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(2022) Law Today Live Doc. Id. 17201 = 2023(1) 148
Decided on: 14.11.2022
For Petitioner(s):
Mr. Vidya K. Sagar, Adv. Mr. Ajit Kumar Jha, Adv. Mr. K. S. Rana, AOR
For Respondent(s):
Mr. Mahfooz A. Nazki, AOR Mr. Polanki Gowtham, Adv. Mr. Shaik Mohamad Haneef, Adv. Mr. T. Vijaya Bhaskar Reddy, Adv. Mr. K.V.Girish Chowdary, Adv. Ms. Rajeswari Mukherjee, Adv. Ms. Niti Richhariya, Adv.
Limitation Act, 1963 (36 of 1963), Section 14 – Constitution of India, Article 226 -- Writ petition not entertained – Alternative remedy of appeal initiated -- Exclusion of period -- Appellant is entitled to ask for exclusion of the period in terms of Section 14 of the Limitation Act, 1963 -- Exclusion of time is different, and cannot be equated with condonation of delay -- Period once excluded, cannot be counted for the purpose of computing the period for which delay can be condoned -- Period from the date of filing of the writ petition on 24.02.2018 and the date on which it was dismissed as not entertained viz. 07.03.2018, should have been excluded.
(Para 3)
Cases referred:
1. Consolidated Engineering Enterprises Vs. Principal Secretary, Irrigation Department and Ors., (2008) 7 SCC 169.
2. Kalpraj Dharamshi and Anr. Vs. Kotak Investment Advisors Limited and Anr., (2021) 10 SCC 401).
ORDER
1. Leave granted.
2. The impugned order passed by the High Court affirming the order dated 27.04.2018 passed by Appellate Deputy Commissioner (CT) (FAC), Vijayawada, holding that the delay is beyond condonable period is unsustainable in law.
3. It is an accepted position that the appellant had filed a writ petition before the High Court on 24.02.2018, which was not entertained vide the order dated 07.03.2018 on the ground that the appellant should approach the Appellate Authority. The appellant is entitled to ask for exclusion of the said period in terms of Section 14 of the Limitation Act, 1963. Exclusion of time is different, and cannot be equated with condonation of delay. The period once excluded, cannot be counted for the purpose of computing the period for which delay can be condoned. Of course for exclusion of time under Section 14 of the Limitation Act, 1963, the conditions stipulated in Section 14 have to be satisfied.1 [1See Consolidated Engineering Enterprises Vs. Principal Secretary, Irrigation Department and Ors., (2008) 7 SCC 169 and Kalpraj Dharamshi and Anr. Vs. Kotak Investment Advisors Limited and Anr., (2021) 10 SCC 401)]
4. In the facts of the present case, we find that the period from the date of filing of the writ petition on 24.02.2018 and the date on which it was dismissed as not entertained viz. 07.03.2018, should have been excluded. The writ proceedings were maintainable, but not entertained. Bona fides of the appellant in filing the writ petition are not challenged. Further, immediately after the dismissal of the writ petition, the appellant did file an appeal before the Appellate Authority. On exclusion of the aforesaid period, the appeal preferred by the appellant would be within the condonable period. Accordingly, we direct that the application for condonation of delay filed by the appellant would be treated as allowed. The delay is directed to be condoned.
5. Recording the aforesaid, the appeal is allowed with the direction that the Appellant Authority would examine the appeal on merits.
6. We clarify that have not expressed any opinion on the merit of the case.
7. Pending application(s), if any, shall stand disposed of.
Appeal allowed.
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