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PETITIONER: CHANDRA BHUSHAN & ANR.

       Vs.

RESPONDENT: DEPUTY DIRECTOR OF CONSOLIDATION (REGIONAL), U.P. &  ORS.

DATE OF JUDGMENT: 15/12/1966

BENCH: SHAH, J.C. BENCH: SHAH, J.C. RAO, K. SUBBA (CJ) SIKRI, S.M. RAMASWAMI, V. VAIDYIALINGAM, C.A.

CITATION:  1967 AIR 1272            1967 SCR  (2) 286  CITATOR INFO :  D          1972 SC2060  (8)  R          1978 SC1409  (4)  RF         1990 SC 772  (15,32)

ACT:      Practice  and Procedure--Certiorari--Rule  of  practice prescribing ninety days for filing of writ--If binding  rule of limitation--Constitution of India, Art. 226.

HEADNOTE:      The Allahabad High Court in Mongey v. Board of  Revenue U.P.  [A.I.R.  1957 All. 47] laid down the practice  that  a period  of  ninety days should be taken as  the  period  for application  for the issue of a Writ of Certiorari and  that time could be extended only when special circumstances  were shown  to  exist.   The  appellant who  had  taken  all  the preliminary steps to file a writ petition did not file it on the  ninetieth day.  That day was originally a working  day; but  from  the afternoon onwards the court and  its  offices were  closed,  without previous intimation, for  the  Diwali holidays.   The  appellant  filed the petition  on  the  re- opening of the court.  The High Court dismissed the petition on  the  ground  that the rule  of  practice,  prescribed  a binding rule of limitation and there was no explanation  for not f iling the petition on the ninetieth day.  In appeal to this Court. HELD:     The  High  Court  erred  in  exalting  a  rule  of practice  into  a  rule  of  limitation  and  rejecting  the petition of the appellant without considering whether he was guilty of laches and undue delay. [289A-B] A rule of practice may only indicate how discretion will  be exercised by the court in determining whether having regard to  the  circumstances of the case, the applicant  has  been guilty of laches or undue delay. [288 A] Normally this Court will not interfere with the exercise  of this   discretion  by  the  High  Court  but   the   special circumstances of the present case justified a departure from the rule. [288H]

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JUDGMENT: CIVIL APPELLATE JURISDICTION : CIVIL Appeal no.973 of 1965 Appeal  by special leave from the judgment and decree  dated March 5, 1962 of the Allahabad High Court in Special  Appeal No. 43 of 1962. B.   C. Misra and D. Goburdhun, for the appellants. C.B. Aggarwala and 0. P. Rana, for respondents Nos. 1 to 3. The Judgment of the Court was delivered by Shah J. A revision application under s. 48 of the U.P.  Con- solidation of Holdings’ Act filed by the appellants  against the  order  of the Settlement  Officer,  Consolidation,  was dismissed   by   the  Deputy  Director   of   Consolidation, Allahabad,  by  order dated July 15, 1961.   The  appellants then moved on November 13, 1961, the High 287 Court  of  Allahabad for the issue of a writ  of  certiorari quashing  the  orders,  inter  alia,  of  the  Consolidation Officer  and  the  Settlement  Officer.   The  petition  was summarily  rejected by D. S. Mathur, J., 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".  A special appeal against that  order  was  dismissed  by  a  Division  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  a  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  a  period of limitation for  filing  petitions  for writs  of  certiorari under Art. 226  of  the  Constitution. Ordinarily in the absence of a specific statutory rule,  the High  Court may be justified in rejecting a petition  for  a writ  of  certiorari against the judgment of  a  subordinate court  or  tribunal,  if  on  a  consideration  of  all  the circumstances,  it appears that there is undue  delay.   But the  aggrieved  party should have a 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  which  a  writ  of  error  must  be  prosecuted  has elapsed:see    Ferris    &    Ferris-"Extraordinary    Legal Remedies",p.   202.   The Allahabad High Court in Mongey  v. Board  of Revenue UP.  Allahabad,(1) has  consistently  with that view laid down the practice 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.   A period of 90 days, which is the  period  fixed for  appeals to the High Court from the judgments of  courts below, should be taken as the period for application for the issue of a writ of certiorari, and that time can be extended only  when  circumstances  of a special  nature,  which  are sufficient in the opinion of the Court, are shown to exist".

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But in the absence of a statutory rule the period prescribed for  preferring  an  appeal to the High  Court  is  a  rough measure:  in each case the primary question is  whether  the applicant has been guilty of laches or undue delay.  A  rule of (1)  A.I.R. 1957 All. 47. 288 practice  cannot prescribe a binding rule of limitation:  it may  only indicate how discretion will be exercised  by  the Court   in   determining  whether  having  regard   to   the circumstances of the case, the applicant has been guilty  of laches or undue delay. In the present case the order of the Deputy Director of Con- solidation  was  made on July 15, 1961, and a  petition  for review  of  that order was rejected on September  22,  1961. The  appellants  had  to  secure  certified  copies  of  the impugned orders, and under the rules of the High Court  they had to serve upon the Standing Counsel to the State of Uttar Pradesh a notice of the intention to move a petition  before the  High  Court.   Taking  into  consideration  these   two periods,  the  appellants  could  have,  according  to   the practice  of the High Court, 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 that the rule of practice prescribed a rule  of limitation.  The learned Judge did not consider whether on a review  of the circumstances the appellants were  guilty  of laches  or undue delay.  In appeal, the High Court  affirmed the order. There  are  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 a 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 November  13, 1961.  The petition which was intended  to  be filed  in the High Court was sworn on October 12, 1961,  and an Advocate had, it appears, been engaged by the  appellants 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 the 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  rule which has been laid down in Mongey’s case, (1)  is at  best a rule of practice, and not a rule  of  limitation. It  is  true that normally the question whether  a  petition under  Art. 226 of the Constitution for the issue of a  writ of  certiorari  had been presented without  undue  delay  or laches  is a question for the High Court to decide and  this Court   would  not  interfere  with  the  exercise  of   the discretion  of  the High Court.  But in  the  present  case, there ire special circumstances which justify departure from the  rule   (i)  that Mathur, J.,  ragarded  the  rule  of practice as a rule of limitation ; (ii) that the offices  of the  High  Court were ordered to be closed at 1-00  P.M.  on November  7, 1961, even though originally November  7,  1961 was declared a working day; and (iii) the appellants had (1) A.I.R. 1957 All. 47.  289 completed  all  preliminary 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  a  rule  of

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practice  into  a  rule  of  limitation,  and  rejected  the petition  of the appellants without considering whether  the appellants  could  be said to be guilty of laches  or  undue delay.  It may be mentioned that apart from the ground  that the petition was not presented within ninety days, there  is nothing  which indicates that the appellants were guilty  of laches or undue delay, nor are there grounds which justified the High Court in holding that it would be unjust to  permit a 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. Y. P.                                       Appeal allowed M1Sup.CI/67-5 290