Delhi District Court
Jamia Millia Islamia vs Ms. Sughra Mehdi on 8 July, 2011
IN THE COURT OF SH. R.K. GAUBA: DISTRICT JUDGE &
ADDITONAL SESSIONS JUDGE, I/C, SOUTH DISTRICT :
SAKET NEW DELHI
PPA No. 30/09
ID No.: 02403R0961792007
Jamia Millia Islamia
Through its Registrar
Jamia Nagar
New Delhi ... Appellant
Versus
1. Ms. Sughra Mehdi
D/o Ali Mehdi
263, Abid Villa
Jamia Nagar, Okhla
New Delhi
2. Iqbal Mehdi
S/o Ali Mehdi
263, Abid Villa
Jamia Nagar, Okhla
New Delhi
3. Raza Mehdi
S/o Hasan Mehdi
263, Abid Villa
Jamia Nagar, Okhla
New Delhi
4. The Estate Officer
Jamia Millia Islamia
PPA No. 30/09 Jamia Millia Islamia vs. Sughra Mehdi 1 of 18
Jamia Nagar
New Delhi ... Respondents
Instituted on: 24.03.2007
Judgment reserved on: 08.07.2011
Judgment pronounced on :08.07.2011
J U D G M E N T
1. This appeal under Section 9 of Public Premises (Eviction of Unauthorised Occupants) Act, 1971 (hereinafter, referred to as "the Public Premises Act") has been preferred to challenge the order dated 27.03.2006 passed by the respondent no. 4 Estate Officer, along with an application under section 5 of the Limitation Act seeking condonation of delay. The proceedings in which the order dated 27.03.2006 was passed by the Estate Officer were initiated by the appellant / applicant seeking an order of eviction of the respondents no. 1, 2 and 3 from premises described as land measuring 1 Bigha, 17 Biswas and 13 Biswansi comprising Khasra nos. 493/143 and 496/143, Village Okhla, New Delhi.
2. It appears that the land in question was given on lease vide lease agreement executed on 01.10.1961 (though stated to have been effective from 01.01.1942) by the General Attorney of Jamia Millia Islamia in favour of late Dr. S. Abid Hussain for a period of 99 years, with a stipulation that the lease deed would require to be PPA No. 30/09 Jamia Millia Islamia vs. Sughra Mehdi 2 of 18 extended after the elapse of the period of 60 years.
3. The respondents no. 1, 2 and 3 claim to be the legal heirs of Dr. S. Abid Hussain who passed away on 13.12.1978. It was the case of the appellant / applicant before the Estate Officer that under the personal law applicable to the parties, respondents no. 1,2 and 3 could not claim inheritance in respect of lease hold rights in the demised property. The Estate Officer after carrying out the enquiry pursuant to notice issued by him under section 4 of the Public Premises Act upheld the contentions of the respondents no. 1,2 and 3 that the premises in question had been inherited by them and so occupied in the capacity of they being legal heirs of late Dr. S. Abid Hussain, inter alia, on the basis of will left behind by Begum Saleha Abid Hussain. The Estate Officer thus ordered the notice issued by him on 16.09.1997 to be withdrawn and closed the eviction proceedings. This order was passed on 27.03.2006.
4. The order of the Estate Officer under section 5 of the Public Premises Act can be challenged in appeal under section 9 of Public Premises Act which also prescribes the period of limitation for such purposes. As per section 9 (2) of the Public Premises Act, such an appeal is required to be preferred within 12 days from the date of publication of the order under section 5(1).
5. It is admitted on behalf of the appellant / applicant that the appeal PPA No. 30/09 Jamia Millia Islamia vs. Sughra Mehdi 3 of 18 filed on 24.03.2007 is belated, the delay being to the extent of 248 days. Hence, the application under section 5 of Limitation Act seeking condonation.
6. The respondents no. 1, 2 and 3 have contested the application under section 5 of Limitation Act through a formal reply, inter alia, stating that the grounds are not justified. A rejoinder has been filed to the said reply reiterating the case set up for justifying the delay.
7. I have heard Ms. Jaya Goyal, Advocate for the applicant / appellant and Sh. Asrar Ahmad, Advocate for the respondents no. 1,2 and 3. I have gone through the record.
8. The reasons cited for explaining the delay in filing of the appeal as set out in the application under section 5 of the Limitation Act are that the Estate Officer having passed the order (which is sought to be impugned in the appeal) on 27.03.2006 retired immediately thereafter on 31.03.2006. It has been stated that there was considerable lapse of time for powers to be conferred on a new Estate Officer. It is stated that, in the meantime, original file regarding the premises in dispute got misplaced in the Registrar's office and all diligent efforts to trace the same went in vain. It has been stated that the file could be traced only on 14.02.2007 from some old records and thereafter a decision was taken to prefer the appeal and thus "after the transfer of the file", the appeal was got PPA No. 30/09 Jamia Millia Islamia vs. Sughra Mehdi 4 of 18 prepared and had been filed without further delay.
9. The contesting respondents, on the other hand, have, inter alia, submitted that there was a direction in the order sought to be impugned wherein the Estate Officer had called upon the applicant / appellant to renew the lease deed as 60 years' period had elapsed and in this context, the respondents made an application to the Registrars of applicant / appellant on 22.06.2006 followed by a reminder dated 10.01.2007 for the order to be implemented.
10.It has been stated that the appellant / applicant, therefore, cannot be said to be totally ignorant about the order in question and steps could and should have been taken at least in the wake of such requests of the contesting respondents for the followup action on the order of the Estate Officer.
11.Broadly, on these facts, the respondents submitted that the applicant / appellant has not shown any "sufficient cause" within the meaning of the expression used in section 5 in the Limitation Act and rights having accrued in favour of the contesting respondents in terms of the order passed by the Estate Officer, the delay does not deserve to be condoned.
12.The counsel for the applicant / appellant has relied on the law laid down by Hon'ble Supreme Court in State of Haryana v. Chandra Mani [AIR 1996 SC 1623]. In the said case, there had been a delay PPA No. 30/09 Jamia Millia Islamia vs. Sughra Mehdi 5 of 18 of 109 days in filing letters patent appeal by the State of Haryana. Dealing with the request for the condonation of delay, Hon'ble Supreme Court observed that Government is an impersonal machinery and decisions are taken at slow pace and, therefore "certain amount of latitude is not impermissible" in the matter of consideration of applications for condonation under section 5 of Limitation Act.
13.In the judgment cited on behalf of applicant, it has been observed by Hon'ble Supreme Court as under: "The expression "sufficient cause" should, therefore, be considered with pragmatism in justice oriented approach rather than the technical detection of sufficient cause for explaining every day's delay. The factors which are peculiar to and characteristic of the functioning of the Governmental conditions would be cognizant to and requires adoption of pragmatic approach in justiceoriented process. The Court should decide the matters on merits unless the case is hopelessly without merit."
14.It was further observed that when the State is an applicant, praying for condonation of delay, it is common knowledge that on account of impersonal machinery and the inherited bureaucratic methodology imbued with the notemaking, filepushing, and passingon the buck ethos, delay on the part of the State is less PPA No. 30/09 Jamia Millia Islamia vs. Sughra Mehdi 6 of 18 difficult to understand though more difficult to approve, but the State represents collective cause of the community. It is axiomatic that decisions are taken by officer / agencies proverbially at slow pace and encumbered process of pushing the files from table to table and keeping it on table to considerable time causing delay - intentional or otherwise - is a routine. Considerable delay of procedural red tape in the process of their making decision is a common feature. Therefore, certain amount of latitude is not impermissible.
15.On the basis of the aforementioned observations, the delay in the course of Chandra Mani (supra) was condoned.
16.But then, as argued by the counsel for contesting respondents, the law laid down by Hon'ble Supreme Court in the case of Chandra Mani (supra) cannot become a licence for all times to come and in all cases across the board for the State to be allowed to come with delay, ignoring the period of limitation that is generally prescribed.
17.The view taken in the case of Chandra Mani (supra) was relied upon by DDA in a similarly placed case before Hon'ble High Court of Delhi in DDA vs. Pandit Construction Company [2004(77) DRJ 542 (DB)]. In the said case, also there had been a delay of 421 days on the part of DDA for filing an application under Order 9 PPA No. 30/09 Jamia Millia Islamia vs. Sughra Mehdi 7 of 18 Rule 9 CPC. The condonation of delay was sought on the ground that applicant DDA is an authority under the Government and delay had been caused on account of impersonal machinery and inherent bureaucratic methodology. Hon'ble High Court found that there was no explanation of delay of about two months in inspecting the court file and further there was no explanation for delay for over three months in filing the application for restoration. While dismissing the application with costs, Hon'ble High Court referring to the reliance on the case of Chandra Mani (supra) observed as under: "To apply the ratio of the authority cited by the learned counsel for the appellant, we may not shut our eyes to the ground realities that when the Government is a litigant, there is an impersonalised interest but we cannot keep the law of limitation off the shelf, if the Government is the party."
18.Reference was made in the course of the said judgment to further observations of Hon'ble Supreme Court in the case of Chandra Mani (supra) to the following effect: "The Government at appropriate level should constitute legal cells to examine the cases whether any legal principles are involved for decision by the Courts or whether cases require PPA No. 30/09 Jamia Millia Islamia vs. Sughra Mehdi 8 of 18 adjustment and should authorise the officers take a decision or give appropriate permission for settlement. In the event of decision to file appeal needed prompt action should be pursued by the officer responsible to file the appeal and she should be made personally responsible for lapses, if any."
19.Hon'ble High Court took the view that the law laid down in the case of Chandra Mani (supra) had to be applied in the light of above observations and, therefore, did not find it justified to grant the condonation.
20.The case of P.K. Ramachandran Vs. State of Kerala & anr. JT 1997(8) SC 189 is yet another case involving delay on the part of the State. In the said case there had been a delay of 565 days in filing an appeal against the judgment and decree of the lower court, by the State of Kerala. Hon'ble Kerala High Court granted the condonation on the prayer of State of Kerala which was challenged before Hon'ble Supreme Court. The order was found to be not in proper exercise of the judicial discretion because the court granting the condonation had not recorded any satisfaction that the explanation for the delay was either reasonable or satisfactory. Hon'ble court observed that law of limitation "may harshly effect a particular party but it has to be applied with all its rigour when the PPA No. 30/09 Jamia Millia Islamia vs. Sughra Mehdi 9 of 18 statute so prescribe and the Courts have no power to extend the period of limitation on equitable grounds. The discretion exercised by the High Court was, thus neither proper nor judicious."
21.The case of Union of India v. C.L. Jain Woolen Mills Pvt. Ltd. [131 (2006) Delhi Law Times 360 (DB)] is yet another illustration of delay on the part of the State machinery being found not condonable. There had been delay of 293 days in filing of the appeal. While dealing with the issues raised, Hon'ble High Court referred to judgment in the case of Delhi Wakf Board v. Sh. Balbir Singh rendered by Division Bench of High Court on 20.03.2006 in RFA no. 80/82 where in following observations had been recorded: "Though the provisions of Section 5 have received a liberal construction in recent past, still the Court cannot ignore that the fact where an appeal gets barred by time, a definite right accrues to the opposite party and such right should not be taken away in a routine manner and without disclosure of good and a sufficient cause for condonation of delay."
22. The respondents seeking to contest the application for condonation of delay, have also referred to the following:
(i) North Delhi Power Ltd. Vs. AAR ESS Industries 177 (2011) DLT 632;
(ii)U.O.I. & anr. Vs. Major K. K. Taneja 43 (1991) DLT PPA No. 30/09 Jamia Millia Islamia vs. Sughra Mehdi 10 of 18 227 (DB);
(iii) M/s Democratic Builders Vs. U.O.I, 1992 (2) CCC 79;
(iv) Employees State Insurance Corporation Vs. M/s Ram Gopal Sat Narayan Poha Mill 1986 (2) CCC 677;
(v) Krishi Utpadan Mandi Smiti, Amroha Vs. Ganga Ram & Ors. 1993(1) CCC 127; and
(vi) Ajit Singh Thakur Singh & anr. Vs. State of Gujrat, AIR (1981) SC 733).
23. In Ajit Singh Thakur Singh (supra), Hon'ble Supreme Court held in the context of application for condonation of delay that the cause pleaded as sufficient must be referable to the period prior to the expiry of the period of limitation. In Krishi Utpadan Mandi Smiti, Amroha (supra), Hon'ble Allahabad High Court observed that contradictory statements, gross negligence, absence of diligence and deliberate inaction on the part of the appellant having been found apparent on record the case did not justify condonation of delay. In Employees State Insurance Corporation (supra), the appellant was found not having come out with true allegations and, therefore, was held unable to show sufficient cause for condonation of delay.
24.In M/s Democratic Builders (supra) it was, inter alia, held that application seeking condonation of delay was required to explain delay of each and every day. With reference to Soorajmal PPA No. 30/09 Jamia Millia Islamia vs. Sughra Mehdi 11 of 18 Nagarmal Vs. Golden Fibre and Products AIR 1969 Calcutta 381, it had been reiterated that sufficient cause within the contemplation of Section 5 must be a cause which is beyond control of the party invoking the aid of the section. The cause for delay in making the application which by due care and attention could have been avoided cannot be sufficient cause within the meaning of Section 5 of Limitation Act.
25.In Union of India Vs. Major K.K. Taneja (supra), the ground pleaded for condonation of delay was found to be "false" and, therefore, was held to be a circumstance which disentitled the appellant to any indulgence in the matter for condonation of delay.
26.The judgment in North Delhi Power Ltd. (supra), referred to two decisions of Hon'ble Supreme Court mainly Balwant Singh Vs. Jagdish Singh & ors. V (2010) SLT 790 and Ram Lal & others Vs. Rewa Coal Fields Ltd. AIR 1962 SC 36.
27.In the case of Balwant Singh (supra), Hon'ble Supreme Court made the following observations: "We may state that even if the term "sufficient cause" has to receive liberal construction, it must squarely fall within the concept of reasonable time and proper conduct of the concerned party. The purpose of introducing liberal construction normally is to introduce the concept of PPA No. 30/09 Jamia Millia Islamia vs. Sughra Mehdi 12 of 18 'reasonableness' as it is understood in its general connotation. The law of limitation is a substantive law and has definitive consequences on the rights and obligations of a party to arise. These principles should be adhered to and applied appropriately depending on the facts and circumstances of a given case. Once a valuable right, has accrued in favour of one party as a result of the failure of the other party to explain the delay but showing sufficient cause and its own conduct, it will be unreasonable to take away that right on the mere asking of the applicant, particularly when the delay is directly a result of negligence, default or inaction of that party."
(Emphasis supplied)
28. Hon'ble Court found the averments made by the applicant seeking condonation of delay to be "not correct" and ex facie lacking "bonafide". Against this back ground, it was observed as under: "The explanation has to be reasonable or plausible, so as to persuade the Court to believe that the explanation rendered is not only true, but is worthy of exercising judicial discretion in favour of the applicant. If it does not specify any of the enunciated ingredients of judicial pronouncements, then the application should be dismissed."
(Emphasis supplied)
29. In Ram Lal (supra), Hon'ble Court ruled as under: "7. In constructing Section 5 it is relevant to bear in mind two important considerations. The first PPA No. 30/09 Jamia Millia Islamia vs. Sughra Mehdi 13 of 18 consideration is that the expiration of the period of limitation prescribed for making an appeal gives rise to a right in favour of the decree holder to treat the decree as binding between the parties. In other words, when the period of limitation prescribed has expired the decreeholder has obtained a benefit under the law of limitation to treat the decree as beyond challenge, and this legal right which has accrued to the decree holder by lapse of time should not be lightheartedly disturbed. The other consideration which cannot be ignored is that if sufficient cause for excusing delay is shown discretion is given to the Court to condone delay and admit the appeal. This discretion has been deliberately conferred on the court in order that judicial power and discretion in that behalf should be exercised to advance substantial justice. As has been observed by the Madras High Court in Krishna v. Chathappan, ILR 13 Mad 269 It is however, necessary to emphasize that even after sufficient cause has been shown a party is not entitled to the condonation of delay in question as a matter of right. The proof of a sufficient cause is a condition precedent for the exercise of the discretionary jurisdiction vested in the Court by Section 5. If sufficient cause is not proved nothing further has to be done; the application for condoning delay has to be dismissed on that ground alone. If sufficient cause is shown then the Court has to enquire whether in its discretion it should condone the delay. This aspect of the PPA No. 30/09 Jamia Millia Islamia vs. Sughra Mehdi 14 of 18 matter naturally introduces the consideration of all relevant facts and it is at this stage that diligence of the party or its bonafides may fall for consideration,....."
(Emphasis supplied)
30. It is clear from the above decision of Hon'ble Supreme Court, the bonafide of the applicant is one of the relevant considerations at the stage of adjudication upon the application for condonation of delay. It is on this basis that Hon'ble High Court in North Delhi Power Ltd. (supra) held as under: "While dealing with an application for condonation of delay under Section 5 of the Limitation Act, the Court must bear in mind two important considerations. Firstly, the expiration of limitation for filing an appeal gives rise to a legal right to a decree holder to treat the decree as binding between the parties and this right should not be lightly disturbed. Second, if sufficient cause is shown for condonation of delay, the delay should be condoned. It has been repeatedly held by the Supreme Court of India that the words "sufficient cause" should receive a liberal construction so as to advance substantial justice. In the same breath, it has been held that the discretion should be exercised, when there is no negligence or inaction nor want of bonafides imputable to the appellant the Court must be satisfied that there was due diligence on the part of the appellant."
PPA No. 30/09 Jamia Millia Islamia vs. Sughra Mehdi 15 of 18 (Emphasis supplied)
31. It is thus clear that it cannot be taken as a rigid rule of law that State is always or invariably entitled to condonation as of right. The view taken in the case of Chandra Mani (supra) only indicates "a certain amount of latitude" to be extended while dealing with such applications on behalf of State.
32.In the case at hand, the order sought to be impugned had been passed on 27.03.2006. The Estate Officer having passed the said order had becoming functus officio. His retirement from service on 31.03.2006 is an event which is of no consequence. The applicant was the party who was aggrieved against the order that had been rendered. It required to take the necessary steps on its own, irrespective of the fact whether the individual holding the office of Estate Officer continued in the same position or not. The reference to the retirement of the Estate Officer and his successor joining only on 03.04.2006 (as mentioned in the rejoinder) is thus totally irrelevant.
33.The further reference in the rejoinder to retirement of the then Vice Chancellor on 04.06.2006 and the successor taking over on 10.06.2006 is again of no consequence. A vacuum in the office of the Vice Chancellor would not bring the entire administration to a halt.
PPA No. 30/09 Jamia Millia Islamia vs. Sughra Mehdi 16 of 18
34.Be that as it may, the new Vice Chancellor had admittedly taken over within six days of the earlier incumbent demitting office. The new Vice Chancellor having come in the saddle on 10.06.2006, even if the retirement of the Vice Chancellor had resulted in disruption of the machinery. There is no reason why the applicant would sleep over the matter thereafter till 24.03.2007.
35.The reference to the file becoming misplaced is as vague as it could be. It is also not clarified in any manner as to which file is being referred to. It is not clarified as to who was the custodian of the file. It is not clear as to what steps were taken to dig out or trace out the said file and further if any action had been taken respecting the case of commission or omission on the part of the custodian in that regard. In these circumstances, the claim of the file getting misplaced seems to have been only invented to cover up for the delay.
36.In above facts and circumstances, I have no doubts in my mind that the applicant has failed to show due diligence or bonafide on its part. Thus, I do not find any satisfactory or sufficient cause to condone the delay. The application under section 5 of Limitation Act is, therefore, dismissed. In the consequence, the appeal cannot be entertained. The matter stands closed with these observations.
37.The Estate Officer's record be returned forthwith with copy of this PPA No. 30/09 Jamia Millia Islamia vs. Sughra Mehdi 17 of 18 judgment.
38. File of the appeal be consigned to record room.
Announced in open Court today
on this 08th day of July,2011 (R.K. GAUBA)
District Judge &
Addl. Sessions Judge,
I/C South District,
Saket, New Delhi
PPA No. 30/09 Jamia Millia Islamia vs. Sughra Mehdi 18 of 18