S.P. Talukdar, J.
1. Application being C.A.N. No. 4861 of 2007 relates to prayer for condonation of delay. By filing another application being C.A.N, No. 4859 of 2007, the petitioners/State of West Bengal find other authorities prayed for dispensing with filing of the certified copy of the judgment and order dated 21.3.2005 passed in W.P.T.T. No. 246 of 2003.
2. It appears that this Court by the said judgment and order dated 21st March, 2005 disposed of an application under Article 226 of the Constitution being W.P.T.T. No. 246 of 2003.
3. An application for review of the said judgment and order has been filed earlier by the opposite parties being the petitioners in the writ application and the same has since been taken up for hearing.
4. At that stage, the State of West Bengal and other authorities, as petitioners, approached this Court with another application seeking review of the judgment and order dated 21.3.2005.
5. The two applications, as referred to earlier, have been filed in connection with the said review application being R.V.W. No. 2243 of 2007.
6. Mr. Lakshmi Kr. Gupta, appearing as learned Counsel for the petitioners, at the very outset, submitted that there had been delay of more than two years in filing such application for review. Mr. Gupta, in a rather subdued voice, submitted that there are occasions where the Court cannot possibly afford to ignore the state of functional disorder which is quite prevalent in various departments of the Government. This is again sometime unfortunately blended with casual and indifferent attitude.
7. Learned Counsel, Mr. Sengupta, in response to such application, submitted that no clear, not to speak of convincing, cause could be shown in order to justify the consideration of the application for such condonation of delay.
8. After hearing, learned Counsel for both parties, this Court finds it important to adjudicate upon the issues raised which are set out as follows:
i) How far the provisions of the Civil Procedure Code and the Limitation Act are applicable while considering an application for review of a judgment and order passed in connection with an application under Article 226 of the Constitution?
ii) If the same are applicable, whether the petitioners could succeed to explain or justify the delay of more than 800 days in filing of the application seeking review?
iii) If the same are not applicable, whether it would be just and proper to entertain the review application after allowing such prayer for condonation of delay?
9. Mr. Gupta submitted that the judgment and order dated 21.3.2005 was in response to an application under Article 226 of the Constitution. Since there is no fixed period for filing of a writ application, there can be no reason to think that an application for review, in such circumstances, would be unnecessarily and unreasonably bound by the rigid technicalities of the C.P. Code as well as the Limitation Act. According to him, what is important is the cause of justice.
10. Attention of the Court was first drawn to the decision in the case of a Puran Singh and Ors. v. State of Punjab and Ors. reported in : [1996]1SCR730 , in support of the contention that the High Court under Article 226 and Article 227 is to adopt its own procedure which is reasonable and expeditious. It was emphatically submitted that the power of the Writ Courts must not be limited by procedural provisions prescribed in the Civil Procedure Code in view of Section 141 of the said Code.
Section 141 of the Code reads as follows:
Miscellaneous proceedings.-The procedure provided in this Code in regard to suit shall be followed, as far as it can be made applicable, in all proceedings in any Court of civil jurisdiction.
Explanation.-In this section, the expression 'proceedings' includes proceedings under Order 9, but does not include any proceeding under Article 226 of the Constitution.
11. The Apex Court in the said case observed that when the Constitution has vested extraordinary power in the High Court under Articles 226 and 227 to issue any order, writ or direction and the power of superintendence over all Courts and Tribunals throughout the territories in relation to which such High Court is exercising jurisdiction, the procedure for exercising such power and jurisdiction have to be traced and found in Articles 226 and 227, itself. It was observed that no useful purpose will be served by limiting the power of the High Court by procedural provisions prescribed in the Code. It was then held that on many questions, the provisions and procedures prescribed under the Code can be taken up as guide while exercising the power for granting relief to persons, who have invoked the jurisdiction of the High Court. It need not be impressed that different provisions and procedures under the Code are based on well recognized principles for exercise of discretionary power and they are reasonable and rational.
12. The learned Division Bench of the Apex Court thought it fit that the High Court should be left to adopt its own procedure which can be held to be not only reasonable but also expeditious.
13. In the case before it, the Apex Court was required to deal with whether the petitioner in a writ petition or the appellant in a writ appeal can ignore the death of the respondent if the right to pursue remedy even after death of the respondent survives. It is significant to note that the Apex Court in the said judgment observed that for purpose of holding as to what shall be a reasonable time, the High Court may take note of the period prescribed under Article 120 of the Limitation Act for substituting the heirs of the deceased defendant or the respondent.
14. While considering an application for condonation of delay, this Court must satisfy itself that the delay is not intentional and sufficient cause has been shown for not taking steps earlier. There is a note of caution as well. It was observed that the High Court has to be conscious that after lapse of time a valuable right accrues to the legal representative of the deceased respondent and he should not be compelled to contest a claim which due to the inaction of the petitioner or the appellant has become final.
15. Mr. Gupta, relying upon the decision in the case of Lt. Governor v. Kulsa Bibi reported in 2000 ILR A&N; page-28, submitted that the application for review cannot be said to be barred by limitation for not having been filed with 30 days. The learned Division Bench in connection with the said case clearly held that 'the provision of Limitation Act and the relevant provision of Civil Procedure Code, in this connection, however, is not applicable in the present case as the matter arises out of a writ proceeding.'
16. Mr. Sengupta, however, was emphatic in his submission that such observation of the learned Division Bench is not based on any reason and as such, should not be taken is a precedent. While assailing the argument advanced by Mr. Gupta, it was submitted by Mr. Sengupta, as learned Counsel for the opposite parties that the decision in the case of Puran Singh & Ors. (supra) does hot conclusively suggest that the provisions of the Code and the Limitation Act do not apply while dealing with an application for review which is clearly barred by limitation and while considering an application for condonation of delay. Mr. Sengupta does not find any reason as to why something will be attempted to be read in a judgment which has not been expressly held or observed.
17. It was then submitted by Mr. Sengupta that the factual backdrop of the present case also stands on a somewhat different footing. It cannot be said that by virtue of the judgment and order which has been sought to be reviewed, no right could accrue in favour of the other side.
18. In a way of clarification, Mr. Sengupta added that the review application filed on behalf of the present opposite parties is limited in its scope and the stand taken by the petitioners in the writ application was on the whole accepted by the learned Division Bench. Mr. Sengupta further contended that if the State or its authorities felt aggrieved by the decision and order which has been sought to be reviewed, nothing could prevent them from preferring an appeal. This aspect, however, finds answer in the submission of Mr. Gupta that the writ application by virtue of this Court's judgment dated 21st March, 25 was dismissed leaving no scope for preferring an appeal.
19. In course of submission, a point was raised that the Appellate Side Rules as framed, indicate applicability of the provisions of the Civil Procedure Code. In this context, reference was made to a Full Bench decision in the case of Hon'ble Secretary and Correspondent, Badruka College of Commerce and Arts (Day), Hyderabad v. State of Andhra Pradesh and Ors. reported in AIR 1097 AP 179. It was submitted by Mr. Gupta that provision of Civil Procedure Code are not applicable notwithstanding Rule 24 though principles of such Code Can very well be followed while exercising discretion. The learned Bench in connection with the said case observed that the Rules being the delegated legislation have the force of law provided, of course, they are within the ambit of the article and did not militate against the objection or the terms of the substantive article. Referring to the decision in the case of Prabhu v. Srivastav : [1975]3SCR552 , it was observed that such procedural rules have no effect of substantive law. Reliance was also placed to the decision in the case of Venkata v. District Collector : AIR1969AP381 , while observing that the powers under Article 226 are not subject to or controlled by anything in Article 225. In the said case of Hon'ble Secretary and Correspondent (supra), the Full Bench of the Andhra Pradesh High Court clearly held that the provisions of the Limitation Act are not applicable to the proceedings under Articles 226 and 227 of the Constitution.
20. The relevant observations of the Apex Court in the said case may be reproduced its follows:
Notwithstanding the Law of Limitation or the Act not being made applicable to the proceedings under Article 226 or 227 of the Constitution as per the settled law the doctrine of laches to deal with the delay in bringing such proceedings and the condonation has been operating the field of law in such situations. In State of Haryana v. Bhajanlal : 1992CriLJ527 ) and Babu v. Union of India : AIR1979SC1713 , Ashok v. Collector : [1980]1SCR491 , Ramesh v. T.I.D. : AIR1980SC1200 and State of M.P. v. Nandlal : [1987]1SCR1 , the Supreme Court has authoritatively held that though there is no specific period of limitation, the High Court may refuse to exercise the extraordinary power where the petitioner is guilty of laches on undue delay for which there is no satisfactory explanation. What constitutes laches and what circumstances are sufficient to condone the same depends upon the facts and circumstances of each case. The real test to determine delay is that the petitioner should come to the Court before a parallel right is created and that the lapse of time is not attributable to any laches or negligence of the petitioner. The test is not the physical running of time. Where the circumstances justify the conduct exists, the illegality which is manifest cannot be sustained on the sole ground of laches. (Dehri Rohtas Light Railway v. District Board : [1992]2SCR155 . No hard and fast rule can be laid down in the matter and each case should be determined according to its circumstances. The law now settled is not restricted or expected to particular type of relief under Article 226 but the whole thing is left to the discretion of the Court as has been held by the Supreme Court in several precedents including Puran Singh's case, : [1996]1SCR730 . Therefore, we unhesitatingly conclude that the provisions of Limitation Act, 1963 or the Rule of Limitation are not applicable to the proceedings under Articles 226 and 227 of the Constitution in dealing with the delay proceedings thereunder expect to borrow any such law or the provisions in addition to applying the doctrine of laches to exercise the discretion therein and further subject to the restrictions enumerated as above.
21. In this context, Mr. Sengupta submitted that the findings and observations of the learned Full Bench cannot bind this Court for the simple reason, apart from many others, that the Long Title of the Limitation Act was wrongly quoted in the said judgment resulting in an analysis of the same from a different perspective, in paragraph 6 of the said judgment, the Long Title of the Limitation Act was set out as follows:
An act to consolidate and amend the law for the limitation of suits and other proceedings for purposes connected therein.
It was then submitted that the Long Title of the Limitation Act, 1963 is actually as follows:
An act to consolidate and amend the law for the limitation of suits and other proceedings and for purposes connected therewith.
22. Mr. Sengupta submitted that omission of the word 'and' between 'other proceedings' and 'for purposes connected therewith' makes all the differences in analysis of the Act itself. In the considered opinion of this Court, the subsequent detailed analysis, as made by the learned Full Bench in the said case, gives an impression that such omission of the word 'and' as highlighted by Mr. Sengupta could really make no substantial difference. There is no justification for attempting to read more than what meets the eyes.
23. Mr. Gupta further submitted that this Court cannot be unmindful to the fact that the petitioners in respect of this application for condonation of delay are State authorities and such authorities in ordinary course of business quite often are found to be suffering from casual, if not indifferent attitude. In this case, reference was made to the decision in the case of Special Tahsildar, Land Acquisition, Kerala v. K.V. Ayisumma reported in : AIR1996SC2750 . It was further submitted that while there is some delay due to laches on the part of the learned Counsel advising the client, there is every reason for the learned Court to consider this aspect while dealing with an application for condonation of delay. In this context, Mr. Gupta relied upon the decision in the case of Revenue Divisional Officer, Vijayawada v. T. Laxminarayana reported in : AIR1975AP109 . Mr. Sengupta, however, in response to such stand taken by the learned Counsel for the petitioners, submitted that the grounds, stated in the application for condonation of delay, if accepted, will go a long way to embarrass the institution and may open the door for others to approach the Court with all sorts of frivolous applications seeking condonation of delay.
24. After giving due regard to the submissions made by learned Counsel for the parties, this Court is certainly inclined to hold that law is for the vigilant and not for the dormant. It also cannot be said that the State or its authorities are privileged litigants and their laches may be condoned on the ground that such Government officials quite often suffer from painful interia of inaction. But there cannot be any strait-jacket formula nor any rigid standard. Approach of the Court may be identical to all cases but it may very well lead to diverse results depending upon the facts and circumstances of each case.
25. Mr. Gupta quite rightly mentioned that in the present case, the order of the Court having already been sought to be reviewed, it cannot be said that any substantial right could accrue in favour of the other side, Mr. Sengupta by referring to the fact that review has been sought for in respect of a specified and limited direction of this Court has sought to clarify this aspect.
26. Mr. Sengupta, referring to Rule 48 of the Appellate Side Rules, submitted that there is no reason as to why the provisions of the Civil Procedure Code shall not be applied. This aspect has already been dealt with and we do not think that anything substantial could be placed in support of the claim that this Court in respect of a writ application or any other application arising therefrom is strictly bound by the provisions of the C.P. Code or those of the Limitation Act.
27. Anxiety of Mr. Sengupta that misquoting of the Long Title of the Limitation Act created the confusion resulting in a different stand being taken does not seem to have much force. Where the language is clear and unambiguous, the terms of the Long Title cannot qualify or cut down an enactment.
28. He, however, was justified in mentioning that a case is an authority on what it actually decides. He then sought to assail the Division Bench judgment of this Court (Andaman & Nicobar Bench) by mentioning that the said judgment does not actually decide the points of controversy nor any reason has been assigned. According to him, this cannot be taken as a binding precedent. And, furthermore, it was argued that if this Court is otherwise satisfied with the argument advanced on behalf of the opposite parties, there is, perhaps, need for referring the entire matter to a Larger Bench.
29. We, however, do not think that such a reference is at all necessary particularly in view of our stand that in a situation like that of the present case, there is no reason for this Court to get unnecessarily chained by the rigid technicalities of law. In the best interest of justice and having regard to the object of the writ jurisdiction, we are of the opinion that there is need for a liberal approach.
30. It cannot be denied that here in the present case, there had been inordinate delay on the part of the State authorities to approach this Court with an application for review. But it follows from the aforesaid discussion that the delay has been explained to the satisfaction of the judicial conscience of the Court.
31. The fact remains that the judgment and order passed by this Court has already been sought to be reviewed by the writ petitioners and the said review application is pending.
32. In such background, we are not inclined to shut the doors to the present petitioners and while considering the judgment and order under reference, there is no reason as to why the grievances, ventilated on behalf of the present State authorities, should also not how taken into consideration.
33. Mr. Gupta added anew dimension to the present controversy by referring to the fact that this Court is also a Court of Record. Relying upon the decision in the case of M.M. Thomas v. State of Kerala and Anr. reported in 2000(1) SCC 666, it was submitted that as a Court of Record, power of review is inherent in the High Court.
34. In this context, reference was also made to Article 215 of the Constitution of India. If any apparent error is brought to the notice of the High Court in respect of any order passed by it, it is an obligation on the part of this Court to correct the same. Borrowing expression from the decision in the case of M.M. Thomas (Supra), it cannot he denied that the High Court's power in that regard is plenary. In Naresh Shridhar Mirajkar v. State of Maharashtra ref: 0044/1966 : [1966]3SCR744 the nine-Judge Bench of the Supreme Court recognized the superior status of the High Court as a Court of Plenary Jurisdiction being a Court of Record, The Apex Court quoted from the Halsbury's Laws of England (4th Edn. Vol. 10, para 713) and it would be our pleasure to set out the same as follows:
The chief distinctions between superior and inferior Courts are found in connection with jurisdiction. Prima facie, no matter is deemed to be beyond the jurisdiction of a Superior Court unless it is expressly shown to be so, while nothing is within the jurisdiction of an Inferior Court unless it is expressly shown on the face of the proceedings that the particular matter is within the cognizance of the particular Court. An objection to the jurisdiction of one of the Superior Courts of general jurisdiction must show what other Court has jurisdiction, so as to make it clear that the exercise by the Superior Court of its General Jurisdiction is necessary. The High Court, for example, is a Court of Universal Jurisdiction and superintendency in certain classes of actions and cannot be deprived of its ascendancy by showing that some other Court could have entertained the particular action.
35. The Apex Court in connection with the said case further referred to the decision in the case of M.V. Elisabeth v. Harwan Investment & Trading (P) Ltd. reported in : [1992]1SCR1003 , wherein it was observed that the High Courts in India are Superior Courts of Record. They have original and appellate jurisdiction. They have inherent and plenary powers. Unless expressly or impliedly barred, and subject to the appellate or discretionary jurisdiction of the Supreme Court, the High Courts have unlimited jurisdiction....'
36. It is, perhaps, necessary to refer to the decision in the case of Pintu Acharyya v. State of West Bengal and Ors. reported in 1997(2) CLJ 428, wherein it was held that 'it is true that in terms of Rule 53 of the writ rules, the Code of Civil Procedure are applicable but as rules can be framed only in respect of the procedural matters, the legal right of a person cannot thereby be taken away. In this view of the matter, we are unable to hold that Order 47 Rule 1 of the Code of Civil Procedure ipso facto will have any application in a proceeding under Article 226 of the Constitution of India. This Court cannot lose sight of the fact that the Writ Court is not only a Court of Law but also a Court of Equity. In exercise of its power of review, thus not only it can review its order when there exists an error apparent on the face of the record but also in exercise of its inherent jurisdiction and in the interest of justice'.
Interestingly enough, writ petitioners have also approached the Court with a review application which has been entertained.
37. Considering all such facts and circumstances and having regard to the discussion as made earlier, this Court is inclined to take a lenient approach while considering the application for condonation of delay. This is more so, in the context of the factual backdrop of the present case. Thus, the application for condonation of delay being CAN. No. 4861 of 2007 be allowed and the review filed on behalf of the opposite parties/State authorities be also listed for hearing. The opposite parties/petitioners be at liberty to file affidavit-in-opposition in respect of the same within the period of four weeks from this date.
38. The petitioner/State authorities may file reply thereto within the period of one week thereafter. The review application filed by the State authorities be thereafter listed for hearing six weeks hence along with review application filed by the writ petitioners which, in fact, has already been heard in part.
Aniruddha Bose, J.
I agree.
Later:
39. Xerox certified copy of the order be supplied to the parties on priority basis after due compliance with necessary formalities.