V.K. Elayalwar vs The Registrar, Madras High Court and Others

K. Srinivasan, J.—In the exercise of the powers conferred by Article 226 of the Constitution of India, rules were framed to regulate

proceedings under Article 226. Rule 1 requires that an application for a direction, order or writ, including a writ of habeas corpus, mandamus,

certiorari, quo warranto or prohibition, shall be by and original petition. Under Rule 2-A, it is provided that every such petition shall be presented

within six months from the date of the order against which the relief is sought; and where such petition is presented after six months a petition to

excuse the delay supported by an affidavit explaining the reasons for the delay should also be filed. By Rule 3 every such petition, after it is

numbered, shall be posted for orders as to the issue of notice to the respondent, and the Court after hearing the petitioner or his advocate may

direct notice to issue or may reject the petition. By Rule 5 it is required that subject to the directions of the Court, the petitioner shall file as many

authenticated copies of the petition and the affidavit as there are parties to be served. In particular, if the petitioner seeks any interim relief against

the Government, he is required to serve a copy of the petition and the affidavit on the Government Pleader.

In this petition for the issue of a writ of mandamus against the Registrar of the High Court, the petitioner seeks to restrain the respondent, the

Registrar, from enforcing compliance with the provisions of (i) Rule 2-A, that is to say, the filing of a petition to excuse the delay in a case where

the writ petition is filed beyond a period of six months from the date of the order complained of, and (it) the latter part of Rule 5 which requires the

service of a copy of the petition and the affidavit upon the Government Pleader in cases where interim relief is sought against the Government. It is

the contention for the petitioner that the power of the High Court under Article 225 does not extend to prescribing a period of limitation and further

that when the petitioner seeks relief under Article 226, his right to seek that relief cannot be conditioned by the requirements that he should, even in

advance of the entertainment of the petition by the Court, be called upon to serve a copy of the petition and the affidavit upon the Government

Pleader. Before we deal with the legal aspects of the contention advanced before us, we may refer to the hardships which writ petitioners are said

to labour under by insistence upon compliance with these rules.

Mr. V.K.T. Chari, appearing for the petitioner, pointed out to us that by reason of the rules, the practice has developed that in a case where a

writ petition is filed beyond six months from the date of the order against which relief is sought, a petition to excuse the delay is filed along with the

writ petition. But the writ petition is not numbered in the registry and only the petition to excuse the delay is brought before the Court. In several

cases, the petition to excuse the delay is dismissed, but the writ petition itself not being before the Court, no orders are passed thereon and the

petitioner has not unoften to approach the appellate Court with an appeal against the dismissal of the petition to excuse the delay. Though the

Court in dealing with a writ petition has the power to dismiss it in limine, whether on the ground of laches or for other reasons, that is not done in

cases where the petition to excuse the delay does not commend itself to the Court and only that petition is disposed of. In the event of the

petitioner succeeding the appellate Court to excuse the delay, the writ petition is brought before the Court for disposal. Thus avoidable delay

occurs in the disposal of the petition with possible repercussion upon the rights of the petitioner or the relief which he can obtain at the hands of the

Court.

The requirement that a copy of the petition and the affidavit should be served on the Government Pleader at the time when the petition is filed

into Court does not in practice serve any useful purpose. The service of such notice upon the Government Pleader is intended to enable the

Government Pleader to obtain the necessary instructions from the Government in so far as any interim reliefs sought for against the Government is

concerned. In the majority of cases, the Government Pleader is unable to secure the necessary advice from the Government or Departments of the

Government, as the necessary material has to be gathered from the local officers of the mofussil. Indeed, if note is taken of the fact that even for the

filing of the counter affidavit by the Government or the Government department several months are taken, one can well appreciate the circumstance

that the Government Pleader would not be able to make effective representations for or against the grant of interim relief at the time when the

petition is posted for orders as to admission under Rule 3. In such cases, if we are to draw upon our experience of the disposal of writ petitions,

we can say without fear of contradiction that the grant of interim relief in such cases is considered in the light of the averments in the affidavit and

other circumstances of the case which are not likely to be in dispute. Rarely, if ever, is the Government Pleader, at that stage, able to assist the

Court in the matter of the grant of the interim relief.

We have so far set out the practical features attendant upon the filing of and the proceedings in relation to a writ petition in its preliminary stages.

What we have set out above represents the existing practice which has been explained to us by the learned Counsel Mr. V.K.T. Chari. We may

say here that the learned Government Pleader who appeared did not deny that this was the real state of things.

We shall now proceed with the question raised before us in its legal form. Firstly, it is contended that the High Court acting under Article 225

has no power to frame a rule with regard to limitation. We think this contention is well founded. If Rule 2-A is intended to operate as a rule of

limitation and if a petition is not filed within a period of six months prescribed by that rule, such a petition can be regarded as barred by imitation

and the requirement that a further petition should be filed to excuse the delay forms a parallel to Section 5 of the old Limitation Act, IX of 1908. It

is well known that where the statute fixes a period of limitation and an application or petition is filed beyond that period, every day''s delay has to

be explained to the satisfaction of the Court. We entertain no doubt in our minds that by virtue of a rule framed in the exercise of the powers under

Article 225, the High Court has no power to fix a period of limitation for a proceeding. Article 225, the head-note of which is "" The jurisdiction of

existing High Courts "" includes a power to make rules of the Court and to regulate the sittings of the Court and this power is declared to be the

same as that immediately before the commencement of the Constitution; but it is subject to the provisions of the Constitution and to the provisions

of any law of the appropriate Legislature. Broadly speaking, this Article confers jurisdiction upon the High Court to make rules of Court,

obviously, to regulate the procedure in Court. Entry 13 of List III of the Seventh Schedule of the Constitution reads : "" Civil Procedure, including

all matters included in the CPC at the commencement of the Constitution, limitation and arbitration."" Insofar as this entry gives any indication,

procedure does not include limitation. This is in sharp distinction to the position that obtained under the Government of India Act, 1935, where the

relevant entry was "" Civil Procedure, including limitation."" The power to regulate procedure would not therefore include the power to fix a period

of limitation in respect of a procedural matter. Ample authority for this view is found in Sales Tax Officer Vs. K.I. Abraham, . That case arose

under the Central Sales Tax Act. Section 8 (4) of that Act required the filing of a declaration to the prescribed authority in the prescribed manner.

Section 13 of the Act, which contained the rule-making power, also provided that the Central Government could make rules for the manner in

which the application should be made and the form in which and the particulars to be contained in any declaration to be given under the Act. Rules

were framed by the State Government and the impugned rule fixed certain time limit within which the declaration had to be filed by the registered

dealers. It may be mentioned that if a valid declaration had been filed before the Sales Tax Officers, the tax would have been at the rate of one per

cent. whereas if a proper declaration was not filed, the tax would have been at 7 per cent. In that case, the Sales Tax Officer assessed the dealer

at a higher rate on the ground that the declaration was not filed within the time limit fixed by the rule, and the question arose whether the statute

which empowered the rule making authority to make rules granted also the power to fix a period of limitation as it were. Their Lordships held that

the phrase '' in the prescribed manner'' only conferred power on the rule-making authority to prescribe a rule stating what particulars are to be

mentioned in the prescribed form, the nature and value of the goods, etc. that this phrase does not take in the time limit and that therefore, the

section does not authorise the rule-making authority to prescribe the time limit within which the declaration has to be filed. In effect, the section of

the statute empowered the rule-making authority to frame rules to regulate the procedure only and in such circumstances it was held that it could

not include the power to impose a time limit, which would operate as a period of limitation. It seems to us that this decision affords considerable

assistance to the learned Counsel for the petitioner in his argument that the power to frame rules under Article 225 with regard to procedure cannot

take within its ambit the power to prescribe a period of limitation.

In a decision of our High Court in Solar Works Vs. Employees'' State Insurance Corporation and Another, , a similar view has been taken. In

that case, the question that was decided was posed thus : "" Where an Act does not itself provide for limitation with reference to a particular matter

and the delegation of power to make rules is conferred by a section of the Act which does not expressly or impliedly relate to the power to

prescribe time, can the authority to which the power is delegated, namely, the State in this case, make a rule prescribing limitation ?"" The question

was answered in the negative. The learned Judges refer to several statutes where the power to impose a time-limit was also conferred upon the

rule-making authority, while the statute with which they dealt in that particular case did not in express terms confer such a power.

The prescription of a time-limit of six months by Rule 2-A seems to us to be not so much in the nature of a period of limitation ; if it is intended

to be such the expiry of that period would naturally non-suit the writ petitioner. It is conceivable that there may be cases where though the relief

may be sought against an order, the aggrived party may not find it necessary to come to Court till the working of the order actually prejudices him,

which may be well beyond the period of six months from the date of the order complained of. There may be cases where the filing of a petition

beyond a period of even three months from the date of the order complained of may amount to such serious laches on the part of the petitioner as

to disentitle him to discretionary relief at the hands of the Court. For instance, if to the knowledge of the petitioner something is done by the

opposite party which prejudices him, but he stands by without taking any immediate steps but allows the other party to proceed unchecked, let us

say, for instance, the construction of a costly structure, he cannot come to Court after a delay which in the circumstances may even be as short as

two or three months after the act complained of, and seek relief. The Court may well charge him with laches and take note of the fact that any

order that it may pass would involve the respondent in considerable loss. We may refer in this connection to State of Madhya Pradesh Vs. Bhailal

Bhai and Others, . There their Lordships point out that the power to grant relief under Article 226 is a discretionary power and is not intended to

supersede the modes of obtaining the relief by an action in a civil Court which may be legitimately open to the petitioner. In particular, they point

out that the provisions of the Limitation Act do not as such apply to the granting of relief under Article 226. But, nevertheless, the fact that the

Legislature has prescribed a particular period within which the relief could be obtained by a suit in a civil Court can ordinarily be taken to be the

reasonable standard by which the delay in seeking the remedy under Article 226 can be measured. However, as we said, already, in this case, it

cannot be said that the period of six months is intended as a period of limitation. The underlying intention of the rule is to impress upon the

petitioners seeking the discretionary relief at the hands of the Courts to approach the Court as early as circumstances would permit. Looked at in

that light, it does not appear to us necessary to declare this rule to be ultra vires the powers conferred by Article 225.

Mr. V.K.T. Chari, frankly concedes that he has no objection to any writ petitioner being called upon to explain why he has delayed coming to

Court beyond a period of six months. But what he would urge is that the disposal of the petition seeking to have the delay excused should not be a

barrier in the path of the progress of the writ petition itself. If both the petition and the petition to excuse the delay were to be heard by the Judge at

the same time, there would be an effective order in the writ petition itself, the Court could well decide that in the circumstances the petitioner could

not by reason of his lack of diligence be granted any relief in the writ jurisdiction of this Court and dismiss it, or the Court could accept the

explanation for the delay and order notice to the respondent. It seems to us that the result sought to be achieved by the rule as it stands could well

be achieved by requiring the petitioner to state in the affidavit accompanying the petition the reasons for the delay rather than requiring a separate

petition to be filed seeking to excuse the delay. A petition to excuse the delay more or less indicates that the main petition itself has been filed

beyond any time fixed by the statute. We have held that such a view cannot be taken in this case. It would, therefore, conform to the true legal

position if the requirement of the petition to excuse the delay is done away with and the writ petitioner is asked to include in the averments in the

affidavit such material as would enable the Court to decide whether the petitioner has been guilty of laches or not in the circumstances of the

particular case. Even if the rule is retained in the present form, we must emphasise that the petition to excuse the delay should be heard as part of

the writ petition itself and an appropriate order either dismissing the writ petition or ordering notice to the respondent should be made. The matter

should not be allowed to rest with the dismissal of the petition to excuse the delay without any orders upon the writ petition. The present practice

of not numbering the writ petition till the petition to excuse the delay is disposed of is opposed to the true legal position as we understand it.

We have already referred to the fact that even the learned Government Pleader who appeared was unable to say that the service of a copy of

the petition and the affidavit upon him by the writ petitioner serves any useful purpose in so for as the grant of any relief is concerned. Mr. V.K.T.

Chari goes further and points out that under Order 27, Rule 4, Civil Procedure Code, the Government Pleader is the agent of the Government for

the purpose of receiving the process against the Government "" issued by such Court "". Obviously, the service of a copy by the petitioner upon the

Government Pleader even before his writ petition is admitted and entertained by the Court cannot be effective service within the meaning of Order

27, Rule 4, Civil Procedure Code, for it cannot be regarded as a process issued by the Court. Indeed, as conceded by the learned Government

Pleader, even if he receives a copy of the petition and the affidavit, he is unable to render any assistance to the Court for want of instructions from

the Government or the appropriate Department or the appropriate officer in the mofussil. In the normal run of cases, interim relief is sought for only

in cases of an urgent nature. We have earlier stated that the writ petition, whether it is filed within or beyond six months, should be numbered. If

what the rule requires is to secure only that the Government should be made aware through the agency of the Government Pleader of the prayer

for interim relief, that result may well be secured requiring the writ petitioner to file an additional copy for the use of the Government Pleader, which

the office of the High Court will transmit to the Government Pleader immediately upon the numbering of the petition. The complaint of Mr. V.K.T.

Chari that numbering of the writ petition cannot be conditional upon the petitioner serving the Government Pleader does have some substance, for

as we have pointed out, it would not be service within the meaning of Order 27, Rule 4, Civil Procedure Code. In the light of what we have said,

we would suggest that in working out this rule, the petitioner should be called upon to furnish an additional copy of the petition and affidavit which

the office of the Registrar could transmit to the Government Pleader for his information immediately upon the numbering of the writ petition. In so

far as this rule demands the writ petitioner to serve a copy of the petition and the affidavit on the Government Pleader at that stage of the

proceedings, it appears to our minds to go beyond the power of regulating procedure.

Finally, till the relevant rules are recast in the light of the above observations, hey should be worked in the manner indicated.

There will be no order as to costs.