Page No.# 1/4 vs Padum Borah And 3 Ors
2022 Latest Caselaw 3669 Gua

                                                               Page No.# 1/4

GAHC010064622021




                      THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                        Case No. : Review.Pet./58/2021

         THE STATE OF ASSAM AND 5 ORS.
         REP. BY THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM,
         IRRIGATION DEPARTMENT, DISPUR, GUWAHATI-6.

         2: THE CHIEF ENGINEER
          IRRIGATION DEPARTMENT
          CHANDMARI
          GUWAHATI- 781003
         ASSAM.

         3: THE CHIEF ENGINEER
          MINOR IRRIGATION DEPARTMENT
          CHANDMARI
          GUWAHATI- 781003
         ASSAM.

         4: THE ADDITIONAL CHIEF ENGINEER
          IRRIGATION DEPARTMENT
          ZONE-II
         TEZPUR
          SONITPUR
         ASSAM.

         5: THE SUPERINTENDING ENGINEER
          IRRIGATION DEPARTMENT
         TEZPUR CIRCLE
         TEZPUR
          SONITPUR
         ASSAM.

         6: THE EXECUTIVE ENGINEER
         TEZPUR DIVISION (IRRIGATION)
         TEZPUR
          SONITPUR
                                                                    Page No.# 2/4

             ASSAM

            VERSUS

            PADUM BORAH AND 3 ORS.
            S/O- LATE MADAN CH. BORAH, R/O- VILL.- ALENGISATRA, KOLONGPAR,
            P.O. DAKARGHAT, DIST.- NAGAON, ASSAM, PIN- 782003.

            2:DIGANTA SAIKIA
             S/O- LATE RAM CHANDRA SAIKIA
             R/O- VILL.- ALENGISATRA
             KOLONGPAR
             P.O. DAKARGHAT
             DIST.- NAGAON
            ASSAM
             PIN- 782003.

            3:NITUL BARUA
             R/O- VILL.- RAIDONGIA RAJAGAON
             P.O. AIBHETI
             DIST.- NAGAON
            ASSAM
             PIN- 782002.

            4:PANKAJ KAKOTI
             S/O- HEM CHANDRA KAKOTI
             R/O- VILL.- BORIGAON
             P.O. AIBHETI
             DIST.- NAGAON
            ASSAM
             PIN- 782002

Advocate for the Petitioner   : MR. P N GOSWAMI

Advocate for the Respondent : MR. B BARMAN (r-1 to 4)




                                   BEFORE
                  HONOURABLE MR. JUSTICE SANJAY KUMAR MEDHI

                                         ORDER

20-09-2022 Heard Shri P.N. Goswami, learned Additional Advocate General, Assam. Also heard Shri B. Barman, learned counsel for the writ petitioners / opposite Page No.# 3/4

parties. Shri Barman, the learned counsel for the writ petitioners / opposite parties had raised an objection regarding delay in filing the review application in support of which he had placed before this Court a decision of a constitutional bench of the Hon'ble Supreme Court in the case of State of Madhya Pradesh vs Bhailal Bhai &Ors reported in 1964 AIR 1006. The relevant part of the said judgment which is a part of paragraph 21 is extracted herein below:

"On behalf of the respondents-petitioners in these appeals (C.A. Nos. 861 to 867 of 1962) Mr. Andley has argued that the delay in these cases even is not such as would justify refusal of the order for refund. He argued that assuming that the remedy of recovery by action in a civil court stood barred on the date these applications were made that would be no reason to refuse relief under Art. 226 of the Constitution. Learned counsel is right in his submission that the provisions of the Limitation Act do not as such apply to the granting of relief under Art. 226. It appears to us however that the maximum period fixed by the legislature as the time within which the relief by a suit in a civil court must be brought 134--159 S.C. 18 may ordinarily be taken to be a reasonable standard by which delay in seeking remedy under Art. 226 can be measured. The Court may consider the delay unreasonable even if it is less than the period of limitation prescribed for a civil action for the remedy. but where the delay is more than this period, it will almost always be proper for the court to hold that it is unreasonable. The period of limitation prescribed for recovery of money paid by mistake under the Limitation Act is three years from the date when the mistake is known. If the mistake was known in these cases on or shortly after January 17, 1956 the delay in making these applications should be considered unreasonable. If, on the other hand, as Mr. Andley seems to argue, the mistake was discovered much later, this would be a controversial fact which cannot conveniently be decided in writ proceedings. In either view of the matter we are of opinion the orders for refund made by the High Court in these seven cases cannot be sustained."

Though there is no strict application of the law of limitation in a writ proceeding, following the aforesaid judgment, the present application appears Page No.# 4/4

to be barred by the principles of delay and laches. However, since the review is an application, dismissing the same without giving an opportunity to explain the delay may not be in accordance with law.

Therefore, in the interest of justice, the State which is the applicant is granted 3 (three) weeks time to file an additional affidavit explaining the delay.

It is needless to mention that the opposite parties/ writ petitioners would have an opportunity to rebut the contention if they so wish to do.

List this matter on 28.10.2022 prior to which date the additional affidavit is required to be filed.

JUDGE

Comparing Assistant