TO CONDONE DELAY OR NOT: A SHAKESPEAREAN DILEMMA FOR THE INDIAN WRIT COURTS

INTRODUCTION

The Division bench of the Hon’ble Supreme Court of India (“SC” / “Supreme Court”) comprising of Hon’ble Justice Mr. A.M. Khanwilkar and Hon’ble Justice Mr. Dinesh Maheshwari, in Assistant Commissioner (CT) LTU, Kakinada & Ors. v. M/s Glaxo Smith Kline Consumer Health Care Limited[1] vide judgment dated May 6, 2020, decided as to whether the High Court, in exercise of its writ jurisdiction under Article 226 of the Constitution of India, could entertain a challenge to the assessment order of the Appellant abovenamed on the sole ground that the statutory remedy of appeal against that order stood foreclosed by the law of limitation.

The SC in the present case, while allowing the present appeal and setting aside the impugned judgment of the Hon’ble Hyderabad High Court (“Hyderabad HC”), held that though the High Courts have wide powers, it cannot issue a writ which is inconsistent with the legislative intent of the concerned statute and in utter disregard of the statutory period of limitation provided thereunder, as the same would render the legislative scheme and intention behind the concerned provision otiose. The SC observed that the Hyderabad HC could not have entertained the writ petition of the Respondent abovenamed, while disregarding the provisions of Andhra Pradesh Value Added Tax Act, 2005, specifically Section 31 thereof, which provided for the filing of appeal before appellate authority within maximum 60 days.

LAW OF LIMITATION IN INDIA: THE STATUTORY REGIME AND JUDICIAL INTERPRETATION

The law of limitation is found upon maxims such as “Interest Reipublicae Ut Sit Finis Litium” which means that litigation must come to an end in the interest of society as a whole, and “vigilantibus non dormientibus Jura subveniunt” which means that the law assists those that are vigilant with their rights, and not those that sleep thereupon. The law of limitation in India identifies the need for limiting litigation by striking a balance between the interests of the state and the litigant.

The term “period of limitation” has been defined in Section 2(j) of the Limitation Act, 1963 (“Limitation Act”) as the period of limitation prescribed for any suit, appeal or application in the Schedule of Limitation Act; further, “prescribed period” means the period of limitation computed in accordance with the provisions of the Limitation Act. Section 3[2] prescribes the general rule that, subject to the provisions contained in sections 4 to 24 (both inclusive) of the Limitation Act, every suit instituted, appeal preferred, and application made after the prescribed period shall be dismissed, although limitation has not been set up as a defence. Section 3 of the Limitation Act also clarifies when a suit would be said to have been instituted, for the purposes of Limitation Act. Section 5[3] provides that any appeal or application, other than an application made under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (“CPC”)[4], may be admitted after the prescribed period only if the appellant/applicant can satisfy the court that he/she/it had sufficient cause for not preferring the appeal or making the application within the prescribed period. Section 5 further clarifies that if the appellant/applicant was misled by any order, practice or judgment of the High Court (“HC” / “High Court”) in ascertaining the “prescribed period”, the same may be “sufficient cause” within the meaning of this section. Hence, the general rule of law of limitation is that an extension shall not be granted under Section 5 if there is no sufficient cause or cogent ground for the condonation of delay, the onus of proving which lies on the appellant/applicant.[5]

The Hon’ble SC had enunciated certain principles in Perumon Bhagvathy Devaswom[6] which are applicable while considering applications for condonation of delay under Section 5, and may be summarized as follows:

• The words “sufficient cause”, as appearing in Section 5 of Limitation Act, should receive a liberal construction when the delay is not on account of any dilatory tactics, want of bona fides, deliberate inaction or negligence on the part of the applicant/appellant, in order to advance substantial justice. The words “sufficient cause for not making the application within the period of limitation” should be understood and applied in a reasonable, pragmatic, practical and liberal manner, depending upon the facts and circumstances of the case.
• The decisive factor in condonation of delay is not the length of delay but sufficiency of a satisfactory explanation.
• The degree of leniency to be shown by a court depends on the nature of application and facts and circumstances of the case. For example, courts view delays in making applications in a pending appeal more leniently than delays in the institution of an appeal. The courts view applications relating to lawyer’s lapses more leniently than applications relating to litigant’s lapses.
• Want of ‘diligence’ or ‘inaction’ can be attributed to an applicant/appellant only when something, required to be done by him, is not done. When nothing is required to be done, courts do not expect the applicant/appellant to be diligent. Where an appeal is admitted by the High Court and is not expected to be listed for final hearing for a few years, an appellant is not expected to visit the court regularly to ascertain the current position but await information from his counsel about the listing of the appeal.

The SC ruling in Perumon Bhagvathy Devaswom[7] was subsequently reaffirmed by an equi-bench of SC in the case of Katari Suryanarayana[8] and Balwant Singh (Dead) v. Jagdish Singh & Ors.[9].

Inasmuch as what constitutes a “sufficient cause” under Section 5[10], there is no straitjacket formula for determining the same. The Hon’ble SC had noted in Collector, Land Acquisition, Anantnag and Ors. vs. Katiji and Ors.[11] that “the expression sufficient cause is adequately elastic to enable the courts to apply the law in a meaningful manner which subserves the ends of justice”. The Hon’ble SC also stressed on the importance of a justice-oriented approach in the interpretation of “sufficient cause”, on the following grounds: –

• A litigant ordinarily does not stand to benefit by lodging an appeal late.
• Refusal to condone delay can result in a meritorious matter being dismissed at the very threshold, thus defeating the cause of justice. As against this, the highest that can happen on condonation of delay is that a case would be decided on merits after hearing the parties.
• The doctrine of “Every day’s delay must be explained” has to be applied in a rational, common-sensical and pragmatic manner, and a pedantic approach should not be adopted.
• When substantial justice and technical considerations are pitted against each other, the cause of substantial justice deserves to be preferred.
• There cannot be a presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay.

The Hon’ble SC subsequently affirmed the aforesaid position in State (NCT of Delhi) v. Ahmed Jaan[12], where it held that the term “sufficient cause” should be considered with pragmatism in a justice-oriented approach rather than technical detection of sufficient cause for explaining every day’s delay. Further, the Division bench of the Hon’ble Bombay HC noted in Ornate Traders[13] that the expression “sufficient cause” will always have relevancy to reasonableness and hence, the actions which can be condoned by the court should fall within the scope of normal human conduct or normal conduct of a litigant. The Hon’ble Bombay HC further observed that while Section 5 of the Limitation Act is being interpreted liberally, it cannot be so liberally that it is without any justification, since condonation of delay in a mechanical or routine manner will jeopardize the legislative intent behind Section 5.

Section 9[14] stipulates that once the time to institute a suit or make an application has started, no subsequent disability or inability to do so will stop it. The sole exception to this general rule is the suspension of limitation period for filing a recovery suit, in cases where letter of administration to the estate of a creditor have been granted to the debtor, for the period of administration.

Part III of the Limitation Act provides for the computation of period of limitation. Section 12[15] provides for exclusion of time in legal proceedings, in four situations; for instance, while computing the period of limitation for an appeal or revision/review of a judgment, the day on which the impugned judgment was pronounced as well as the time required for obtaining a copy of the decree/order/judgment appealed from or sought to be revised/reviewed, shall be excluded. The Explanation however, to this Section, clarifies that while computing the time required for obtaining a copy of a decree/order, any time taken by the court to prepare such decree/order before an application for a copy is made, shall not be excluded while computing limitation.

The legislature’s prudent approach is evident in Section 14[16] which excludes the time spent by parties pursuing matters, in good faith and with due diligence, in courts which are unable to entertain it due to defect of jurisdiction. Section 15[17] provides for exclusion of time, while computing limitation, in certain other cases. Section 18[18], an extremely important and oft-cited provision in legal proceedings, deals with the effect of written acknowledgment of liability in respect of a property or right, by the party against whom such property or right is claimed, and provides for the commencement of fresh period of limitation from the date of signed acknowledgment if the same has been provided within the limitation period. The explanation to Section 18 further clarifies that an acknowledgment in itself may be sufficient even if it omits to specify the exact nature of the property or right or is accompanied by a refusal to pay, deliver or permit to enjoy the property or right.

Section 19[19] provides for the commencement of a fresh period of limitation, in cases of payment being made on account of a debt or of interest on a legacy before the expiration of the prescribed period, from the time when such payment was made. Section 21[20] provides that in case of any addition/substitution of a plaintiff/defendant after the institution of suit, the suit against such plaintiff/defendant would be deemed to have been instituted on the date of impleadment. However, an exception has been made where the court, on being satisfied that the omission to include the new plaintiff/defendant was an honest mistake, may direct that the suit, as regards such plaintiff/defendant, would be deemed to have been instituted on an earlier date. Section 22[21] provides for the commencement of a fresh period of limitation, in case of continuing breach of contract or continuing tort, from every moment during which such breach or tort occurs or continues.

Section 29(2)[22] extends the application of provisions of Section 3 to 24 (both inclusive) of the Limitation Act even to cases where the special or local law prescribes a different period of limitation, as if such period were prescribed by the Schedule to the Limitation Act itself, unless the said special or local law expressly excludes the applicability of the aforesaid provision(s) of Limitation Act. There are numerous legislations in India, such as Companies Act, 2013, Insolvency and Bankruptcy Code, 2016, Arbitration and Conciliation Act, 1996, Electricity Act, 2003, Central Excise Act, 1944 and Recovery of Debts due to Banks and Financial Institutions Act, 1993 to name a few, which prescribe different limitation periods that are specifically tailored to meet the needs of the particular legislation.

The moot question before the Full bench of Hon’ble SC in Hongo India[23] was whether the High Court had power under Section 5 of the Limitation Act to condone the delay beyond the prescribed period under the special law, viz. Central Excise Act, 1944 (“Central Excise Act”). The Hon’ble SC, observing that the Central Excise Act did not provide for condonation of delay by showing sufficient cause, held that the Hon’ble Allahabad HC was justified in holding that there was no power to condone the delay after expiry of the prescribed period under Central Excise Act. The Hon’ble SC further held that even when the special law did not exclude the applicability of provisions of Sections 4 to 24 of the Limitation Act by an express reference, it would be open to the court to examine whether, and to what extent, the nature of the subject-matter and scheme of the special law should exclude their operation.

The Hon’ble SC reiterated in Chhattisgarh State Electricity Board[24] that Limitation Act cannot override a special or local law which prescribed a different period of limitation for any suit, appeal or application. The Hon’ble SC held that Section 5 of the Limitation Act cannot be invoked for entertaining an appeal which has been filed beyond the period of limitation specified in Section 125 of the Electricity Act, 2003 and the proviso thereto, as any such interpretation would defeat the object of the Electricity Act, 2003 to provide special limitation for filing an appeal against the decision or order of the Appellate Tribunal for Electricity.

The Schedule to the Limitation Act provides the periods of limitation, for the purposes of Section 2(j)[25] and Section 3[26], for the following: –

• Suits relating to Accounts[27]
• Suits relating to Contracts[28]
• Suits relating to Declarations[29]
• Suits relating to Decrees and Instruments[30]
• Suits relating to Immovable Property[31]
• Suits relating to Movable Property[32]
• Suits relating to Tort[33]
• Suits relating to Trusts and Trust Property[34]
• Suits relating to miscellaneous matters[35]
• Suits for which there is no prescribed period[36]– Article 113 is the residuary article which provides the period of limitation for suits for which no period of limitation is provided in the Schedule.
• Appeals[37]
• Applications in specified cases[38]
• Other application[39]– Article 137 is the residuary article which provides the period of limitation for applications for which no period of limitation is provided in the Schedule.

ARTICLES 32 AND 226 OF INDIAN CONSTITUTION – GUARANTEEING FUNDAMENTAL RIGHT OF ACCESS TO COURTS

Article 32 of the Constitution of India[40] (“Indian Constitution”) confers extensive original jurisdiction upon the Hon’ble SC in regard to the enforcement of fundamental rights provided under Part III of the Indian Constitution, thereby guaranteeing effective and speedy remedy against any infringement of the fundamental rights. Article 32 guarantees the right to move the SC, through appropriate proceedings, for the enforcement of fundamental rights, and the right guaranteed by this article cannot be suspended, except as otherwise provided for by the Indian Constitution. The Hon’ble SC is empowered to issue directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of fundamental rights which form a part of the basic structure of the Indian Constitution. Dr. B.R. Ambedkar, father of the Indian Constitution, had described Article 32, in one of the Constituent Assembly Debates, as a provision without which the Indian Constitution would be a nullity.[41] In his view, Article 32 was the very heart and soul of the Indian Constitution.[42] The jurisdiction conferred on the Supreme Court under Article 32 is an important part of the basic structure of the Indian Constitution as it is meaningless to confer fundamental rights without providing an effective remedy for their enforcement, if and when they are violated.[43]

Notwithstanding the provisions of Article 32 of the Indian Constitution, similar powers have been conferred upon the 24 High Courts in the country[44], by virtue of Article 226 of the Indian Constitution.[45] The High Court, which is the head of a state’s judicial administration, has powers of superintendence over all courts within its jurisdiction. Each High Court is empowered to issue, to any person or authority (including in appropriate cases, any government) within its jurisdiction, directions, orders, or writs, including writs which are in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, for enforcement of fundamental rights as well as for “any other purpose”. The jurisdiction of the High Courts under Article 226 of the Indian Constitution is couched in wide terms and the exercise thereof is not subject to any restrictions, except the territorial restrictions which have been expressly provided in the said Article. The Full bench of the Hon’ble SC in Dwarka Nath[46] observed that Article 226, ex facie, confers a wide power on High Courts to reach injustice wherever it is found, which enables the High Courts to mould the reliefs to meet the peculiar and complicated requirements of this country. However, the power conferred on the High Courts under this article would not be in derogation of the power conferred on the Supreme Court under Article 32(2).[47] It is a settled position of law that the scope of writs under the Indian Constitution is much wider than that of the prerogative writs in England. While the Supreme Court and High Courts can issue writs in the nature of prerogative writs, as understood in England, the scope of those writs have been widened by the use of expression “in the nature of” in Articles 32 and 226 of the Indian Constitution. Thus, the High Courts can also issue other directions, orders or writs, other than the prerogative writs, under Article 226.[48]

As the Supreme Court and High Courts have been designated as the custodian and guardian of the fundamental rights in the Indian Constitution, the mere existence of an adequate alternative legal remedy would not be a good and sufficient ground for dismissing a petition under Article 32[49], if the existence of a fundamental right and a breach, whether actual or threatened, of such right is alleged and prima facie established in the petition.[50] The intention of the founding fathers of the Indian Constitution was to provide a guaranteed and quick remedy in cases of violation of fundamental rights, as the aggrieved person could straightaway approach the Supreme Court under Article 32 without having to undergo the dilatory process of proceeding from the lower to higher court. However, Article 32, unlike Article 226[51], can be invoked only for the enforcement of fundamental rights, while Article 226 can be invoked for “any other purpose” as well. For instance, if the administrative action in question does not affect a fundamental right, then such action can be challenged only in the High Court under Article 226, and not in the Supreme Court under Article 32. The jurisdiction of the High Courts under Article 226 is much wider than that of the Supreme Court under Article 32 as the High Courts exercise discretionary power, though with self-imposed limitations[52], while interpreting “any other purpose” under Article 226.

The High Court, while exercising its extraordinary jurisdiction under Article 226, is duty bound to take all relevant facts and circumstances into consideration, and decide whether any case has been made out requiring its intervention on the basis of material on record. The High Courts, while entertaining a writ petition under Article 226, should, inter alia, consider whether:

• The aforesaid petition reveals all material facts[53];
• An alternative remedy is available which, without being unduly onerous, provides an equally efficacious remedy[54];
• The person invoking the writ jurisdiction is guilty of unexplained delay and laches[55];
• Adjudication of writ petition involves complex and disputed questions of facts, and whether they can be satisfactorily resolved by the High Court[56];
• The writ petition is ex facie barred by the period of limitation prescribed under the Limitation Act or any other special law[57];
• Grant of relief is against public policy or barred by any existing law in force[58];
• The writ petition is barred by res judicata;

The Constitution bench of the Hon’ble SC held in Thansingh Nathmal[59] that the High Court did not, in exercise of its jurisdiction under Article 226, act as a court of appeal against the decision of a court or tribunal for correcting errors of fact and did not, by assuming jurisdiction under Article 226, trench upon the alternative remedy provided by Assam Sales Tax Act, 1947. The bench further observed that the High Court cannot allow, by entertaining a petition under Article 226 of the Constitution, for the machinery created under the special statute to be by-passed, as it did not have any power under the Assam Sales Tax Act, 1947 to decide questions of fact which were exclusively within the competence of the taxing authorities. The High Courts cannot entertain a writ petition under Article 226 in cases where a specific statutory machinery has been set up for seeking relief, in order to prevent people from resorting to writ proceedings as an alternate remedy for relief.

CAN THE SUPREME COURT AND HIGH COURTS CONDONE DELAY BEYOND THE STATUTORY PERIOD OF LIMITATION?

When the Limitation Act or any other special statute prescribe a period of limitation for initiating legal proceedings, any legal action has to be brought within such prescribed period. As it is imperative to give finality to administrative as well as judicial decisions in the interests of justice, no court or tribunal can entertain any petition/suit/application made after the expiry of the limitation period, unless sufficient cause for delay has been proved by the petitioner/plaintiff/applicant. Therefore, those who sleep over their rights have no right to agitate for them after the lapse of a reasonable time. Even writ petitions, under Article 32 of the Indian Constitution, before the Supreme Court are not immune from disqualification on the ground of delay.

The moot question before the Constitution bench of Hon’ble SC in Tilokchand[60] was whether limitation would be applicable to the petitions filed under Article 32 of the Indian Constitution. As there was no law prescribing a period of limitation for the petitions filed under Article 32, the landmark ruling in Tilokchand, which encapsulated the views of Chief Justice Mr. M. Hidayatullah, Justice Mr. G.K. Mitter, Justice Mr. K.S. Hegde, Justice Mr R.S. Bachawat and Justice Mr. S.M. Sikri on the question of dismissal of petition under Article 32 on the ground of delay, had laid down the legal position in this regard. The petition filed under Article 32 ultimately failed and was dismissed with costs, by the majority bench comprising of Chief Justice Mr. M. Hidayatullah, Justice Mr. G.K. Mitter and Justice Mr R.S. Bachawat, on the ground of delay. As there was a sharp division of opinion amongst the members of the bench, it is useful to appreciate their opinion and observations[61] on the issue at hand, before understanding the development of jurisprudence in this regard.

Subsequently, the Hon’ble SC in P.S. Sadasivaswamy[62], while dismissing the appeal with costs, held that though there is no period of limitation for the High Courts to exercise their powers under Article 226 , it can refuse to exercise extraordinary jurisdiction in cases where the petitioner has not approached the High Court expeditiously for relief or has approached at a belated stage to put forward stale claims, in an attempt to unsettle settled matters. In Sudama Devi[63], the Hon’ble SC held that since no period of limitation had been prescribed for filing a writ petition under Article 226 of the Indian Constitution, the general rule of laches alone would be applicable which would necessarily depend on the facts and circumstances of each case. The Hon’ble SC further observed that the facts and circumstances of the specific case would determine whether the petitioner is guilty of laches, as there may be cases where a short delay might be fatal while there may be cases where even a long delay might not be evidence of laches on the part of the petitioner.

In ITC Ltd. v. Union of India[64], the matter was before the Supreme Court as the High Court had dismissed the writ petition of the petitioner, on the ground of availability of adequate alternative remedy under Section 35 of the Central Excise Act. It was the stand of the petitioner that the said alternative remedy was no longer available to it, as the appeal under Section 35 had to be filed within two months from the date of the assessment order and further, the appellate authority could condone delay of one additional month only. The Hon’ble SC, in the circumstances of the case, permitted the petitioner to file a belated appeal within one month of the order, along with an application for condonation of delay, before the appellate authority under the Central Excise Act. By virtue of this concession, the petitioner was granted an effective alternative remedy, by way of an appeal, under the Central Excise Act.

In Shiv Dass[65], the appellant had challenged the impugned order of the High Court dismissing the writ petition filed by it, on the ground of being highly belated. The Hon’ble SC observed that the High Courts, while exercising their discretionary powers under Article 226, should consider delay or laches and, refuse to invoke its extraordinary powers if it is found that the applicant had neglected/omitted to assert its rights in a timely manner; however, this discretion has to be exercised judicially and reasonably. The Hon’ble SC however, in view of the peculiar circumstances, remitted the matter to the High Court for hearing of the writ petition on merits. The Hon’ble SC further directed the High Court that if the writ petition of the appellant was subsequently allowed, relief should be granted for a period of three years only from the date of presentation of the writ petition.

The Hon’ble SC, while dismissing the appeal in Singh Enterprises[66], held that as the proviso to Section 35(1) of the Central Excise Act did not allow the appellate authority to condone delay beyond thirty days, there is a complete exclusion of Section 5 of the Limitation Act and hence, the appellate authority under the Central Excise Act as well as the High Court were justified in holding that there was no power to condone the delay after expiry of 30 days. The Hon’ble SC further observed that its ruling in ITC Ltd.[67] was rendered in view of the peculiar background and facts of that case and, it did not enunciate a general provision for condonation of delay even when the statute prescribed a particular period of limitation, which would have the effect of rendering the limitation provision in a statute otiose.

The Single Judge bench of the Hon’ble Madras HC, while exercising writ jurisdiction in Kathiravan Pipes[68], had condoned the delay of twenty-five days, a part of which (ten days) had been explained by the medical certificate evidencing the illness of the Managing Director of the petitioner herein, in filing the appeal and directed for the matter to be decided on merits by following due process of law. The bench further observed that the period of limitation prescribed is not for destruction of a statutory right but only to give finality without protracting the matter endlessly.

The Full bench of the Hon’ble Gujarat HC in Panoli Intermediate (India)[69], while refusing to condone the delay in filing of appeal under Section 35 of the Central Excise Act, observed that though no legislation can whittle down or dilute or nullify the powers of the constitutional court under Article 226, the High Courts normally consider the statutory provisions and give it appropriate weightage, as the things which cannot be done directly under the statute cannot be permitted to be done indirectly in writ jurisdiction. The bench further observed that the High Court would exercise extraordinary jurisdiction under Article 226 in exceptional cases only, where gross injustice has been satisfactorily demonstrated and a grave and strong case has been made out before the High Court for exercise of extraordinary jurisdiction.

The Division bench of the Hon’ble Madras HC in R. Gowrishankar[70] held that Section 85 of the Finance Act (which was in question) is similar to Section 128 of the Customs Act, 1962, Section 34(3) of the Arbitration and Conciliation Act, 1996, Section 125 of the Electricity Act, 2003 and Section 35-G of the Central Excise Act, 1944; as these statutes are self-contained Acts and codes by themselves, the High Court or the Supreme Court cannot direct the appellate authority under the said Acts to condone the delay, beyond the extended period of limitation. The bench observed that where the legislative intent to exclude the provisions of Limitation Act is reflected in the provisions of the special laws, the authorities under such special laws cannot exercise powers to condone the delay. The bench further observed that the High Court, while exercising jurisdiction under Article 226, has no power to direct the appellate authority under a special statute to consider the appeal on merits, as it would amount to extending the period of limitation and re-writing the provisions of the special statute.

The moot question before the Hon’ble Bombay HC (Aurangabad bench) in Sangitabai[71] was whether the Additional Divisional Commissioner, Nashik (Respondent No. 2) had any power to condone the delay while entertaining an appeal under Section 16 of the Maharashtra Village Panchayat Act, 1958. The Division bench of the Hon’ble Bombay HC, while setting aside the impugned order of Respondent No. 2 herein and remanding the matter back to the said Respondent with direction to decide the application for condonation of delay in accordance with law, held that the appellate authority under the Maharashtra Village Panchayat Act, 1958 cannot reject a belated appeal on the ground that as it was functioning as a statutory authority, and not a court, Limitation Act was not applicable to it.

The Full bench of the Hon’ble Hyderabad HC in Electronics Corporation of India[72] observed that the constitutional power of judicial review, which is vested with the High Courts under Article 226, cannot be whittled down or be made subject to the statutory restrictions and parameters prescribed in the context of the remedies provided thereunder. The bench held that a writ petition would lie against an original order, against which an appeal was filed and dismissed as time-barred or no appeal had been preferred as it would have been time-barred, provided sufficient grounds are made out for exercise of judicial review under Article 226. The bench also agreed with the views expressed by the Full Bench of the Hon’ble Gujarat HC in Panoli Intermediate (India)[73].

The Division bench of the Hon’ble Bombay HC in Ritu Ruhil[74], vide order dated January 22, 2020, quashed the impugned order of Film Certification Appellate Tribunal (“FCAT”), which had dismissed the appeal of the petitioner herein as time barred, and restored the said appeal to the file of FCAT, by consent of parties, for hearing on merits and in accordance with the law. The bench, while allowing the writ petition, clarified that since the question of law arising in this matter had not been decided, the order would not be a precedent in similar cases.

It is therefore evident from the judicial precedents that though no period of limitation has been prescribed for filing a petition under Articles 32 and 226, the Supreme Court and High Courts, while exercising its extraordinary jurisdiction, may still act in the analogy of the statutory limitation while determining whether the petitioner is guilty of laches and delay. Justice Mr. G.K. Mitter, while dismissing the petition under Article 32 in Tilokchand[75] on the ground of inordinate delay, observed that the period fixed by Limitation Act should be taken to be a true measure of the time within which a person can raise a plea successfully under Article 32. Though the Limitation Act is not applicable to petitions under Articles 32 and 226, the writ courts have, on numerous occasions, refused to give relief in cases of long or unreasonable delay. Justice Mr. R.S. Bachawat, agreeing with the view of Justice Mr. G.K. Mitter in Tilokchand[76], further observed that the High Courts act on the analogy of the statute of limitation in a proceeding under Article 226 and, will almost always refuse to grant relief under Article 226 if the delay is more than the statutory period of limitation. Hence, the constitutional courts give appropriate weightage to the statutory limitation, as actions which cannot be taken directly under the statute should not be permitted to be taken indirectly in writ jurisdiction.

The facts and circumstances of the specific case would determine whether the petitioner is guilty of laches or not; there are cases where even a short avoidable delay might be fatal to the matter while in some other cases, while even a long delay might not be evidence of laches on the part of the petitioner. For instance, where an avoidable delay in moving the Supreme Court under Article 32 or High Court under Article 226 affects the merits of the claim, the concerned court, on due consideration, may hold that the petitioner was disentitled to invoke the extraordinary jurisdiction. However, the Supreme Court and High Courts have granted relief, and remitted the matter to the lower court/tribunal for consideration of the case on merits, in matters where the petitioner was able to successfully establish the peculiar circumstances, which justified the invocation of extraordinary jurisdiction of the constitutional courts in order to protect the interests of justice. The emphasis in such matters is on the facts and circumstances of each case. There is no general provision for condonation of delay by the Supreme Court and High Courts, in exercise of writ jurisdiction, beyond the statutory period of limitation, as it would have the effect of rendering the provision of limitation in such statute otiose.

CONCLUSION

The legal framework on limitation comprises of a general law, viz. Limitation Act, and numerous special laws, in the form of specific provisions in various statutes prescribing limitation period. The rule of generalia specialibus non derogant, that is the provisions of a general statute must yield to those of a special one, is employed to determine the provision of limitation which would be applicable in a given matter. Though the constitutional courts of India have, time and again, reiterated that their power to issue directions, orders or writs, under Articles 32 and 226, is a basic feature of the Indian Constitution and cannot be curtailed by parliamentary legislation(s), it is an established practice that the constitutional courts would exercise self-restraint by barring stale claims, in the interest of equity and justice. In a case where the petitioner has chosen to approach the High Court under Article 226 after expiry of the maximum limitation period, the High Court cannot disregard entirely the statutory period of limitation and entertain the writ petition as a matter of course.

The Supreme Court and High Courts of India endeavour to strike a balance between the concerns of parties seeking enforcement of fundamental rights under Part III of the Indian Constitution with the interests of the state in ensuring expeditious proceedings. However, the constitutional courts have refrained from applying a straitjacket formula as each case is required to be considered on its own facts, while determining whether the delay in question affected the merits of the claim of the aggrieved party. While considering petitions seeking condonation of delay beyond the statutory period of limitation, the Supreme Court and High Courts would exercise extraordinary jurisdiction in exceptional cases only, where gross injustice has been satisfactorily demonstrated and a grave and strong case has been made out for exercise of extraordinary jurisdiction.

[1] Assistant Commissioner (CT) LTU, Kakinada & Ors. v. M/s Glaxo Smith Kline Consumer Health Care Limited, 2020[36] G.S.T.L. 305

[2] Section 3, Limitation Act– Bar of limitation

[3] Section 5, Limitation Act– Extension of prescribed period in certain cases

[4] Order XXI, CPC– Execution of Decrees and Orders

[5] Balwant Singh (Dead) v. Jagdish Singh & Ors., AIR 2010 SC 3043

[6] Perumon Bhagvathy Devaswom v. Bhargavi Amma (Dead) by LRs. and Ors., (2008) 8 SCC 321

[7] Ibid.

[8] Katari Suryanarayana and Ors. v. Koppisetti Subba Rao and Ors., AIR 2009 SC 2907

[9] Supra n. 5

[10] Supra n. 3

[11] Collector, Land Acquisition, Anantnag and Ors. vs. Katiji and Ors., AIR 1987 SC 1353

[12] State (NCT of Delhi) v. Ahmed Jaan (2008) 14 SCC 582

[13] Ornate Traders Private Limited v. The Income Tax Officer, Mumbai

[14] Section 9, Limitation Act– Continuous running of time

[15] Section 12, Limitation Act– Exclusion of time in legal proceedings

[16] Section 14, Limitation Act– Exclusion of time of proceeding bona fide in court without jurisdiction

[17] Section 15, Limitation Act– Exclusion of time in certain other cases

[18] Section 18, Limitation Act– Effect of acknowledgment in writing

[19] Section 19, Limitation Act– Effect of payment on account of debt or of interest on legacy

[20] Section 21, Limitation Act– Effect of substituting or adding new plaintiff or defendant

[21] Section 22, Limitation Act– Continuing breaches and torts

[22] Section 29, Limitation Act– Savings

[23] Commissioner of Customs and Central Excise v. Hongo India (P) Ltd. & Ors., 2009 (4) CTC 390

[24] Chhattisgarh State Electricity Board v. Central Electricity Regulatory Commission and Ors., AIR 2010 SC 2061

[25] Section 2(j), Limitation Act– ““period of limitation” means the period of limitation prescribed for any suit, appeal or application by the Schedule, and “prescribed period” means the period of limitation computed in accordance with the provisions of this Act;”

[26] Supra n. 2

[27] Part I, First Division — Suits, The Schedule to Limitation Act

[28] Part II, First Division — Suits, The Schedule to Limitation Act

[29] Part III, First Division — Suits, The Schedule to Limitation Act

[30] Part IV, First Division — Suits, The Schedule to Limitation Act

[31] Part V, First Division — Suits, The Schedule to Limitation Act

[32] Part VI, First Division — Suits, The Schedule to Limitation Act

[33] Part VII, First Division — Suits, The Schedule to Limitation Act

[34] Part VIII, First Division — Suits, The Schedule to Limitation Act

[35] Part IX, First Division — Suits, The Schedule to Limitation Act

[36] Part X, First Division — Suits, The Schedule to Limitation Act

[37] Second Division — Appeals, The Schedule to Limitation Act

[38] Part I, Third Division — Applications, The Schedule to Limitation Act

[39] Part II, Third Division — Applications, The Schedule to Limitation Act

[40] Article 32, Constitution of India– Remedies for enforcement of rights conferred by this Part

[41] P. 28, Constituent Assembly of India Debates (Proceedings)- Volume VII, available at: http://loksabhaph.nic.in/writereaddata/cadebatefiles/C08121948.pdf

[42] Ibid.

[43] Fertilizer Corporation Kamgar Union v. Union of India and Ors., AIR 1981 SC 344

[44] https://main.sci.gov.in/jurisdiction

[45] Article 226, Constitution of India– Power of High Courts to issue certain writs

[46] Dwarka Nath v. Income Tax Officer, Special Circle D-ward, Kanpur and Ors., AIR 1966 SC 81

[47] Supra n. 40.

[48] Supra n. 46.

[49] Supra n. 40.

[50] Kavalappara Kottarathil Kochunni Moopil Nayar v. The State of Madras and Ors., AIR 1959 SC 725

[51] Supra n. 44.

[52] Thansingh Nathmal and Ors. v. A. Mazid, AIR 1964 SC 1419

[53] City and Industrial Development Corporation v. Dosu Aardeshir Bhiwandiwala and Ors., AIR 2009 SC 571

[54] Supra n. 51

[55] Supra n. 52

[56] Ibid.

[57] Ibid.

[58] Ibid.

[59] Supra n. 51

[60] Tilokchand and Motichand and Ors. v. H.B. Munshi and Ors., AIR 1970 SC 898

[61] Ibid.

[62] P.S. Sadasivaswamy v. State of Tamil Nadu, AIR 1974 SC 2271

[63] Sudama Devi v. Commissioner and Ors., AIR 1983 SC 653

[64] ITC Ltd. and Ors. v. Union of India (UOI) and Ors., (1998) 8 SCC 610

[65] Shiv Dass v. Union of India (UOI) and Ors., AIR 2007 SC 1330

[66] Singh Enterprises v. Commissioner of Central Excise, Jamshedpur and Ors., (2008) 3 SCC 70

[67] Supra n. 65

[68] Kathiravan Pipes Pvt. Ltd., v. CESTAT, 2007 [5] STR 9 (Mad.)

[69] Panoli Intermediate (India) Pvt. Ltd. v. Union of India and Ors., AIR 2015 Guj 97

[70] R. Gowrishankar v. The Commissioner of Service Tax (Appeals)-I and Ors., (2016) 6 MLJ 710

[71] Sangitabai v. The State of Maharashtra and Ors., 2018 (1) Bom CR 588

[72] Electronics Corporation of India Limited v. Union of India and Ors., 2018 (3) ALT 677

[73] Supra n. 70

[74] Ritu Ruhil v. The Central Board of Film Certification and Ors., Writ Petition No. 297 of 2019

[75] Supra n. 60

[76] Ibid.