NCDRC

NCDRC

RP/3632/2013

LUCKNOW DEVELOPMENT AUTHORITY - Complainant(s)

Versus

DEVENDRA NATH MISHRA - Opp.Party(s)

MR. SHAKIL AHMAD SYED & MR. MILAN LASKAR

11 Sep 2014

ORDER

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
 
REVISION PETITION NO. 3632 OF 2013
 
(Against the Order dated 25/03/2011 in Appeal No. 267/2010 of the State Commission Uttar Pradesh)
1. LUCKNOW DEVELOPMENT AUTHORITY
THROUGH ITS SECRETARY. 6 JAGDISH CHAND BOSE MARG,
LUCKNOW
U.P
...........Petitioner(s)
Versus 
1. DEVENDRA NATH MISHRA
S/O SH.SHIVRAJ MISHRA, R/O HOUSE NO-MIG-192/1, TIKAITRAI SCHEME, LDA COLONY,
LUCKNOW
U.P
...........Respondent(s)

BEFORE: 
 HON'BLE MR. JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER
 HON'BLE MRS. REKHA GUPTA, MEMBER

For the Petitioner :
Mr. Milan Sarkar, Advocate
For the Respondent :
Mr. Abhishek Srivastava, Advocate

Dated : 11 Sep 2014
ORDER

This revision petition is directed against the order of the Uttar Pradesh State Consumer Disputes Redressal Commission, Lucknow (in short, “the State Commission) dated 25.3.2011 which reads as under: -

25.3.2011

The case called out. None responds for the parties even though the cause list of date has been shown on internet through the Commission’s website.

Smt. Parul Bajpai, learned counsel for the appellant  is  not  available.  It  appears  that  the

 

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appellant is not now interested in proceeding with this appeal.

Let it, therefore, be dismissed in default of the appellant and for non-prosecution.”

 

2.       Briefly stated facts relevant for the disposal of this revision petition are that respondent Devender Nath Mishra filed a consumer complaint against the petitioner alleging deficiency in service on the part of the petitioner in relation to the allotment of MIG flat with following prayer: -

“1.       To set aside the illegal letter bearing No.249/S.O.(P)/01 dated 6.12.2003 (Annexure-10) of the opposite parties and to order directing the opposite parties to cause the registry of the flat in the question of the complainant on the basis of the prescribed rate of final costing of the flat from the date of original allotment of the flat in question:

2.         to pass order awarding a sum of Rs.10,000/- in favour of the complainant for the mental pain.

3.         to award a sum of Rs.10,000/- towards the expenses incurred by the complainant in respect of unnecessary running and correspondences made in respect thereof by the complainant and also towards fee of the counsel;

4.         to pass such other and further order in favour of the complainant as this Hon’ble Forum may deem fit and proper in the facts and circumstances of the case.”

 

3.       The complaint was resisted by the petitioner/opposite party.

4.       The District Forum on consideration of pleadings and the evidence, vide its order dated 25.4.2009 allowed the complaint and directed the petitioner/

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opposite party to get the conveyance deed registered in favour of the respondent/complainant without demanding any payment over and above the payment made by the complainant in terms of the allotment agreement. Rs.5,000/- were awarded as compensation for harassment and mental agony and Rs.1000/- as cost for litigation.

5.       It is pertinent to note that the possession of the flat pursuant to the allotment was delivered to the respondent/complainant in January, 1995.

6.       Being aggrieved of the order of the District Forum, the petitioner preferred an appeal before the State Commission. The appeal came to be dismissed on 25.3.2011 for non-prosecution. It is against the said order the petitioner has preferred the revision petition.

7.       The revision, however, has been filed after the expiry of period of limitation with a delay of 840 days. Thus, the petitioner has filed application for condonation of delay. As per allegations in the application for condonation of delay the counsel for the petitioner did not intimate the petitioner about the impugned order and the petitioner came to know about the order only when the petitioner received the notice of the execution proceedings filed by the respondent. Thereafter, steps were taken to obtain the certified copy of the impugned order and on the receipt of the certified copy, necessary bureaucratic procedure to complete the formalities to file the revision petition was followed

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which includes the opinion of the lawyer, permission of the concerned authority for filing revision, drafting of petition, vetting and swearing of the affidavit, translation of the documents etc. and this resulted in the delay in filing of revision petition.

8.       Learned counsel for the petitioner has contended that the delay in filing of revision petition is unintentional and it has occurred because of above-noted reasons. It is further submitted that the petitioner has a very good case on merit and if the delay is not condoned, the petitioner Authority shall suffer grave injustice.

9.       We do not find merit in the above contention. The explanation appears to be an afterthought and it is devoid of the basic facts. The petitioner has taken a plea that he was not aware of the order of the State Commission and he came to know about that order only on the receipt of the execution notice. It is not disclosed on which date the execution notice was received. It is also not disclosed on which date the petitioner applied for certified copy of the order and when the certified copy was received. The petitioner has not even disclosed on which date the file was sent to the lawyer for his opinion an d when the opinion was received and how much time was consumed in the bureaucratic process of obtaining the permission from the concerned authority and how much time was consumed thereafter in getting the documents translated, drafting of revision

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petition and filing of the same. In absence of any explanation in this regard, we find it very difficult to accept the request for condonation of delay.

10.     Recently, Hon’ble Supreme Court in Post Master General and others vs. Living Media India Ltd. and another (2012) 3 Supreme Court Cases 563 has held:

“24. After referring various earlier decisions, taking very lenient view in condoning the delay, particularly, on the part of the Government and Government Undertaking, this Court observed as under;

     “29. It needs no restatement at our hands that the object for fixing time-limit for litigation is based on public policy fixing a lifespan for legal remedy for the purpose of general welfare. They are meant to see that the parties do not resort to dilatory tactics but avail their legal remedies promptly. Salmond in his Jurisprudence states that the laws come to the assistance of the vigilant and not of the sleepy.

       30. Public interest undoubtedly is a paramount consideration in exercising the courts' discretion wherever conferred upon it by the relevant statutes. Pursuing stale claims and multiplicity of proceedings in no manner subserves public interest. Prompt and timely payment of compensation to the landlosers facilitating their rehabilitation /resettlement is equally an integral part of public policy. Public interest demands that the State or the beneficiary of acquisition, as the case may be, should not be allowed to indulge in any act to unsettle the settled legal rights accrued in law by resorting to avoidable litigation unless the claimants are guilty of deriving benefit to which they are otherwise not entitled, in any fraudulent manner. One should not forget the basic fact that what is acquired is not the land but the livelihood of the landlosers. These public interest parameters ought to be kept in mind by the courts while exercising the discretion dealing with the application filed under Section 5 of the Limitation Act.Dragging the landlosers

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to courts of law years after the termination of legal proceedings would not serve any public interest. Settled rights cannot be lightly interfered with by condoning inordinate delay without there being any proper explanation of such delay on the ground of involvement of public revenue. It serves no public interest.”

 

                   The Court further observed:

“27. 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 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.

28. 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.

 

29.  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 several months/years due to considerable degree of procedural red-tape 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.

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 30. Considering the fact that there was no proper explanation offered by the Department for the delay except mentioning of various dates, according to us, the Department has miserably failed to give any acceptable and cogent reasons sufficient to condone such a huge delay.

31. In view of our conclusion on Issue (a), there is no need to go into the merits of Issues (b) and (c). The question of law raised is left open to be decided in an appropriate case.  

32.  In the light of the above discussion, the appeals fail and are dismissed on the ground of delay. No order as to costs.”

 

11.       The law relating to condonation of delay is well settled.  In Ram Lal and Ors. Vs. Rewa Coalfields Ltd. AIR 1962 Supreme Court 361, it has been observed;

“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 discretionary jurisdiction vested in the Court by S.5. If sufficient cause is not proved nothing further has to be done; the application for condonation 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 matter naturally introduces the consideration of all relevant facts and it is at this stage that diligence of the party or its bona fides may fall for consideration; but the scope of the enquiry while exercising the discretionary power after sufficient cause is shown would naturally be limited only to such facts as the Court may regard as relevant”.

12.       In R.B. Ramlingam Vs. R.B. Bhavaneshwari, 2009 (2) Scale 108 Apex Court has observed as follows:

 “We hold that in each and every case the Court has to examine whether delay in filing the special appeal leave petitions stands properly explained. This is the basic test which needs to be applied. The true guide is whether the petitioner has acted with reasonable diligence in the prosecution of his appeal/petition.

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13.         Hon’ble Supreme Court in Anshul Aggarwal vs. New Okhla Industrial Development Authority, IV (2011) CPJ 63 (SC) observed as under:

 “It is also apposite to observe that while deciding an application filed in such cases for condonation of delay, the Court has to keep in mind that the special period of limitation has  been  prescribed  under  the  Consumer Protection Act, 1986 for filing appeals and revisions in consumer matters and the object of expeditious adjudication of the consumer disputes will get defeated if this court was to entertain highly belated petitions filed against the orders of the consumer foras.”

 

 

14.     In view of the discussion above, we do not find any reason to condone inordinate delay of 840 days. Application for condonation of delay is, therefore, dismissed. Consequently, the revision petition is dismissed as barred by limitation.

 
......................J
AJIT BHARIHOKE
PRESIDING MEMBER
......................
REKHA GUPTA
MEMBER

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