State Consumer Disputes Redressal Commission
M/S Ardee Infrastructure Private Ltd. vs Surjit Kumar on 7 January, 2015
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, HARYANA, PANCHKULA. First Appeal No.807 of 2014 Date of Institution: 15.09.2014 Date of Decision: 07.01.2015 M/s Ardee Infrastructure Private Ltd., Doctor Gopal Das Bhawan, 26, Barakhamba Road, New Delhi-110001 through its Director/Authorized signatory. Branch city office, Sector 52, Gurgaon, Haryana. ..Appellant VERSUS Surjit Kumar W/o Late Sh.Trilok Kumar R/o Cottage No.12, West Patel Nagar, New Delhi-110008. ..Respondent CORAM: Mr. R.K.Bishnoi, Judicial Member. Mrs. Urvashi Agnihotri, Member. For the parties: Mr.Manjinder Singh proxy counsel for Pankaj Jain, Advocate counsel for the appellant. Mr.Aditya Bhardwaj, Advocate counsel for the Respondent. O R D E R
R.K.BISHNOI, JUDICIAL MEMBER :-
Appellant-opposite party has filed an application under Section 5 of the Limitation Act, 1963 (in short Act) for condonation of delay of 36 days. It is alleged that the impugned order was passed on 10.06.2014 and same was received by the appellant on 30.06.2014. The opposite party misplaced the certified copy in some file and same was traced from files. The delay of 36 days in filing the appeal was not intentional and was due to bonafide reasons, so the same be condoned.
2. Arguments Heard. File perused.
3. From the perusal of the memorandum of appeal and heading of the complaint, it is clear that the appellant is a body corporate. Its matter are to be dealt with by so many persons. As alleged in the application due to over-sight the matter could not be referred to the legal team for opinion about filing an appeal. But any how it is well settled principle of law that if the party is having good case on merits then the delay can be condoned. Reference to this effect can be made to the opinion of our Honble High court expressed in Mrs. Saroj and others Vs. Sh.Baljeet Singh and another reported in 2010 (3) R.C.R. (Civil) 929 (case law cited by the learned counsel for the appellants).
More so our Honble Supreme Court has also opined in G.Ramagowda Vs.Special Land Acquisition Officer, Bangalore, 1988 AIR SC 897, Collector Land Acquisition, Anantnag and another Vs.MST Katiji and others, AIR 1987 SC 1353 that the power to condone the delay in section 5 of the Act had been conferred in order to enable the court to do substantial justice to parties by disposing of matters on merits. It is observed that the expression sufficient cause employed by the legislature is adequately elastic to enable the courts to apply the law in a meaningful manner which subserves the end of justice, which is the life-purpose for the existence of institution of courts. Honble Supreme court laid down in Colector Land Acquisition Officers case (Supra) that such a liberal approach is adopted on a principle mentioned below:-
(1)Ordinarily a litigant does not stand to benefit by lodging an appeal late.(2)
Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned, the highest that can happen is that a cause would be decided on merits after hearing the parties.(3)
Every days delay must be explained does not mean that a pedantic approach should be made. Why not every hours delay, every seconds delay? The doctrine must be applied in a rational, common sense pragmatic manner.(4)
When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be referred for the other (sic) to cannot claim to have vested right in injustice being done because of a non-deliberate delay.(5)
There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay.
In fact he runs a serious risk.(6)
It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds because it is capable of removing injustice and is expected to do so.
4. Honble Supreme Court also opined in G.Ramagowda Majors case (supra) that the expression sufficient cause in Section 5 must receive a liberal construction so as to advance substantial justice and generally delays in preferring appeals are required to be condoned in the interest of justice where no gross negligence or deliberate inaction or lack of bona fides is imputable to the party seeking condonation of delay.
5. Honble Supreme Court opined in State of Nagaland Vs. Lipok A.O. and others, 2005(3) SCC 752 as under:-
11.What constitutes sufficient cause cannot be held down by hard and fast rules. In New India Assurance Co. Ltd. Vs. Shanti Misra (1975)(2) SCC (840) this Court held that discretion given by Section 5 should not be defined or crystallized so as to convert a discretionary matter into a rigid rule of law. The expression sufficient cause should receive a liberal construction. In Brij Inder Singh Vs. Kanshi Ram (ILR) (1918) 45 Cal. 94 (PC) it was observed that true guide for a court to exercise the discretion under Section 5 is whether the appellant acted with reasonable diligence in prosecuting the appeal. In Shakuntala Devi Jain Vs. Kuntal Kumari (AIR 1969 SC
575) a Bench of three-Judges had held that unless want of bona fides of such inaction or negligence as would deprive a party of the protection of Section 5 is proved, the application must not be thrown out or any delay cannot be refused to be condoned.
6. In view of the above, it is a fit case to condone the delay. Accordingly, the delay of 36 days in filing appeal is condoned.
7. As far as the case on merits is concerned, the complainant-respondent and her husband alleged that they purchased Plot No.92 measuring 252 sq. mrts, 300 (Three hundred) Sq Yards from the opposite party and said plot was registered in the name of the complainant. The husband of the complainant died on 13.09.2007. After the death of her husband a family settlement took place and as per the orders of Permanent Lok Adalat dated 11.11.2011 she became exclusive owner of the property mentioned in para No.3 of the complaint. The copy of award was submitted with the opposite party (O.P.) to mutate in her favour. Vide letter dated 03.05.2012 OPs informed her that ownership of the plot has been changed in her name. As she wanted to construct the house, she approached the opposite parties (O.Ps) for construction of the road, which was infront of her plot. She also requested the opposite party to remove all the illegal structure, which was adjacent to her land, but, OP refused to remove the same.
8. Opposite party filed reply and alleged that there was an encroachment on the road on which the plot in dispute is situated. The opposite party is ready to associate with the complainant to remove such encroachment, if any. Preliminary objections regarding maintainability of complaint, cause of action, locus standi were also raised.
9. After hearing both the parties, the learned District Consumer Disputes Redressal Forum, Gurgaon (in short District Forum) directed as under:-
Consequently, OP is directed to construct a mentalled road on both sides of the plot of the complainant free from any encroachment or remove the nearby encroachment of her plot in dispute within 60 days, in default, the complainant will be entitled to interest @ 9% p.a. from the date of each deposit with them till necessary development of the area. The complainant has been harassed causing mental agony and was even compelled to knock the door of this Forum to redress her grievances against the OP, thus, she is entitled to compensation of Rs.25,000/-. The complainant is also entitled to litigation expenses of Rs.5,000/-.
10. Feeling aggrieved therefrom, the appellant-opposite party has preferred this appeal.
11. Learned counsel for the appellant-opposite party (OP) vehemently argued that the learned District Forum has mis-interpreted or read with 3 (A) (iii) of Punjab Scheduled roads and controlled Area Restriction of Unregulated Development Act, 1963 (41 of 1963) (In short PSRCARUDA Act) . The alleged encroachment is on the public road and it is not the duty of the builder to remove the encroachment. The learned District Forum wrongly ordered to construct the road and remove the encroachment.
12. This argument is devoid of any force. For ready reference Section 3 (A) (iii) of PSRCARUDA Act is reproduced as under:-
Section 3 (A) (iii) The responsibility for the maintenance and unkeep of all roads, open spaces, public park and public health services for a period of five years from the date of issue of the completion certificate unless earlier relieved of this responsibility and thereupon to transfer all such roads, open spaces, public parks and public health services free of cost to the Government or the local authority, as the case may be;
From the bare perusal of this Section it is the responsibility of the builder to maintain the road and open spaces etc. for a period of five years from the date of issue of the completion certificate unless earlier relieved of this responsibility. The appellant-OP has failed to show the date of issue of the completion certificate to absolve it from this responsibility. It has also failed to show that it is already relieved from this responsibility. More so, documents shown by the learned counsel for the respondent/complainant the licence No.LC231A is valid upto 28.12.2015 licence No.231 B is valid upto 14.02.2016, licence No.231-C is valid upto 16.03.2016, Licence No.231 D is valid up to 07.11.2015. The OP has not produced any document to show that aforesaid licences are not valid up to the aforesaid date. It means that the licences are in existence and completion certificate is not granted. This controversy was also raised before the Honble Supreme Court in DLF Universal Ltd. and Anr. Vs. director, T.and C. Planning Haryana and others and Ajay enterprises Ltd. and Ors. Vs. State of Haryana and Ors. AIR 2011 SC 1463, wherein this Section was interpreted as under:-
Para No.22 It is no doubt true that Section 3 (3) (a) (iii) imposes responsibility for the maintenance and upkeep of all roads, open spaces, public parks and public health services for a period of five years from the date of issue of the completion certificate unless earlier relieved of this responsibility and thereupon to transfer all such roads, open spaces, public parks and public health services free of cost to the Government or the authority, as the case may be. That a bare reading of the provisions does not sugest that the owner is required to provide the said maintenance services free of cost. On the other hand, the latter part of Section 3(3) (a) (iii) provides that on the expiry of the said period of five years the owner is required to transfer all such roads, open spaces etc. free of cost to the government or the local authority, as the case may be.
13. As per opinion of Honble Supreme court also, it is clear that the builder is to maintain road etc. till five years after the completion certificate or relieved earlier. In the present case also the completion certificate is not issued till today and the appellant is not relieved from this responsibility. Why appellant has not approached concerned authorities to remove the encroachment is not explained. If it was scared from the encroachers then it could have approached the concerned authorities and deposited the cost involved in removing nuisance to show its bonafide, which is not done. It shows that the appellant-OP only wants to sell the plots and not to provide the other facilities, which it is bound to provide.
14. So these arguments are of no avail. The findings of the learned District Forum is well reasoned and based on law and facts.
15. Hence, the appeal fails and the same is hereby dismissed.
16. The statutory amount of Rs.16,000/- deposited at the time of filing the appeal be refunded to the appellant against proper receipt and identification in accordance with rules, after the expiry of period of appeal/revision, if any.
January 07th, 2015 Mrs.Urvashi Agnihotri, Member, Addl.Bench R.K.Bishnoi, Judicial Member Addl.Bench