REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

SPECIAL LEAVE PETITON (C ) NOS.               OF 2009 (Arising out of CC Nos. 3324-3326 OF 2009)

State of Karnataka …Petitioner

Versus

Y. Moideen Kunhi( dead)  by Lrs. And Ors. …respondents  

J U D G M E N T

Dr. ARIJIT PASAYAT, J

1. The special leave petitions are directed against the judgment and order  

dated  7.11.1990  in  Writ  Petition  No.40425  of  1982  and  Writ  Petition  

No.10920 of 1983 and order dated 26.9.2007 in Review Petition No.817 of  

2004 passed by a learned Single Judge of the Karnataka High Court.   It

appears  that  there  is  a  delay  of  more  than nearly  6500 days  against  the  

original order and about 300 days so far as the review petition is concerned.  

2. Before dealing with the question of delay it is necessary to take note  

of the State’s case before the High Court.

3. The records disclose that the agricultural lands to the  extent of 50.89  

acres, 30.00 acres, 462.00 acres, 3485.83 were purchased  through registered  

partnership  firm M/s Y. Moideen Kunhi & Company. All the lands are sub-

divisions of Sy. No.146 of Neriya Village, Puttur Taluk.  

4. The declaration under Section 66 (4) of the Karnataka Land Reforms  

Act,  1961(hereinafter  referred  to  as  the   ‘Act’)  was  filed  by  the  three  

partners of the firm i.e.. respondent Nos. 1,2 and 3 herein for determination  

of the excess holding. In the very declaration it is stated that the lands being  

the plantation lands, are exempted under Section 104 of the Act. It is further  

mentioned therein that all the declarants are the partners of the firm, having  

1/3rd share in the properties purchased and that the declarants have furnished  

the declaration without prejudice to their contentions that the provision of  

the  Act and the provisions of the Karnataka Ordinance No. 11 of 1975 are  

not applicable to the aforesaid lands. The Land Tribunal, Belthangady by the  

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order dated 27.9.1982, held that the declarants are holding the lands to an  

extent of 368.16 acres in excess of the ceiling limit. The tribunal opined that  

2820  acres  are  exempted  lands.  After  deducting  the  tenanted  lands  and  

exempted lands, the Tribunal ultimately held that an area of 530.16 acres has  

to be taken into consideration for the purpose of determining excess holding.  

After deducting 10 units for each of the declarants, the Tribunal held that an  

area of 368.16 acres is the excess land. Thereafter the Land Tribunal suo  

motu  initiated  review  proceedings  under  Section  122  A  of  the  Act  for  

reviewing  its  order  dated  27.9.1982.  The  review  proceedings  were  also  

dropped on 10.11.1982.

5. The order of the Land Tribunal was questioned before the High Court  

by  the  three  declarants  in  W.P.  no.  40425/1982.  So  also  the  State  of  

Karnataka challenged the order  of  the  Land Tribunal  by filing W.P.  No.  

10920 of 1983. During the course of hearing, the three declarants withdrew  

W.P. No, 40425/1982. However, W.P. No. 10920/1983 filed by the State of  

Karnataka was dismissed by the High Court on 7.11.1990 on merits holding  

that there is no error in the order passed by the Land Tribunal.

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6. It was contended on behalf of the State  that the Tahsildar being the  

Secretary of the Land Tribunal should have sent the declaration filed under  

Section 66 of the Act by the three declarants, to the Deputy Commissioner to  

be dealt with under the provision of Section 79B of the Act, to consider the  

question  by  the  registered  partnership  firm  is  valid  or  not;  instead  he  

proceeded  to  submit  the  report  to  the  Land  Tribunal  which  has  no  

jurisdiction to decide the question about the lands purchased by the firm,  the  

Tahsildar should not have been merely dependant upon the certificates of the  

Cardamom Board and Rubber Board to conclude that the lands in question  

are plantation lands, the Tahsildar has fraudulently prepared the inspection  

report according to which he visited the lands in question within a day and  

that he could not visit every nook and corner of the lands in question, that  

the  Land  Tribunal  should  also  not  have  entertained  the  declaration  filed  

under Section 66 of the Act as the lands have been purchased and held by  

the registered firm, that the Tribunal also says that the members of the Land  

Tribunal inspected the lands within one day, which is a make believe affair;  

that the statement made before the High Court in W.P. No. 42774/1982 that  

the  excess  lands have been surrendered,  is  also a  fraud practiced on the  

Court inasmuch as the declarants have not actually surrendered the excess  

lands; that the learned Judge who decided W.P. No. 10920/1983 has opined  

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that the Tahsildar being the Government official, there was no need to send  

notice to the State or other officials, that when the Tahsildar who is directly  

concerned  with  the  case  has  practiced  fraud,  learned  Judge  should  have  

issued notice to the Deputy Commissioner or Revenue Secretary; that the  

learned Judge while disposing of W.P. No. 10920/1983 has opined that the  

declarants  claim the  lands  not  as  partners  but  in  their  personal  capacity  

which is an error apparent on the face of the record as the declaration itself  

has  been filed  as  the  partners  of  firm;  that  fraud vitiates  everything and  

therefore the order passed by the Tribunal as well as by the High Court in  

W.P.  No.  10920/1983  are  null  and  void  as  they  are  obtained  by  the  

declarants by practicing fraud.  Therefore the review petition was filed.

7. Stand of  the respondents  on the other  hand was that  no fraud was  

committed  by the respondents or by the Secretary of the Land Tribunal.  

Error of judgment cannot be equated to fraud and since there was a delay of  

14 years  in filing the review petition even after the Deputy Commissioner  

allegedly discovered the alleged fraud on 10.2.2003 the delay in filing the  

review petition which was in fact filed on 8.10.2004 has not been explained.  

It was their stand that non filing of the appeal by the State will not amount to  

fraud by the officials of the State.  

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8. The  High  Court  found  that  there  was  no  element  of  fraud  and,  

therefore, the review petition was dismissed. However, liberty was given to  

the  State  or  the  Tribunal  to  get  the  land  to  the  extent  of  368.16  acres  

surrendered  in accordance with law.  

9. The State found that the allegation of fraud related to non surrender of  

the land.  Stand of the respondents was that lands were surrendered by the  

declarants before the surveyor of the State who had accepted the possession.  

The High Court accepted that the land was surrendered before the Tribunal  

as is required under law. It was further observed that if the State felt that the  

lands surrendered by the respondents are not suitable, it is open to the State  

to initiate action under Section 67 (3A) of the Act. Liberty was given to the  

Tribunal or the State  to initiate steps for getting the land surrendered in  

accordance with Section 67 by initiating  necessary  proceedings.  

10. It is submitted by learned counsel for the appellant that this  Court  

while dealing with an application for condonation of delay especially those  

filed by governments,  has held that  adoption of strict  standard of proof  

sometimes  fails  to  protect  public  justice,  and  it  would  result  in  public  

mischief by skilful management of delay in the process of filing an appeal.  

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11. It is submitted that many government matters are delayed by either  

the nature of the bureaucratic process or by deliberate manipulation of the  

same by taking advantage of loopholes in the conduct of litigation.

12. By way of an example only reference is  invited to Chapter  3 of a  

report for the year 2003 of the Comptroller and Auditor General of India.  

The chapter entitled REVIEW ON HANDLING OF APPEAL CASES IN  

THE CENTRAL EXCISE DEPARTMENT reads in pertinent part as under:

3.5  Analysis of adverse decisions due to departmental lapses

3.5.1    Dismissal of Appeals on account of delay in filing of appeals

13. As  per  instructions  issued  by  the  Board  in  October  1991,  the  

Commissioner  of  Central  Excise,  must  ensure  that  all  the  documents  

including the original certified copy of the CEGAT order, photocopies of  

the  order-in-original  &  order-in-appeal  alongwith   application  for  

condonation of delay are enclosed with the proposal sent to the Board for  

filing  civil  appeal  before  the  this   court.  The  time  limit  prescribed  for  

review by  the  Commissionerate  is  10  days  from the  date  of  receipt  of  

certified copy of the order. The processing of case at the Board's office  

includes  drafting,  vetting  and  finalisation  of  appeal.  The  jurisdictional  

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Commissioner within 60 days may file the appeal from the date of receipt  

of the CEGAT orders in the Commissionerate of Central Excise.

14. Test check of the records, in 16 Commissionerates of Central Excise,  

revealed  that  32  appeals  filed  by  the  department  involving  revenue  of  

Rs.50.41 crore were dismissed by this Court and 3 cases involving Rs.2.00  

crore by CEGAT on account of abnormal delays in filing of the appeals.  

Audit scrutiny revealed that delays had occurred at all the stages viz. receipt  

of certified copy, submission of papers to the Board, examination of papers  

at  Board's  office,  drafting of appeal  by the Panel  Counsel;  and filing of  

appeal by the CCE. The total period of delay varied. from 119 to 691 days.  

Some of the illustrative cases are discussed below: -

(i) Delay by Panel Counsel

The CEGAT set aside (March 1997) an order issued by CCE in April  

1992  confirming  demand  of  Rs.29.13  crore  and  penalty  of  Rs.2  crore,  

against  M/s.  National  Organic  Chemicals.  India  Limited,  in  Mumbai  VI  

Commissionerate  of  Central  Excise,  for  invoking  Section  11A  without  

adequate evidence of intention to evade duty. This  Court on 15 January,  

1999 dismissed the appeal filed by the department against the CEGAT order  

dated  5  March  1997,  on  account  of  delay  in  filing  of  appeal  by  seven  

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months.  The  period  of  delay  included  four  months  taken  by  the  Panel  

Counsel in drafting the appeal.

(ii) Delay by the Board

In the case of M/s. Time Pharma, involving revenue of Rs.1.83 crore ,  

the  Commissionerate  of  Central  Excise  Mumbai  II  (now  Mumbai  III)  

received certified copy of the CEGAT's order after 14 days on 4 February  

1997 and sent comments to the Board after 23 days as against prescribed  

period of 10 days. Although the Board decided before 17 April 1997 to go in  

appeal, the appeal was filed only on 5 June 1998. This court  dismissed the  

appeal on the ground that there was an inordinate delay of about 360 days in  

filing  the  appeal  without  giving  any  satisfactory  explanation.  The  

Commmissionerate of Central Excise attributed the delay to the Board.

(iii)  Supplementary  appeal  filed  after  six  years  Mumbai  II  

Commissionerate of Central Excise, filed an appeal in CEGAT on 14 June,  

1993 against an order of the Commissioner dated 31 March 1992 regarding  

irregular availment of SSI exemption and consequent availment of Modvat  

credit at higher rates by a group of six assessees (M/s. Azo Dye Chem and  

five others). The appeal was, however, filed in respect of only one assessee  

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whereas the case was against all the six manufacturing units and fourteen  

others being Directors and Managers of the said units. After six years, on the  

instructions  from Junior  Departmental  Representative,  the  supplementary  

appeals  alongwith  application  for  condonation  of  delay  in  filing  appeals  

against the others were filed in CEGAT on 11 October 1999 under section  

35 E (4) of the Act. However, CEGAT dismissed these appeals on 21 July,  

2000 borrowing a Larger Bench decision dated 12 July,  2000 in the same  

case where it was held that CEGAT has no power to condone the delay.

The main appeal filed in time (14 June 1993) was also dismissed by CEGAT  

on 21 July,  2000 on the ground that no appeal had been filed against the  

other noticee. The revenue involved in this case was Rs.1.18 crore.

(iv) Frivolous reasons for condonation

In Hyderabad I Commissionerate of Central Excise, two appeals filed  

by  the  department  against  order  of  Commissioner  (Appeals)  on  whether  

certain products manufactured by the assessees (M/s.Neyland Laboratories  

Limited and M/s. Aurbindo Pharma Ltd.) are bulk drugs under ‘Drugs and  

Cosmetics  Act’,  were  dismissed  (17  August  2002)  by  CEGAT  as  time  

barred as there was a delay of 48 days in filing the appeals. The reasons put  

forth by the department that the new Collector of Central Excise needed time  

to familiarize to the work were not accepted. Failure to file an appeal before  

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CEGAT in time resulted in dismissal  of  the appeal  involving revenue of  

Rs.81.81 lakh.

15. It is submitted that even with the introduction of safeguards against  

delay in the process, in an occasional case delay occurs which is inexplicable  

in normal circumstances. The question is whether such delay, should result  

in  the  negation of  the  state's  claim and at  the cost  of  the  interest  of  the  

members of the public whose cause has not been carefully espoused. It is  

submitted by the appellant-State that in such cases, delay must be visited  

with consequences but the interest of the inhabitants of the State must be  

protected.  

In State (NCT of Delhi) v. Ahmed Jaan  2008 (11) SCALE 455 it was  

held as follows:

....It  is axiomatic that decisions are taken by officers/ agencies  proverbially at slow pace and encumbered process of pushing  the  files  from  table  to  table  and  keeping  it  on  table  for  considerable time causing delay - intentional or otherwise - is a  routine.  Considerable  delay  of  procedural  red-tape  in  the  process  of  their  making  decision  is  a  common  feature.  Therefore,  certain amount of latitude is not impermissible.  If  the appeals  brought by the State are lost  for such default  no  person is individually affected but what in the ultimate analysis  suffers,  is  public  interest.  …..In the event  of decision to file  appeal needed prompt action should be pursued by the officer  responsible to file the appeal and he should be made personally  

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responsible for lapses, if any. Equally, the State cannot be put  on  the  same  footing  as  an  individual.  The  individual  would  always be quick in taking the decision whether he would pursue  the remedy by way of an appeal  or application since he is  a  person legally injured while State is an impersonal machinery  working through its officers or servants"

Further at para 15 this court held that:

“... The above position was highlighted in State of Haryana v.   Chandra Mani and Ors. 1996 (3) SCC 132; Special Tehsildar,   Land Acquisition,  Kerala v.  K V.Ayisumma (1996 (10) SCC  634) and State of Nagaland v. Lipok AO and Ors. (2005 (3)   SCC 752). It was noted that  adoption  of strict standard of   proof sometimes fail  to protract public justice, and, it  would  result in public mischief by skilful  management of delay in the   process of filing an appeal.”

16.  This Court has in appropriate cases even condoned delays of over  

30 years in filing of SLPs. In Nand Kishore v. State of Punjab 1995 (6)  

SCC 614 this court held:

".........13. The step of the three-member Bench so taken reveal its mind  as  reflected  in  the  above proceedings.  Their  Lordships  wanted to  do  substantial justice. It was thought better to advise the petitioner to file  special  leave  petition.  As  we  view  this  order,  having  invited  the  petitioner to file the special leave petition, it is no longer advisable or  appropriate  for  us to retrace  back the  step put  forward by the three- member Bench. It is significant to recall that the writ application was  dismissed on 5-2-1962 and the moment Moti Ram Deka case appeared  on  the  scene,  the  appellant  or  24-2-1964,  within  limitation,  brought  forward his suit which got strengthened by Gurdev Singh case appearing  within  a  couple  of  months  of  its  filing.  The  appellant-special  leave  petitioner  was  thus bona fide pursuing an appropriate  remedy for  all  these years. In these circumstances, we think that an appropriate case for  

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condonation of delay of the intervening period has been made out. We,  therefore, allow CC 11644 of 1991 and condone the long durated delay  in  these  exceptional  circumstances.  On  doing  so,  we  grant  leave  to  appeal. The appeal thus arising and the Civil Appeal No. 632 of 1975  may now be disposed of together...."

17. On perusal of the explanation offered it is clear that the officials who  

were  dealing  with  the  matter  have  either  deliberately  or  without  

understanding the implications dealt  with the matter in a very casual and  

lethargic manner. It is a matter of concern that in very serious matters action  

is not taken as required under law and the appeals/petitions are filed after  

long lapse of time. It is a common grievance that it is so done to protect  

unscrupulous  litigants  at  the  cost  of  public  interest  or  public  exchequer.  

This stand is more noticeable where vast tracts of lands or large sums of  

revenue are involved. Even though the courts are liberal in dealing with the  

belated presentation of appeals/applications, yet there is a limit upto which  

such liberal  attitude can be extended.  Many matters concerning the State  

Government and the Central Government are delayed either by the nature of  

bureaucratic process or by deliberate  manipulation of the same by taking  

advantage of loopholes in the conduct of litigation. Several instances have  

come to the notice of this Court where as noted above appeals have been  

filed where the revenue involved runs to several crores of rupees. It is true  

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that  occasionally  delay  occurs  which  is  inexplicable  in  normal  

circumstances.  

18. The case at hand is a classic example where the circumstances are the  

same.  More than 4000 acres of land are involved out of which, according to  

the State, nearly 3500 acres constitute forest land.  Ultimately, the Court has  

to protect  the public  justice.  The same cannot be rendered ineffective by  

skillful management of delay in the process of making challenge to the order  

which prima facie does not appear to be legally sustainable.  

19. The  expression  ‘sufficient  cause’  as  appearing  in  Section  5  of  the  

Indian Limitation Act, 1963 (in short the ‘Limitation Act’) must receive a  

liberal construction so as to advance substantial justice as was noted by this  

Court  in   G.  Ramegowda,  Major  etc.  v.  The  Special  Land  Acquisition  

Officer,  Bangalore (AIR 1988 SC 897).  Para 8 of the judgment reads as  

follows:     

“8. …….The  law of  limitation  is,  no  doubt,  the  same for  a  private  citizen  as  for  governmental  authorities.  Government,  like any other litigant must take responsibility for the acts or  omissions of its officers. But a somewhat different complexion  is imparted to the matter where Government makes out a case  where public interest was shown to have suffered owing to acts  of fraud or bad faith on the part of its officers or agents and  where the officers were clearly at cross-purposes with it.

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Therefore,  in  assessing  what,  in  a  particular  case,  constitutes  “sufficient  cause”  for  purposes  of  Section  5,  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 reasonable limits  — is necessary if the judicial  approach is not to be 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. In the opinion of the High Court, the  conduct  of  the  law  officers  of  the  Government  placed  the  Government in a predicament and that it was one of those cases  where the mala fides of the officers should not be imputed to  Government. It relied upon and trusted its law officers. Lindley,  M.R., in the In re National Bank of Wales Ltd. (1899) 2 Ch. 629  at p.673 observed, though in a different context:

“Business  cannot  be  carried  on  upon  principles  of  distrust. Men in responsible positions must be trusted by  those above them, as well as by those below them, until  there is reason to distrust them.”

20. Keeping  in  view  the  importance  of  questions  of  law  which  are  

involved  we  are  inclined  to  condone  the  delay  subject  to  payment  of  

exemplary costs which we fix at rupees ten lakhs to be paid within a period  

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of  8  weeks  to  the  respondents.   The  delay  is  condoned  subject  to  the  

payment of the aforesaid amount as costs. After making the payment the  

receipt thereof shall be filed before this Court alongwith an affidavit. Only  

after  the  payment  is  made  the  special  leave  petitions  shall  be  listed  for  

admission.      We make it clear that we have not expressed any opinion on  

the merits of the case.

21. It  is  imperative  that  the  State  shall  immediately  initiate  action  as  

available in law against every person responsible for the alleged fraud and  

delay in persuing the remedies,  fix responsibility and recover the amount  

paid as  costs  from them.  Needless  to say orders  shall  be passed in this  

regard by the competent authority after grant of opportunity to the concerned  

person(s).  If any, action under criminal law(s) is to be taken, same shall be  

taken.

…………..……………………….J. (Dr. ARIJIT PASAYAT)

……………………..…………….J. (ASOK KUMAR GANGULY)

    New Delhi, May 04, 2009

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