PER S.K. NAIK, MEMBER

           On the basis of the allegation of the respondent/complainant that despite full payment for the plot allotted to him, the petitioner – Agra Development Authority (for short ‘ADA’) had failed to deliver its possession and execute the lease deed ; the District Forum has allowed the complaint.  Holding that the complainant had already deposited a sum of Rs.1,80,122/- as the total price by 18.10.1993 which amount has been utilized by the petitioner – Authority, it awarded an interest thereon @ 12% p.a. and further allowed a sum of Rs.1 lakh as escalation cost and another sum of Rs.5000/- as compensation in lieu of mental agony and harassment.

          This order of the District forum was challenged by the petitioner – ADA before the State Consumer Disputes Redressal Commission Lucknow, UP (for short ‘State Commission’) who, while admitting the appeal and staying the order of the District Forum, finally dismissed the appeal after 2½ years only on the ground of delay on part of the petitioner – ADA in filing the appeal.  

          This order of dismissal on ground of delay is the subject matter for adjudication in the revision petition before us.

          Learned counsel for the petitioner has contended that the certified copy of the order of the District Forum dated 23.2.2006 was applied on 27.2.2006 and the same was available to the learned counsel for the petitioner on 1.3.2006. When calculated from 27.2.2006, there was a delay of four months in filing the appeal as it was filed on 30.7.2006. An application for condonation of delay explaining sufficient cause had been filed before the State Commission. However, detailed reasons were not given in support of application for condonation of delay, but only broad reasons were given.  In revision petition filed before us, detailed reasons have been given explaining delay.  We would not have normally considered the additional reasons given in support of application for condonation of delay in revision. Yet, keeping in view that the appeal was dismissed on limitation after about 2½ years of admission and that the petitioner had initiated action against the defaulting official for the delay, we are looking into the additional reasons in the facts and circumstances of the case and the same shall not be treated as precedent in other cases. It had been explained that the counsel had taken about a month in sending the copy of the order and the concerned dealing clerk who had received the certified copy of the order was meanwhile transferred, as a result of which the matter did not come to the notice of the appropriate Authority.  The moment, it came to the knowledge of the concerned Authority when the new incumbent had joined i.e. on 14.7.2006, legal opinion was sought on priority and the file was sent to the counsel on 19.7.2006 to file the appeal.  The appeal, thereafter, could be filed on 30.7.2006 as the counsel also needed sometime to draft the appeal.  On a query from this Commission, whether any action was initiated against the defaulting official, learned counsel submitted that an enquiry was ordered to be conducted against him, though the out come is not known.  In this regard, he has produced the original file of ADA which we have perused and find that such an order indeed has been passed by the Vice-Chairman of the Authority.  In this view of the matter, we are of the opinion that the petitioner has been able to explain sufficient cause for the condonation of delay which was neither intentional nor deliberate.  In this respect, learned counsel for the petitioner has rightly placed reliance on the law laid down by the Hon’ble Supreme Court in 1997 (28) ELT 185 (SC) in the case of Collector, Land Acquisition Anantnag and Anr. Vs. Mst.Katiji & Ors. We would like to extract the following from para 3 of the judgment for ready reference.

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 day’s delay must be explained’ does not mean that a pedantic approach should be made.  Why not every hour’s delay, every second’s 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 preferred for the other side cannot claim to have vested right in injustice bring done because of a non-deliberate delay.

5.     There is no presumption that delay is occasioned deliberate 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 but because it is capable of removing injustice and is expected to do so.

Making a justice-oriented approach from this perspective, there was sufficient cause for condoning the delay in the institution of the appeal. The fact that it was the ‘State’ which was seeking condonation and not a private party was altogether irrelevant.  The doctrine of equality before law demands that all litigants, including the State as a litigant, are accorded the same treatment and the law is administered in an even handed manner.  There is no warrant for according a step-motherly treatment when the ‘State’ is the applicant praying for condonation of delay.”

In that case, the appeal filed by the appellant state against the order of dismissal of their appeal on the ground of being time barred by the High Court was allowed by the Apex Court.  In the case in hand, we find that the State Commission has summarily dismissed the appeal on account of delay.  Learned counsel for the petitioner while explaining the reason for the delay has also contended that the order passed by the District Forum virtually amounts to handing over the plot free of any charge despite the complainant not having paid the full dues.  Contending that in such a situation dismissal of their appeal on the technical ground of delay will mean that substantial justice will be the casualty.

The State Commission, therefore, should not have summarily dismissed the appeal only on the ground of the appeal being barred by limitation, specially, when it had admitted the appeal and granted a stay on the operation of the order passed by the District Forum more than 2½ years back.  The order of the State Commission, under the circumstances is not justified and  is, accordingly, set aside, however, with the direction to the State Commission to decide the appeal on its merit.  The revision petition is disposed of in these terms.  However, in the facts and circumstances of the case, we direct that the costs of revision which are fixed at Rs.5000/- shall be paid by the petitioner to the respondent on account of lapse of the petitioner in not incorporating detailed reasons in the application for condonation of delay filed before the State Commission which resulted in dismissal of appeal.

Registry is directed to return the original record of the petitioner to them.  Copies of this order be sent urgently to the petitioner, the respondent and the State Commission.  The State Commission is requested to dispose of the appeal on merit on priority preferably within a period of three months from the date of issue of notice to the parties.

                                                       …………………..………J

     (R.K. BATTA)

      (PRESIDING MEMBER)

                                                                   ……………….……………

                                                        (S.K. NAIK)

                                                                            MEMBER