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TMI Blog2018 (3) TMI 1630X X X X Extracts X X X X X X X X Extracts X X X X ..... l the exercise of their power. We do not, therefore, think that unless individual cases of abuse and misuse of discretionary power are brought before this Court or the Circular being applied to all cases irrespective of their peculiar facts and circumstances, that it is bound to be misused. In all matters depending upon the peculiar facts and circumstances, the discretion would be exercised to condone the delay. We grant time for such an exercise and filing of affidavit and therefore we place these matters, at the request of the learned AGP, on 13.4.2018. - WRIT PETITION NO.13488 OF 2017, WRIT PETITION NO.2759 OF 2011, WRIT PETITION NO.13353 OF 2016 - - - Dated:- 8-3-2018 - S.C. DHARMADHIKARI PRAKASH D. NAIK, JJ. Mr. Vedchetan Patil i/by Mr. Moses Rodrigues, Mr. Mihir Desai, Senior Counsel with Mr. Vedchetan Patil i/by Mr. Moses Rodrigues, Mr. Uday P. Warunjikar for the Petitioner Mr. B.V. Samant, AGP, Mr. B.V. Samant, AGP, Mr. C.N. Chavan with Ms Mrunalini Panchal i/by Ms Shital R. Ekawade , Mr. B.V. Samant, AGP, Mr. R.S. Datar for the Respondent ORDER 1. We have extensively heard all the Advocates on the point of continuation of the interim order pas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed, then the discretionary power vesting in the authority to either refuse the condonation or grant it, is taken away. This is taken to be a direct interference in the discretionary exercise expected to be carried out by a Competent Officer or an authority incharge of and deciding or adjudicating disputes as a quasijudicial body. In other words, a quasijudicial authority or any Court or Tribunal exercising judicial powers cannot be commanded to condone the delay. In the event there is a power conferred and which is coupled with a duty, then, that power must be exercised judiciously and the exercise cannot be controlled by any agency, much less the State Government. 8. We have given our anxious consideration to this argument of the learned counsel appearing for the petitioners and we inquired from the learned AGP as to why these sentences or this paragraph finds place in this Circular dated 3072010. 9. Mr. Samant pointed out that there is a salutary purpose sought to be achieved by issuance of this Circular. It is brought to the notice of the State Government that all over the State there are Temples, Devasthans and religious bodies. They claim to own huge tracts of land but n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be undertaken. After an inquiry is initiated so as to scrutinise and verify the correctness of the areas or entries, the further steps in terms of the Circular have to be taken. 11. This Circular, at best, administers a caution, according to Mr. Samant but does not attempt to control the discretion and the power of the authority. 12. Pertinently, Mr. Samant says that the petitioners do not challenge other paragraphs of the Circular by which the lands can be physically inspected or a review of the allotments/transfer can be taken or prior thereto the aforesaid information is gathered and generated. They also do not question the power of the authority to reopen the allotments or transfers in the manner contemplated by the Circular. They are only aggrieved by the fact that if these allotments or transfers are made decades back, they cannot be now questioned much less disturbed. Thus, even a Statutory Authority wielding statutory power is answerable and must explain as to why the enormous and unexplained delay is condoned by relying on this Circular. The only apprehension, according to the learned AGP, is that by relying on this Circular and particularly paragraph 2 of the same, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d its engineers, even when handsome temptation entices or huffy higher power browbeats, is the guarantee of electoral purity. To conclude, we are unhappy that such aspersions against public servants affect the integrity and morale of the services but where the easy virtue of an election official or political powerPage wielder has distorted the assemblyline operations, he will suffer one day. . 18. In a more direct and forthright pronouncement, the Hon'ble Supreme Court held [Pancham Chand and Ors. vs. State of Himachal Pradesh and Ors., reported in (2008) 7 SCC 117] that even highest political functionary, namely, the Chief Minister has no power to direct a statutory authority not to act in terms of the statutory provisions, but in ignorance thereof. In paras 17, 18, 19 and 20, the Hon'ble Supreme Court held as under: 17. Section 67 of the Act empowers the State Government to control road transport having regard to the factors enumerated therein. Section 68 provides for constitution of the State Transport Authority. An application for grant of stage carriage permit, as envisaged under Section 69 of the Act, is to be filed in terms of Section 70 thereof, detailing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id down in the Act. It cannot bypass or ignore the same. 20. Factual matrix, as indicated hereinbefore, clearly goes to show that the fourth respondent filed the application before the Chief Minister straightaway. Office of the Chief Minister communicated the order of the Chief Minister, not once but twice. Respondent 2 acted thereupon. It advised the Regional Transport Authority to proceed, after obtaining a proper application from respondent 4 in that behalf. This itself goes to show that prior thereto no proper application was filed before the Regional Transport Authority. Such an interference on the part of any authority upon whom the Act does not confer any jurisdiction, is wholly unwarranted in law. It violates the constitutional scheme. It interferes with the independent functioning of a quasijudicial authority. A permit, if granted, confers a valuable right. An applicant must earn the same. 19. In several judgments of the Hon'ble Supreme Court, it has been held that mere mistake or wrong interpretation of law may not be the basis for initiating disciplinary proceedings against those officers in whom quasi judicial powers are vested. If every error of law were to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nterventions, directions or attempts to control the exercise of their power. We do not, therefore, think that unless individual cases of abuse and misuse of discretionary power are brought before this Court or the Circular being applied to all cases irrespective of their peculiar facts and circumstances, that it is bound to be misused. In all matters depending upon the peculiar facts and circumstances, the discretion would be exercised to condone the delay. All that the Circular says and cautions is that it should be exercised by applying liberal principles. It is only in that regard the attention of the authorities is invited to the Judgment of the Hon'ble Supreme Court in the case of Collector, Land Acquisition, Anantnag and another Vs. Mst. Katiji and others, reported in AIR 1987 SC 1353. The argument of the petitioners overlooks the fact that this Judgment is not necessarily followed nor its principle applied to every application seeking condonation of a prolonged unexplained delay amounting to laches. In a later Judgment in Office of the Chief Post Master General Ors. Vs. Living Media India Ltd. Anr., reported in AIR 2012 SC 1506 the Hon'ble Supreme Court referred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h Government is a party there is yet another aspect which, perhaps, cannot be ignored. If appeals brought by Government are lost for such defaults, no person is individually affected; but what, in the ultimate analysis, suffers is public interest. The decisions of Government are collective and institutional decisions and do not share the characteristics of decisions of private individuals. 17. 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. Considering the peculiar facts, namely, the change of government pleader who had taken away the certified copy after he ceases to be in office, the High Court condoned the delay which was affirmed by this Court. iii) In State of Haryana v. Chandra Mani and others, (1996) 3 SCC 132 : (AIR 1996 SC 1623) : 1996 AIR SCW 1672), wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the SLP by the Commissioner of Wealth Tax, Bombay. The explanation for the delay had been set out in petitioner's own words as under: .....2 (g) The Advocate on Record got the special leave petition drafted from the drafting Advocate and sent the same for approval to the Board on June 24, 1993 along with the case file. (h) The Board returned the case file to the Advocate on Record on July 9, 1993 who resent the same to the Board on September 20, 1993 requesting that draft SLP was not approved by the Board. The Board after approving the draft SLP sent this file to CAS on October 1, 1993. After incorporating the above explanation, this Court refused to condone the delay by observing thus: 3. ... ... Having regard to the law of limitation which binds everybody, we cannot find any way of granting relief. It is true that Government should not be treated as any other private litigant as, indeed, in the case of the former the decisions to present and prosecute appeals are not individual but are institutional decisions necessarily bogged down by the proverbial red-tape. But there are limits to this also. Even with all this latitude, the explanation offered for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... et the basic fact that what is acquired is not the land but the livelihood of the landlosers. These public interest parameters ought to be kept in mind by the courts while exercising the discretion dealing with the application filed under Section 5 of the Limitation Act. Dragging the landlosers to courts of law years after the termination of legal proceedings would not serve any public interest. Settled rights cannot be lightly interfered with by condoning inordinate delay without there being any proper explanation of such delay on the ground of involvement of public revenue. It serves no public interest. 12. It is not in dispute that the person(s) concerned were well aware or conversant with the issues involved including the prescribed period of limitation for taking up the matter by way of filing a special leave petition in this Court. They cannot claim that they have a separate period of limitation when the Department was possessed with competent persons familiar with court proceedings. In the absence of plausible and acceptable explanation, we are posing a question why the delay is to be condoned mechanically merely because the Government or a wing of the Government is a pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of compensation for acquisition of land and particularly to compensate for the loss of the land, sometime cultivable but on most occasions barren and uncultivable. Amounts in lakhs and crores of rupees were disbursed. The relevant principles were ignored and when such compensation was paid or offered, thereafter the orders were not challenged or challenged belatedly. There can, therefore, be a intentional and deliberate act attributable to the public officials and that aspect should not be ignored while condoning the delay. That is why the liberal principles and to subserve larger public interest. If these Judgments do not hold that in all cases irrespective of the bona fides of the cause shown, the delay must necessarily be condoned but say that there is a discretion while deciding the application for condonation of delay and liberal principles should be applied in the event some of the above facets are noticed, then, the Circular cannot be construed accordingly and as apprehended by the petitioners. We do not find any basis for their apprehension. All the more, when we have issued the above clarification. 24. We would now expect an affidavit from the State enlightening this C ..... X X X X Extracts X X X X X X X X Extracts X X X X
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