Holding

The Supreme Court condoned the delay and admitted the Special Leave Petitions, subject to payment of exemplary costs of Rs.10 lakhs.

Summary

The State of Karnataka challenged a Karnataka Land Reforms Tribunal order that declared a partnership firm to be holding 368.16 acres of agricultural land in excess of the ceiling limit. The State alleged fraud by the declarants and the Tribunal's secretary (Tahsiladar) and filed a review petition more than 14 years after the original order. The High Court dismissed the State's writ and review, finding no fraud. The State then filed Special Leave Petitions, contending that the extreme delay should be condoned under Section 5 of the Limitation Act to protect public interest, given the large tracts of land and revenue involved. The Supreme Court held that while courts may be liberal in condoning delay for government litigants, the delay must be justified; it therefore condoned the delay and admitted the SLPs, imposing exemplary costs of Rs.10 lakhs as a condition. No merits of the land ceiling dispute were decided.

Issues considered

Whether a delay of over 6500 days in filing a Special Leave Petition by a government litigant can be condoned under Section 5 of the Limitation Act, 1963.
Whether alleged fraud by officials justifies condonation of delay and affects the validity of the Tribunal's order.
Whether the Supreme Court may admit the Special Leave Petitions despite the extensive delay.
Whether exemplary costs can be imposed as a condition for condonation of delay.

Legislation cited

Karnataka Land Reforms Act, 1961s. 104, s. 122A, s. 66(4), s. 67(3A), s. 798
Limitation Act, 1963s. 5

Subjects

land ceilingKarnataka Land Reforms ActLimitation Actcondonation of delaySpecial Leave Petitiongovernment litigationfraudpublic interestexemplary costs

Judgment

[2009] 7 S.C.R. 392

A STATE OF KARNATAKA
,.. -
v.
Y. MOIDEEN KUNHI (DEAD) BY LRS. Ao.ND ORS.
Special Leave Petition (C) Nos. 11398-11400 of 2009
MAY 4, 2009
B
[DR. ARIJIT PASAYAT AND ASOK KUMAR
GANGULY, JJ.]
(-
Delay - On the part of Government litigant -
Condonation of - Land ceiling proceeding - Land Tribunal
c holding that declarants were holding lands in excess of the
ceiling limit - Writ petitions challenging the order of Tribunal
by declarants and also by State - Writ by declarants withdrawn
- State's writ dismissed - Review filed by State alleging fraud
on the part of declarant and the Secretary of Land Tribunal -
D Delay of 14 years in filing the Review - Dismissal of Review
Petition - Special Leave Petition - Delay in filing of 6500
-.
days against original order and 300 days against order in
Review - Held: Delay, specially in cases where large tracts
of land and large sums of revenue involved, is done to protect
E unscrupulous litigants at the cost of public interest/public
exchequer - Courts though take liberal attitude in delay by
Government, yet such attitude can be extended upto a certain
limit - s. 5 of Limitation Act must receive liberal construction
-f
so as to advance substantial justice - In the instant case, in
order to protect public justice, delay condoned, subject to /
F payment of exemplary cost of Rs.10 Lakhs - SLP to be
admitted subject to payment of the cost- Limitation Act, 1963
- s. 5 - Cost - Imposition of as a condition for condonation
of delay - Constitution of India, 1950 - Article 136 -
Admission of SLP, subject to payment of cost - Practice and
G Procedure- Karnataka Land Reforms Act, 1961- s.66(4)-
Administration of justice.
G. Ramegowda, Maior etc. v. The Special Land
Acquisition Officer, Bangalore AIR 1988 SC 897 - relied on.
392
-
H
STATE OF KARNATAKA V. 393
Y. MOIDEEN KUNHI (DEAD) BY LRS. AND ORS .
.. " State (NCT of Delhi) v. Ahmed Jaan 2008 (11) SCALE A
455; Nand Kishore v. State of Punjab 1995(6) SCC 614 -
referred to.

Case Law Reference
2008(11 )SCALE 455 Referred to. Para 15 B
1995 (6) sec 614 Referred to. Para 16
..._~
AIR 1988 SC 897 Relined on. Para 19

CIVILAPPELLATE JURISDICTION: Special Leave Petiton
(C ) Nos. 11398-11400 of 2009 c
From the Judgement and Order dated 07.11.1990 of the
High Court of Karnataka at Bangalore in W.P. No. 40425 of
1982, W:P. No. 10920 of 1983 and order dated 26.09.2007 in
R.P. 817 of2004 in WP No. 40425of1982, C/WWP No. 10920 D
of 1983
Sanjay R. Hegde, for the Appellant(s),
The Judgement of the Court was delivered by
DR. ARIJIT PASAYAT, J. E

1. The special leave petitions are directed against the
- i.- 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 F
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 G
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 Mis Y. Moideen
~
H
394 SUPREME COURT REPORTS [2009] 7 S.C.R.

A Kun hi & 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
B 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 i •
mentioned therein that all the declarants are the partners of the
firm, having 1/3rd share in the properties purchased and that
c 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
order dated 27.9.1982, held that the declarants are holding the
D 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.
E 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.
F 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. 10920of1983. During the course of
hearing, the three declarants withdrew W.P. No, 40425/1982.
G 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.
6. It was contended on behalf of the State that the Tahsildar
being the Secretary of the Land Tribunal should have sent the
H

I
'
STATE OF KARNATAKA V. Y. MOIDEEN KUNHI (DEAD) 395
BY LRS. AND ORS. [DR. ARIJIT PASAYAT, J.]
,,· ... )'
~
declaration filed under Section 66 of the Act by the three A
declarants, to the Deputy Commissioner to be dealt with under
the provision of Section 798 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 B
--\'
by the firm, the Tahsildar should not have been merely
E: .._..; 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 c
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
C. I 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
D
~
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/ E
1983 has opined that the Tahsildar being the Government official,

- ,,
\..
there was no need to send notice to the State or other official~,
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 F
learned Judge while disposing df 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 G·
~,,__, 'J 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.
~

H
396 SUPREME COURT REPORTS [2009] 7 S.C.R.

A 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
B 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
fl
by the State will not amount to fraud by the officials of the State. i ~

8. The High Court found that there was no element of fraud
c 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
D
lands were surrendered by the declarants before the surveyor
-.i
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,
'E
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 necess.ary proceedings. ..,
.J

F 10. It is s1.1bmitted 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.
G 1
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 fitigation.
H
STATE OF KARNATAKA V Y. MOIDEEN KUNHI (DEAD) 397
BY LRS. AND ORS. [DR. ARIJIT PASAYAT, J.]
.... ~
12. By way of an example only reference is invited to A
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 B
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 c
1991, the CC?_mmissioner 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 D
y...
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 Commissioner within 60 days may file the appeal E
,.\ ,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 F
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 G
i_...... + 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 H
~
398 SUPREME COURT REPORTS [2009] 7 S.C.R.

A 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 11 A without adequate evidence of intention
B to evade duty. This Court on 15 January, 1999 dismissed the
appeal filed by the department against the CEGAT order dated
5 Mardi 1997, on account of delay in filing of appeal by seven
months. The period of delay included four months taken by the i ~

Panel Counsel in drafting the appeal.
c (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 Ill) received certified copy of the CEGAT's order
after 14 days on 4 February 1997 and sent comments to the
D
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
E 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, fired an appeal in
F 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 gro~p of six assessees (Mis. Azo Dye Chem and five
others). The afilpeal was, however, filed in respect of only one
G assessee whereas the case was against all the six
manufacturing units and fourteen others being Directors and t ~.
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
H appeals against the others were filed in CEGAT on 11 October
STATE OF KARNATAKA V Y MOIDEEN KUNHI (DEAD) 399
BY LRS. AND ORS. [DR. ARIJIT PASAYAT, J.]
--"Y
1999 under section 35 E (4) of the Act. However, CEGAT A
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 B
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 c
appeals filed by the department against order of Commissioner
(Appeals) on whether certain products manufactured by the
assessees (Mis.Neyland L,aboratories Limited and M/s.
'» Aurbindo Pharma Ltd.) are .bulk drugs under ·Drugs and
Cosmetics Act', were dismissed (17 August 2002) by CEGAT
D
'y 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 CEGAT
in time resulted in dismissal of the appeal involving revenue of
Rs.81.81 lakh. E

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 F
the state's claim and at the cost cif 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.
G
In State (NCT of Delhi) v. Ahmed Jaan 2008 (11) SCA.LE
...--->·- 455 it was held as follows:
.... It is axiomatic that decisions are taken by officers/
agencies proverbially at slow pace and encumbered
H
400 SUPREME COURT REPORTS (2009] 7 S.C.R.

'1' ~
A process of pushing the files from table to table and keeping
it on table for considerable time causing delay- intentional
or otherwise - is a outine. Considerable delay of
procedural red-tape in the process of their making decision
is a common feature. Therefore, certain amount of latitude
B 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 .
c the appeal and he should be made personally 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 4'.

a person legally injured while State is an impersonal
D ,
machinery working through its officers or servants" -1

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
E Tehsildar, Land Acquisition, Kerala v. K V.Ayisumma (1996
(10) sec 634) and State of Nagaland v. Lipok AO and
Ors. (2005 (3) SCC 752). It was noted that adoption of
..J
strict standard of proof sometimes fail to protract public
justice, and, it would result in public mischief by skilful
F management of delay in the process offiling an appeal."
...
16. 1his 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:
G "......... 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
-
H to file the special leave petition, it is no longer advisable
STATE OF KARNATAKA V. Y. MOIDEEN KUNHI (DEAD) 401
BY LRS. AND ORS. [DR ARIJIT PASAYAT, J]

or appropriate for us to retrace back the step put forward A
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 B
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 condonation of delay of the intervening period has been C
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. ... " D
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 E

- 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 t.tiat it is so done to protect
unscrupulous litigants at the cost of public interest or public
exchequer.
F
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 co'ncerning the State G ·
. - ·'f 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 H
402 SUPREME COURT REPORTS [2009] 7 S.C.R.

~ ·~
A revenue involved runs to several crores of rupees. It is true 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
B
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 11 ·•
management of delay in the process of making challenge to the
order which prima facie does not appear to be legally
c 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
D 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
E
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
F
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.
Therefore, in assessing what, in a particular case,
G 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
H are proverbially slow encumbered, as they are, by a
STATE OF KARNATAKA V. Y. MOIDEEN KUNHI (DEAD) 403
BY LRS. AND ORS. [DR. ARIJIT PASAYAT, J.]

~-· considerable degree of procedural red tape in the process A
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 B
limits -- is necessary if the judicial approach is not to be
.__ 'j
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
c

Government placed the Government in a predicament and
that it was one of those cases where the ma la tides of the
officers should not be imputed to Government. It relied D
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.
E
· 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 F
to payment of exemplary costs which we fix at rupees ten lakhs
to be paid within a period 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 G
- . ~ 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
H
404 SUPREME COURT REPORTS (2009] 7 S.C.R.

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

K.K.T. Special leave petition adjourned.

-