2015 (9) TMI 1757 - HC - Indian Laws

Condonation of delay in filing the complaint - present writ petition is filed on 27.8.2012 i.e. practically more tan 8 months of passing of the order by Hon'ble Justice Tahaliyani - HELD THAT - It is true that Hon'ble Justice Tahaliyani had granted liberty to file the Writ Petition. However, liberty to file is a phraseology without a valid sanction of any statute or any specific precedent. It is the liberty granted to the petitioner to probe the possibility of seeking the relief by an alternative remedy. The said liberty does not give right to a litigant fresh/anew to agitate the same issue/order which has attained finality. The liberty may confer a right to the petitioner to file a petition, but it does not confer jurisdiction upon the Court to probe into the correctness or the validity of the order under challenge. Review of a judgment cannot be had on this liberty. This Court is of the opinion that only because liberty is granted does not mean that the subsequent proceeding is maintainable in the eyes of law or that it calls upon the successor Court to hold subsequent petition maintainable or pass an order setting aside the order passed by the Court granting liberty. The successor Court is not bound to hold the proceeding maintainable. This Court is of the opinion that the present Writ Petition is not maintainable and it deserves to be dismissed in limine.

Summary

Issues:
1. Delay in filing complaint and condonation of delay.
2. Discharge of accused due to delay in filing complaint.
3. Maintainability of the Writ Petition after dismissal of leave to appeal.

Analysis:
1. The petitioner, Municipal Corporation of Greater Mumbai, sought to quash an order by the Metropolitan Magistrate due to delay in filing a complaint under Section 354 of the Mumbai Municipal Corporation Act, 1888. The Magistrate dismissed the complaint due to a delay of approximately two months without sufficient explanation. The petitioner sought condonation of the delay, but the Magistrate discharged all accused. The High Court dismissed the Criminal Application seeking leave to appeal, stating no provision for delay condonation under the Act.

2. The High Court clarified that under Section 514 of the MMC Act, a complaint must be filed within the prescribed time. Failure to do so results in returning the complaint to the complainant, not an acquittal. As such, no appeal lies against such an order. The petitioner filed a Writ Petition after being granted liberty by the Court, arguing that non-compliance is a continuing offense, and hence, no limitation applies. However, the Court held that the previous order had finality, and the Writ Petition was not maintainable after such a delay.

3. The Court emphasized that the liberty granted to file a Writ Petition does not confer jurisdiction to review or challenge an order that has attained finality. "Liberty to file" does not give a litigant the right to re-agitate an issue that has been conclusively decided. In this case, the Court found that the subsequent Writ Petition was not maintainable and deserved to be dismissed. The Court discharged the rule, indicating that the Writ Petition was not sustainable in the eyes of the law.