Bench Structure and Constitutional Adjudication – The Court at a Crossroads | Live Law

Bench Structure and Constitutional Adjudication – The Court at a Crossroads | Live Law:


Selectively:

"The Lower Courts and Lawyers

".....The problem of inconsistency in decision-making manifests itself the most for the lower courts...."

For Example, consider the proposition , - 
Delay In Filing Of - To, or not to, condone 

Answer may vary-

https://www.linkedin.com/pulse/20141201114940-248274412-basic-principles-for-condonation-of-delay/
 
https://www.rbi.org.in/scripts/bs_viewcontent.aspx?Id=171#9

Criteria :
Length of delay;
Cause- Reasonable X Suffcient ;
Condemnation- conditional;

Type /Category of-

Say,- Banking 

Source Material: 
 

For Delay - CAUSE - Reasonable X Sufficient ?!

For the proposition, in a tax case, as lately decided by the HC >
 
HERE

(For a moot point  raised - read the posted comment)

The problem alluded to / grieved about, historically, has been a perennial and persisting problem, until date; and could only be expected to  likewise persist to eternity;  to the end of the horizon.

For instance, have a look at the cited HC judgment ( HERE)

Without having to take the trouble of going to town, or spare extra efforts to explore, the several court  rulings  cited in this very case illustrate one thing. That is the  ‘inconsistency’ in decision making; and, as is open  to be readily inferred,  the reason / the fact (of premise) is that  despite the basic issue  pertains to ‘condonation of  delay’ , it is the ‘facts and circumstances’, in a case to case basis,  that has weighed with the court in adjudicating the very same issue, differently.

 Be that as it may,  in one’s mind, there has been a nagging but  grave doubt, in one's mind; briefly stated:   

Is there not all the more reason /better logic  in urging why a liberal  view, as taken in several  tax cases, should not likewise be taken in ‘claims’ cases, as well ! 

  
For an appreciation, in proper light, it is to be recommended to, focus on :

“Strictures by ITAT against ICAI deprecated: It is very unfortunate that the Tribunal, out of sheer desperation and frustration and agitated by the fact that the Revenue is not opposing the request for condonation of delay blamed the assessee's Chartered Accountant and the ICAI on how they should conduct themselves. The Tribunal completely misdirected itself by taking irrelevant factors into account. 

Delay of 2984 days in filing the appeal caused by wrong advice of a professional is capable of condo nation. However, even if the assessee has acted bona fide,  he can be held liable for payment of costs to balance rights and equities.”

"(v) Way back in the year 1979, in a decision reported in AIR 1979 SC 1666 {M/s. Concord of India Insurance Co. Ltd. Vs. Smt. Nirmala Devi and others}, the Hon’ble Supreme Court has held that a legal advice tendered by a professional and the litigant acting upon it one way or the other could be a sufficient cause to seek condonation of delay and coupled with the other circumstances and factors for applying liberal principles and then said delay can be condoned. Eventually, an overall view in the larger interest of justice has to be taken. None should be deprived of an adjudication on merits unless the Court of law or the Tribunal/Appellate Authority finds that the litigant has deliberately and intentionally delayed filing of the appeal, that he is careless, negligent and his conduct is lacking in bona fides. These are, therefore, some of the relevant factors. Those factors should therefore necessarily go into an adjudication of the present nature."

"(vi) In Nirmala Devi (supra), the Hon’ble Supreme Court held as under:

“5. The Accident Claims Tribunal pronounced its award on September, 15, 1976, after making the necessary computations and deductions. The appeal had to be filed on or before January 19, 1977 but was actually filed 30 days later. Counsel for the petitioner is stated to have made the mistake in the calculation of the period of limitation. He had intimated the parties accordingly with the result that the petitioner was misled into instituting appeal late. The High Court took the view that the lawyer’s ignorance about the law was no ground for condo nation of delay. Reliance was placed on some decisions of the Punjab High Court and there was reference also to a ruling of the Supreme Court in AIR 1972 SC 749. The conclusion was couched in these words:

The Assistant Divisional Manager of the Company appellant is not an illiterate or so ignorant person who could not calculate the period of limitation. Such like appeals are filed by such companies daily. The facts of this case clearly show, as observed earlier, that the mistake is not bona fide and the appellant has failed to show sufficient cause to condone the delay.”

 <> RESOURCES  

<> “12. It is a settled legal proposition that law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribes. The Court has no power to extend the period of limitation on equitable grounds. “A result flowing from a statutory provision is never an evil. A Court has no power to ignore that provision to relieve what it considers a distress  resulting from its operation.” The statutory provision may cause hardship or inconvenience to a particular party but the Court has no choice but to enforce it giving full effect to the same. The legal maxim “dura lex sed lex” which means “the law is hard but it is the law”, stands attracted in such a situation. It has consistently been held that, “inconvenience is not” a decisive factor to be considered while interpreting a statute.

13. The Statute of Limitation is founded on public policy, its aim being to secure peace in the community, to suppress fraud and perjury, to quicken diligence and to prevent oppression. It seeks to bury all acts of the past which have not been agitated in-explain-ably and have from lapse of time become stale……”

(Extracts from- 

https://www.linkedin.com/pulse/20141201114940-248274412-basic-principles-for-condonation-of-delay/  )


Cross Refer :
http://amlegals.com/

A Related Issue ; worth a study - Sanjeev Lal... vs CIT

https://indiankanoon.org/doc/35491903/

KEY Note:

It is to be, with no option left, sanely admitted, and need to honestly proceed on the premise,  that 'inconsistency' in case law is a fait accompli.

Now, causa causans of the inconsistency (complained of) has to be taken to have been fairly-but not fully (see supplement Blog)   explained, thus:

The problem of inconsistency in decision-making manifests itself the most for the lower courts. The doctrine of precedent is dealt a severe blow for both High Courts and lower courts are left confused as to which of the various pronouncements on a pa...

Read more at: http://www.livelaw.in/bench-structure-constitutional-adjudication-court-crossroads/#.Wdr2LZSfIeE.blogger

The problem of inconsistency in decision-making manifests itself the most for the lower courts. The doctrine of precedent is dealt a severe blow for both High Courts and lower courts are left confused as to which of the various pronouncements on a pa...

Read more at: http://www.livelaw.in/bench-structure-constitutional-adjudication-court-crossroads/#.Wdr2LZSfIeE.blogger

"Lawyers stand to gain most out of this situation when they try to tailor their arguments to suit a particular bench of judges. They might want to try their luck with a different set of judges in order to get favourable relief and would not mind arguing the same or similar matter before multiple benches. In the process, not only do they add to the pendency of cases but also put a huge financial burden on the litigants. Litigation then becomes a trade-off between various benches and wherever a suitable order can be procured becomes a safe haven for the lawyers. This is also tied to the capacity of a litigant to pay for an expensively-priced lawyer and has disturbing repercussions for differently placed litigants who may not be able to move beyond one division bench for want of resources. At stake is not only the interest of the litigant but also the indelible blot rendered on the institutional legitimacy of the Court. The Court then becomes a hunting ground for lawyers to look for the bench that would be most likely to address their vested interests. Lawyers then tend to appeal more to individual judges than the Court as an institution."

(Extract from -  Bench Structure and Constitutional Adjudication – The Court at a Crossroads | Live Law:)

The problem of inconsistency in decision-making manifests itself the most for the lower courts. The doctrine of precedent is dealt a severe blow for both High Courts and lower courts are left confused as to which of the various pronouncements on a pa...

Read more at: http://www.livelaw.in/bench-structure-constitutional-adjudication-court-crossroads/#.Wdr2LZSfIeE.blogger

The problem of inconsistency in decision-making manifests itself the most for the lower courts. The doctrine of precedent is dealt a severe blow for both High Courts and lower courts are left confused as to which of the various pronouncements on a pa...

Read more at: http://www.livelaw.in/bench-structure-constitutional-adjudication-court-crossroads/#.Wdr2LZSfIeE.blogger

The problem of inconsistency in decision-making manifests itself the most for the lower courts. The doctrine of precedent is dealt a severe blow for both High Courts and lower courts are left confused as to which of the various pronouncements on a pa...

Read more at: http://www.livelaw.in/bench-structure-constitutional-adjudication-court-crossroads/#.Wdr2LZSfIeE.blogger

TAIL Piece:  The above cited explanation, it is noted, echoes the very same opinion / long standing conviction, of a towering legal legend, in no less a person of eminence / stature than N A Palkhiva, voiced in his famous writings and speeches, published in - "WE, THE PEOPLE" and "WE, the Nation" . 

Alert :That, however, is not, -as indicated herein before,- to be mistaken to provide the full explanation. Should the opinion of the referred Expert be closely looked through,-as found repeatedly shared in most of his Budget Speeches,- the inconsistencies in case law , in turn, is primarily attributable, and in no less measure, to serious /gross inconsistencies, observed more often than not,  in inconsistencies in the legislation itself; with only the powers / prerogative of interpretation whereof is left to the judiciary.   

 (Over to law experts, at large,  to follow on !