By TIOL News Service

MUMBAI, AUG 21, 2018: THE ISSUE IS - Whether mere fact that Revenue officers were busy with time barring assessments, absolve them from taking proper action to challenge the orders of SETCOM, which according to them was without jurisdiction. NO IS THE VERDICT.

Facts of the case:

The Revenue Department had preferred present petition challenging the order passed by Settlement Commission u/s 245D(4) after a delay of almost one and half years. Although, the Revenue's counsel submits that this delay was essentially in view of the fact that the persons responsible to challenge the order were transferred and/or were engaged in time barring assessments.

High Court held that,

++ a challenge to an order under Article 226 of the Constitution of India to be entertained, is not a matter of right in the party but a discretion to be exercised by the Court and one of the grounds to not exercise discretion is where a party has grossly delayed in moving the Court for this extra-ordinary remedy. However, where there are adequate reasons for the delay and the Court is satisfied that there is no negligence or omission on the part of the party, the Court may entertain a writ petition. The explanation for the laches/delay by the Revenue in moving the Court does not inspire any confidence. The fact that the officers were busy with time barring assessments does not absolve them from taking proper action to challenge the orders of the Commission, which according to them, is without jurisdiction and/or contrary to the Statute. This not taking action is evidence of negligence or caring less about this issue;

++ the extra-ordinary writ jurisdiction is to be exercised only in case of parties whose conduct would evidence that the party was serious about the challenge and acted expeditiously to set right an injustice perceived by him. The extra-ordinary jurisdiction cannot be exercised in case of a party who takes his own time to approach the Court and sets out reasons only to explain the delay without any particulars to support the same.

(See 2018-TIOL-1664-HC-MUM-IT)