# CHANDRA BHUSHAN & ANR v. DEPUTY DIRECTOR OF CONSOLIDATION

- **Citation:** [1967] 2 S.C.R. 286
- **Court:** Supreme Court of India
- **Decided:** 1966-12-15
- **Case number:** Civil Appeal No. 973 of 1965
- **Bench:** K. Subba Rao, J.C. Shah, S. M. Sikri, V. RA~IASWA~ll, C. A. Vaidiajjngam
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/chandra-bhushan-anr-v-deputy-director-of-consolidation-3941
- **Pages:** 4

## Headnote

Practice and Procedure-Certiorari-Rule of practice prl!scribing ni1?crv
duys /Or filing of writ-If binding rule of /i111i1111io11-Co·zstltution of India,
A rt. 226. 1
The Allahabad High Court in Mo11gey v. Board of Rcl'em<e U.P. [A.LR.
1957 All. 47] la.id down !he practice that a period of ninety days should
be taken as the period for application for the issue of a \Vrit of Certiorcri
and that time could be extended only when special circumstance~ 1,1,·crc
shown to e<ist.
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;
hut from the aflernoon onY.-'ards the court
and its offices were closc<l. 1,1,·ithout prevlous intimation, for the Diwali
holidays.
The appellant fi!ed the petition on the
re-opening
of
the
court.
The Hi~h ·Court di:;missed the petition on the ground that the
rule of l'ractice, . prescribed a hinding rule of limitation and there \Vas no
cxp1anat1on for not filing ihc petition on 1he ninelieth d~y. Jn appeal to
this Court.
HELD :
The High Court erred in exal! ing a rule o' practice into a
rule of limitation and rejecting the petition of the appellant without
A
B
c
D
considering wheth,r he wos guilty of hches and undue delay. [289A-Bj
E
A rule ot' practice may only indicate how discretion ·will he exercised
by the court in determining whether having -regard to the circumstanc~
of the case, the applicant has been guilty of !aches
or
undue
delay.
[288 Al
Normally this Court will not interfere with the e.'(ercise of this di"-
cretion by th·o High Court but lhe special circumstances of the present
case ju5tified a departure from the rule. [28SH]
F

## Text

CHANDRA BHUSHAN & ANR.
v.
DEPUTY DIRECTOR OF CONSOLIDATION
(REGIONAi.), t;.P. & ORS.
December 15, 1966
'
--
I
[K. SUBBA RAO, C. J., J.C. SHAH, S. M. SIKRI, V.
RA~IASWA~ll
AND C. A. VAIDIAJJNGAM, JJ.)
Practice and Procedure-Certiorari-Rule of practice prl!scribing ni1?crv
duys /Or filing of writ-If binding rule of /i111i1111io11-Co·zstltution of India,
A rt. 226. 1
The Allahabad High Court in Mo11gey v. Board of Rcl'em<e U.P. [A.LR.
1957 All. 47] la.id down !he practice that a period of ninety days should
be taken as the period for application for the issue of a \Vrit of Certiorcri
and that time could be extended only when special circumstance~ 1,1,·crc
shown to e<ist.
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;
hut from the aflernoon onY.-'ards the court
and its offices were closc<l. 1,1,·ithout prevlous intimation, for the Diwali
holidays.
The appellant fi!ed the petition on the
re-opening
of
the
court.
The Hi~h ·Court di:;missed the petition on the ground that the
rule of l'ractice, . prescribed a hinding rule of limitation and there \Vas no
cxp1anat1on for not filing ihc petition on 1he ninelieth d~y. Jn appeal to
this Court.
HELD :
The High Court erred in exal! ing a rule o' practice into a
rule of limitation and rejecting the petition of the appellant without
A
B
c
D
considering wheth,r he wos guilty of hches and undue delay. [289A-Bj
E
A rule ot' practice may only indicate how discretion ·will he exercised
by the court in determining whether having -regard to the circumstanc~
of the case, the applicant has been guilty of !aches
or
undue
delay.
[288 Al
Normally this Court will not interfere with the e.'(ercise of this di"-
cretion by th·o High Court but lhe special circumstances of the present
case ju5tified a departure from the rule. [28SH]
F
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 973 of 1965
Appeal by special leave from the judgment and decree dated
March 5, 1962 of the AJlahabad High Court in Speci,tl Appeal
No. 43 of 1962.
B. C Misra and D. Gohurdlzwr, for the appellants.
C. B. Aggamala and 0. P. Rana, for respondents J\"os. I
to 3.
The Judgment of the-Court was delivered by
Shah J. A
revi~ion application under s. 48 of the U.P. Consolidation of Holdings Act filed by the appeJlants agai1o<l the order
of the Settlement Officer, Consolidation, was dismissed by the Deputy
Director of Consolidation, AJlahabad, by order dated July 15,
1961. The appeJlants then moved on November 13, 1961, the High
G
H
A
B
c
D
E
F
G
H
CHANDRA BHUSHAN V. D.I.R OF CONSOLIDATION (Shah, J.)
287
Court of Allahabad for the issue of a writ of certiorari quashing
the orders, inter a/ia, of the Consolidation Officer and the Settlement Officer. 1.ie petition was summarily rejected
by D. S ..
Mathur,
.T., 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 Divisiun
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 prescribing a period of limitation for filing
petitio11s 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 ~hich a writ of error must be prosecute<l has
elapsed:
see Ferris & Ferris-"Extraordinary Legal Remedies",
p. 202 .. The Allahabad High Court in Mongey v. Board of Revenue
U.P. Allahabad,(') 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 he taken as the period for application for the issue of a writ
of certiorari, and that time can he extended only when circumstances
of a special nature, which are sufficient in the opinion of the Court,
are shown to exist". 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 !aches or undue delay. A rule of
(I) A.LR. 1957· All. 47.
288
SUPRiMB COURT REPORTS
[1967] 2 S.C.R.
practice cannot prescribe a hiP<iing r1Jle of limitation: it may only
indicate how discretion will be exercised hv the Court in determining whether having regard to the circu:nstances of the case,
the
applicant has been guilty of !aches or undue delay.
In the present case the order of the DepPty Director of Consolidation was made on July 15, 1961, and a petition for re,iew
of that oder was rejected on September 22, 1961.
The appellants
had to secure certified copies of the impgned orders, and under the
r:.il~; 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
ofthe High Co•irt, 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 th1t 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 !aches or undue delay. Ir appeal, the
High Court affirmed the order.
There arc 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 l'<ovcmbcr 13, 1961. The petition which was intended
to be filed in the High Court was sworn on O:tober 12, 196 I. and
an Advocate had, it appears, been engaged by the appcll:rnts 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 :lie 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 r >le which has heen laid down in Mongey's case, (') 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 ,,.,;, of certiorari had been present~d without undue delay or !aches is a question for the High Court to
decide and this C.'urt would not interfere with the exercise of the
dislretion of the High Court.
But i~ the present case, there "r~
spC\. .. 1 circumstances whkh justify departure from the rule : (i)
th~t Mathur, J .. ragardcd the rule of practice as a rule of limitation;
(ii) that the oftices of the High Court were ordered to he closed at 1-00
P.M. on November 7, 1961, even though origi~aily November 7,
196 I was
declared a working day; and (iii) the appellants had
ti) A.l.R. t9.57 All. 47.
A
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B
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E
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G
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CHANDRA BHUSHAN v. D.I.R OF CONSOLIDATION (Shah,,·,,
".',~
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completed all preliminarf 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 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 !aches or undue
B
delay. It may be mentioned that apart from the ground that the
petition was not presented within ninety drys, there is nothing
which indicates that the appellants were guilty of !aches 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.
C
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 alloll'ed
MlSup.Cl/67-S