State of Karnataka Vs.
Y.Moideen Kunhi & Ors. [2009] INSC 881 (4 May 2009)
Judgment
IN THE SUPREME COURT
OF INDIA CIVIL APPELLATE JURISDICTION SPECIAL LEAVE PETITON (C ) NOS. OF 2009
(Arising out of CC Nos. 3324-3326 OF 2009) State of Karnataka ...Petitioner
Versus Y. Moideen Kunhi( dead) by Lrs. and Ors. ...respondents
Dr. ARIJIT PASAYAT, J
1.
The
special leave petitions are directed against the judgment and order dated
7.11.1990 in Writ Petition No.40425 of 1982 and Writ Petition No.10920 of 1983
and order dated 26.9.2007 in Review Petition No.817 of 2004 passed by a learned
Single Judge of the Karnataka High Court. It appears that there is a delay of
more than nearly 6500 days against the original order and about 300 days so far
as the review petition is concerned.
2.
Before
dealing with the question of delay it is necessary to take note of the State's
case before the High Court.
3.
The
records disclose that the agricultural lands to the extent of 50.89 acres,
30.00 acres, 462.00 acres, 3485.83 were purchased through registered
partnership firm M/s Y. Moideen Kunhi & Company. All the lands are sub-
divisions of Sy. No.146 of Neriya Village, Puttur Taluk.
4.
The
declaration under Section 66 (4) of the Karnataka Land Reforms Act,
1961(hereinafter referred to as the `Act') was filed by the three partners of
the firm i.e.. respondent Nos. 1,2 and 3 herein for determination of the excess
holding. In the very declaration it is stated that the lands being the
plantation lands, are exempted under Section 104 of the Act. It is further
mentioned therein that all the declarants are the partners of the firm, having
1/3rd share in the properties purchased and that the declarants have furnished
the declaration without prejudice to their contentions that the provision of
the Act and the provisions of the Karnataka Ordinance No. 11 of 1975 are not applicable
to the aforesaid lands. The Land Tribunal, Belthangady by the order dated
27.9.1982, held that the declarants are holding the lands to an extent of
368.16 acres in excess of the ceiling limit. The tribunal opined that 2820
acres are exempted lands. After deducting the tenanted lands and exempted
lands, the Tribunal ultimately held that an area of 530.16 acres has to be
taken into consideration for the purpose of determining excess holding.
After deducting 10
units for each of the declarants, the Tribunal held that an area of 368.16
acres is the excess land. Thereafter the Land Tribunal suo motu initiated
review proceedings under Section 122 A of the Act for reviewing its order dated
27.9.1982. The review proceedings were also dropped on 10.11.1982.
5.
The
order of the Land Tribunal was questioned before the High Court by the three
declarants in W.P. no. 40425/1982. So also the State of Karnataka challenged
the order of the Land Tribunal by filing W.P. No. 10920 of 1983. During the
course of hearing, the three declarants withdrew W.P. No, 40425/1982. However,
W.P. No. 10920/1983 filed by the State of Karnataka was dismissed by the High
Court on 7.11.1990 on merits holding that there is no error in the order passed
by the Land Tribunal.
6.
It
was contended on behalf of the State that the Tahsildar being the Secretary of
the Land Tribunal should have sent the declaration filed under Section 66 of
the Act by the three declarants, to the Deputy Commissioner to be dealt with
under the provision of Section 79B of the Act, to consider the question by the
registered partnership firm is valid or not; instead he proceeded to submit the
report to the Land Tribunal which has no jurisdiction to decide the question
about the lands purchased by the firm, the Tahsildar should not have been
merely dependant upon the certificates of the Cardamom Board and Rubber Board
to conclude that the lands in question are plantation lands, the Tahsildar has
fraudulently prepared the inspection report according to which he visited the
lands in question within a day and that he could not visit every nook and
corner of the lands in question, that the Land Tribunal should also not have
entertained the declaration filed under Section 66 of the Act as the lands have
been purchased and held by the registered firm, that the Tribunal also says
that the members of the Land Tribunal inspected the lands within one day, which
is a make believe affair;
that the statement
made before the High Court in W.P. No. 42774/1982 that the excess lands have
been surrendered, is also a fraud practiced on the Court inasmuch as the
declarants have not actually surrendered the excess lands; that the learned
Judge who decided W.P. No. 10920/1983 has opined that the Tahsildar being the
Government official, there was no need to send notice to the State or other
officials, that when the Tahsildar who is directly concerned with the case has
practiced fraud, learned Judge should have issued notice to the Deputy
Commissioner or Revenue Secretary; that the learned Judge while disposing of
W.P. No. 10920/1983 has opined that the declarants claim the lands not as
partners but in their personal capacity which is an error apparent on the face
of the record as the declaration itself has been filed as the partners of firm;
that fraud vitiates everything and therefore the order passed by the Tribunal
as well as by the High Court in W.P. No. 10920/1983 are null and void as they
are obtained by the declarants by practicing fraud. Therefore the review
petition was filed.
7.
Stand
of the respondents on the other hand was that no fraud was committed by the
respondents or by the Secretary of the Land Tribunal.
Error of judgment
cannot be equated to fraud and since there was a delay of 14 years in filing
the review petition even after the Deputy Commissioner allegedly discovered the
alleged fraud on 10.2.2003 the delay in filing the review petition which was in
fact filed on 8.10.2004 has not been explained.
It was their stand
that non filing of the appeal by the State will not amount to fraud by the
officials of the State.
8.
The
High Court found that there was no element of fraud and, therefore, the review
petition was dismissed. However, liberty was given to the State or the Tribunal
to get the land to the extent of 368.16 acres surrendered in accordance with
law.
9.
The
State found that the allegation of fraud related to non surrender of the land.
Stand of the respondents was that lands were surrendered by the declarants
before the surveyor of the State who had accepted the possession.
The High Court
accepted that the land was surrendered before the Tribunal as is required under
law. It was further observed that if the State felt that the lands surrendered
by the respondents are not suitable, it is open to the State to initiate action
under Section 67 (3A) of the Act. Liberty was given to the Tribunal or the
State to initiate steps for getting the land surrendered in accordance with
Section 67 by initiating necessary proceedings.
10.
It
is submitted by learned counsel for the appellant that this Court while dealing
with an application for condonation of delay especially those filed by
governments, has held that adoption of strict standard of proof sometimes fails
to protect public justice, and it would result in public mischief by skilful
management of delay in the process of filing an appeal.
11.
It
is submitted that many government matters are delayed by either the nature of
the bureaucratic process or by deliberate manipulation of the same by taking
advantage of loopholes in the conduct of litigation.
12.
By
way of an example only reference is invited to Chapter 3 of a report for the
year 2003 of the Comptroller and Auditor General of India.
The chapter entitled
REVIEW ON HANDLING OF APPEAL CASES IN THE CENTRAL EXCISE DEPARTMENT reads in
pertinent part as under:
3.5 Analysis of
adverse decisions due to departmental lapses 3.5.1 Dismissal of Appeals on
account of delay in filing of appeals
13.
As
per instructions issued by the Board in October 1991, the Commissioner of
Central Excise, must ensure that all the documents including the original
certified copy of the CEGAT order, photocopies of the order-in-original &
order-in-appeal alongwith application for condonation of delay are enclosed
with the proposal sent to the Board for filing civil appeal before the this
court. The time limit prescribed for review by the Commissionerate is 10 days
from the date of receipt of certified copy of the order. The processing of case
at the Board's office includes drafting, vetting and finalisation of appeal.
The jurisdictional Commissioner within 60 days may file the appeal from the
date of receipt of the CEGAT orders in the Commissionerate of Central Excise.
14.
Test
check of the records, in 16 Commissionerates of Central Excise, revealed that
32 appeals filed by the department involving revenue of Rs.50.41 crore were
dismissed by this Court and 3 cases involving Rs.2.00 crore by CEGAT on account
of abnormal delays in filing of the appeals.
Audit scrutiny
revealed that delays had occurred at all the stages viz. receipt of certified
copy, submission of papers to the Board, examination of papers at Board's
office, drafting of appeal by the Panel Counsel; and filing of appeal by the
CCE. The total period of delay varied. from 119 to 691 days.
Some of the
illustrative cases are discussed below: - (i) Delay by Panel Counsel The CEGAT
set aside (March 1997) an order issued by CCE in April 1992 confirming demand of
Rs.29.13 crore and penalty of Rs.2 crore, against M/s. National Organic
Chemicals. India Limited, in Mumbai VI Commissionerate of Central Excise, for
invoking Section 11A without adequate evidence of intention to evade duty. This
Court on 15 January, 1999 dismissed the appeal filed by the department against
the CEGAT order dated 5 March 1997, on account of delay in filing of appeal by
seven months. The period of delay included four months taken by the Panel
Counsel in drafting the appeal.
(ii) Delay by the
Board In the case of M/s. Time Pharma, involving revenue of Rs.1.83 crore , the
Commissionerate of Central Excise Mumbai II (now Mumbai III) received certified
copy of the CEGAT's order after 14 days on 4 February 1997 and sent comments to
the Board after 23 days as against prescribed period of 10 days. Although the
Board decided before 17 April 1997 to go in appeal, the appeal was filed only
on 5 June 1998. This court dismissed the appeal on the ground that there was an
inordinate delay of about 360 days in filing the appeal without giving any
satisfactory explanation. The Commmissionerate of Central Excise attributed the
delay to the Board.
(iii) Supplementary
appeal filed after six years Mumbai II Commissionerate of Central Excise, filed
an appeal in CEGAT on 14 June, 1993 against an order of the Commissioner dated
31 March 1992 regarding irregular availment of SSI exemption and consequent
availment of Modvat credit at higher rates by a group of six assessees (M/s.
Azo Dye Chem and five others). The appeal was, however, filed in respect of
only one assessee whereas the case was against all the six manufacturing units
and fourteen others being Directors and Managers of the said units. After six
years, on the instructions from Junior Departmental Representative, the
supplementary appeals alongwith application for condonation of delay in filing
appeals against the others were filed in CEGAT on 11 October 1999 under section
35 E (4) of the Act. However, CEGAT dismissed these appeals on 21 July, 2000 borrowing
a Larger Bench decision dated 12 July, 2000 in the same case where it was held
that CEGAT has no power to condone the delay.
The main appeal filed
in time (14 June 1993) was also dismissed by CEGAT on 21 July, 2000 on the
ground that no appeal had been filed against the other noticee. The revenue
involved in this case was Rs.1.18 crore.
(iv) Frivolous
reasons for condonation In Hyderabad I Commissionerate of Central Excise, two
appeals filed by the department against order of Commissioner (Appeals) on
whether certain products manufactured by the assessees (M/s.Neyland
Laboratories Limited and M/s. Aurbindo Pharma Ltd.) are bulk drugs under `Drugs
and Cosmetics Act', were dismissed (17 August 2002) by CEGAT as time barred as
there was a delay of 48 days in filing the appeals. The reasons put forth by
the department that the new Collector of Central Excise needed time to
familiarize to the work were not accepted. Failure to file an appeal before CEGAT
in time resulted in dismissal of the appeal involving revenue of Rs.81.81 lakh.
15.
It
is submitted that even with the introduction of safeguards against delay in the
process, in an occasional case delay occurs which is inexplicable in normal
circumstances. The question is whether such delay, should result in the
negation of the state's claim and at the cost of the interest of the members of
the public whose cause has not been carefully espoused. It is submitted by the
appellant-State that in such cases, delay must be visited with consequences but
the interest of the inhabitants of the State must be protected.
In State (NCT of
Delhi) v. Ahmed Jaan 2008 (11) SCALE 455 it was held as follows:
....It is axiomatic
that decisions are taken by officers/ agencies proverbially at slow pace and
encumbered process of pushing the files from table to table and keeping it on
table for considerable time causing delay - intentional or otherwise - is a
routine. Considerable delay of procedural red-tape in the process of their
making decision is a common feature.
Therefore, certain
amount of latitude is not impermissible. If the appeals brought by the State
are lost for such default no person is individually affected but what in the
ultimate analysis suffers, is public interest. .....In the event of decision to
file appeal needed prompt action should be pursued by the officer responsible
to file the appeal and he should be made personally responsible for lapses, if
any. Equally, the State cannot be put on the same footing as an individual. The
individual would always be quick in taking the decision whether he would pursue
the remedy by way of an appeal or application since he is a person legally
injured while State is an impersonal machinery working through its officers or
servants"
Further at para 15
this court held that:
"... The above
position was highlighted in State of Haryana v. Chandra Mani and Ors. 1996 (3)
SCC 132; Special Tehsildar, Land Acquisition, Kerala v. K V.Ayisumma (1996 (10)
SCC 634) and State of Nagaland v. Lipok AO and Ors. (2005 (3) SCC 752). It was
noted that adoption of strict standard of proof sometimes fail to protract
public justice, and, it would result in public mischief by skilful management
of delay in the process of filing an appeal."
16.
This
Court has in appropriate cases even condoned delays of over 30 years in filing
of SLPs. In Nand Kishore v. State of Punjab 1995 (6) SCC 614 this court held:
".........13.
The step of the three-member Bench so taken reveal its mind as reflected in the
above proceedings. Their Lordships wanted to do substantial justice. It was
thought better to advise the petitioner to file special leave petition. As we
view this order, having invited the petitioner to file the special leave
petition, it is no longer advisable or appropriate for us to retrace back the
step put forward by the three- member Bench. It is significant to recall that
the writ application was dismissed on 5-2-1962 and the moment Moti Ram Deka
case appeared on the scene, the appellant or 24-2-1964, within limitation,
brought forward his suit which got strengthened by Gurdev Singh case appearing
within a couple of months of its filing. The appellant-special leave petitioner
was thus bona fide pursuing an appropriate remedy for all these years. In these
circumstances, we think that an appropriate case for 12 condonation of delay
of the intervening period has been made out. We, therefore, allow CC 11644 of
1991 and condone the long durated delay in these exceptional circumstances. On
doing so, we grant leave to appeal. The appeal thus arising and the Civil
Appeal No. 632 of 1975 may now be disposed of together...."
17.
On
perusal of the explanation offered it is clear that the officials who were
dealing with the matter have either deliberately or without understanding the
implications dealt with the matter in a very casual and lethargic manner. It is
a matter of concern that in very serious matters action is not taken as
required under law and the appeals/petitions are filed after long lapse of
time. It is a common grievance that it is so done to protect unscrupulous
litigants at the cost of public interest or public exchequer.
This stand is more
noticeable where vast tracts of lands or large sums of revenue are involved.
Even though the courts are liberal in dealing with the belated presentation of
appeals/applications, yet there is a limit upto which such liberal attitude can
be extended. Many matters concerning the State Government and the Central
Government are delayed either by the nature of bureaucratic process or by
deliberate manipulation of the same by taking advantage of loopholes in the
conduct of litigation. Several instances have come to the notice of this Court
where as noted above appeals have been filed where the revenue involved runs to
several crores of rupees. It is true that occasionally delay occurs which is
inexplicable in normal circumstances.
18.
The
case at hand is a classic example where the circumstances are the same. More
than 4000 acres of land are involved out of which, according to the State,
nearly 3500 acres constitute forest land. Ultimately, the Court has to protect
the public justice. The same cannot be rendered ineffective by skillful
management of delay in the process of making challenge to the order which prima
facie does not appear to be legally sustainable.
19.
The
expression `sufficient cause' as appearing in Section 5 of the Indian
Limitation Act, 1963 (in short the `Limitation Act') must receive a liberal
construction so as to advance substantial justice as was noted by this Court in
G. Ramegowda, Major etc. v. The Special Land Acquisition Officer, Bangalore
(AIR 1988 SC 897). Para 8 of the judgment reads as follows:
"8. .......The
law of limitation is, no doubt, the same for a private citizen as for
governmental authorities. Government, like any other litigant must take
responsibility for the acts or omissions of its officers. But a somewhat
different complexion is imparted to the matter where Government makes out a
case where public interest was shown to have suffered owing to acts of fraud or
bad faith on the part of its officers or agents and where the officers were
clearly at cross-purposes with it.
14 Therefore, in
assessing what, in a particular case, constitutes "sufficient cause"
for purposes of Section 5, it might, perhaps, be somewhat unrealistic to
exclude from the considerations that go into the judicial verdict, these
factors which are peculiar to and characteristic of the functioning of the
government. Governmental decisions are proverbially slow encumbered, as they
are, by a considerable degree of procedural red tape in the process of their
making. A certain amount of latitude is, therefore, not impermissible. It is
rightly said that those who bear responsibility of Government must have "a
little play at the joints". Due recognition of these limitations on
governmental functioning -- of course, within reasonable limits -- is necessary
if the judicial approach is not to be rendered unrealistic. It would, perhaps,
be unfair and unrealistic to put government and private parties on the same
footing in all respects in such matters. Implicit in the very nature of
governmental functioning is procedural delay incidental to the decision-making
process. In the opinion of the High Court, the conduct of the law officers of
the Government placed the Government in a predicament and that it was one of
those cases where the mala fides of the officers should not be imputed to
Government. It relied upon and trusted its law officers. Lindley, M.R., in the
In re National Bank of Wales Ltd. (1899) 2 Ch. 629 at p.673 observed, though in
a different context:
"Business cannot
be carried on upon principles of distrust. Men in responsible positions must be
trusted by those above them, as well as by those below them, until there is
reason to distrust them."
20.
Keeping
in view the importance of questions of law which are involved we are inclined
to condone the delay subject to payment of exemplary costs which we fix at
rupees ten lakhs to be paid within a period of 8 weeks to the respondents. The
delay is condoned subject to the payment of the aforesaid amount as costs.
After making the payment the receipt thereof shall be filed before this Court along
with an affidavit. Only after the payment is made the special leave petitions
shall be listed for admission. We make it clear that we have not expressed any
opinion on the merits of the case.
21.
It
is imperative that the State shall immediately initiate action as available in
law against every person responsible for the alleged fraud and delay in
persuing the remedies, fix responsibility and recover the amount paid as costs
from them. Needless to say orders shall be passed in this regard by the
competent authority after grant of opportunity to the concerned person(s). If
any, action under criminal law(s) is to be taken, same shall be taken.
..........................................J.
(Dr. ARIJIT PASAYAT)
..........................................J.
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