Gujarat High Court
Union Of India Through Assistant ... vs Mansukh Shah Huf on 18 December, 2023
Author: Ashutosh Shastri
Bench: Ashutosh Shastri
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL APPLICATION (FOR CONDONATION OF DELAY) NO. 1423 of 2020
In
F/FIRST APPEAL NO. 530 of 2020
With
R/CIVIL APPLICATION NO. 1424 of 2020
In
F/FIRST APPEAL NO. 533 of 2020
With
R/CIVIL APPLICATION NO. 1425 of 2020
In
F/FIRST APPEAL NO. 537 of 2020
With
R/CIVIL APPLICATION NO. 1426 of 2020
In
F/FIRST APPEAL NO. 539 of 2020
With
R/CIVIL APPLICATION NO. 1427 of 2020
In
F/FIRST APPEAL NO. 544 of 2020
With
R/CIVIL APPLICATION NO. 1428 of 2020
In
F/FIRST APPEAL NO. 547 of 2020
With
R/CIVIL APPLICATION NO. 1429 of 2020
In
F/FIRST APPEAL NO. 550 of 2020
With
R/CIVIL APPLICATION NO. 1430 of 2020
In
F/FIRST APPEAL NO. 553 of 2020
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE ASHUTOSH SHASTRI Sd/-
and
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK Sd/-
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1 Whether Reporters of Local Papers may be allowed YES
to see the judgment ?
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair copy NO
of the judgment ?
4 Whether this case involves a substantial question NO
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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UNION OF INDIA THROUGH ASSISTANT DIRECTOR
Versus
MANSUKH SHAH HUF
==========================================================
Appearance:
MR SIDDHARTH DAVE for MR DEVANG VYAS(2794) for Applicant(s) No. 1
MR ND NANAVATI, SENIOR ADVOCATE with MS DISHA N
NANAVATY(2957) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE ASHUTOSH SHASTRI
and
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
Date : 18/12/2023
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE ASHUTOSH SHASTRI)
1. By way of these applications, the applicant has prayed for
condonation of delay of 38 days which has occurred in
preferring substantive First Appeals challenging the order dated
3.9.2019 passed by learned Appellate Tribunal (PMLA), New
Delhi whereby learned Appellate Tribunal has set aside the
order of adjudicating authority dated 1.3.2018 for confirming
the attached properties under Original Complaint No.819 of
2017 dated 11.10.2017 issued by the Directorate of
Enforcement. The applications are submitted with an
explanation as reflecting in paragraphs 3 and 4 basically and
pursuant to Rule having been issued on 17.3.2020 on Civil
Application, affidavit-in-reply is filed opposing the condonation
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of delay. The record indicates that against the said affidavit-in-
reply, affidavit-in-rejoinder as well as Sur-Rejoinder have also
been submitted on record and since pleadings have been
completed, learned advocates have requested the Court to take
up the Civil Application for its disposal in accordance with law.
2. With the aforesaid background, learned advocate Mr. Sid
Dave for Mr. Devang Vyas, learned Additional Solicitor General
of India appearing for the applicant and learned senior advocate
Mr. N.D. Nanavaty with Ms. Disha N. Nanavaty appearing for
the respondent have been heard.
3. Learned advocate Mr. Siddharth Dave appearing on behalf
of the applicant has submitted that First Appeal has been filed
raising issue on law and facts and has substantively challenged
the order passed by learned Appellate Tribunal (PMLA), New
Delhi dated 3.9.2019 and according to Mr. Dave, considering
serious controversy involved in the present proceedings, a brief
delay of 38 days may kindly be condoned.
4. Learned advocate Mr. Dave has drawn our attention to the
explanation which has been put forth and has submitted that
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delay has occurred not with any intent but on account of the
circumstance beyond the control and as such since
administrative difficulties in between cropped up, as indicated,
in seeking legal opinion to prefer an appeal, some delay without
any malafide intent has occurred and as such has requested that
instead of disposal of the main substantive appeal on
technicality, appeal may be heard on its merits in accordance
with law and as such has requested that this few days' delay
may kindly be condoned in the interest of justice.
5. Learned advocate Mr. Dave has submitted that it is a
settled proposition of law that delay must be construed liberally
unless there is any malafide intent and here in absence thereof,
this brief delay of 38 days may kindly be condoned. It has been
submitted that it is a settled position of law that whenever
substantial justice is pitted against technical consideration,
substantial justice must be given a predominance and therefore,
keeping in view that salutary principle, delay may kindly be
condoned which would meet the ends of justice.
6. As against this, learned senior advocate Mr. N.D. Nanavati
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appearing on behalf of the respondent has vehemently opposed
the delay condonation application by filing affidavit-in-reply and
has submitted that when Statute has prescribed a particular
period, beyond the said period, Court cannot pass any order by
condoning the delay and as such by referring to Section 42 of
the PMLA Act, 2002 has submitted that since delay is beyond
the period of 60 days, as can be seen from the chronology of
dates, no order be passed on the present Civil Application. By
inviting attention to the averments which are made in the
affidavit-in-reply, Mr. Nanavati has submitted that even take it
from the date of filing, then also application is submitted beyond
the period of 60 days. So, in any case, this maximum period
which has been prescribed may not be ignored. By giving
chronology of dates, Mr. Nanavati has submitted that it is a
settled position of law that Law of Limitation is a matter of
important policy and as such lethargy or pedantic approach on
the part of the authority may not be visualized sympathetically
and simply because the applicant is a Government agency, no
different yardstick be provided while considering request for
condonation of delay. Mr. Nanavati has submitted that here is a
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case in which appeal has been filed on 6.1.2020, undisputedly
without initially submitting application for condonation of delay
and thereafter, delay condonation application has been
submitted at a later point of time, that is not permissible.
Hence, application being devoid of merit deserves to be
dismissed.
7. By giving data pointing out material facts, learned senior
advocate Mr. Nanavati has submitted that presentation and
registration of Civil Application is at a much later period of time
and that is seen beyond the period of 60 days as contemplated
under Section 42, the application does not deserve to be
entertained. Hence, no case is made out by the applicant to
condone the delay. Apart from this, Mr, Nanavati has submitted
that irrespective of the aforesaid circumstance, even
explanation has not been sufficiently tendered before the Court
to persuade for condonation of delay and mere filing of appeal
without application for condonation of delay is improper and
apart from that, it is impermissible as well. Further, learned
senior counsel Mr. Nanavati has submitted that even within the
extended period, which is permissible to be considered for
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condonation of delay of further 60 days apart from the fact that
there is no proper explanation, but that period has also been
elapsed before filing the present applications and as such when
a law mandates a maximum period, beyond that, no equitable
consideration may be provided to condone further delay. It has
been submitted that Gujarat High Court Rules are prescribing
that every appeal shall be accompanied with Civil Application
for condonation of delay if it is there and by referring to Rule
60, Mr. Nanavati has submitted that since the applicant has
submitted the appeal as well as Civil Application in violation of
the aforesaid Rules, application may not be entertained. It has
been submitted that no-doubt, principle is vogue that
substantial justice may be given a predominance, but at the
same time, statutory provisions may not be ignored and here is
a case in which appeal proceedings have been submitted in
violation of the statutory provisions and permissible limits,
hence the application being devoid of merit, deserves to be
dismissed.
8. To substantiate his contentions, learned senior advocate
Mr. Nanavati has submitted that if there is no sufficient
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explanation found by the Court, request cannot be entertained
and for that that purpose, has made a reference to the decision
delivered by the Hon'ble Apex Court in the case of Postmaster
General and others v. Living Media India and Another reported
in (2012) 3 SCC 563 (Para 12 and 13). Yet another decision is
submitted to indicate that appeal must be accompanied with
Civil Application for condonation of delay. A reference is made
to the observations made by the Hon'ble Apex Court in
paragraph 5 onwards in the decision in the case of B.K.S.
Marulasiddaiah and Company v. Madras Pakku Mandy reported
in (2015) 15 SCC 740. Yet, few other decisions have also been
pointed out by learned senior advocate Mr. Nanavati to oppose
the application for condonation of delay which judgments are:
(1) In the case of Chhattisgarh State Electricity Board v.
Central Electricity Regulatory Commission and others
reported in (2010) 5 SCC 23 (para-37)
(2) In the case of Sneh Gupta v. Devi Sarup and others
reported in (2009) 6 SCC 194 (para 17)
(3) In the case of Oil and Natural Gas Corporation Limited
v. Gujarat Energy Transmission Corporation Limited
and others reported in (2017) 5 SCC 42 (Para 10)
And by referring to the aforesaid judgments, learned senior
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advocate has stoutly objected the delay being condoned, hence
requested to dismiss the application.
9. In rejoinder to this, learned advocate Mr. Siddharth Dave
has submitted that on the contrary, pursuant to the order
passed in the present proceedings, delay has been more
accurately and sufficiently explained and same is specifically
explained in affidavit-in-rejoinder and by referring to certain
averements which are made in the said rejoinder, which is part
of the pleadings, has requested that delay of 38 days deserves to
be condoned in the interest of justice and has further submitted
that powers of the High Court are not curtailed, since
substantial justice demands that technical consideration be put
aside by the Court so as to excavate truth from the proceedings
on examination of the merits of the case and according to Mr.
Dave, here is a case in which if appeal proceedings are
examined strictly in accordance with law, then real truth will
come out and impugned orders are not sustainable in the eye of
law and as such has requested that main appeal proceedings
which are substantive in nature may not be scuttled on account
of technicality of mere 38 days, hence usual principle as tried to
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be canvassed by learned senior advocate is of no much
significance, hence application be allowed. Paragraphs 3 and 4
of the affidavit-in-rejoinder are reproduced hereunder:
"3. Before dealing with the affidavit in reply parawise, I would
like to place the following details by way of this additional
affidavit explaining the delay in detailed, caused in filing of
the afore referred appeal.
I. I say and submit that the impugned order dated 3rd
September, 2019 passed by the appellant authority at New
Delhi was forwarded by the appellant authority vide its
communication dated 24th September, 2019 as discernible
from the communication forwarded by the appellate authority.
The said order passed by the appellant authority along with
the said letter came to be received by the appellant
department on 30th of September, 2019. Copy of the said
communication dated 24th September, 2019 forwarded by the
appellant authority, New Delhi which has been received by
the appellant department on 30th September, 2019 is also
produced by the applicant herein along with the appeal filed
by the applicant herein - original appellant. However, for the
sake of convenience, copy of the said communication dated
24th September, 2019 is annexed hereto and marked as
"Annexure I" to this affidavit in rejoinder.
II. It is submitted that after the receipt of the said order of 30th
September, 2019, the concerned officer has forwarded the
same before the higher officer of the Enforcement
Department and thereafter, the concern officer has forwarded
the same to the legal department for legal opinion.
Accordingly after the completion of all departmental
formalities and after obtaining necessary permission for filing
an appeal under Section 42 of the Prevention of Money
Laundering Act, 2002, the impugned order was forwarded to
the learned Counsel for filing the same before the Hon'ble
High Court.
III. That thereafter, the learned Advocate has called upon the
entire record of the case papers and thereafter the
department has provided all the details to the learned Counsel
appearing for the department. That thereafter, the learned
Counsel has prepared the draft memo of appeal and
accordingly the same has been forwarded to the department
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for approval and finalization of the same.
IV. That thereafter, the concern officer has forwarded the said
draft of an appeal for the finalization of the draft memo of
appeal to the higher authority and after getting the
confirmation, the department has forwarded the final draft to
the learned Counsel appearing for the department for the
filing of the appeal before the Hon'ble High Court
V. That thereafter, immediately, the learned Advocate has filed
the First Appeal before the Hon'ble High Court on the first
day of reopening of the winter vacation i.e. 6 th of January,
2020. In the said circumstances the delay of 38 days occurred
in filing an appeal.
VI. That impugned order which has been passed on 3rd
September, 2019, has been received by the department only
on 30th September, 2019 and therefore, the period of
limitation would start from the date of the receipt of the said
order i.e. from 30th September, 2019. Therefore, the
appellant was required to file an appeal within a period of 60
days in view of the provision of Section 42 of Prevention of
Money Laundering Act, 2002, However, there was some delay
occurred because of the unavoidable circumstances as stated
herein above and the afore referred appeal came to be filed on
6th January, 2020. There is a small delay of about 38 days in
filing an appeal occurred because of the afore referred
circumstances and therefore, the same is the sufficient cause
by which the department was prevented from filing an appeal
within a period of 60 days from the date of receipt of
communication of the order passed by the appellate authority.
That even as per the provision of Section 42 itself, the Hon'ble
Court has jurisdiction to condone the delay up to the 60 days.
Therefore, in the present case delay which is of 38 days may
kindly be condoned.
VII. That the appellant is having good chance on merits of the
appeal and therefore, one chance may be given to the
department to submit its case on merits.
4. Without prejudice to the afore referred contentions in the
form of an additional affidavit of the applicant orig. appellant,
now dealing with the affidavit in reply parawise, the applicant
would like to offer following comments to place for the kind
consideration of the Hon'ble Court.
I. With regard to paragraphs 1 and 2 of the petition, the
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answering respondent submits that the contents of
paragraphs 1 and 2 are formal in nature and hence, the
answering respondent offers no comments.
(i) Contents of paragraph no. 1 to 3 of the affidavit in reply filed
by the respondent is denied. It is submitted that the Provision
of Section 42 of the Prevention of Money Laundering Act,
2002 clearly provides that an appeal under the Provision of
Section 42 is required to be file within a for the period of 60
days from the date of communication of order of the appellate
authority. The said Provision further provides that the Hon'ble
Court can Condone delay of further period of 60 days in filing
an appeal under the Provision of Section 42 of the Prevention
of Money Laundering Act, 2002. However, in the present case,
the delay in filing of the present appeal is only 38 days and
therefore, the Hon'ble Court has jurisdiction to Condone the
delay of 38 days in filing of an appeal.
(ii) With regard to the contents of paragraph no. 4 it is retreated
that an order which is impugned is passed on 3rd September,
2019. However, the copy of the said order was forwarded by
the authority only on 24-09-2019 and the same has been
served upon the department only on 30th September, 2019.
Therefore, the period of limitation would start from the date
of receipt of communication of the order i.e. from the date of
30th September, 2019. The department has filed an appeal
after the completion of the departmental formalities
immediately on the first day of reopening of the winter
vacation. Therefore, the period of winter vacation is also
require to be given set off. However, the department has
calculated the delay of 38 days in filing of the present appeal
which is explained herein above. That in view of the Provision
of Section 42 as referred herein above, the Hon'ble Court can
Condon the delay up to the period of 60 days and therefore,
the Hon'ble Court can Condone the delay of 38 days in filing
of an appeal, which is not beyond the period of 60 days
(iii) With regard to the contents of paragraph no. 5 to 10 of the
affidavit in reply filed by the respondent herein, it is
submitted that the decision cited by the respondent herein
would have no application in the fact and circumstances of the
present case as in the present case, the delay is only for the
period of 38 days and not beyond 60 days. Therefore, the
Hon'ble Court has power to condone the delay for the period
of 38 days and the same may kindly be condoned in the
interest of justice.
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(iv) In view of the afore referred set of facts and circumstances of
the case as well as in view of the submission which may be
urged at the time of hearing of the present application, the
Hon'ble Court be pleased to Condone the delay as prayed for
in the interest of Justice."
10. Having heard learned advocates appearing for the parties
and having gone through the material on record, it appears that
condonation of delay request has been made, may be of 38 days
only, but prima facie, it requires that the special Statute, i.e.
Prevention of Money Laundering Act, is having a stringent
provision and therefore keeping in view the said stringent
provision, the request whether to be considered or not is a
central issue and as such before coming to an ultimate
conclusion, few circumstances stated hereunder require to be
taken note of.
11. It is a trite law of Rules of Interpretation that if the
language of the statutory provision is simple and unambiguous
it should be read with clear intention of the Legislature and
Courts are not expected to fill a gap nor any addition or
subtraction of any word is permissible and Court cannot rewrite
the statutory provision. This provision of law is culled out from
the following decisions and since we deem it proper to consider,
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we hereby quote relevant observations from the respective
paragraphs:-
(1) Paragraph 9 of the judgment delivered by the Hon'ble
Apex Court in the case of Commissioner of Income-tax,
Bangalore v. Venkateswara Hatcheries (P) Ltd. reported in
AIR 1999 SC 1225 reads as under:-
"9. A reading of aforesaid dictionary meanings of the word
produce does indicate that if a living creature is brought forth
it can be said that it is produced. However, dictionary gives
more than one meaning of the word produce. Neither the
word produce nor the word article has been defined in the
Act. When the word is not so defined in the Act it may be
permissible to refer to dictionary to find out the meaning of
that word as it is understood in the common parlance. But
where the dictionary gives divergent or more than one
meaning of a word, in that case it is not safe to construe the
said word according to the suggested dictionary meaning of
that word. In such a situation the word has to be construed in
the context of the provisions of the Act and regard must also
be had to the legislative history of the provisions of the Act
and the scheme of the Act. It is settled principle of
interpretation that the meaning of the words, occurring in the
provisions of the Act must take their colour from the context
in which they are so used. In other words, for arriving at the
true meaning of a word, the said word should not be detached
from the context. Thus, when the word read in the context
conveys a meaning, that meaning would be the appropriate
meaning of that word and in that case we need not rely upon
the dictionary meaning of that word."
(2) Paragraph 4 of the judgment delivered by the Hon'ble
Apex Court in the case of Bihari Chowdhary and Another v.
State of Bihar and others reported in AIR 1984 SC 1043
reads as under:-
"4. When the language used in the Statute is clear and
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unambiguous, it is the plain duty of the Court to give effect to
it and considerations of hardship will not be legitimate ground
for not faithfully implementing the mandate of the
legislature."
12. Yet another proposition is that the provision cannot be
interpreted in a manner to defeat its object and merely because
it causes any hardship to a party, no different interpretation can
be given, rather it is a duty cast upon the Court to give effect to
the words which are used in the provision. This proposition can
be seen from the decision delivered by the Hon'ble Apex Court
in the case of M/s. Easland Comines, Coimbatore v.
Collector of Central Excise, Coimbatore reported in AIR
2003 SC 843 (at 850). Relevant observations from the
aforesaid decision contained in para-15, we deem it proper to
quote hereunder:-
"15. In our view, it would be difficult to accept the aforesaid
contention. It is well settled law that merely because a law
causes hardship, it cannot be interpreted in a manner so as to
defeat its object. It is also to be remembered that the Courts
are not concerned with the legislative policy or with the
result, whether injurious or otherwise, by giving effect to the
language used nor it is the function of the Court where the
meaning is clear not to give effect to it merely because it
would lead to some hardship. It is the duty imposed on the
Courts in interpreting a particular provision of law to
ascertain the meaning and intendment of the Legislature and
in doing so, it should presume that the provision was designed
to effectuate a particular object or to meet a particular
requirement. Re: Firm Amar Nath Basheshar Dass v. Tek
Chand, [1972] 1 SCC 893."
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13. Yet another proposition which has been consistently made
by the Hon'ble Apex Court is that Rule of Construction should
be preferred which advances the purpose and object of a
legislation and plain language used in the provision ordinarily
be adopted as can be seen from the decision delivered by the
Hon'ble Apex Court in the case of K.P. Varghese v. Income
tax Officer, Earnakulam and Another reported in AIR 1981
SC 1922.
14. Further, it is a trite law that if specific Statute is having
penal consequences, provisions have to be strictly construed.
Now, keeping the aforesaid proposition of law right from the
Hon'ble Apex Court in the decisions which have been quoted
herein-before, we may revert back ourselves to the Gujarat High
Court Rules, 1993 which prescribes methodology for preferring
an appeal. We have been brought to the notice about specific
provision relates to an office objection about limitation. Rule 67
of the High Court Rules specifically indicates that when an
appeal, application or memorandum of cross-objection is
submitted after expiration period of limitation, shall be
accompanied by a separate application for condonation of delay.
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A separate stamped application for excusing delay shall be
made which is a mandate of rule which is undisputedly
applicable to the present proceedings as well. Since this
provision is a mandatory provision, as is reflecting from the
mere reading of the words of the provision, same have to be
adhered to by the litigant as and when such proceedings are
being initiated. We deem it proper to quote Rule 67 of the
Gujarat High Court Rules, 1993 hereunder:-
67. Procedure in regard to office objection as to limitation.--
(i) When an appeal, application or memorandum of cross-
objection is presented after the expiry of the period of
limitation specified therefore, shall be accompanied by
separate application for condonation of delay.
(ii) If objection is raised by the office to the registration of an
appeal or application or memorandum of cross objections on
the ground of its being beyond time, a separate regular
stamped application 1[or application with e-payment receipt]
for excusing delay in presenting the same shall be made
within 15 days from the date of the notice under Clause (a) or
as the case may be, clause (b) of sub-rule (iii) of Rule 66
above, or where the duplicate of the office objections has been
delivered to the party in person under clause (b) of the said
sub-rule (iii) from the date of receipt thereof by him, failing
which the office shall place the matter before the court for
orders not later than a week after the expiry of period
prescribed under sub-rule (iv) (a) of Rule 65.
(iii) Notwithstanding that the objection as to delay in filing the
matter has not been finally decided, the party or Advocate
shall be required to remove all other objections within the
time specified in sub-rule (iii) of rule 65.
(iv) If no application for excuse of delay or note for revision of the
Registrar's order is filed within 15 days from the date of the
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order of the court under sub-rule (iii), the matter shall without
any delay, be placed for orders before the Registrar and the
Registrar shall pass orders refusing to Register the matter.
(v) When an application for excusing delay is made under any of
the provisions of this Rule, the Appeal or application shall be
registered provided no other objection survives."
15. Yet another provision is also brought to our notice from
the special Statute namely Prevention of Money Laundering Act.
Section 42 of this Act has specifically prescribed a period of
limitation to submit an appeal to the High Court and such
regulatory provision is reproduced hereunder:-
"42. Appeal to High Court.-Any person aggrieved by any decision
or order of the Appellate Tribunal may file an appeal to the
High Court within sixty days from the date of communication
of the decision or order of the Appellate Tribunal to him on
any question of law or fact arising out of such order: Provided
that the High Court may, if it is satisfied that the appellant
was prevented by sufficient cause from filing the appeal
within the said period, allow it to be filed within a further
period not exceeding sixty days.
Explanation. For the purposes of this section, "High Court"
means-
(i) The High Court within the jurisdiction of which the
aggrieved party ordinarily resides or carries on business or
personally works for gain; and
(ii) Where the Central Government is the aggrieved party,
the High Court within the jurisdiction of which the
respondent, or in a case where there are more than one
respondent, any of the respondents, ordinarily resides or
carries on business or personally works for gain."
16. A bare perusal of this provision is clearly indicating in its
plain and unambiguous language that appeal has to be filed
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within a period of 60 days before the High Court from the date
of communication of an order of the Appellate Tribunal and
further grace period has been provided of 60 days with a clear
rider "not exceeding sixty days". So, plain and simple language
used in this provision is that initial period of 60 days can be
extended if the High Court is satisfied that sufficient cause is
shown but not exceeding 60 days. Undisputely, this provision is
not under challenge before us and this provision is of a special
Statute with clear language, we are of the opinion that this
provision has to be observed strictly by either side.
17. In the light of the aforesaid provisions which are
mentioned about the manner in which appeal has to be
presented with Civil Application for condonation of delay and in
addition as to within which period same can be submitted and
maximum period condonable is also prescribed in the Statute.
18. In the light of this provision, dates and sequence of events
placed before us if to be looked into, same would indicate clear
picture.
19. Learned senior advocate Mr. N.D. Nanavati has pointed
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out before us the material facts emerging from the record and
has indicated each day and how much days' delay in a tabular
form and such tabular particulars we deem it proper to quote
hereunder as the same has been placed before us after serving
the copy to learned advocate Mr. Siddharth Dave for the
applicant.
Mode of Date Completion Completion Presentation Presentation Registra
Communic of statutory of Grace of Appeal of CA tion of
ation period of 60 period of 60 06.01.20 05.02.20 CA
days days 12.03.2
On Board 03.09.2019 02.11.2019 01.01.2020 125 155 191
On Website 20.09.2019 19.11.2019 18.01.2020 108 138 174
By Post 30.09.2019 29.11.2019 28.01.2020 98 128 164
20. The afore-mentioned dates which are not in dispute but
indicating that presentation of the application is out side the
extended period of limitation as provided in Section 42 of the
aforesaid Act. To meet with this, valiant attempt is made by
learned advocate Mr. Siddharth Dave by pointing out the
circumstances which are stated in para 3 and 4 of the rejoinder
affidavit submitted by the applicant and has reiterated his
request that this being a sufficient explanation for condonation
of delay, irrespective of the period which has been prescribed in
the Statute in the larger interest of justice, Court may consider
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the request and condone the delay of small period of 38 days
which has occurred in preferring the appeals and has reiterated
that the applications being considered and allowed in the
interest of justice.
21. As we have discussed above the proposition of law laid
down on the issue, we are of the clear opinion that the dates
which are indicating on record are clearly reflecting a situation
where the applicant has submitted beyond the maximum period
prescribed in the Statute. Mere filing of appeal memo without
observing Rule 67 of the Gujarat High Court Rules would not
come to the rescue of the applicant more particularly when Rule
67 is clearly postulating a procedure how to submit an appeal
and application for condonation of delay and here, we have
found that such Rule having been not observed and maximum
period prescribed under the Statute is not permitting, we desist
ourselves from exercising any discretion in favour of the
applicant and this is more so in view of the following proposition
of law placed before us by learned senior advocate Mr. Nanavati
which we hereinafter discuss.
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22. Along with the affidavit-in-reply, learned senior counsel
Mr. Nanavati has attached one decision delivered by the
Hon'ble Apex Court in the case of Assistant Commissioner
(CT) LTU, Kakinada and others v. Glaxo Smith Kline
Consumer Health Care Limited reported in 2020 SCC
OnLine SC 440. The Hon'ble Apex Court while dealing with the
issue of statutory remedy has observed about the limitation
issue. We hereby refer the clear observation made in para-15 of
the said judgment hereunder:
"15. From the aforesaid decisions, it is clear as crystal that the
Constitution Bench in Supreme Court Bar Assn. v. Union of
India, (1998) 4 SCC 409, has ruled that there is no conflict of
opinion in Antulay case [A.R. Antulay v. R.S. Nayak, (1988) 2
SCC 602] or in Union Carbide Corpn. case [Union Carbide
Corpn. v. Union of India, (1991) 4 SCC 584] with the principle
set down in Prem Chand Garg v. Excise Commr., AIR 1963 SC
996. Be it noted, when there is a statutory command by the
legislation as regards limitation and there is the postulate that
delay can be condoned for a further period not exceeding
sixty days, needless to say, it is based on certain underlined,
fundamental, general issues of public policy as has been held
in Union Carbide Corpn. case [Union Carbide Corpn. v. Union
of India, (1991) 4 SCC 584]. As the pronouncement in
Chhattisgarh SEB v. Central Electricity Regulatory
Commission, (2010) 5 SCC 23, lays down quite clearly that the
policy behind the Act emphasising on the constitution of a
special adjudicatory forum, is meant to expeditiously decide
the grievances of a person who may be aggrieved by an order
of the adjudicatory officer or by an appropriate Commission.
The Act is a special legislation within the meaning of Section
29(2) of the Limitation Act and, therefore, the prescription
with regard to the limitation has to be the binding effect and
the same has to be followed regard being had to its
mandatory nature. To put it in a different way, the
prescription of limitation in a case of present nature, when the
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statute commands that this Court may condone the further
delay not beyond 60 days, it would come within the ambit and
sweep of the provisions and policy of legislation. It is
equivalent to Section 3 of the Limitation Act. Therefore, it is
uncondonable and it cannot be condoned taking recourse to
Article 142 of the Constitution."
23. Further, learned senior advocate Mr. Nanavati has also
referred to few other judgments and since same have been
placed before us for consideration, we deem it proper to
consider the same. Judgment of the Hon'ble Supreme Court in
the case of Chhattisgarh State Electricity Board v. Central
Electricity Regulatory Commission and others reported in
(2010) 5 SCC 23 has been placed before us to give a meaning
to the words "Deemed Communication". Since the relevant
observations are contained in para- 37, we deem it proper to
quote the same hereunder:-
"37. The issue deserves to be considered from another angle. As
mentioned above, Rule 94(2) requires that when the order is
reserved, the date of pronouncement shall be notified in the
cause list and that shall be a valid notice of pronouncement of
the order. The counsel appearing for the parties are supposed
to take cognizance of the cause list in which the case is shown
for pronouncement. If title of the case and name of the
counsel is printed in the cause list, the same will be deemed
as a notice regarding pronouncement of order. Once the order
is pronounced after being shown in the cause list with the title
of the case and name of the counsel, the same will be deemed
to have been communicated to the parties and they can obtain
copy through e-mail or by filing an application for certified
copy."
24. Further decision delivered by the Hon'ble Apex Court in
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the case of Oil and Natural Gas Corporation Limited v.
Gujarat Energy Transmission Corporation Limited and
others reported in (2017) 5 SCC 42 has also been brought to
our notice on the issue of maximum period of limitation, of-
course in a different Statute, but analogy is applicable herein.
We deem it proper to quote para-10 of the said judgment
hereunder:
"10. In the instant case, as is noticeable, the judgment was
reserved on 18-9-2007 and pronounced in open court on 28-9-
2007. Therefore, the date of communication would be 28-9-
2007 as per the principle laid down in Chhattisgarh SEBS. We
entirely concur with the said view. In the case at hand, the
certified copy was applied through e-mail on 9-10-2007 and
delivered on the same date. Be that as it may, the date of
communication is 28-9-2007 and, therefore, the appeal
preferred under Section 125 of the Act should have been filed
within 60 days i.e. 27-11-2007, to come within the period of
limitation and further to be entitled to get the benefit of
Section 5 of the Limitation Act, he should have filed the
appeal within a further period of 60 days i.e. 26-9-2008. Thus
calculated, there is total delay of 71 days and II days beyond
the expiry of 60 days, the limit that is stipulated under Section
125 of the Act.
25. Further decision delivered by the Hon'ble Apex Court in
the case of Sneh Gupta v. Devi Sarup and others reported in
(2009) 6 SCC 194 is also relevant to the issue, of which we
quote para 70 hereunder:-
"70. Even otherwise, we do not think that any error has been
committed by the High Court in arriving at the finding that
the appellant had knowledge of the passing of the compromise
decree much earlier. She did not file any application for
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condonation of delay. She filed two more applications for
recall of the order dated 6.11.2004 in other enacted appeals.
Those applications were also filed after expiry of the period of
limitation and none of those applications were also
accompanied with an application for condonation of delay. In
absence of any application for condonation of delay, the Court
had no jurisdiction in terms of Section 3 of the Limitation Act,
1963 to entertain the application for setting aside the decree.
[See Dipak Chandra Ruhidas v. Chandan Kumar Sarkar
[(2003) 7 SCC 66]; and Sayeda Akhtar v. Abdul Ahad [(2003)
(7) SCC 52]."
26. A further decision of the Hon'ble Apex Court in the case of
Postmaster General and others v. Living Media India and
Another reported in (2012) 3 SCC 563 has also been brought
to our notice, which has also dealt with the period of limitation
and sufficient cause has been interpreted which can be seen
from para 25 onwards in the said judgment. The very relevant
paragraph in addition to other observations contained in para
28, 29 and 30 we deem it proper to quote hereunder:
"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 bonafide, 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 bonafide effort, there is no need to accept the usual
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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
government departments. The law shelters everyone under the
same light and should not be swirled for the benefit of a few.
30. Considering the fact that there was no proper explanation
offered by the Department for the delay except mentioning of
various dates, according to us, the Department has miserably
failed to give any acceptable and cogent reasons sufficient to
condone such a huge delay. Accordingly, the appeals are liable
to be dismissed on the ground of delay."
27. So, conjoint effect of the aforesaid proposition of law is
leading to situation where maximum period is prescribed in a
Special Statute, delay should not be liberally construed if it is
beyond maximum period rather cannot be condoned. At this
stage, we may refer to one of the decisions delivered by the
Hon'ble Apex Court in a recent past on the issue of object of law
of limitation, i.e. in the case of Maiji Sannemma alias
Sanyasirao v. Reddy Sridevi and others reported in 2021
SCC OnLine SC 1260. We deem it proper to quote para 19 and
21 of the said decision hereunder:-
"19. In the case of Pundlik Jalam Patil (supra), it is observed as
under:-
"The laws of limitation are founded on public policy. Statutes
of limitation are sometimes described as "statutes of peace".
An unlimited and perpetual threat of limitation creates
insecurity and uncertainty: some kind of limitation is essential
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for public order. The principle is based on the maxim "interest
reipublicae ut sit finis litium", that is, the interest of the State
requires that there should be end to litigation but at the same
time laws of limitation are a means to ensure private justice
suppressing fraud and perjury, quickening diligence and
preventing oppression. The object for fixing time-limit for
litigation is based on public policy fixing a lifespan for legal
remedy for the purpose of general welfare. They are meant to
see that the parties do not resort to dilatory tactics but avail
their legal remedies promptly. Salmond in his Jurisprudence
states that the laws come to the assistance of the vigilant and
not of the sleepy..."
21. In The case of Pundlik Jalam Patil (supra), it is observed by
this Court that the court cannot enquire into belated and stale
claims on the ground of equity. Delay defeats equity. The
Courts help those who are vigilant and "do not slumber over
their rights".
28. One another judgment which has been brought to our
notice is that Penal Statute is to be strictly construed and apart
from that if Statute provides that a particular thing to be done
in the manner prescribed, it should be done in that manner and
not in other way. This observation contained in para-26 of the
judgment delivered by the Hon'ble Apex Court in the case of
State of Jharkhand and others v. Ambay Cements and
Another reported in 2004 AIR SCW 6703, we deem it proper
to quote hereunder since we found it relevant:
"26. Whenever the statute prescribes that a particular act is to be
done in a particular manner and also lays down that failure to
comply with the said requirement leads to severe
consequences, such requirement would be mandatory. It is
the cardinal rule of the interpretation that where a statute
provides that a particular thing should be done, it should be
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done in the manner prescribed and not in any other way. It is
also settled rule of interpretation that where a statute is penal
in character, it must be strictly construed and followed. Since
the requirement, in the instant case, of obtaining prior
permission is mandatory, therefore, non-compliance of the
same must result in canceling the concession made in favour
of the grantee-the respondent herein."
29. Yet another observation from the decision delivered by the
Hon'ble Apex Court in the case of Council for Indian School
Certificate Examination v. Isha Mittal and Another
reported in (2000) 7 SCC 521, is that even equity under the
guise of substantial justice cannot prevail over when the Statute
has made a clear provision. Hence, keeping in view the
observations contained in para-4 of the said decision, even
equitable considerations are also not permitting us to ignore
specific provision. Hence, general provision would not apply
here in the present case on hand. Hence, the applications being
devoid of merits deserve to be dismissed.
30. On overall consideration of the aforesaid proposition of
law, sequence of events in consonance with the statutory
provisions, we are of the opinion that in any case, on the
touchstone of the general provision also, what has been
explained is mere administrative delay, but that administrative
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delay on this peculiar background of fact is not justifiable to
ignore the aforesaid discussion. Hence, even on that count also,
mere administrative exigency cannot be taken as an aid by the
applicant to make a request for condoning the delay.
31. In view of the aforesaid discussion and in view of the
circumstances stated herein-above, it is not possible for us to
consider the request of the applicant in all these applications
which are filed for seeking condonation of delay and accordingly
all these applications being devoid of merits stand DISMISSED.
Rule discharged.
Sd/-
(ASHUTOSH SHASTRI, J)
Sd/-
(HEMANT M. PRACHCHHAK,J)
OMKAR
