Full Judgment Text
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PETITIONER:
CHANDRA BHUSHAN & ANR.
Vs.
RESPONDENT:
DEPUTY DIRECTOR OF CONSOLIDATION (REGIONAL), U.P. & ORS.
DATE OF JUDGMENT:
15/12/1966
BENCH:
SHAH, J.C.
BENCH:
SHAH, J.C.
RAO, K. SUBBA (CJ)
SIKRI, S.M.
RAMASWAMI, V.
VAIDYIALINGAM, C.A.
CITATION:
1967 AIR 1272 1967 SCR (2) 286
CITATOR INFO :
D 1972 SC2060 (8)
R 1978 SC1409 (4)
RF 1990 SC 772 (15,32)
ACT:
Practice and Procedure--Certiorari--Rule of practice
prescribing ninety days for filing of writ--If binding rule
of limitation--Constitution of India, Art. 226.
HEADNOTE:
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 re-
opening 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 f
iling 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]
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JUDGMENT:
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 appellants.
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. Con-
solidation 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 pres-
cribing 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".
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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 Con-
solidation 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
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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 Court.
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.
Y. P. Appeal allowed
M1Sup.CI/67-5
290