Fathima Beevi vs District Magistrate and Others

T.V. Ramakrishnan, J.—Revision Petitioner filed O.P. No. 34 of 1993 before the District Court, Trivandrum under Sub-section (8) of Section 8 of the Unlawful Activities (Prevention) Act, 1967 (for short "the Act") against an order passed under Sub-section (4) of Section 8 of the Act. There was a delay in filing the application and the Petitioner filed I.A. No. 535 of 1993 for condoning the same. That application was rejected by the learned District Judge as per the order challenged in the revision petition.

The order u/s 8(4) of the Act was affixed on the front door of the Petitioner''s house on 15th December 1992. Going by the provisions contained in Section 8(8) of the Act the Petitioner should have filed the application within 30 days from 15th December 1992, However, it was filed only on 15th March 1993. There was thus a delay of two months in filing the application.

According to the Petitioner, the delay in filing the O.P. occured mainly on account of the wrong advice received by her from her Advocate who was approached by her immediately on getting information about the order. The Advocate at the first instance advised the Petitioner to file a petition before the District Collector and the Director General of Police. Accordingly the Petitioner has within time represented her grievance to the District Collector through her Advocate. It was when she again approached the Advocate after six weeks that the Advocate has advised her to file a petition u/s 8(8) of the Act before the District Court. If she was advised at the first instance itself to file a petition u/s 8(8) of the Act the delay would not have occurred in the matter. In support of the said allegations the Petitioner has produced an affidavit sworn to by the Advocate who was approached by her for advice regarding the actions to be taken to challenge the order passed u/s 8(4) of the Act.

Learned District Judge refused to condone the delay on two grounds. Firstly, it was pointed out that in the affidavit filed by the Advocate he has not stated that he was not aware of the Act and its provisions. Secondly it was stated that the Indian Limitation Act is not applicable to special statutes under which time is specified for filing applications.

I may first consider the question whether the provisions of the Limitation Act especially Section 5 which is relied upon by the Petitioner in this case is applicable to the case. To decide the above question it is necessary to refer to Section 29(2) of the Limitation Act and Section 8(8) of the Act. They are thus:

29(2) Where any special or local law prescribes, for any suit, appeal or application a period of limitation different from the period prescribed by the schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the schedule, and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or, local law, the provisions contained in Sections 4 to 24 (inclusive) shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.

Section 8(8): Any person aggrieved by a notification issued in respect of a place under Sub-section (1) or by an order made under Sub-section (3) or Sub-section (4) may, within thirty days from the date of the notification or order, as the case may be, make an application to the court of the District Judge within the local limits of whose jurisdiction such notified place is situate-

(a) for declaration that the place has not been used for the purpose of the unlawful association; or

(b) for setting aside the order made under Sub-section (3) or Sub-section (4), and on receipt of the application the court of the District Judge shall, after giving the parties an opportunity of being heard, decide the question.

The Unlawful Activities (Prevention) Act, 1967 is obviously a special law vis-a-vis the Limitation Act which deals with the general law of limitation applicable to all classes of cases dealt with therein. From the provisions contained in Section 8(8) of the Act it is also clear that a special period of limitation is prescribed for filing an application under that Sub-section to the court of the District Judge within the local limits of whose jurisdiction the place notified under the Act is situate. From the provisions contained in Section 29(2) of the Limitation Act it is further clear that for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4 to 24 (both inclusive) shall apply in so far as, and to the extent to which, they are not expressly excluded by such special or local law. Further an examination of the provisions contained in the Act would show that there is no provision in the Act which expressly excludes the application of the provision contained in Sections 4 to 24 of the Limitation Act in the matter of calculation of the period of limitation prescribed by the Act. If that be so, in the absence of a provision expressly excluding the application of Sections 4 to 24 of the Limitation Act, it has to be held that Sections 4 to 24 of the Limitation Act would apply for the purpose of determining the period of limitation prescribed for any suit, appeal or application by the special law in question also. This is the view taken by the Supreme Court in the decisions reported in Vidyacharan Shukla Vs. Khubchand Baghel and Others, and Competent Authority v. Vijay Gupta 1991 (2) Supp. S.C.C. 631. In Vidyacharan Shukla Vs. Khubchand Baghel and Others, ; the Supreme Court has held that Section 29(2) of the Limitation Act would apply even to cases where difference between special law and the Limitation Act arose by the omission to provide for a limitation to a particular proceeding under the Limitation Act. In the light of the above decision of the Supreme Court it has to be held that Section 29(2) of the Limitation Act would apply to the case on hand and as such Section 5 as well. The folding to the contra entered by the learned Judge cannot be sustained in law.

The only other question to be considered whether there is sufficient reason to condone the delay which has occurred in the matter of filing the application. Even though it may be true that the Advocate has not in so many words stated that he was not aware of the Act and its provisions it is clear from his affidavit that he has not given the proper advice to the party at the first instance when he has advised her to move the District Collector and the Director General of Police. In the affidavit, the Advocate has clearly stated that when the Petitioner approached him he has advised her to file a petition before the District Collector and the Director Genearl of Police. There is no denial of the fact that the Petitioner has actually moved the District Collector before filing the O.P. before the District Court. In the circumstances it is evident that the delay in this case has occurred plainly on account of the wrong advice given to her by her Advocate who has filed the affidavit. Though the advice given at the first instance was not proper and legal there is nothing to indicate that it was one given recklessly or with mala fides. It may even indicate a certain amount of ignorance or lack of care on the part of thie Advocate in giving advice to a client. Or it may be that the Advocate might not have been fully aware of the exact nature of the order sought to be challenged. However, on the part of the Petitioner, she has approached an Advocate for legal advice and has acted upon the advice tendered by the Advocate. It cannot be said that the Petitioner was either negligent or reckless in approaching an Advocate and acting upon his advice. In the circumstances taking note of the fact that the right to move the District Court u/s 8(8) of the Act is the only statutory remedy available to a citizen against the executive action of serious nature authorised to be taken under the Act, I am of the view that the learned Judge was not justified in taking the view that the mistake commited by the Advocate in this case would not constitute sufficient cause for condoning the delay of 2 months in filing the O.P.

The law is settled that mistake of counsel may in certain circumstances be taken into account in condoning delay although there is no general proposition that mistake of a counsel by itself is always sufficient ground. It is always a question whether the mistake was bona fide or was merely a device to cover an ulterior purpose such as laches on the part of the litigant or an attempt to save limitation and it is for the court to see whether in a particular case the mistaken legal advice can be accepted as a sufficient reason for condoning the delay. In this connection it is relevant and useful to remember the valuable and weighty observations of Venkatarama Iyer, J. of the Supreme Court in Dinabandhu v. Jadumoni Mangaraj AIR 1954 S.C. 411 at 414. "As was observed in the Full Bench decision in Krishnan v. Chathappan ILR (1890) Mad. 269 in a passage which has become classic the words sufficient cause should receive a liberal construction so as to advance substantial justice when no negligence nor inaction nor want of bona fides is imputable to the Appellant." Equally relevant and useful is the observations of Hidayathullah C.J. in Mata Din Vs. A. Narayanan, wherein the Supreme Court has taken a generous and practical view on the subject of sufficiency or otherwise of mistaken legal advice as a ground for condoning the delay in preference to the view that the wrong legal advice cannot be a sufficient ground for condoning the delay. The relevant observations of the learned Judge is this:

The law is settled that mistake of counsel may in certain circumstances be taken into account in condoning delay although there is no general proposition that mistake of counsel by itself is always sufficient ground. It is always a question whether the mistake was bona fide or was merely a device to cover an ulterior purpose such as laches on the part of the litigant or an attempt to save limitation in an underhand way....

After referring to the above observations of Hidayathullah C.J., Justice V.R. Krishna Iyer has the following observations to be made on the subject in the decision reported in State of Kerala Vs. Krishna Kurup Madhava Kurup, .

I am of the view that legal advice given by the members of the legal profession may sometimes be wrong even as pronouncement on questions of law by courts are sometimes wrong. An amount of latitude is expected in such cases for, to err is human and lay men, as litigants are, may legitimately lean on expert counsel in legal as in other departments, without probing the professional competence of the advice. The court must of course, see whether, in such cases there is any taint of mala fides or element of recklessness or ruse. If neither is present, legal advice honestly sought and actually given must be treated as sufficient cause when an application u/s 5 of the Limitation Act is being considered. The State has not acted improperly in relying on its legal advisers.

The above observations made by Justice V.R. Krishna Iyer as a Judge of this Court was quoted and followed in a case which was decided by His Lordship and Justice R.S. Pathak reported in Concord of India Insurance Co. Ltd. Vs. Smt. Nirmala Devi and Others, .

The above weighty observations on the subject would amply support the view which I have taken in the matter.

In the light of the above findings, I would set aside the order and allow the application filed by the Petitioner, namely, I.A. No. 535 of 1993. Accordingly the delay of two months in filing O.P. No. 34 of 1993 will stand condoned O.P. No. 34 of 1993 is directed to be restored to file and disposed of in accordance with law as early as possible.

C.R.P. is thus allowed. No costs.