & 33.IA.9018.24 doc.docx
restoration of an appeal which was sought after a delay of five years and
six months. First Appeal No.890 of 2007 had come to be dismissed for
non-filing of private paper book, for which a period one year had been
given. Although such period was granted by an order dated March 8,
2007, since no compliance was found, the Appeal stood dismissed.
However, a restoration application was allowed on February 24, 2009
with a cost of Rs.1,000 being imposed. Thereafter, on April 20, 2015,
the Appeal was dismissed for non-payment of bhatta charges as also
non-filing of the private paper book (which indicates that right until
2015, despite the first restoration, the non-compliance continued). Yet
again, an application for restoration was routinely filed in 2022, which
was dismissed by the Learned Single Judge3.
10. Mr. Patil states that the Appeal Committee comprises of ex
officio members and it is not easy for them to convene. That cannot be
an acceptable reason to condone delay. It is for the MGCM to put its
house in order and not have a framework for its decisions on whether to
appeal, that is inconsistent with the statutory framework of having to
appeal within 30 days under Section 218D of the Act.
11. The matter at hand involves an objection to the rateable value of
property of the Respondent, which leads to a statutory right to
adjudication before the Chief Judge of the Small Causes Court, which
was exercised by the Respondent. Mr. Patil submits that the rateable
2022 SCC OnLine Bom. 6227
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9, 30, 32 & 33.IA.9018.24 doc.docx
value for the property in question had been approximately Rs. 53 lakhs
way back in 2002 and the same rate had continued until 2008. The
Respondent had raised an objection in 2002, seeking reduction of the
ratable value. In 2010, the MGCM disposed of that objection by
reducing the ratable value to approximately Rs. 21 lakhs (the objection
had remained pending until then). Mr. Patil submits that the Impugned
Judgement takes such disposal in 2010, of the objection taken in 2002,
as the basis to adjudicate the rateable value for the years 2005-06 to
2008-09. According to Mr. Patil, even if the rateable value for 2002
were to be lowered to Rs. 21 lakhs, it would not mean that that value
c0uld have remained static for the period 2005 to 2009.
12. Without intending to pronounce upon the merits, I found it
relevant to mention the aforesaid submission only to underline the
nature of the facts and context attendant with the extraordinary delay in
pursuing these First Appeals. While the MCGM's internal processes
wound its way through the first decision not to appeal in 2016, to the
reversed decision to appeal in 2021, and eventually to the actual action
of filing these Appeals in 2023, over seven years went by. Meanwhile,
the very basis of computing the rateable value has undergone a
fundamental change - a development that both Mr. Patil and Mr. Karl
Tamboly, Learned Counsel for the parties confirm. Consequently, I am
of the view that quite apart from the MCGM not being able to justify the
reasons for condoning delay, it is also evident that no fruitful purpose
would be served with these Appeals being entertained. In other words,
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9, 30, 32 & 33.IA.9018.24 doc.docx
the very core of the litigation at hand has gone stale.
13. Be that as it may, these are facets of merits that ought to have
weighed with the Appeal Committee when it took its decision in 2016
not to appeal.
14. The delay being inordinate, with no plausible explanation being
given in these Applications for the change of heart taken at a leisurely
pace, I am not inclined to condone the delay in the facts and
circumstances of the case. These Applications for condonation of delay
are hereby rejected. Consequently, these First Appeals are disposed of
and are not entertained.
15. Before parting with the matter, it may be stated that the
dismissal of these Applications for condonation of delay is no
impediment to the MCGM reviewing its files and processes to set its
house in order in a manner that is commensurate with the statutory
framework in which it operates.
16. This order will be digitally signed by the Private
Secretary/Personal Assistant of this Court. All concerned will act on
production by fax or email of a digitally signed copy of this order.
[SOMASEKHAR SUNDARESAN, J.]
25 September, 2024
Aarti Palkar
