Deputy Engineer, Madhya Gujarat ... vs M/S Yash Polymers
2021 Latest Caselaw 6083 Guj

    C/LPA/420/2021                       ORDER DATED: 16/06/2021



         IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

           R/LETTERS PATENT APPEAL NO. 420 of 2021

     In R/SPECIAL CIVIL APPLICATION NO. 15374 of 2020
===============================================
DEPUTY ENGINEER, MADHYA GUJARAT VIJ COMPANY LIMITED
                       Versus
                 M/S YASH POLYMERS
===============================================
Appearance:
MR RITURAJ M MEENA(3224) for the Appellant(s) No. 1
for the Respondent(s) No. 1,2
===============================================
CORAM:HONOURABLE MR. JUSTICE R.M.CHHAYA
      and
      HONOURABLE MR. JUSTICE NIRZAR S. DESAI

                   Date : 16/06/2021
                     ORAL ORDER

(PER : HONOURABLE MR. JUSTICE R.M.CHHAYA)

1.0. Heard Mr. Rituraj Meena, learned advocate for the appellant. By way of this appeal under Clause 15 of the Letters Patent, the appellant - original petitioner has challenged the order dated 10.12.2020 passed by the learned Single Judge whereby the petition was dismissed by the learned Single Judge wherein challenge was to the order dated 6.4.2018 passed by the respondent no.2 authority on the sole ground of delay of more than two years.

2.0. Mr. Meena, learned advocate for the appellant has contended before us that no explanation was permitted by the learned Single Judge and it is consequently contended that in common parlance to challenge any order period of

C/LPA/420/2021 ORDER DATED: 16/06/2021

three years is prescribed for and the same is reasonable.

No other or further submissions have been made by the learned advocate for the appellant.

3.0. Before considering the submissions made by Mr. Meena, learned advocate for the appellant, it would be appropriate to refer to the averments made in the writ petition. This Court is conscious of the fact that as this is intra court appeal under Clause 15 of the Letters Patents and hence the averments made in the petition also deserves to be looked into.

4.0. The petition was filed on 4.11.2020 wherein in para 8 following prayers were made.

"A. Your Lordships be pleased to quash and set aside the order dated 06.04.2018 passed by the learned Appellate Authority & Electrical Inspector, Vadodara and further be pleased to uphold bill dated 28.11.2017 issued by the petitioner company;

B. Pending notice, admission and final hearing of the present petition, Your Lordships be pleased to stay the implementation of order dated 6.4.2018 passed by the learned Appellate Authority & Electrical Inspector, Vadodara:"

5.0. From the prayers, it is crystal clear that what was challenged on 4.11.2020 was the order passed by the respondent no.2 Appellate Authority which is in fact is in- house appellate authority established under the Special Act way back on 6.4.2018. Admittedly, there was delay of

C/LPA/420/2021 ORDER DATED: 16/06/2021

942 days. On perusal of the whole petition, it appears that there is not a whisper about the delay and straightway appellant which is a government company manned by Expert Officers has approached this Court, asking Court to exercise its extraordinary jurisdiction. On perusal of the grounds enumerated in para 2.10 of the petition, nothing is stated on the aspect of delay. Only conclusion which can be derived is that the petitioner feels that there is no delay even though admittedly there was delay of 942 days. No attempt on the part of the petitioner to even remotely justify such enormous delay is not found in the petition.

6.0. What is challenged in the petition is the order dated 06.04.2018 passed in Appeal No. 18 of 2017-18 by the respondent no.2 authority established under Section 127 of the Electricity Act, 2003. From the copy of the impugned order which is on record it clearly reveals that by Registered Post A.D, service of the order was affected upon appellant - original petitioner. The order which was impugned in the petition is passed after bipartite hearing wherein the officer of the petitioner was very much heard and was present.

7.0. There is no explanation of a word as far as delay is concerned and the learned Single Judge has therefore, rightly not exercised its extraordinary jurisdiction under Article 226 of the Constitution of India on the ground of

C/LPA/420/2021 ORDER DATED: 16/06/2021

delay of 942 days, which is rightly mentioned in the impugned order as more than two years.

8.0. The appellant was the petitioner before the learned Single Judge and on the contrary it was bounded duty of the petitioner to mention why the order is being challenged after 942 days i.e. more than two years. It is reiterated that there is no mention about the delay in the petition much less any explanation and as an afterthought when the petitioner was countered with the aspect of delay, an attempt is being made to salvage the situation.

9.0 At this juncture, it would be appropriate to refer to the latest decision of the Hon'ble Supreme Court in the case of Union of India vs. Central Tibetan Schools Admin and Ors rendered being Special Leave Petition (Civil) Diary No.19846 of 2020 wherein the Hon'ble Supreme Court has referring to the earlier judgment of the Hon'ble Supreme Court in the case of Chief Post Master General and Ors vs. Living Media India Ltd and Anr reported in (2012) 3 SCC 563 and in the case of State of Madhya Pradesh & Ors vs. Bheru Lal (SLP © Diary No. 9217 of 2020 dated 15.10.2020) and in the case of State of Odisha and Ors vs. Sunanda Mahakuda (SLP © Diary No. 22605 of 2020 dated 11.1.2021) has observed thus:

"We have also categorized such kind of cases as "certificate cases" filed with the only object to obtain a

C/LPA/420/2021 ORDER DATED: 16/06/2021

quietus from the Supreme Court on the ground that nothing could be done because the highest Court has dismissed the appeal. The objective is to complete a mere formality and save the skin of the officers who may be in default in following the due process or may have done it deliberately. We have deprecated such practice and process and we do so again. We refuse to grant such certificates and if the Government / public authorities suffers losses, it is time when concerned officers responsible for the same, bear the consequences. The irony, emphasized by us repeatedly, is that no action is ever taken against the officers and if the Court pushes it, some mild warning is all that happens.

Looking to the gross negligence and the impunity with which the Union of India had approached this Court in a matter like this, we consider it appropriate to impose special costs of Rs.1 Lakh in this case to be recovered from the concerned officer (s), to be deposited with the Supreme Court Advocates on Record Welfare Fund within four weeks.

The Special Leave petitions are dismissed as time barred in terms aforesaid."

10. Both the grounds are meritless and same deserve to be negatived outright. Only because the appellant- original petitioner is a government company, no different yardsticks need to be applied. The contention raised by Mr. Meena, learned advocate for the appellant that reasonable period is three years, is not a only baseless but backed by no force of law. On the contrary, it reflects

C/LPA/420/2021 ORDER DATED: 16/06/2021

the attitude of the petitioner which is otherwise a State under Article 12 of the Constitution of India. While considering the aspect of the delay, important link is the date of knowledge. In the case on hand, the head office of the appellant is situated at Vadodara. The hearing before the appellate authority- respondent no.2 was attended to by the officer of the appellant at Vadodara and as aforesaid, the record shows that copy of the order passed under Section 127 of the Electricity Act, 2003 was sent by Registered Post AD to the appellant himself. Thus, the appellant had knowledge about the passing of the order impugned in the writ petition immediately after passing of the order. While considering the aspect of condonation of delay, any party including instrumentality of the State Government like the appellant is bound to show sufficient cause. As discussed herein above, the appellant has not shown any cause much less any sufficient cause in the writ petition and so also in this appeal.

11. On the contrary, Electricity Act, 2003 has been enacted as a Special Act and respondent no.2 is constituted under Section 127 of the Electricity Act for achieving purpose as enshrined in the Act. It is not the case of the appellant - original petitioner that they were unaware about the order and hence only inference that can be drawn in facts of this case is that there is lethargy on the part of the petitioner who are manned by expert officers.

C/LPA/420/2021 ORDER DATED: 16/06/2021

12. The appellant company is a government company and having its head office at Vadodara and respondent no.2 Appellate Authority also has its seat at Vadodara. It speaks volume of the attitude of the appellant who presumes it that it can resort to legal remedies at their own wish and will. Exercise of powers under Article 226 of the Constitution of India are extraordinary powers of this Court and discretionary in nature and when there is no explanation worth the name and on the contrary there is no whisper about the delay having occurred, the learned Single Judge has rightly not exercised the jurisdiction under Article 226 of the Constitution of India. Both the contentions raised by Mr. Meena, learned advocate for the appellant does not appeal to this Court.

13. Following the judgment of the Hon'ble Supreme Court in the case of Union of India (supra), the appeal being meritless, deserves to be dismissed with cost quantified at Rs.25000/- to be paid by the appellant to Gujarat High Court Advocates Association Welfare Fund within a period of one week from today.

(R.M.CHHAYA, J)

(NIRZAR S. DESAI,J) KAUSHIK J. RATHOD