State Vs. Manji and 12 ors. - Court Judgment

1. These appeals are directed against the order of the learned Single Judge dated November 3, 1972 where by the writ petitions were allowed and the demands raised by the Excise Department against the respondents were directed not to be realised from the respondents. It was further ordered that the amount of security confiscated by the Department for the nonpayment of the demand raised by the Department to pay the Excise duty on the unsold liquor may be returned to the petitioner-respondent. The learned Judge allowed the writ petitions in view of the decision in S.B. Civil Writ Petition No. 1596/69 Bal Mukund v. State of Rajasthan, dated July 27, 1971.

2. It may be stated here on merits, the order of the learned Single Judge is sustainable in view of the fact that the division Bench of this Court has reversed the aforesaid S.B. decision and the Division Bench decision has been affirmed by the Supreme Court in Pannalal v. State of Rajasthan reported in : [1976]1SCR219 .

3. However, in these appeals, on behalf of the respondents objection regarding limitation has been raised that all these appeals are hopelessly barred by time and the appellant has failed to make out a case for condonation of delay. The application Under Section 5 of the Limitation Act accompanied with the affidavits of Shri M.K. Dave, LDC of the Office of the Government Advocate and the affidavit of Shri B.L. Vasishta, Dy. Commissioner (Prosecution), Excise Department, Rajasthan, has been resisted by the respondents and a reply to the application has been filed accompanied with the affidavit. Thus the fate of the appeals depends on the question as to whether the appellant is entitled to condonation of delay in presentation of the appeals.

4. It may be stated that by one order, 20 writ petitions were disposed of on November 3, 1972. Out of these 20 writ petitions, appeals were filed in three writ petitions after considerable delay and those appeals have been dismissed on the ground that they are barred by limitation. These are 13 appeals and it is not known as to whether four appeals have been filed in the remaining four writ petitions or not. So far as the present 13 appeals are concerned, it is noteworthy that application for obtaining certified copy in all these writ petitions was submitted on 11-1-1973, much after the expiry of the period of limitation. The limitation had expired on December 3, 1972. Within the period of limitation application for obtaining certified copy of the order was not. filed. It is to be seen as to how the application for obtaining certified copy was not filed and for that we have looked into the affidavits of Shri M.K. Dave and Shri B.L. Vasishta. Shri M.K. Dave in his affidavit has stated that after the decision in Balmukand's case more writ petitions were filed and they were about 400 approximately. The cases used to be listed in small bunches and sanction of the Law Department was also received in bunches, that is, composite sanction for several cases, and he used to keep all such cases, in one file. The Court used to dispose of the cases in bunches by the same or similar order in view of the judgment in Balmukand's case. He has further averred in his affidavit that sometimes there used to be one file for many cases listed in the Court to lesser his office burden and also there were hundreds of cases. So in these circumstances, a separate file of each case in these appeals could not be maintained and as such Shri M.D. Purohit, Dy. Government Advocate could not write the order sheet on 31-11-1972. Consequently he could not know the date of judgment and the date of judgment escaped his notice. It is only when the Officer Incharge came to Jodhpur and enquired about the progress, he came to know that the case has been decided on November 3, 1972. He took the steps to find out the date when the Officer Incharge made enquiry and thereafter applications for certified copies were submitted on 11-1-1973. It may be mentioned that in support of the affidavit, no record has been filed to substantiate what has been sworn by Shri Dave. We cannot be oblivious of the fact that 20 cases appeared in the daily cause list when they were disposed of. It is not the case of the parties that the cases were not listed in the daily cause list. When cases were listed in the daily cause list and were disposed of, the date of disposal must have been noted and must have been communicated to the office with instructions to apply for certified copy and the concerned department too should have been informed regarding the judgment in the cases, so that further steps can be taken by the Department. Even if it be taken that a separate file of each case has not been maintained by Shri Dave, still when the cases have appeared in the daily cause list, it was his duty to have taken note of as to what has transpired to those cases listed in the cause list.

5. If we peruse the affidavit of Shri B.L. Vasishta, it would appear that his Department had asked about the progress regarding filing the appeal in these cases from the office of the Government Advocate. This averment in his affidavit shows that the department was aware of the final order passed in these cases. It is only when the Department was aware of the order, the progress regarding filing of appeal could be enquired. According to Shri Vasishta, when progress was asked, it came to his knowledge that office of the Government Advocate did not know regarding judgments in these cases. It is only after such enquiry that copies of the judgments were received from the High Court by the Department. From the affidavit of Shri Vasishta, it is clear that copies of the judgments received later on and enquiry from the office of the Government Advocate preceded the receipt of the copies of the judgments. Thus a bare perusal of the affidavit of Shri Vasishta makes it clear that the Department knew of the passing of the judgments. When it was known to the Department, that judgment has already been pronounced, it was the duty of the State to have applied for certified copy of the order for filing of appeal against the same. It may be stated that when application for copy was not made within time, any time in obtaining certified copy cannot be excluded from the period of limitation and on that basis these appeals have become barred by limitation by period ranging from 143 to 152 days. If the two affidavits are taken into consideration, it would appear that there is some contradiction. Both the affidavits to some extent are also vague. No definite date has been specified of each event, which may be relevant, who visited whom and with what information, has not come in the affidavits of both these deponents. It is true that on merits the appellant is entitled to succeed and in view of the judgment of the Supreme Court, at one stage we were thinking of taking a liberal view of the matter but having regard to the nature of the affidavits filed and their vague character and we ore not felt pursuaded even about the bona-fides of the statement made in the affidavits, we are not inclined to take a liberal view and condone the delay. A definite case has to be made out before one can claim condonation of delay as a very valuable right accrues to the opposite party when limitation has expired. What we find is that there has been negligence which is culpable, inexcusable and unpardonable in nature in presentation of the appeal. Thus, in our opinion, the appellant is not entitled to condonation of delay and we hold that the appeals are barred by time.

6. The appeals are, therefore, dismissed. Parties to bear their own costs.