Chandra Bhushan & ANR Vs. Deputy
Director of Consolidation (Regional), U.P. & Ors  INSC 266 (15
15/12/1966 SHAH, J.C.
RAO, K. SUBBA (CJ) SIKRI, S.M.
CITATION: 1967 AIR 1272 1967 SCR (2) 286
D 1972 SC2060 (8) R 1978 SC1409 (4) RF 1990
SC 772 (15,32)
Practice and Procedure--Certiorari--Rule of
practice prescribing ninety days for filing of writ--If binding rule of
limitation--Constitution of India, Art. 226.
The Allahabad High Court in Mongey v. Board
of Revenue U.P. [A.I.R. 1957 All. 47] laid down the practice that a period of
ninety days should be taken as the period for application for the issue of a
Writ of Certiorari and that time could be extended only when special
circumstances were shown to exist. The appellant who had taken all the
preliminary steps to file a writ petition did not file it on the ninetieth day.
That day was originally a working day;
but from the afternoon onwards the court and
its offices were closed, without previous intimation, for the Diwali holidays.
The appellant filed the petition on the reopening of the court. The High Court
dismissed the petition on the ground that the rule of practice, prescribed a
binding rule of limitation and there was no explanation for not filing the
petition on the ninetieth day. In appeal to this Court.
HELD: The High Court erred in exalting a rule
of practice into a rule of limitation and rejecting the petition of the
appellant without considering whether he was guilty of laches and undue delay.
[289A-B] A rule of practice may only indicate how discretion will be exercised
by the court in determining whether having regard to the circumstances of the
case, the applicant has been guilty of laches or undue delay. [288 A] Normally
this Court will not interfere with the exercise of this discretion by the High
Court but the special circumstances of the present case justified a departure
from the rule. [288H]
CIVIL APPELLATE JURISDICTION: CIVIL Appeal no.973
of 1965 Appeal by special leave from the judgment and decree dated March 5,
1962 of the Allahabad High Court in Special Appeal No. 43 of 1962.
B. C. Misra and D. Goburdhun, for the
C.B. Aggarwala and 0. P. Rana, for
respondents Nos. 1 to 3.
The Judgment of the Court was delivered by
Shah J. A revision application under s. 48 of the U.P. Consolidation of
Holdings' Act filed by the appellants against the order of the Settlement
Officer, Consolidation, was dismissed by the Deputy Director of Consolidation,
Allahabad, by order dated July 15, 1961. The appellants then moved on November
13, 1961, the High 287 Court of Allahabad for the issue of a writ of certiorari
quashing the orders, inter alia, of the Consolidation Officer and the Settlement
Officer. The petition was summarily rejected by D. S. Mathur, J., observing
that the period of "limitation expired on 7th November, 1961 and no
explanation had been furnished why the writ petition could not be filed on
November 7, 1961". A special appeal against that order was dismissed by a
Division Bench of the Allahabad High Court. The High Court observed that the
petition was dismissed by Mathur, J., on the ground that it was filed beyond 90
days from the date of the impugned order "after excluding the time taken
in obtaining a certified copy of the order and after excluding the time
requisite for giving notice to the Standing Counsel under rules of the
Court". The High Court further observed "that no attempt ... had been
made to explain why the petition was not moved on November 7, 1961 which was
the date on which it should have been moved in accordance with the principles
laid down by the" High Court. Against the order of the High Court, this
appeal is preferred with special leave.
The High Court of Allahabad has not framed
any rule prescribing a period of limitation for filing petitions for writs of
certiorari under Art. 226 of the Constitution.
Ordinarily in the absence of a specific
statutory rule, the High Court may be justified in rejecting a petition for a
writ of certiorari against the judgment of a subordinate court or tribunal, if
on a consideration of all the circumstances, it appears that there is undue
delay. But the aggrieved party should have a reasonable time within which to
move the High Court for certiorari. Sometimes it has been suggested that the
remedy by certiorari is in the nature of that afforded by writ of error, it
will not be issued, or if issued will be quashed or superseded, where, in the
absence of special facts or circumstances excusing the delay, the application
is not made until after the time within which a writ of error must be
prosecuted has elapsed see Ferris & Ferris-"Extraordinary Legal
Remedies", p. 202. The Allahabad High Court in Mongey v. Board of Revenue
UP. Allahabad,(1) has consistently with that view laid down the practice that
"writ petitions under Art. 226 of the Constitution should be filed as
quickly, after the delivery of judgment, of the inferior tribunal, as possible.
A period of 90 days, which is the period fixed for appeals to the High Court
from the judgments of courts below, should be taken as the period for
application for the issue of a writ of certiorari, and that time can be
extended only when circumstances of a special nature, which are sufficient in
the opinion of the Court, are shown to exist".
But in the absence of a statutory rule the
period prescribed for preferring an appeal to the High Court is a rough
measure: in each case the primary question is whether the applicant has been
guilty of laches or undue delay. A rule of (1) A.I.R. 1957 All. 47.
288 practice cannot prescribe a binding rule
of limitation: it may only indicate how discretion will be exercised by the
Court in determining whether having regard to the circumstances of the case,
the applicant has been guilty of laches or undue delay.
In the present case the order of the Deputy
Director of Consolidation was made on July 15, 1961, and a petition for review
of that order was rejected on September 22, 1961.
The appellants had to secure certified copies
of the impugned orders, and under the rules of the High Court they had to serve
upon the Standing Counsel to the State of Uttar Pradesh a notice of the
intention to move a petition before the High Court. Taking into consideration
these two periods, the appellants could have, according to the practice of the
High Court, moved the petition on November 7, 1961. But the petition was moved
on November 13, 1961.
D. S. Mathur J., rejected the petition being
apparently of the opinion that the rule of practice prescribed a rule of
limitation. The learned Judge did not consider whether on a review of the
circumstances the appellants were guilty of laches or undue delay. In appeal,
the High Court affirmed the order.
There are certain special circumstances which
would have normally justified the Court in not insisting upon strict compliance
even with its own rule of practice. Originally November 7, 1961 was declared a
working day by the High Court, but by notice issued by the Court on November 7,
1961, the High Court and its offices were, without previous intimation, closed
some time about mid-day for the Diwali holidays, and the Court and its offices
re-opened on November 13, 1961. The petition which was intended to be filed in
the High Court was sworn on October 12, 1961, and an Advocate had, it appears,
been engaged by the appellants to lodge the petition, and notice as required by
the rules of the High Court was served upon the Standing Counsel.
There is no reason to think that the appellants
would not have presented the petition on November 7, 1961 if the offices of the
High Court were not closed at 1-00 P.M.
The rule which has been laid down in Mongey's
case, (1) is at best a rule of practice, and not a rule of limitation.
It is true that normally the question whether
a petition under Art. 226 of the Constitution for the issue of a writ of
certiorari had been presented without undue delay or laches is a question for
the High Court to decide and this Court would not interfere with the exercise
of the discretion of the High Court. But in the present case, there ire special
circumstances which justify departure from the rule (i) that Mathur, J.,
ragarded the rule of practice as a rule of limitation ; (ii) that the offices
of the High Court were ordered to be closed at 1-00 P.M. on November 7, 1961,
even though originally November 7, 1961 was declared a working day; and (iii)
the appellants had (1) A.I.R. 1957 All. 47.
289 completed all preliminary steps for
filing the petition before November 7, 1961. These circumstances have not been
considered by Mathur, J., nor have they been considered by the High Court. They
appear to have exalted a rule of practice into a rule of limitation, and
rejected the petition of the appellants without considering whether the
appellants could be said to be guilty of laches or undue delay. It may be
mentioned that apart from the ground that the petition was not presented within
ninety days, there is nothing which indicates that the appellants were guilty
of laches or undue delay, nor are there grounds which justified the High Court
in holding that it would be unjust to permit a departure from the practice of
The appeal will therefore be allowed and the
order of the High Court set aside. The proceedings will be remanded to the High
Court for hearing and disposal according to law.
There will be no order as to costs in this
Court. The costs in the High Court will be costs in the cause.