CHANDRA BHUSHAN & ANR. versus DEPUTY DIRECTOR OF CONSOLIDATION (REGIONAL), U.P. & ORS.

CHANDRA BHUSHAN & ANR.

DEPUTY DIRECTOR OF CONSOLIDATION (REGIONAi.), t;.P. & ORS.

December 15, 1966

[K. SUBBA RAO, C. J., J.C. SHAH, S. M. SIKRI, V. RA~IASWA~ll AND C. A. VAIDIAJJNGAM, JJ.)

Practice and Procedure-Certiorari-Rule of practice prl!scribing ni1?crv duys /Or filing of writ-If binding rule of /i111i1111io11-Co·zstltution of India, rt. 226. 1

The Allahabad High Court in Mo11gey v. Board of Rcl'em<e U.P. [A.LR. 1957 All. 47] la.id down !he practice that period of ninety days should be taken as the period for application for the issue of \Vrit of Certiorcri and that time could be extended only when special circumstance~ 1,1,·crc shown to e<ist. The appellant who had taken all the preliminary steps to file writ petition did not file It on the ninetieth day. That day was originally working day; hut from the aflernoon onY.-'ards the court and its offices were closc<l. 1,1,·ithout prevlous intimation, for the Diwali holidays. The appellant fi!ed the petition on the re-opening of the court. The Hi~h ·Court di:;missed the petition on the ground that the rule of l'ractice, . prescribed hinding rule of limitation and there \Vas no cxp1anat1on for not filing ihc petition on 1he ninelieth d~y. Jn appeal to this Court.

HELD : The High Court erred in exal! ing rule o' practice into rule of limitation and rejecting the petition of the appellant without considering wheth,r he wos guilty of hches and undue delay. [289A-Bj

rule ot' practice may only indicate how discretion ·will he exercised by the court in determining whether having -regard to the circumstanc~ of the case, the applicant has been guilty of !aches or undue delay. [288 Al

Normally this Court will not interfere with the e.'(ercise of this di"-cretion by th·o High Court but lhe special circumstances of the present case ju5tified departure from the rule. [28SH]

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 973 of 1965

Appeal by special leave from the judgment and decree dated March 5, 1962 of the AJlahabad High Court in Speci,tl Appeal No. 43 of 1962.

B. Misra and D. Gohurdlzwr, for the appellants.

C. B. Aggamala and 0. P. Rana, for respondents J\"os. I

The Judgment of the-Court was delivered by

Shah J. revi~ion application under s. 48 of the U.P. Con-solidation of Holdings Act filed by the appeJlants agai1o<l the order of the Settlement Officer, Consolidation, was dismissed by the Deputy Director of Consolidation, AJlahabad, by order dated July 15, 1961. The appeJlants then moved on November 13, 1961, the High

Court of Allahabad for the issue of writ of certiorari quashing the orders, inter a/ia, of the Consolidation Officer and the Settle-ment Officer. 1.ie petition was summarily rejected by D. S .. Mathur, .T., 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". special appeal against that order was dismissed by Divisiun 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 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 period of limitation for filing petitio11s for writs of certiorari under Art. 226 of the Constitution. Ordinarily in the absence of specific statutory rule, the High Court may be justi-fied in rejecting petition for writ of certiorari against the judg-ment of subordinate court or tribunal, if on consideration. of all the circumstances, it appears that there is undue delay. But the aggrieved party should have 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 ~hich writ of error must be prosecute<l has elapsed: see Ferris & Ferris-"Extraordinary Legal Remedies", p. 202 .. The Allahabad High Court in Mongey v. Board of Revenue U.P. Allahabad,(') has consistently with that view laid down the prac-tice 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. period of 90 days, which is the period fixed for appeals to the High Court from the judgments of courts below, should he taken as the period for application for the issue of writ of certiorari, and that time can he extended only when circumstances of special nature, which are sufficient in the opinion of the Court, are shown to exist". But in the absence of statutory rule the period prescribed for preferring an appeal to the High Court is rough measure: in each case the primary question is whether the applicant has been guilty of !aches or undue delay. rule of

practice cannot prescribe hiP<iing r1Jle of limitation: it may only indicate how discretion will be exercised hv the Court in determin-ing whether having regard to the circu:nstances of the case, the applicant has been guilty of !aches or undue delay.

In the present case the order of the DepPty Director of Con-solidation was made on July 15, 1961, and petition for re,iew of that oder was rejected on September 22, 1961. The appellants had to secure certified copies of the impgned orders, and under the r:.il~; of the High Court they had to serve upon the Standing Counsel to the State of Uttar Pradesh notice of the intention to move petition before the High Court. Taking into consideration these two periods, the appellants could have, according to the practice ofthe High Co•irt, 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 th1t the rule of practice prescribed rule of limitation. The learned Judge did not consider whether on review of the circumstances the appellants were guilty of !aches or undue delay. Ir appeal, the High Court affirmed the order.

There arc 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 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 l'<ovcmbcr 13, 1961. The petition which was intended to be filed in the High Court was sworn on O:tober 12, 196 I. and an Advocate had, it appears, been engaged by the appcll:rnts 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 :lie 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 r >le which has heen laid down in Mongey's case, (') is at best rule of practice, and not rule of limitation. It is true that normally the question whether petition under Art. 226 of the Consti-tution for the issue of ,,.,;, of certiorari had been present~d with-out undue delay or !aches is question for the High Court to decide and this C.'urt would not interfere with the exercise of the dislretion of the High Court. But i~ the present case, there "r~ spC\. .. 1 circumstances whkh justify departure from the rule : (i) th~t Mathur, J .. ragardcd the rule of practice as rule of limitation; (ii) that the oftices of the High Court were ordered to he closed at 1-00 P.M. on November 7, 1961, even though origi~aily November 7, 196 I was declared working day; and (iii) the appellants had

ti) A.l.R. t9.57 All. 47.

CHANDRA BHUSHAN v. D.I.R OF CONSOLIDATION (Shah,,·,,

completed all preliminarf 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 rule of practice into rule of limita-tion, and rejected the petition of the appellants without considering whether the appellants could be said to be guilty of !aches or undue delay. It may be mentioned that apart from the ground that the petition was not presented within ninety drys, there is nothing which indicates that the appellants were guilty of !aches or undue delay, nor are there grounds which justified the High Court in holding that it would be unjust to permit 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.

Appeal alloll'ed