REKHA GUPTA, PRESIDING MEMBER

          These revision petitions have been filed by the petitioner against the order dated 03.02.2011 passed by the U.P. State Consumer Disputes Redressal Commission, Lucknow (short, “State Commission) in Appeals No.960/1999 and 991/2005 along with an application seeking condonation of delay of 905 days.

2.      The facts of the case as per the respondent/complainant are that the respondent/complainant Dr.Ramesh Chandra Chaddha had purchased  House No.5/837, MIG, Viram Khand, Gomti Nagar for a sum of Rs.4,27,632.00 and the sale deed had been duly executed in his favour on June 20, 1996.  In normal circumstances, the possession of the house should have been handed over along with the execution of the sale deed but as pleaded by the complainant the physical possession of the house could not be handed over to him for two reasons, one of them being that there were certain defects in the house and the other that it was in unlawful possession of the LDA’s employees. The respondent wrote several letters to the LDA authorities after execution of the sale deed upto June, 1998 and thereby kept on requesting time and again for delivery of possession but all his efforts were futile.  He was thus obliged to file his complaint before the District Consumer Disputes Redressal Forum (I) Lucknow (for short, “District Forum”). The LDA had put up its appearance through a counsel but did not contest the complaint. As a consequence ex-parte proceedings were drawn up by the District Forum and the complaint decided. 

3.      The District Forum vide their order dated 03.02.1999 while allowing the complaint passed the following order:

    The Opposite party is directed to hand over the possession of the house in question after removing defects within three months and to pay 18% interest per annum on his deposited amount of Rs.4,27,632/- from 1.9.1996 and to pay Rs.6,000/- otherwise 2% monthly interest shall be payable on all these amounts.

4.      Aggrieved by the order of the District Forum, the petitioner/OP filed an appeal no.960/1999 before the State Commission.  The petitioner also filed an appeal no.791/2005 against the order dated 17.03.2005 in Execution Case No.227/1999.  The State Commission, vide their common order dated 03.02.2011, as both the appeals arose out of the same order of the District Forum, dismissed both the appeals with cost of Rs.7,500/-. 

5.      Hence, the revision petition.

6.      The revision petition has been filed with a delay of 905 days.  The reasons given for the delay in the application seeking condonation of delay are as under:-

4. That being aggrieved with the order passed by Ld.District Forum, petitioner herein filed an appeal No.960/1999 before UP State Consumer Disputes Redressal Commission, meanwhile the execution petition was filed by the respondent and on 17.3.2005 the District Forum in Execution Case No.227 of 1999 passed an order directing the petitioner for making payment of interest to the tune of Rs.10,79,036/- on the deposited amount to the respondent through cheque or demand draft and directed to  file the compliance report on 31.03.2005.  The petitioner challenged the aforesaid order by filing Appeal No.791/2005 before the State Commission. 

5. That unfortunately the then advocate Shri Yogesh Kesarwani Advocate was panel lawyer of the petitioner authority, did not appear before the State Commission on the date fixed for hearing.  The State Commission dismissed both the aforesaid appeals on merit in the absence of the counsel for the petitioner.

6. That after dismissal of the appeal the counsel for the petitioner before the State Commission did not inform the petitioner.  The respondent filed an execution application (Execution Case No.28 of 2011) before the District Forum. The District Forum issued notices to the petitioner, this notice was received in the office of the petitioner.  It is only then the petitioner came to know about the order dated 3.2.2011 and steps were taken to obtain the certified copy of the aforesaid order, thereafter the necessary formalities including the opinion of the ld. Advocate who is Retainer for the petitioner Authority Lucknow was taken and matter was entrusted to the present counsel who drafted the petition and it was sent for vetting and swearing of the affidavit and the papers were sent to the present counsel through speed post. Thereafter, the annexures like order of Ld. District Forum and the written statement of the petitioner were got translated into English which took some time and the petition is being filed the petition.

8. That the delay caused in filing the revision petition is neither intentional nor deliberate but due to sheer negligence of the Ld. Advocate who was appearing on behalf of the petitioner before the State Commission, as he did not inform the petitioner about the order dated 03.02.2011, thereafter this Hon’ble Court may take a lenient approach in the matter as the petitioner was prevented by sufficient cause and it is further submitted that the Hon’ble Court may also appreciate the law laid down by the Hon’ble Supreme Court in the case of State (NCT of Delhi) Vs. Ahmed Jaan  (2008) 14 SCC 582, wherein it has been held that it would be unfair and unrealistic to put Government and private parties on same footing in all respects. In such matters, the Hon’ble Supreme Court further also observed that implicit in the very nature of Governmental functioning is procedural delay incidental to the decision making process.

7.      The learned counsel for the petitioner contended that the counsel of the petitioner did not keep the petitioner informed.

8.      We have carefully gone through the record.  We are of the view that the petitioner has failed to explain the reasons for the day to day delay of 905 days. This view is further supported by the following judgment:

In Anshul Aggarwal v. New Okhla Industrial Development Authority, IV (2011) CPJ 63 (SC), it has been held that “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”. 

In R.B. Ramlingam v. R.B. Bhavaneshwari, I (2009) CLT 188 (SC)= I (2009) SLT 701=2009 (2) Scale 108, it has been observed that “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”.

In Ram Lal and Others v. Rewa Coalfields Ltd., AIR 1962 Supreme Court 361, it has been observed that “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 Section 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 bonafides may fall for consideration; but the scope of the inquiry 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.”

In Sow Kamalabai, W/o Narasaiyya Shrimal and Narsaiyya, S/o Sayanna Shrimal Vs. Ganpat Vithalroa Gavare, 2007 (1) Mh. LJ 807, it was held that “the expression ‘sufficient cause’ cannot be erased from Section 5 of the Limitation Act by adopting excessive liberal approach which would defeat the very purpose of Section 5 of Limitation Act.  There must be some cause which can be termed as a sufficient one for the purpose of delay condonation.  I do not find any such ‘sufficient cause’ stated in the application and no such interference in the impugned order is called for”.

In Balwant Singh Vs.  Jagdish Singh & Ors., (Civil Appeal no. 1166 of 2006), decided by the Apex Court on 08.07.2010 it was held:                     

“The party should show that besides acting bonafide, it had taken all possible steps within its power and control and had approached the Court without any unnecessary delay. The test is whether or not a cause is sufficient to see whether it could have been avoided by the party by the exercise of due care and attention. [Advanced Law Lexicon, P. Ramanatha Aiyar, 3rd Edition, 2005]”.

9.           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;

“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;

“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.

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 land losers 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 land losers. 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 land losers 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;

“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.

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.

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.

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.

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.

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

10.    The observations made by the Hon’ble Apex Court in the authoritative pronouncements discussed above, are fully attracted to the facts and circumstances of the case. 

11.    In fact the application filed does not even mention the number of days of delay to be condoned.  It has been drafted in a most casual manner, putting the entire blame on the counsel Mr.Yogesh Kesarwani.  It does not explain why the appeal was not followed up by the petitioner for such a long period of time and why the petitioner made no enquiries from their counsel.  It does not also mention what action was taken by the petitioner against the said counsel.  The manner in which the petitioner has dealt with this complaint case is evident from the record. They were ex-parte before the District Forum and were also not present before the State Commission.  The State Commission has also recorded in the impugned order dated 3.2.2011 as under:-

“None responds on behalf of the appellant Lucknow Development Authority.  It’s counsel Sri Yogesh Kesarwani is not available and Mr. S.P. Singh informs that he had contacted Sri Yogesh Kesarwani twice vide his written intimation dated 12.11.2010 and 3.1.2011 but the later had not shown any interest and also conveyed to him that he was not interested in proceeding further.  In the circumstances, we proceed to decide on merit these two old appeals.”

12.    In the circumstances mentioned above, the application seeking condonation of inordinate delay of 905 days is dismissed.  Consequently, the present revision petitions stand dismissed on limitation.