Skip to content


Union of India Vs. Suresh N. Shetty - Court Judgment

LegalCrystal Citation
SubjectCustoms
CourtKarnataka High Court
Decided On
Case NumberI.A.I. in Miscellaneous First Appeal 2669 of 1985
Judge
Reported in1986(7)ECC171; 1986(25)ELT657(Kar); ILR1986KAR332; 1986(1)KarLJ147
ActsForeign Exchange Regulation Act, 1973
AppellantUnion of India
RespondentSuresh N. Shetty
Appellant AdvocateCentral Government Standing Counsel
Respondent AdvocateP. Vishwanatha Shetty, Adv.
Excerpt:
foreign exchange regulation - appeal--limitation--appellant-government filing appeal to high court--delay of 77 days in filing of appeal--appellant could have acted with despatch--but delay condoned taking facts into account--need to give allowance for delay in decision-making by government--distinction between individuals and government to be borne in mind by court--foreign exchange regulation act (46 of 1973). - section 16: [k.ramanna,j] suit for specific performance of agreement for sale of immovable property time was essence of contract -plaintiff purchaser had not taken any steps for furtherance of agreement for a period of 1 year held, it shows purchaser was not willing and ready to perform his contract. also, no material was produced to prove that defendant sought to extend..........only on 21.12.1984. in the light of the discussion a further clarification was sought for from the delhi office as per letter dated 26.12.1984 despatched on 27.12.1984. on the 10th of january, 1985 a cable was received at the madras office from the delhi office, issuing clarification and instructing to file the appeal. it is respectfully submitted that for the to and fro communication of the papers from madras to delhi and vice versa it takes about 7 days, and for processing the papers at the delhi office it takes 7-10 days.' the affidavit does not say what the discussion the assistant legal adviser had with the counsel was about and what the further clarification sought from delhi office pertained to. but the contents of the letter dated 26th december, 1984 referred to in para 6 of the.....
Judgment:

Venkatachaliah, J.

1. This appeal by the Union of India and the Deputy Director, Enforcement Directorate, is directed against the order dated 13th August, 1984 made in Appeal No. 187 of 1983 on the file of the Foreign Exchange Regulation Appellate Board, setting aside the order, dated 18th April, 1983 made by the Deputy-Director, against the respondent, confiscating 2200 U.S. Dollars seized from the respondent and imposing penalties aggregating to Rs. 2,500 for alleged contravention of the provisions of the Foreign Exchange Regulation Act, 1973.

2. There having been delay of 77 days in filing this appeal, appellant has filed I.A.I. to have that delay excused. That application is hotly contested.

3. The last date for the lodgement of the appeal before this court was, it is not disputed, 20th November, 1984. But the appeal was actually filed on 22nd January, 1985.

4. Two affidavits dated 21st January, 1985 and 7th August, 1985 respectively are filed in support of I.A.I. What emerges therefrom is that the decision to prefer an appeal was taken by the appropriate functionaries at Delhi on 15th November, 1984 and was communicated to the Madras Office on 28th November, 1984. Pursuantly, the standing Counsel for the Department, at Bangalore, drafted the memorandum of appeal on 6th December, 1984. The acceptability of the explanation for the delay up to 6th December, 1984 was not seriously debated, though, however, Sri P. Vishwanatha Shetty, learned Counsel appearing for the respondent suggested that the decision to file the appeal having been taken on 15th November, 1984, there was no reason why the appeal could not be filed well in time before the period of limitation ran out.

5. In the explanation for the delay between 6th December, 1984 and 22nd January, 1985, on which latter date the appeal was actually lodged, the Assistant Director of Enforcement, the deponent, in his affidavit dated 7th August, 1985 says :

'The files and instructions to prepare and file the appeal were received at the Bangalore office on 1.12.1984. The officials at Bangalore got in touch with the Standing Counsel to get the appeal drafted. The appeal was drafted by 6.12.1984. The draft appeal was collected from the counsel on 7.12.1984. The papers were being processed at the Bangalore office to get ready the appeal for filing.

In the meanwhile it was felt that the Assistant Legal Adviser should have a discussion with the counsel and the Assistant Legal Adviser who is stationed at Madras could meet the counsel at Bangalore only on 21.12.1984. In the light of the discussion a further clarification was sought for from the Delhi office as per letter dated 26.12.1984 despatched on 27.12.1984.

On the 10th of January, 1985 a cable was received at the Madras office from the Delhi office, issuing clarification and instructing to file the appeal. It is respectfully submitted that for the to and fro communication of the papers from Madras to Delhi and vice versa it takes about 7 days, and for processing the papers at the Delhi office it takes 7-10 days.'

The affidavit does not say what the discussion the Assistant Legal Adviser had with the counsel was about and what the further clarification sought from Delhi office pertained to. But the contents of the letter dated 26th December, 1984 referred to in para 6 of the said affidavit makes this clear. Copy of the letter was made available to us at the hearing. It would appear that by the letter dated 26th December, 1984 from the Assistant Legal Adviser addressed to the Special Director at New Delhi, approval was sought for the decision not to lodge the appeal. This proposal of the Assistant Legal Advisor was not approved and the Special Director by telegram dated 10th January, 1985 directed the filing of the appeal. Thereafter, the official procedures were set in motion and the appeal lodged on 21st February, 1985.

6. Sri Viswanatha Shetty urged that these adventitious circumstances do not constitute sufficient cause and that if the authorities at Madras, despite a clear mandate from the Delhi office, took a decision not to file the appeal, it was a case of negligence on the part of the former and the court cannot be asked to condone the delay occasioned thereby. Counsel contended that the time taken from 8th December, 1984 to 26th December, 1984 by the Assistant Legal Advisor and thereafter, between 26th December, 1984 and 10th January, 1985 by the authorities at Delhi, cannot be said to be reasonable and the appellant cannot be said to have acted with reasonable diligence.

7. But the point to note is that appellants' decisions are collective and institutional decisions as distinct from individual decisions. Though the law of limitation is the same for a private citizen as for governmental authorities, yet, in assessing what constitutes sufficient cause, court cannot exclude from consideration the circumstances which are peculiar to and characteristic of the functioning of Government. The words 'sufficient cause' must generally receive a liberal construction so as to advance substantial justice when no negligence or inaction or want of bona fides is imputable to appellant. Some decree of latitude is not impermissible in assessing 'sufficient cause' in the case of governmental decisions which involve considerable procedural red tape. Government machinery is proverbially slow and those who bear the responsibility of Government must have a little play at the joints. Some recognition, of course within reasonable limits, of the difficulties peculiar to governmental functioning is necessary if judicial approach to the matter is not rendered unrealistic. In such matters it would, perhaps, be unjust to put a private citizen and the Government on the same footing in all respects. The very nature of governmental functioning necessary involvers some procedural delays incidental to a collective decision-making.

8. The words of Kerala High Court, said in a different context, are worth recalling :

'If an ordinary litigant is negligent the penalty of dismissal inflicts only individual harm; but if the State is guilty of latches and consequently suffers dismissal of its petitions, the impact on public revenue is immense and the community suffers. In such a case the present series of petitions may seem to verge perilously on negligence on the part of the State Government - a critical legislature and a vigilant public opinion must censure the impersonal callousness of the Government.'

'A private person can take instant decision while a bureaucratic or democratic organ hesitates and debates, consults and considers, speaks through paper, moves horizontally and vertically till at last it gravitates towards a conclusion, - unmindful of time and impersonally.' [See 1974 S.C.C. Vol. I, page 71 of Journal Section.]

9. In this case, the somewhat strong criticism of Sri Vishwanatha Shetty that the conduct of the authorities was perilously close to negligence, is perhaps, not wholly without force. The authorities could have acted with greater despatch; but having regard to the circumstances of the case, we think that appellant should be enable to agitate the questions arising on the appeal on the merits.

10. I.A.I. is accordingly allowed and the delay condoned.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //