Delhi High Court
Union Of India (Uoi) vs Wishwa Mittar Bajaj And Sons And Anr. on 6 March, 2007
Equivalent citations: 2007(2)ARBLR404(DELHI)
Author: Gita Mittal
Bench: Gita Mittal
JUDGMENT Gita Mittal, J.
1. The petitioner has filed objections under Section 34 of the Arbitration & Conciliation Act, 1996 challenging the arbitration award dated 25th July, 2005 passed by the sole arbitrator in favor of the claimant/respondent. This petition was beyond the limitation prescribed under Section 34 of the Arbitration & Conciliation Act, 1996. Consequently, the petitioner has filed I.A. No. 9821/2005 under Section 34(3) of the Arbitration & Conciliation Act, 1996 praying for condensation of the delay. The respondent/claimant in the arbitration proceedings has vehemently opposed this application pointing out that the objections have been filed beyond the period which is permissible for condensation of delay and for this reason, the same have to be rejected.
2. Such a prayer has also been made by the respondent by way of I.A. No. 1759/2006 which has been filed under Order 7 Rule 11 of the Code of Civil Procedure.
3. Inasmuch as the two aforesaid applications entail consideration of the same facts, the same have been taken up together for hearing and are being disposed of by this common order.
4. From the facts ultimately emerging on record, there is no dispute to the material facts relating to the date on which the award dated 25th July, 2005 was served upon the petitioner. The admitted position is that the award was received in the office of Chief Engineer, Delhi Zone on the 28th of July, 2005. The objections were filed by the petitioner in this Court on 28th November, 2005 under Section 34 of the Arbitration & Conciliation Act, 1996 being O.M.P. No. 448/2005.
5. Apart from these facts, there is dispute on all issues between the parties to the manner in which the delay has to be condoned.
6. According to Mr. R.V. Sinha, learned Counsel for the petitioner, the award has to be held to have been received by it only on 3rd August, 2005. He further contended that assuming that even if it was received on 30th July, 2005, on calculations from this date, the period of 3 months expired on 29th October, 2005. According to the petitioner, the petitioner was entitled to condensation of delay for further period of 30 days. It is further submitted that as 27th November, 2005 was a Sunday, the objections were filed on 28th November, 2005 and are therefore within the period from which condensation of delay is permissible.
7. Mr. R.V. Sinha, learned Counsel for the petitioner has contended that even if it is held that the petitioner was served on 28th July, 2005, still as per Section 9(1) of the General Clauses Act, the date on which service was effected cannot be counted and as such, the objections would be within limitation.
8. Further urging that the Union of India has to explain only the delay after expiry of the period of 3 months and for the circumstances explained, in the light of the principles laid down by the Apex Court in State of Haryana v. Chandra Mani and Ors. and (Special Tehsildar, Land Acquisition, Kerala v. K.V. Ayisumma, the delay merits condensation. The submission is that there is no benefit to the petitioner by the delay and that condensation of the delay does not prejudice the respondent inasmuch as it can be adequately compensated for the same by costs.
9. In support of the contention that limitation has to be counted from the date the award was seen by the Garrisson Engineer, reliance has been placed on the pronouncement of the Apex Court in Union of India v. Tecco Trichy Engineers & Contractors (Para 6-11)
10. On the other hand, Mr. Harish Malhotra, learned senior counsel for the respondent has contended that the limitation has to be construed from 28th July, 2005 when the award was received in the office of Chief Engineer. It has been contended that on 26th November, 2005, even the 30 days' period prescribed by Section 34(3) of the Arbitration & Conciliation Act lapsed. It has been submitted that in the light of the clear mandate of Section 34(3) of the statute and the principles laid down by the Apex Court in Union of India v. Popular Construction Co., the delay in filing the objections cannot be condoned.
11. Having given my considered thought to the submissions made, I deem it essential to first consider the statutory mandate. There is no dispute that the Arbitration & Conciliation Act, 1996 is a special enactment which is intended to streamline and expedite arbitration proceedings. The extent of judicial intervention has been clearly stipulated in the enactment. Section 5 of the statute contains a non-obstante clause setting the limits to the extent of permissible judicial intervention.
12. The Arbitration & Conciliation Act, 1996 consolidates the law relating to the arbitration on all matters connected therewith or incidental thereto. The examination of the scheme of the statute shows that it provides the complete machinery so far as arbitration is concerned. My attention has been drawn to Section 3(1)(a) and Sub-section (2) of the statute which governs the manner in which written communications are to be received. These statutory provisions deserve to be considered in extenso and read thus:
3. Receipt of written communications:
(1) Unless otherwise agreed by the parties,-
(a) any written communication is deemed to have been received if it is delivered to the addressee personally or at his place of business, habitual residence or mailing address, and xxx xxx xxx (2) The communication is deemed to have been received on the day it is so delivered.
13. Section 5 of the statute contains a non-obstante clause and provides the extent of judicial intervention which is permissible in arbitration matters and reads thus:
5. Extent of judicial intervention:- Notwithstanding anything contained in any other law for the time being in force, in matters governed by this Part, no judicial authority shall intervene except where so provided in this Part.
14. So far as objections to an arbitration award are concerned, the same are permitted to be made under Section 34 in Chapter VII of the statute. The petitioner has filed objections to the arbitration award dated 25th July, 2005. However, the same have been filed beyond the prescribed period of limitation. The statutory provisions which govern the limitation period within which the objections have to be made as well as the provision whereunder delay may be condoned are contained in Section 34(3) of the Arbitration & Conciliation Act, 1996 which reads thus:
34. Application for setting aside arbitral award:
xxx xxx xxx (3) An application for setting aside may not be made after three months have elapsed from the date on which the party making that application had received the arbitral award or, if a request had been made under Section 33, from the date on which that request had been disposed of by the arbitral tribunal:
Provided that if the court is satisfied that the applicant was prevented by sufficient cause from making the application within the said period of three months it may entertain the application within a further period of thirty days, but not thereafter. Section 31(5) of the statute provides that after the arbitral award is made, a signed copy shall be delivered to each party.
15. It is thus apparent that an application for setting aside the arbitration award cannot be made after 3 months have elapsed from the date from which the party objecting to the award has received the same.
The statute has also prohibited the court from entertaining such an application which is made after the period of 3 months of receipt of the award, if the application is not made within a further period of 30 days. The statute has clearly mandated that such application can not be entertained thereafter.
16. There is no dispute that under Section 31(5) of the statute, the learned arbitrator was required to deliver a signed copy of the award to each party. In the present case, there is no dispute that the award has been so sent to both parties. A dispute has been raised at the instance of the petitioner that the 'delivery' which is statutorily recognised has to be construed from the date the award falls in the hands of the addressee or the concerned person.
17. My attention has been drawn to the stand of the petitioner before this Court in I.A. No. 9821/2005 filed under Section 34(3) of the Arbitration & Conciliation Act, 1996, wherein it was stated that 'the certified copy of the impugned award dated 28th July, 2005 was received by the petitioner on 3rd August, 2005'.
18. The respondent had vehemently urged that this was a mis-statement and that the award was actually received by the petitioner on the 28th July, 2005. It was only in court on the 28th of July, 2006 that the petitioner admitted for the first time that on 28th July, 2005 the award was received by the Chief Engineer who forwarded the same to the Garrisson Engineer whose office received this award on 3rd of August, 2005.
19. Perusal of the award in the instant case shows that the Chief Engineer (Delhi Zone) was a party to the arbitration proceedings. He has been so arrayed as a respondent in the arbitration proceedings. There is no dispute that the award was received in the office of the concerned Chief Engineer on 28th July, 2005. Counsel has contended that the Chief Engineer saw this award for the first time on 30th July, 2005 and for this reason, the limitation has to be calculated from such date.
20. I find that the Apex Court had occasion to consider such a situation. In the pronouncement reported at Union of India v. Tecco Trichy Engineers & Contractors, the Apex Court construed the meaning to be assigned to the term 'party' in Section 31(5) and `party making application under Section 34 of the Arbitration Act'. It was noticed that the award had been sent to General Manager and was received in his inward office. The General Manager in this case was not a signatory to the contract and was not concerned with the arbitration proceedings. In this context, the court has emphasised the importance of delivery of the arbitration award under Section 31(5) as being the matter of substance and not a matter of mere formality. The court laid down the following binding principles:
8. The delivery of an arbitral award under Sub-section (5) of Section 31 is not a matter of mere formality. It is a matter of substance. It is only after the stage under Section 31 has passed that the stage of termination of arbitral proceedings within the meaning of Section 32 of the Act arises. The delivery of arbitral award to the party, to be effective, has to be 'received' by the party. This delivery by the Arbitral Tribunal and receipt by the party of the award sets in motion several periods of limitation such as an application for correction and interpretation of an award within 30 days under Section 33(1), an application for making an additional award under Section 33(4) and an application for setting aside an award under Section 34(3) and so on. As this delivery of the copy of award has the effect of conferring certain rights on the party as also bringing to an end the right to exercise those rights on expiry of the prescribed period of limitation which would be calculated from that date, the delivery of the copy of award by the Tribunal and the receipt thereof by each party constitutes an important stage in the arbitral proceedings.
9. In the context of a huge organisation like the Railways, the copy of the award has to be received by the person who has knowledge of the proceedings and who would be the best person to understand and appreciate the arbitral award and also to take a decision in the matter of moving an application under Sub-section (1) or (5) of Section 33 or under Sub-section (1) of Section 34.
21. Therefore, because the service of the award of the arbitrator had been effected on a person who had not been a party in the arbitration proceedings and time was taken by the department to take appropriate steps, the court was of the view that service of notice on the concerned Chief Engineer would be the starting point of limitation.
22. Before this Court, there is no dispute that the Chief Engineer, Delhi Zone whose office received the award on 28th July, 2005 was the authority concerned who had signed the contract and contested the arbitration. Consequently, the attempt made by the objector to orally urge that the limitation has to be construed from the date on which the award was received by the Garrisson Engineer is of no avail. In my view, the award has to be deemed as having been delivered to the concerned party in accordance with requirement of Section 31(5) of the Arbitration & Conciliation Act, 1996 when the same was received in the office of Chief Engineer on 28th July, 2005.
23. I therefore also reject the contention on behalf of the petitioner that service is to be deemed to have been effected on the Chief Engineer when he saw it on 30th of July, 2005. There is no explanation as to why the Chief Engineer did not examine the matter immediately on receipt of the award on 28th July, 2005. In this behalf, I find force in the submission made by learned Counsel for the respondent that such a plea cannot be permitted to be set up inasmuch as the Chief Engineer may sleep over the matter and not take up the award at all for a prolonged period after its receipt in its office. Such failure to act would not have extended the date from which the limitation would commence to run against the petitioner.
24. I also find that the respondents have placed reliance on a noting of the Chief Engineer which is dated 30th July, 2005 and has been enclosed with the reply of the respondent to IA No. 1759/2006. This noting of the Chief Engineer is dated 30th July, 2005 and directs his office to link up the award and for the same to be put up on the file. There is another noting by some authority dated 30th July, 2005 which is not legible but is marked `very urgent'. It is therefore apparent that it was certainly realised on 30th July, 2005 in the office of the Chief Engineer that the matter required urgent attention. There is nothing on record to explain as to why the petitioner slept over the matter thereafter.
25. It now becomes necessary to examine the manner in which the limitation would require to be calculated. Section 34(3) provides a period of three months for filing objections to the award from the date on which the party making the objections has received the arbitral award. The expression `three months' has not been defined by any statute. However, the expression 'month' has been the subject matter of judicial interpretation in several pronouncements. The same has also been defined by the Halsbury's Laws of England (Volume 37), third edition in paragraph 143 wherein it is described thus:
143. Calendar month running from arbitrary date:- When the period prescribed is a calendar month running from any arbitrary date the period expires with the day in the succeeding month immediately preceding the day corresponding to the date upon which the period starts; save that, if the period starts at the end of a calendar month which contains more days than the next succeeding month, the period expires at the end of the latter month.
26. Such meaning of a 'month' was accepted by this Court in the pronouncement of the Division Bench reported at Daryodh Singh v. UOI and Ors. In this behalf, the court held thus:
15. The deposit of the amount of Rs. 4500/- was actually made on May 16, 1960. It has, therefore, to be seen whether the deposit was made 'two months prior to 15-7-1960'. In its ordinary accepted sense the expression 'month' means a 'calendar month' and not a 'lunar month'.
xxx xxx xxx Thus one month counted from July 15, 1960 would be on June 16 and the second month counted from June 16 would be on May 17, 1960. Evidently, therefore, the deposit made on May 16, 1960 was two months prior to July 15, 1960.
27. In AIR 1970 AP 234 In re V.S. Metha and Ors., the court considered the expression 'three months of the date' in Section 106 of the Factories Act, 1948. It was held by the Court that month has to be construed as the calendar month as per the English Calendar.
28. Therefore, the expression 'three months' in Section 34(3) has to be construed as three calendar months from the date on which the signed award made by the arbitrator was delivered to the party.
29. Learned Counsel for the petitioner has submitted that the award having been received on 28th July, 2005, this date has to be excluded for the purposes of computation of the period of three months and consequently, this period would end on 29th October, 2005.
30. If calculated on the basis of principles laid down by this Court in Daryodh Singh v. UOI and Ors., the first month counted from 28th July, 2005 would end on 27th of August, 2005, the second month would end on 26th of September, 2005 and the third month would end on 25th of October, 2005.
Even if the contention of learned Counsel for the petitioner was to be accepted that the 28th of July, 2005 was required to be excluded, then if the period of 3 months is construed from 29th July, 2005, the first month would end on 28th of August, 2005, the second month would end on 27th of September, 2005 and the third month would end on 26th of October, 2005.
31. On this basis, the period of 30 days which has to be construed in terms of provision of Section 34(3), such further period would expire on 24th of November, 2005. Such period, as per the date suggested by learned Counsel for the petitioner, would expire on 25th November, 2005.
32. The objections having been filed on 28th November, 2005 were therefore clearly beyond the period of 30 days after the expiry of three months from the date on which the petitioner received the award.
33. Learned Counsel for the petitioner has submitted that the period of three months has ended on 29th October, 2005. The period of 30 days thereafter expired on 28th November, 2005. It has been submitted that 27th of November, 2005 was a Sunday and therefore, having regard to the provision of Section 10 of the General Clauses Act, such date of limitation being a holiday and the objections having been filed on the next date are within limitation.
It has therefore been submitted that objections were filed on 28th November, 2005 are within the 30 days' period of permissible condensation.
34. In the light of the calculation effected hereinabove, I have found that looked at from whichever angle, the condonable period of thirty days has expired before the 27th November, 2005. Therefore nothing turns on the fact that 27th of November, 2005 was a Sunday. It is not the petitioner's contention that 24th to 26th of Novemebr, 2005 were non-working days for the courts.
35. I have noticed the statutory provisions hereinabove. I find that the statute does not permit any condensation of delay upon lapse of 30 days after 3 months have elapsed after the receipt of the award.
In this behalf, it would be topical and instructive to advert to the principles laid down by the Apex Court in the judicial pronouncement reported at entitled UOI v. Popular Construction Co., wherein the court was required to consider the question as to whether Section 5 of the Limitation Act, 1963 would apply to proceedings under Section 34 for setting aside the arbitral award. In this behalf, the court had held thus:
12. As far as the language of Section 34 of the 1996 Act is concerned, the crucial words are 'but not thereafter' used in the proviso to Sub-section (3). In our opinion, this phrase would amount of an express exclusion within the meaning of Section 29(2) of the Limitation Act, and would therefore bar the application of Section 5 of that Act. Parliament did not need to go further. To hold that the court could entertain an application to set aside the award beyond the extended period under the proviso, would render the phrase 'but not thereafter' wholly otiose. No principle of interpretation would justify such a result.
xxx
14. Here the history and scheme of the 1996 Act support the conclusion that the time-limit prescribed under Section 34 to challenge an award is absolute and unextendible by court under Section 5 of the Limitation Act. The Arbitration and Conciliation Bill, 1995 which preceded the 1996 Act stated as one of its main objectives the need 'to minimise the supervisory role of courts in the arbitral process'. This objective has found expression in Section 5 of the Act which prescribes the extent of judicial intervention in no uncertain terms:
5. Extent of judicial intervention - Notwithstanding anything contained in any other law for the time being in force, in matters governed by this Part, no judicial authority shall intervene except where so provided in this Part.
xxx
16. Furthermore, Section 34(1) itself provides that recourse to a court against an arbitral award may be made only by an application for setting aside such award 'in accordance with' Sub-section (2) and Sub-section (3). Sub-section (2) relates to grounds for setting aside an award and is not relevant for our purposes. But an application filed beyond the period mentioned in Section 34, Sub-section (3) would not be an application 'in accordance with' that sub-section. Consequently by virtue of Section 34(1), recourse to the court against an arbitral award cannot be made beyond the period prescribed.
36. In the light of the statutory mandate and the binding principles of law laid down by the Apex Court, this Court has no jurisdiction to condone the delay which is beyond the 30 days' period after 3 months have elapsed from the date on which the petitioner has received the arbitral award. This Court therefore does not have the jurisdiction to condone the delay beyond such a period.
37. Even otherwise, it would be appropriate to notice the reasons given by the petitioner as a justification for the condensation of delay. Despite the noting by the Chief Engineer on 30th July, 2005 that the matter needed urgent attention, I find that the petitioner has proceeded in the matter most casually. As per the averments in I.A. No. 9821/2005, the Government counsel was approached for the first time only on 5th September, 2005. It has been stated that she refused to give an opinion in the matter on 9th October, 2005. Therefore, opinion of a senior counsel was sought who also refused to give his opinion.
No specific dates have been given in regard to this averment. No communications in this behalf have been placed before this Court. Thereafter, steps were taken only on 28th October, 2005 to seek opinion of the Legal Adviser (Division) without opinion of the government counsel.
In para 6 of the application, the petitioner has stated that on 8th November, 2005, the litigation cell of the Ministry of Law and Justice, Delhi High Court was approached for appointment of a new government counsel for opinion and for filing objections. No counsel was appointed by the litigation cell in the absence of advice of the Legal Adviser (Division) to file objections and absences of a decision taken by the competent authority based on such advice.
According to the petitioner, advice of the Legal Adviser (Division) was received only on 25th November, 2005 where after the present counsel was appointed on 25th November, 2005. Information sought by him was provided on 26th November, 2005 and objections were filed thereafter.
38. In my view, there cannot have been a more casual approach in a matter which involves serious consequences and financial liability. The respondents have sought to take shelter in the pronouncement of the Supreme Court in States of Haryana v. Chandra Mani and Ors.
It would be useful to notice the anguish expressed by the Supreme Court in the manner in which the authorities of the State function. Specific directions were issued by the Apex Court in State of Haryana in paras 11 which were to the following effect:
11. It is notorious and common knowledge that delay in more than 60 per cent of the cases filed in this Court - be it by private party or the State - are barred by limitation and this Court generally adopts liberal approach in condensation of delay finding somewhat sufficient cause to decide the appeal on merits. It is equally common knowledge that litigants including the State are accorded the same treatment and the law is administered in an even-handed manner. When the State is an applicant, praying for condensation of delay, it is common knowledge that on account of impersonal machinery and the inherited bureaucratic methodology imbued with the note-making, file-pushing, and passing-on-the-buck ethos, delay on the part of the State is less 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 officers/agencies proverbially at slow pace and encumbered process of pushing the files from table to table and keeping it on routine. Considerable delay of procedural red-tape in the process of their making decisions is a common feature. Therefore, certain amount of latitude is not impermissible. If the appeals brought by the State are lost for such default no person is individually affected but what in the ultimate analysis suffers, is public interest. 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 justice-oriented process. The court should decide the matters on merits unless the case is hopelessly without merit. No separate standards to determine the cause laid by the State vis-a-vis private litigant could be laid to prove strict standards of sufficient cause. 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 adjustment and should authorise the officers to 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 he should be made personally responsible for lapses, if any. Equally, the State cannot be put on the same footing as an individual. The individual would always be quick in taking the decision whether he would pursue the remedy by way of an appeal or application since he is a person legally injured while State is an impersonal machinery working through its officers or servants. Considered from this perspective, it must be held that the delay of 109 days in this case has been explained and that it is a fit case for condensation of the delay.
39. This judgment was pronounced on 30th January, 1996. The instant case has arisen after almost a decade of the pronouncement by the Apex Court. There is no justification as to why no timely effort has been taken in this matter which relates to a civil contract.
40. The other judgment relied upon by the petitioner reported at Special Tehsildar, Land Acquisition, Kerala v. K.V. Ayisumma noticed that when the delay was occasioned at the behest of the Government, it would be very difficult to explain the day to day delay. The court noticed that transaction of the business of the Government was being done leisurely by officers who had no or evince no personal interest at different levels. It was further held that "no one takes personal responsibility in processing the matters expeditiously. As a fact at several stages, they take their own time to reach a decision. Even inspite of pointing out at the delay, they do not take expeditious action for ultimate decision in filing the appeal. This case is one of such instances. It is true that Section 5 of the Limitation Act envisages explanation of the delay to the satisfaction of the court and in matters of Limitation Act made no distinction between the state and the citizen. Nonetheless adoption of strict standard of proof leads to grave miscarriage of public justices. It would result in public mischief by skilful management of delay in the process of filing the appeal. The approach of the court should be pragmatic and not pedantic...."
41. It is well settled that administrative delays which are urged by the respondents have to be properly and adequately explained. Negligence or indifference on the part of the authority or its officers in pursuing a matter cannot be condoned simply because the applicant is a State or government undertaking. The law of limitation remains the same and certainly there cannot be two laws, one governing the State and the other governing individuals. Cryptic and routine explanations for condensation of delay cannot be accepted as adequate explanation or sufficient cause for condensation of delay. (Re: DDA v. Ramesh Kumar) This Court in several judgments has noted the manner in which matters are proceeded with utmost casualness on the part of the State and its officials. In this behalf, in a decision rendered on 2nd December, 1988 reported at UOI v. Mangat, noticing the judgments of the Apex Court where delay was condoned observed thus:
4. ...The Supreme Court was thus concerned with isolated cases of said abretions. What we are facing in this Court is a spate of delayed appeals without any proper and convincing explanation or even an attempt in doing so. It is a common experience of Benches of this Court that the condensation applications are in a cyclostyled form and only the dates and days are filled in hand. The stay applications are also mechanically drafted and are in one standard cyclostyled form. Usually, the appeals are filed with defects. After the Registry points out the defects, the defects are not removed for months together. We do not think that the Supreme Court judgments can be usefully availed of by the union of India in the colossal situation of negligence and delays as we find in this Court. In fact, it appears, that the liberal approach of the higher courts and the understanding of the difficulties of the Government departments shown by the courts have not been appreciated in its proper perspective by the Government departments. Nobody in the Government Department feels any responsibility or takes any responsibility for the delay caused in the movement of files. There is no conscious and systematic efforts to keep the deadline of limitation in view and to speed up the disposal at various stages. If a serious effort is made in the Government Departments to fix the responsibility on the persons causing delay the present sorry state of affairs can be rectified substantially within short time. Occasionally, important questions of law or principles of compensation or heavy financial stakes are involved in land acquisition matters. The agencies of the Government involved in the acquisition, unfortunately, seems to be completely oblivious of these considerations. In some cases there is great urgency of acquisition of land for urgent developmental projects. They are likely to be frustrated by the habitual negligence of Government departments.
5. The practical problem in the day to day cases is how to reconcile the two principles laid down by the Supreme Court, namely - (i) the doctrine of equality before law demands that all litigants including the State as litigant should be accorded the same treatment and the law is administered in an even-handed manner, and (ii) it would perhaps be unfair and unrealistic to put Government and private parties on the same footing in all respects in such matters. The Supreme Court in the judgments referred to above had observed that the State should not be given step-motherly treatment. If all the petitions of condensation of delay filed in the large number of cases are to be accepted, as requested by the Government Advocate, a citizen would naturally complain that the State is being given a `son-in-law' treatment. In State of M.P. and Ors. v. Vishnu Prasad Sharma and Ors.' AIR 196 SC 1593 at page 1598 the three Judges Bench of the Supreme Court observed : "In interpreting these provisions the court must keep in view on the one hand the public interest which compels such acquisition and on the other the interest of the person who is being deprived of his land without his consent." The Supreme Court further held: "the provisions of the statute must be strictly construed as it deprives a person of his land without his consent." A golden rule for reconciliation of these conflicting considerations would be to use the discretion with commonsense. Extreme positions of either not condoning the delay howsoever negligible it may be or to condone the delay howsoever large and unjustifiable it may be should be avoided. The discretion has to be exercised on the basis of the facts of each case with commonsense and public interest in view.
42. There is, however, yet another angle to the miscarriage of public justice. Despite the anguish expressed by the courts, there is neither change in work habits nor in attitudes. The delays, it is experienced, arise out of not only apathy but on account of failure to discharge official and assigned duties. The sheer effort in ensuring dispensation of substantial justice results in the recalcitrant and negligent official from going scot free despite the drastic consequences of their delay. Even if the costs of the judicial time which is utilised in hearing and disposal of applications seeking condensation of delays were to be ignored, it is important to notice statutes as the Arbitration & Conciliation Act, 1996 and the Land Acquisition Act, 1894 prescribe extremely high rates of interest rates on the awarded amounts. The rates are higher than those paid by banks and financial institutions on deposits of any kind. As a result of the apathetic and inefficient function of its officials, the public exchequer is burdened with huge liabilities on account of litigation costs, interest awards and conditional costs for allowing such applications.
At the same time public administration gets steeped in inefficiency and file pushing without application of mind and involvement which attitude is manifested in daily function. Looked at from any angle, it is the law abiding, conscientious citizen alone who suffers. Lack of accountability aceberates not only inefficiency, but becomes a breeding ground for corrupt practices as no distinction is drawn between a bonafide delay and one emanating from gross negligence. At a stage when the economy is at the brink of a major leap forward, certainly such apathy cannot be countenanced. Gone are the days when the citizen had no choice when, say, for instance, air travel which was once restricted to only one airline so that a passenger had to endure such indolent conduct of its employees, which was as has been commented upon by the Supreme Court. The ultimate loss undoubtedly is to the nation.
It is therefore high time that such negligence not be countenanced and some element of accountability introduced into the system so that not only are Government servants compelled to discharge the duties which they are paid for, but public money is saved so that the element of efficiency is brought into public dealing.
43. In the instant case, the matter had been brought to the notice of the highest in the hierarchy of officials. It has passed through the hands of those with legal training who knew better. Certainly the mere fact that the file was carried from one table to another and left there for unexplained duration, cannot by itself be sufficient to condone the delay, if it were permissible.
In view of the foregoing discussion, the petitioner has failed to render even satisfactory explanation for condensation of delay even if the same were condonable, which I have held it is not.
For all the reasons stated, I.A. No. 9821/2005 is hereby dismissed.
So far as I.A. No. 1759/2006 filed by the respondent is concerned, the objections filed by the petitioner are delayed beyond the condonable period and consequently have to be dismissed in the light of the statutory provisions and the law laid down by the Apex Court.
In view of the reasons recorded hereinabove, this application deserves to be allowed.