Allahabad High Court
Basic Shiksha Parishad Up Alld And Anr. vs Aditya Kishor And Prabhat Kumar ... on 1 February, 2013
Author: Sudhir Agarwal
Bench: Sudhir Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 7 Case :- WRIT - A No. - 5373 of 2013 Petitioner :- Basic Shiksha Parishad U.P. Allahabad and others Respondent :- Aditya Kishor and Prabhat Kumar (Deceased) and Ors. Petitioner Counsel :- J.N. Maurya Respondent Counsel :- R.K. Mishra Hon'ble Sudhir Agarwal, J.
1. Heard Sri J.N. Maurya, Advocate, for petitioner and Sri R.K. Mishra, Advocate, for respondent no. 4, Sri Dinesh Singh.
2. This writ petition is a glaring example of negligence and lethargy on the part of a statutory body and officials not only in the matter of managing the affairs of the Department, but also in legal matters.
3. House No. 11/510, Sooterganj, Kanpur Nagar was on rent with petitioners. They were running a primary school since 1948. The rent admitted between the parties was 72.50 per month including water tax and sewage tax. The area of accommodation in question is 186.63 sq. meter which includes constructed area of 138.9 sq. meter.
4. Landlord, namely, Aditya Kishor and others, instituted proceedings for enhancement of rent under Section 21 (8) of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as "Act, 1972") by filing an application which was registered as Case No. 84 of 1995 before City Magistrate/ Rent Control and Eviction Officer, Kanpur Nagar (hereinafter referred to as "RCEO"). RCEO rejected the said application by order dated 12.8.1998 on the ground that landlord has not given proper valuation and estimation for determining rent. Aggrieved thereto, landlord preferred Appeal No 131 of 1998 which was allowed vide judgment dated 10.12.2003 and the case was remanded to RCEO for deciding it afresh on merits. The application of landlord was again registered by RCEO as Case No. 6 of 2004 and he decided the same vide judgment dated 15.1.2007 determining rent of the accommodation in question at Rs. 2,167/- per month since 1.4.1994, i.e. the first day of next month from the date of application dated 8.3.1994.
5. Petitioners along with the Director (Basic Education), Lucknow and Education Superintendent, Basic Education Board, Moti Jheel, Kanpur preferred Appeal No. 8/74 of 2007 before District Judge, Kanpur Nagar, which came up for consideration before Addl. District Judge, Court No. 7, Kanpur Nagar. The appeal fixed on 2.5.2008 when dismissed for want of prosecution since none appeared on behalf of appellant, i.e., petitioners. An application for restoration of appeal was filed by petitioners on 29.5.2008, registered as Misc. Case No. 10/74 of 2008, but the same has also been dismissed vide order dated 9.11.2011 by Appellate Court. It is this order which has been assailed in this writ petition.
6. Sri J.N. Maurya, learned counsel for petitioners, submitted that Restoration Application was filed within less than 30 days before the Appellate Court and there was no delay in filing the same, yet Appellate Court has declined to restore appeal, which is illegal and arbitrary.
7. From the record, however, I find from order sheet of Appellate Court, a complete inaction and lack of pairavi with impunity on the part of petitioners in the aforesaid appeal. Petitioners or their counsels have not appeared before the Appellate Court on various dates earlier also. The appeal was entertained and registered on 1.12.2007 issuing notice to opposite parties therein fixing 8.1.2008 for objection and hearing. Appellants were permitted to take steps within 7 days. On 8.1.2008, when case was taken up, none appeared before Appellate Court on behalf of appellants. The Court also noticed that even steps were not taken for service of notice upon opposite parties in appeal. The Court granted indulgence and permitted appellants to take steps within seven days and fixed 8.2.2008 for objection/ hearing. Again on 8.2.2008, neither any one appeared on behalf of appellants nor they had taken steps for service of notice upon opposite parties in appeal. The Court still granted indulgence and deferred the matter to 31.3.2008 for objection/ hearing and granted 7 days' time to the appellant for taking steps. Again there was a complete failure on the part of petitioners inasmuch on 31.3.2008 neither anyone appeared on behalf of petitioners nor they had taken steps.
8. For the fourth time, Court granted indulgence directing appellate to take steps within a week and fixed 2.5.2008 for objection (by opposite parties) and disposal. This time also petitioners failed having not taken steps at all. On 2.5.2008 when the case was taken up neither steps were taken nor anyone appeared before Appellate Court. In these circumstances, the Appellate Court dismissed appeal for want of prosecution.
9. It is, thus, evident that the appeal has not been dismissed on mere absence of petitioners or their counsels but for not taking steps for service of notice upon opposite parties, that is for want of prosecution. In the restoration application preferred by petitioners-appellants there is no whisper or explanation as to why from 1.12.2007 to 2.5.2008 they had not taken steps for service of notice upon opposite parties in appeal, and, why on all the above dates none appeared on behalf of appellants.
10. It is true that to consider sufficiency of explanation for absence on the date when the order dismissing the case for want of prosecution was passed, default or absence on earlier dates should not be considered, but, in the present case, there is not only mere absence but also lack of initiation in taking prescribed steps by appellants so as to enable opposite parties to be served with notice of appeal whereafter matter could have proceeded further. On this aspect, even on 2.5.2008, there is no explanation whatsoever. This is what has been said by Appellate Court in the impugned order dated 9.11.2011, and, on this aspect, there is no explanation, whatsoever, in the entire writ petition. The Appellate Court has observed, in the impugned order dated 9.11.2011, as under:
^^i=koyh ds vuq'khyu ls Li"V gS fd izkFkhZ@foHkkx dks mijksDr of.kZr ekeys esa fu;r fnukad ls iwoZ foi{khx.k ds fy;s uksfVl dh iSjoh djus gsrq yxkrkj dbZ ckj vknsf'kr fd;k x;k FkkA ijUrq izkFkhZ foHkkx }kjk dksbZ iSjoh ugha dh x;h FkhA^^ "From perusal of record, it is clear that several times applicant/department was persistently directed before the date fixed in the aforesaid matter for doing pairavi for service of notice on opposite parties, but no pairavi was done by applicant/department."
(English translation by the Court)
11. Besides above, regarding alleged accident met by petitioner's pairokar on 2.5.2008, it does appear that no evidence to fortify the said fact was placed before Court below.
12. The matter does not rest here. Before this Court also the writ petition has been filed after getting it reported on 28.1.2013, though the impugned order was passed on 9.11.2011, i.e., more than 14 months ago. For this prolonged laches and delay, the kind of explanation given in para 16, 17 and 18 is not only unreliable but lacks credibility. All these paragraphs have been sworn on the basis of record, but the averments are not supported by any such record on the basis whereof the same have been sworn.
13. Delay and laches constitute substantial reason for disentitling relief in equitable jurisdiction under Article 226 of the Constitution of India. In New Delhi Municipal Council Vs. Pan Singh and others J.T.2007(4) SC 253, the Apex Court observed that after a long time the writ petition should not have been entertained even if the petitioners are similarly situated and discretionary jurisdiction may not be exercised in favour of those who approached the Court after a long time. It was held that delay and laches were relevant factors for exercise of equitable jurisdiction. In M/S Lipton India Ltd. And others vs. Union of India and others, J.T. 1994(6) SC 71 and M.R. Gupta Vs. Union of India and others 1995(5) SCC 628 it was held that though there was no period of limitation provided for filing a petition under Article 226 of Constitution of India, ordinarily a writ petition should be filed within reasonable time. In K.V. Rajalakshmiah Setty Vs. State of Mysore, AIR 1961 SC 993, it was said that representation would not be adequate explanation to take care of delay. Same view was reiterated in State of Orissa Vs. Pyari Mohan Samantaray and others AIR 1976 SC 2617 and State of Orissa and others Vs. Arun Kumar Patnaik and others 1976(3) SCC 579 and the said view has also been followed recently in Shiv Dass Vs. Union of India and others AIR 2007 SC 1330= 2007(1) Supreme 455 and New Delhi Municipal Council (supra). The aforesaid authorities of the Apex Court has also been followed by this Court in Chunvad Pandey Vs. State of U.P. and others, 2008(4) ESC 2423. This has been followed in Virender Chaudhary Vs. Bharat Petroleum Corporation & Ors., 2009(1) SCC 297. In S.S. Balu and another Vs. State of Kerala and others, 2009(2) SCC 479 the Apex Court held that it is well settled principle of law that delay defeats equity. It is now a trite law that where the writ petitioners approaches the High Court after a long delay, reliefs prayed for may be denied to them on account of delay and laches irrespective of the fact that they are similarly situated to other candidates who have got the benefit. In Yunus Vs. State of Maharashtra and others, 2009(3) SCC 281 the Court referred to the observations of Sir Barnesdelay Peacock in Lindsay Petroleum Company Vs. Prosper Armstrong Hurde etc. (1874) 5 PC 239 and held as under:
"Now the doctrine of laches in Courts of Equity is not an arbitrary or technical doctrine. Where it would be practically unjust to give a remedy either because the party has, by his conduct done that which might fairly be regarded as equivalent to a waiver of it, or where by his conduct and neglect he has though perhaps not waiving that remedy, yet put the other party in a situation in which it would not be reasonable to place him if the remedy were afterwards to be asserted, in either of these cases, lapse of time and delay are most material. . . . . . . Two circumstances always important in such cases are, the length of the delay and the nature of the acts done during the interval which might affect either party and cause a balance of justice or injustice in taking the one course or the other, so far as relates to the remedy."
14. There is one more interesting aspect. The petitioners themselves are satisfied that there is some lethargy and negligence on the part of their employees or officials, yet it is not the case of petitioners that any action, till date, has been taken against the persons responsible for such lethargy and negligence. Various principles/observations, which have been noticed by various Courts, including Apex Court, extending a little extra space and indulgence in the matter of entertaining delayed and belated cases, and that too of Government or State instrumentalities, cannot be treated as if a licence has been given to State and public authorities to function in a most negligent, lethargic and non-serious manner and yet remain protected from any appropriate disciplinary or otherwise action. There is not even a whisper that any one has been made accountable for the alleged lethargy and negligence, pleaded by petitioners themselves in para 26 of writ petition, which reads as under:
"The functions of the State often take some times, However for the lethargy and negligence of its employees the State itself can not be subjected to suffer loss which is ultimately the loss of Public at large." (emphasis added)
15. The explanation, therefore, is only a cover up but does not show any remorse or repentance or honest intention on the part of petitioners, feeling a sense of guilt and extending an assurance of non repeat thereof. The attitude of petitioners is just a casual and lip-service, instead of being substantive one. In these facts and circumstances, this writ petition, in my view, deserves to be dismissed not only with exemplary cost, but, it is a fit case where the departmental Head must take appropriate action against erring officials awarding suitable punishment and getting department compensated from such erring officials.
16. Before I could conclude the order, learned counsel for petitioners further stated that in the mid session, if petitioners are compelled to vacate the School in question, that would cause serious prejudice to the students, who are already undergoing education in the Primary School, situate in the accommodation in question. On this aspect, Sri Mishra, learned counsel appearing for respondent-landlords stated that in case petitioners give an undertaking to vacate the premises in question within such time, as permitted by this Court, and also pay rent due to him (past and till the date the accommodation is vacated), he has no objection in granting indulgence permitting the petitioners to vacate the premises.
17. In the above facts and circumstances, this writ petition is dismissed with cost, quantified to Rs. 50,000/-, subject to following directions/observations:
(A) The petitioners, if file an affidavit within 15 days from today before the Trial Court containing an undertaking that they shall vacate the premises in question and hand over its vacant possession to the landlord-respondents within six months from today, the proceedings for execution of judgments impugned in this writ petition shall not proceed.
(B) However, in case of any default, the above indulgence granted by this Court shall automatically cease and it would be open to landlords to proceed for execution of impugned orders immediately thereafter in accordance with law.
(C) It is also provided that in case the petitioner-tenants after filing affidavit, as aforesaid, and enjoying deferment of vacation of premise in question fail to comply with any of the conditions, as aforesaid, they shall be liable to pay for such non compliance of pious undertaking given to the Court a further exemplary costs of Rs. 50,000/- which shall also be recovered from petitioner-tenants alongwith execution proceedings, if such necessity arises.
(D) Principal Secretary (Basic Education) shall hold appropriate disciplinary proceedings to find out the persons responsible for the lethargy, negligence and alleged collusion with landlord and after completion of enquiry, to award suitable punishment. He shall proceed with the matter in accordance with applicable rules and shall ensure completion of the departmental enquiry within six months and submit compliance report before this Court on 5.8.2013.
Dt. 01.02.2013 PS