Delhi District Court
Delhi Development Authority vs Sudip Kumar Lahiri on 26 October, 2015
Page 1 of 15
IN THE COURT OF MS. NAVITA KUMARI BAGHA, ADJ01 (SOUTH),
SAKET COURTS, NEW DELHI
RCA No.2/13
Unique Case ID No.02406C0094532013
Delhi Development Authority
Through its Vice Chairman
Vikas Sadan, I.N.A.,
New Delhi.
.............Appellant
Vs.
Sudip Kumar Lahiri
S/o Late Sh. K.K. Lahiri
R/o S89, Panchsheel Park,
New Delhi.
............. Respondent
Appeal against the judgment and decree dated 03.11.2012 passed by
the Court of Ms. Richa Gusain Solanki, Civil Judge (West), Tis Hazari
Courts, Delhi in Suit No.221/2006 titled as "Sudip Kumar Lahiri Vs.
Delhi Development Authority"
O R D E R :
1. Vide this order I shall dispose of the application of the appellant filed U/Sec.5 of Limitation Act, 1963 for condonation of delay in filing the appeal.
2. The present Regular Civil Appeal was filed by the appellant on 09.04.2013 for challenging the judgment/decree dated 03.11.2012 RCA No.2/13 DDA Vs. Sudip Kumar Lahiri Page 2 of 15 vide which the suit filed by the present respondent for permanent injunction was decreed in his favour and against the present appellant. Since the appeal was filed after the expiry of period of limitation, so present application U/Sec.5 Limitation Act was filed for condonation of delay. The delay is explained to have been caused during the movement of file from one place to another in the office of the appellant.
3. I have heard the arguments on application for condonation of delay from counsel Ms. Jaya Goel for appellant and counsel Sh. Prem Bhushan for respondent and perused the record.
4. The counsel for respondent has argued that the appeal is not maintainable as it has not been filed by an authorized person. But it has been contended on behalf of appellant that the appeal has been filed by Director (RL) who is duly authorized to file the same vide notification of DDA dated 12.02.1991. The copy of the said notification has been placed on record. As per this notification DDA has delegated the power to institute, defend, withdraw, compromise any suit, writ petition, appeal or other judicial/quasi judicial/legal proceedings to all its officers of the rank of Director, Financial Adviser (Housing) and General Manager, ISBT. Since as per this notification, all the officers of the rank of Director have been delegated the power to file appeal and the present appeal RCA No.2/13 DDA Vs. Sudip Kumar Lahiri Page 3 of 15 has been filed by Director (RL), so prima facie the appeal appears to have been filed by an authorized person.
5. The counsel for appellant has contended that it is settled law that the file has to travel through different levels in government departments for filing appeal and due to this reason some time is consumed in taking final decision and therefore, the delay in case of government agencies should be generally condoned. In support of her contention, she has placed reliance upon the following case laws:
(i) DDA Vs. Mohd. Saleem (Deceased) Through L.Rs. & Ors., LPA No.1232/2007, Decided on 17.09.2012.
(ii) Aligarh Muslim University Vs. Suchita Nayyar, 2011 (3) AD (Delhi) 115.
(iii) G. Ramegowda, Major & Ors. Vs. Special Land Acquisition Officer, Bangalore, AIR 1988 SC 897.
(iv) Himachal Pradesh Financial Corporation Vs. Sainsons Fibres (P) Ltd. and Ors., II (2010) BC 622.
(v) Indian Oil Corporation Ltd. & Ors. Vs. Subrata Borah Chowlek, etc., (2010) 14 SCC 419.
(vi) New India Assurance Co. Ltd. Vs. Molu Ram Jain, 2001 (91) DLT 123.
(vii) State of Bihar & Ors. Vs. Subhash Singh, AIR 1997 SC 1390.
(viii) State of Nagaland Vs. Lipok AO & Ors., AIR 2005 SC 2191.
(ix) State of Karnataka Vs. Y. Moideen Kunhi (dead) by Lrs. & Ors., AIR 2009 SC 2577.
(x) State (NCT of Delhi) Vs. Ahmed Jaan, 2008 Cri.L.J. 4355.
(xi) DDA Vs. Dalip Kumar, RSA No.55/2004, Decided on RCA No.2/13 DDA Vs. Sudip Kumar Lahiri Page 4 of 15 16.01.2007.
(xii) Union of India Vs. Mahener Singh, 2010 (168) DLT 731.
(xiii) State of Haryana Vs. Chandra Mani & Others, AIR 1996 SC 1623.
6. The counsel for respondent, on the other hand, has vehemently argued that the State and its agencies cannot claim any preferential treatment in matter of condonation of delay and are equally bound to give plausible and acceptable explanation of delay like any other person. He has prayed for dismissal of the application for condonation of delay by stating that the appellant has miserably failed to disclose the sufficient cause of delay and that the condonation of delay is an exception which cannot be used as an anticipated benefit for the government departments. In order to substantiate his contentions, he has placed reliance upon the following caselaws:
(i) Balwant Singh Vs. UOI & Anr., 199 (2013) DLT 658.
(ii) Office of the Chief Post Master General & Ors. Vs. Living Media India Ltd. & Anr., I (2012) SLT 312.
(iii) DDA Vs. Ramesh Kumar Budhiraja, 214 (2014) DLT 333.
(iv) State of U.P. Thr. Exe. Engineer & Anr. Vs. Amar Nath Yadav, SLP (Civil) No.882/2014, decided on 10.01.2014.
(v) SDMC Vs. Gagan Sahni, 201 (2013) DLT 584 (DB).
(vi) Tata Blue Scope Steel Ltd. Vs. Sethi Golden Transport Co., 201 (2013) DLT 555.
(vii) Balwant Singh Vs. Jagdish Singh & Ors., Civil Appeal No. 1166 of 2006, decided on 08.07.2010.
7. Before proceeding further, it would be appropriate to mention here RCA No.2/13 DDA Vs. Sudip Kumar Lahiri Page 5 of 15 the movement of the file alongwith the dates as explained in the application under consideration and the same is as follows: 03.11.2012 Date of impugned order.
27.11.2012 JLO apprised senior officials of DDA about the impugned order.
29.11.2012 Certified copy of impugned order received by appellant.
From 27.11.2012 File moved from SLO (Tis Hazari Court) to to 03.12.2012 SLO (Land Management) & Director (RL). 03.01.2013 Director (RL) sent the file to CLA after he decided to file appeal against the impugned order.
28.02.2013 The counsel sent the file back to SLO (THC) citing lack of instruction and proper records to prepare the appeal.
06.03.2013 AD(CS) forwarded the file to DD(CS) for approval and to satisfy any lacunas left in the file.
12.03.2013 Case was entrusted to counsel for initiation of proper action.
20.03.2013 File sent to counsel.
25.03.2013 File sent for signature of competent authority. 06.04.2013 File received by counsel after necessary signatures.
09.04.2013 Appeal was filed.
8. Thus there is delay of 127 days in filing the appeal. Even if the time consumed in getting certified copy is excluded, still there is delay of 104 days. But no sufficient explanation has been given for the peri RCA No.2/13 DDA Vs. Sudip Kumar Lahiri Page 6 of 15 od starting from 27.11.2012 to 03.01.2013. During this period the file kept on moving from the SLOs to Director (RL) but the record was yet not completed and the file had to be returned by the counsel due to incomplete record for preparing the appeal. Now here it is pertinent to mention that though the date of return of file by coun sel, has been mentioned as 28.02.2013 but it is not mentioned as to when the file was sent to the counsel for filing appeal. So it could not be refuted that further delay was also caused in the office of the appellant. Again the delay was caused from 25.03.2013 to 06.04.2013 when the file was sent for signature of competent per son after preparation of appeal by the counsel. Despite knowing the fact that the limitation had already expired for filing the appeal, no diligence was shown by the officials to expedite the matter. The rules of limitation could not be permitted to be flouted simply be cause the appellant is a government instrumentality. It has been held by Hon'ble Supreme Court in Office of the Chief Post Mas ter General & Ors. Vs. Living Media India Ltd. & Anr., I (2012) SLT 312, "It is not in dispute that the person(s) concerned were well aware or conversant with the issues involved including the prescribed period of limitation for taking up the matter by way of filing a special leave petition in this Court. They cannot claim that RCA No.2/13 DDA Vs. Sudip Kumar Lahiri Page 7 of 15 they have a separate period of limitation when the Department was possessed with competent persons familiar with court proceedings. In the absence of plausible and acceptable explanation, we are posing a question why the delay is to be condoned mechanically merely because the Government or a wing of the Government is a party before us."
9. The counsel for appellant has filed various caselaws on the point of condonation of delay. There is no dispute with respect to the proposition of law laid down in these authorities. However, every case has its own facts and circumstances. Ratio of Law laid down in a particular authority is to be applied according to the peculiar facts and circumstances of that case. Let us consider the case laws filed by appellant visàvis the facts of the present case.
(i) In DDA Vs. Mohd. Saleem (supra), the case was pertaining to land acquisition proceedings and delay was sought to be explained pleading incompleteness of revenue records of the lands and time having been taken in completing the same but no such plea has been taken in the present case.
(ii) In Aligarh Muslim University Vs. Sachita Nayyar (supra), there was delay of 85 days which was sought to be condoned on the ground of winter vacations and further that the counsel had to leave for urgent personal work and was RCA No.2/13 DDA Vs. Sudip Kumar Lahiri Page 8 of 15 back only in the first week of January 2006.
(iii) G. Ramegowda, Major & Ors. Vs. Special Land Acquisition Officer, Banglore (supra) It was a case related to land acquisition matter and the excuse given for delay was the fraud played by Government Pleaders in filing the appeals who were assigned hundreds of cases pertaining to land acquisition and that the Govt. came to know about the mess created by them only when they relinquished their office. But here in the present case, the facts are entirely different. It is not a case where the delay is alleged to be caused by the fraud played by any government pleader.
(iv) So far as the caselaw titled as Himachal Pradesh Financial Corporation Vs. Sainsons Fibres (P) Ltd. (supra) is concerned, the application for condonation of delay in the said case was moved on the ground that the matter was processed through various channels of the corporation but the same was dismissed.
(v) Indian Oil Corporation Ltd. & Ors. Vs. Subrata Borah Chowlek (supra) In this case there was delay of only 59 days which included the summer vacation of almost one RCA No.2/13 DDA Vs. Sudip Kumar Lahiri Page 9 of 15 month and the rest of the period was sufficiently explained. But here in the present case, there is no such plea of summer vacation involved.
(vi) In New India Assurance Co. Ltd. Vs. Molu Ram Jain (supra), there was delay of only 40 days which was stated to be caused due to the inaction on the part of the appellant's counsel in obtaining certified copy of the order. But in the present case, no such plea is involved.
(vii) State of Bihar & Ors. Vs. Subhash Singh (supra) is also not going to render any help to the appellant as this authority is not on the point of condonation of delay rather the same pertains to imposition of cost against the executive officer for noncompliance of Court's order.
(viii) In State of Nagaland Vs. Lipok AO & Ors. (supra), the delay had occurred due to the missing of the file which could not be traced out within reasonable time despite making of due efforts.
(ix) In State of Karnataka Vs. Moideen Kunhi (dead) by LRs & Ors. (supra), the facts were entirely different from the present case as the point involved in the said case was that the impugned order was obtained by practicing fraud. RCA No.2/13 DDA Vs. Sudip Kumar Lahiri Page 10 of 15
(x) In State of NCT of Delhi Vs. Ahmed Jaan (supra), the delay had occurred as the casefile was got mixed up with other files due to paucity of space in the office of the Standing Counsel for appellant and the same could be traced out only after passage of considerable time.
(xi) In DDA Vs. Dalip Kumar (supra), the certified copies of judgment and decree sent to the department were lost and the same were not traceable and that the other copies were obtained when notice was received of the execution petition filed by the respondent.
(xii) In Union of India Vs. Mahender Singh (supra), the delay was condoned in view of the authorities titled as G. Ramegowda, Major & Ors. Vs. Special Land Acquisition Officer, Banglore, State of Haryana Vs. Chandra Mani and State of Nagaland Vs. Lipok AO and Ors. wherein it has been held that certain amount of latitude within reasonable limits was not impermissible having regard to impersonal bureaucratic setup. But the said authorities have been distinguished by the Hon'ble Supreme Court in Office of Chief Post Master General & Ors. Vs. Living Media India Ltd. & Anr. (supra) wherein it has been held, RCA No.2/13 DDA Vs. Sudip Kumar Lahiri Page 11 of 15 "Though we are conscious of the fact that in a matter of condonation of delay when there was no gross negligence or deliberate inaction or lack of bonafide, a liberal concession has to be adopted to advance substantial justice, we are of the view that in the facts and circumstances, the Department cannot take advantage of various earlier decisions. The claim on account of impersonal machinery and inherited bureaucratic methodology of making several notes cannot be accepted in view of the modern technologies being used and available. The law of limitation undoubtedly binds everybody including the Government."
10. A number of caselaws regarding condonation of delay in filing petitions/appeals by government bodies were relied upon by the appellant before the Hon'ble Supreme Court in the case of Office of The Chief Post Master General (Supra), but the Hon'ble Apex Court turned down the plea of concession for government bodies with respect to limitation and held, "In our view, it is the right time to inform all the government bodies, their agencies and instrumentalities that unless they have reasonable and acceptable explanation for the delay and there was bonafide effort, there is no need to accept the usual explanation that the file was kept pending for RCA No.2/13 DDA Vs. Sudip Kumar Lahiri Page 12 of 15 several months/years due to considerable degree of procedural redtape in the process. The government departments are under a special obligation to ensure that they perform their duties with diligence and commitment. Condonation of delay is an exception and should not be used as an anticipated benefit for government departments. The law shelters everyone under the same light and should not be swirled for the benefit of a few."
11. The delay in the abovesaid case was not condoned by the Hon'ble Apex Court and it was held that from the dates mentioned in the affidavit it was clear that there was delay at every stage and except mentioning the dates of receipt of the file and the decision taken, there was no explanation as to why such delay had occasioned and that the fact remained that from day one the Department or the person/persons concerned have not evinced diligence in prosecuting the matter to the Court by taking appropriate steps. Similarly, the appellant in the present case also could not take advantage of being a government department and is bound to reasonably explain the delay. The delay could not be condoned in a mechanical manner just because the appellant is a government instrumentality. As discussed earlier, the appellant has failed to give reasonable and acceptable explanation for the delay. It has been held by Hon'ble Supreme Court in Pundlik Jalam Patil RCA No.2/13 DDA Vs. Sudip Kumar Lahiri Page 13 of 15 (dead) by LRs. Vs. Executive Engineer, Jalgaon Medium Project and Anr., VIII (2008) SLT 575, ".....The evidence on record suggests neglect of its own right for long time in preferring appeals. The court cannot enquire into belated and stale claims on the ground of equity. Delay defeats equity. The court helps those who are vigilant and "do not slumber over their rights".
12. Thus in the absence of sufficient reason, the delay could not be condoned in the name of equity. The slow movement of file from one place to another place in the office of the appellant could certainly not be considered a sufficient reason for condoning the delay. Even the Hon'ble Supreme Court in State of U.P. Thr. Exe. Engineer & Anr. Vs. Amar Nath Yadav (supra), while placing reliance upon caselaw Office of Postmaster General and Ors. Vs. Living Media India Ltd. (supra), dismissed the application of condonation of delay filed on the ground of movement of file from one department/officer to other. If a party, despite knowing the fact of expiry of period of limitation, does not make diligent efforts to expedite the matter to file the case at the earliest, it does not deserve any leniency. The law helps only those who are vigilant. Its high time when the government officials should come out of the old practices followed since the colonial rule and stop passing on the RCA No.2/13 DDA Vs. Sudip Kumar Lahiri Page 14 of 15 buck on the ground of slow functioning in the government department on account of redtapism and should strive to expedite the functioning at all levels. The rights vesting in the successful parties to a litigation by the expiry of the period of limitation should not lightly be interfered with unless it is established that the appeal could not have been lodged in time despite the exercise of reasonable diligence on the part of the appellant. In the present case, despite being aware of the expiry of period of limitation, indifferent attitude was shown by the officials instead of attaching any importance to the need for promptitude in filing the appeal. The delay on the part of appellant cannot be said to be either bonafide or compelled by reasons beyond its control. The appellant ought to have moved with greater diligence and dispatch consistent with the urgency of the situation which it failed to do. In the absence of any plausible and acceptable explanation, the delay cannot be condoned mechanically merely because the government or the wing of the government is a party before the Court. Since the appellant has failed to disclose any sufficient, acceptable and cogent reasons sufficient to condone the delay, so, the delay could not be condoned. Hence the application for condonation of delay is dismissed. Appeal is dismissed being time barred. File be consigned to Record Room.
(Announced in open RCA No.2/13 DDA Vs. Sudip Kumar Lahiri Page 15 of 15 Court on 26.10.2015) (Navita Kumari Bagha) ADJ01, South District, Saket Courts, New Delhi RCA No.2/13 DDA Vs. Sudip Kumar Lahiri Page 16 of 15 RCA No. 2/2013 DDA Vs. Sudip Kumar Lahiri 26.10.2015 Present: None.
Vide separate order, the appellant's application U/Sec.5 of Limitation Act for condonation of delay in filing the appeal is dismissed. Appeal is also dismissed being time barred. TCR alongwith copy of this order be sent to the Trial Court/Record Room. Appeal file be consigned to Record Room.
(Navita Kumari Bagha) ADJ01 (South), New Delhi.
26.10.2015 (Teena) RCA No.2/13 DDA Vs. Sudip Kumar Lahiri