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Judgment
Sonia Gokani, J.—This is an application preferred for condonation of delay of 1,226 days in filing the present tax appeal challenging the
order dated April 21, 2009 passed in Second Appeal No. 1097 of 2004 passed by the Gujarat Value Added Tax Tribunal, Ahmedabad (""the
Tribunal"", for short). It is pleaded in the application by the applicant-State, thus:
The applicant submits that the applicant has received the certified copy of the impugned judgment on May 7, 2009 and thereafter file was put up
by the Commercial Tax Inspector on June 6, 2009. The applicant further submits that in his note, the incharge Government Agent-1 opined for
challenging the above-mentioned judgment on October 29, 2009, which came to be received by the concerned branch of the applicant herein, on
March 11, 2010. Thereafter, proposal was sent to the Finance Department on April 5, 2010 for challenging the said judgment of the honourable
Tribunal. Sanction was received from the Finance Department on April 28, 2010 and received by the concerned branch on May 7, 2010 and
accordingly, the applicant had sent the papers for filing a tax appeal challenging the impugned order to the office of the learned Government
Pleader on May 19, 2010, which was received by the learned Government Pleader Office on May 21, 2010. The applicant submits that the said
papers which were sent to the office of the learned Government Pleader on May 19, 2010 were lost is a fact, which was revealed when the
applicant-Department inquired about filing of the captioned tax appeal. The applicant-Department thereafter gave another set of papers for filing
the captioned tax appeal, challenging the judgment of the honourable Tribunal dated May 7, 2009 passed in the above-mentioned second appeal.
The applicant submits that as there was heavy drafting work load in the office of the learned Government Pleader and less Assistant Government
Pleader and stenographers to do the drafting work, the captioned tax appeal could not be filed within the statutory period of limitation. The
applicant further submits that due to shortage of stenographers in the office of the learned Government Pleader, the said office had also requested
the applicant-Department to provide a separate stenographer, with a view to seeing that the work of the applicant-Department did not suffer.
The applicant-Department submits that due to the above-mentioned reasons, the captioned tax appeal could not be filed within the statutory period
of limitation. . .
It is further averred by the applicant that meritorious case would seriously get prejudiced, if delay is not condoned and opponent is not to lose
anything, as due opportunity is likely to be given to both the sides. It is also averred that it is the public interest which is at jeopardy in a case where
the Government is the petitioner.
The learned Additional Government Pleader appearing for the applicant-State has fervently urged to condone delay as reasonable explanation is
already embodied, according to her, in the petition and this must be construed as a sufficient cause. He has sought to rely upon the decision of the
apex court rendered in case of G. Ramegowda, Major and Ors Vs. Special Land Acquisition Officer, Bangalore, , wherein, the apex court has
held thus:
In litigations to which 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 the Government
are collective and institutional decisions and do not share the characteristics of decisions of private individuals.
...
Therefore, in assessing what, in a particular case, constitutes ''sufficient cause'' for purposes of section 5 of the Limitation Act, 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 a reasonable limit--is necessary if the judicial approach is not 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 . . .
Reliance is also placed on the decision of the apex court rendered in case of N. Balakrishnan Vs. M. Krishnamurthy, . It is held therein by the
apex court that the rules of limitation are not to jeopardize the right and interest of the parties. Court is to ensure of course that no dilatory tactics
are adopted and if the large amount of tax revenue is at stake, the court should be slow in dismissing such plea of condonation of delay.
Judgment rendered in case of State of Haryana Vs. Chandra Mani and others, is pressed into service, wherein, the apex court has reiterated
liberal approach in condoning the delay.
In short, the submission that has been emphasized is to the effect that in absence of any intention to flout any legal provision or Act, the attempt
to deliberately jeopardize the interest of the other side, an explanation of delay as put forth should be accepted and this being the administrative
cause involving revenue for the State, the court may approach this request with a liberty attitude.
On thus having heard the learned Additional Government Pleader and on having consciously considered the materials on record, this application
is not being entertained for the reasons to follow hereinafter.
We are conscious that ordinarily the courts have liberally condoned the delay and are also expected to adopt ""justice oriented approach"" rather
than giving any undue importance to the technicalities. We are also not oblivious of the fact that the delay is not to be explained by the litigant on
literal sense on day-to-day basis. However, we cannot disregard the vital requirement of law that when there is no justification for delay, the
substantial law of limitation cannot be marred advancing the cause of liberal approach.
It will not be out of place to refer to the judgment of the apex court rendered in case of Lanka Venkateswarlu (D) by L.Rs. Vs. State of A.P.
and Others, wherein the delay was caused and there was insufficient explanation. The apex court set aside the order of the High Court in
condoning the delay, by holding that the concept of liberal approach and justice oriented approach cannot be employed to jettison the substantial
law of limitation. In the words of the apex court:
We are at a loss to fathom any logic or rationale, which could have impelled the High Court to condone the delay after holding the same to be
unjustifiable. The concepts such as ''liberal approach'', ''justice oriented approach'', ''substantial justice'' cannot be employed to jettison the
substantial law of limitation. Especially, in cases where the court concludes that there is no justification for the delay. In our opinion, the approach
adopted by the High Court tends to show the absence of judicial balance and restraint, which a Judge is required to maintain whilst adjudicating
any lis between the parties. We are rather pained to notice that in this case, not being satisfied with the use of mere intemperate language, the High
Court resorted to blatant sarcasms. The use of unduly strong intemperate or extravagant language in a judgment has been repeatedly disapproved
by this court in a number of cases. Whilst considering applications for condonation of delay u/s 5 of the Limitation Act, the courts do not enjoy
unlimited and unbridled discretionary powers. All discretionary powers, especially judicial powers, have to be exercised within reasonable bounds,
known to the law. The discretion has to be exercised in a systematic manner informed by reason. Whims or fancies; prejudices or predilections
cannot and should not form the basis of exercising discretionary powers.
The apex court in a decision, rendered in case of Balwant Singh (Dead) Vs. Jagdish Singh and Others, has given the test for a sufficient cause
and what is to be seen is as to whether the party by the exercise of due care and attention could have avoided the delay. It reiterated that sufficient
powers and discretion is available with the courts for applying this law in a meaningful manner but sufficient cause would mean presence of legal
and adequate reasons.
It would be profitable to reproduce the relevant observations of the apex court in this case:
In the case of Tata Yodogawa Limited and Another Vs. Union of India(UOI) and Others, , this court while granting some latitude to the
Government in relation to condonation of delay, still held that there must be some way or attempt to explain the cause for such delay and as there
was no whisper to explain what legal problems occurred in filing the special leave petition, the application for condonation of delay was dismissed.
Similarly, in the case of Collector of Central Excise, Madras Vs. A. Md. Bilal and Co., , the Supreme Court declined to condone the delay of 502
days in filing the appeal because there was no satisfactory or reasonable explanation rendered for condonation of delay. The provisions of Order
22, rule 9, CPC has been the subject-matter of judicial scrutiny for considerable time now. Sometimes the courts have taken a view that delay
should be condoned with a liberal attitude, while on certain occasions the courts have taken a stricter view and wherever the explanation was not
satisfactory, have dismissed the application for condonation of delay. Thus, it is evident that it is difficult to state any straight-jacket formula which
can uniformly be applied to all cases without reference to the peculiar facts and circumstances of a given case. It must be kept in mind that
whenever a law is enacted by the Legislature, it is intended to be enforced in its proper perspective. It is an equally settled principle of law that the
provisions of a statute, including every word, have to be given full effect, keeping the legislative intent in mind, in order to ensure that the projected
object is achieved. In other words, no provisions can be treated to have been enacted purposelessly. Furthermore, it is also a well-settled canon of
interpretative jurisprudence that the court should not give such an interpretation to provisions which would render the provision ineffective or
odious. Once the Legislature has enacted the provisions of Order 22, with particular reference to rule 9, and the provisions of the Limitation Act
are applied to the entertainment of such an application, all these provisions have to be given their true and correct meaning and must be applied
wherever called for. If we accept the contention of the learned counsel appearing for the applicant that the court should take a very liberal
approach and interpret these provisions (Order 22, rule 9 of the CPC and section 5 of the Limitation Act) in such a manner and so liberally,
irrespective of the period of delay, it would amount to practically rendering all these provisions redundant and inoperative. Such approach or
interpretation would hardly be permissible in law. Liberal construction of the expression ''sufficient cause'' is intended to advance substantial justice
which itself presupposes no negligence or inaction on the part of the applicant, to whom want of bona fide is imputable. There can be instances
where the court should condone the delay; equally there would be cases where the court must exercise its discretion against the applicant for want
of any of these ingredients or where it does not reflect ""sufficient cause"" as understood in law. (Advanced Law Lexicon, P. Ramanatha Aiyar,
Second Edition, 1997). The expression ''sufficient cause'' implies the presence of legal and adequate reasons. The word ''sufficient'' means
adequate enough, as much as may be necessary to answer the purpose intended. It embraces no more than that which provides a plenitude which,
when done, suffices to accomplish the purpose intended in the light of existing circumstances and when viewed from the reasonable standard of
practical and cautious men. The sufficient cause should be such as it would persuade the court, in exercise of its judicial discretion, to treat the
delay as an excusable one. These provisions give the courts enough power and discretion to apply a law in a meaningful manner, while assuring that
the purpose of enacting such a law does not stand frustrated. We find it unnecessary to discuss the instances which would fall under either of these
classes of cases. The party should show that besides acting bona fide, it had taken all possible steps within its power and control and had
approached the court without any unnecessary delay. The test is whether or not a cause is sufficient to see whether it could have been avoided by
the party by the exercise of due care and attention. (Advanced Law Lexicon, P. Ramanatha Aiyar, Third Edition, 2005).
In yet another recent decision of the apex court rendered in case of Office of The Chief Post Master General and Others Vs. Living Media
India Ltd. and Another, , in absence of plausible and acceptable explanation, the court refused to condone the delay mechanically only because it
was a Government Wing, by observing thus (pages 200 & 201 in 54 VST):
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 SLP 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 party
before us . . .
From the explanation rendered by the applicant, it can be noted that the same is in general terms. The Department appears to have sent a
proposal to the Finance Department which had approved it on April 5, 2010 and after the same was received back along with necessary papers
and orders permitting the office of the Government Pleader to file tax appeal, it appears that the tax appeal which was to be filed within the period
prescribed under the law of limitation, came to be filed after a huge delay of 1,226 days. What is stated for explaining such delay is that due to
Government administrative mechanism, within the statutory time period, tax appeal could not be filed. In absence of any specific details and
explanation, this explanation in general terms does not satisfy us. There can be no straight-jacket formula adopted which can be applied uniformly
in all matters, without considering the facts and circumstances of the case. In absence of any satisfactory explanation coming forth for condonation
of delay, we are of the opinion that no liberal attitude requires to be adopted; particularly considering the inordinate delay in preferring this
application. Only because the applicant is the State, it cannot be absolved of its responsibility to fulfil the mandate of law. Even if day-to-day
explanation is not desired, for a long period after the sanction of Finance Department also, nothing emerges on record to indicate due care or
diligence to satisfy the requirement of explaining sufficiency of cause. Resultantly, this application for condonation of delay fails and consequently,
Tax Appeal (Stamp) No. 2386 of 2012 stands rejected as well.