RESERVED

State Consumer Disputes Redressal Commission

U.P., Lucknow.

Appeal No.2224 of 2013

Lucknow Development Authority,

Lucknow through its Secretary, Lucknow

Naveen Bhawan, Vipin Khand, Gomtinagar,

Lucknow.                                                         ...Appellant.

Versus

Ravindra Bhargava (L.R.) s/o Late Smt. Phool Kumari

Bhargava/Sri Satya Narain Bhargava,

R/o, Prabhu Niwas, 74/11. Vijai Nagar,

Gurudwara Road, Lucknow.                      .…Respondent.

Present:-

1- Hon’ble Sri A.K. Bose, Presiding Member.

2- Hon’ble Sri Jugul Kishor, Member.

Sri M.K. Pandey, for the appellant.

Date     28.11.2014

JUDGMENT

Sri A.K. Bose,  Member- Heard Ld. Counsel for the appellant Sri Malesh Kumar Pandey on the point of admission. Admittedly, the delay in filing the appeal is of 8 years 2 months and hence, it is barred by the period of limitation as provided under Section 15 of the Act 68 of 1986. From perusal of the records, it transpires that the instant appeal has been filed against the judgment and order dated 1.7.2005 passed by the Ld. DCDRF-II, Lucknow in complaint case no.742 of 2003, Phool Kumari Bhargava (Since dead and substituted by Ravindra Bhargava) vs. Lucknow Development Authority on the ground that the impugned judgment was delivered by the Forum below is erroneous and suffers from manifest error

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of law and facts. The judgment is based on presumptions, surmises and conjunctures and was delivered without proper appreciation of law and, therefore, it has been prayed that the appeal be allowed and consequently, the exparte judgment and order be set aside, otherwise the appellant will suffer irreparable loss.

The factual matrix of the case, in brief is that the respondent/complainant Smt. Phool Kumari Bhargava was allotted flat no.134. G.F., Nehru Enclave, Gomtinagar, Lucknow on 5.10.1990; and the approximate price of the flat was Rs.4,50,001.00 which the respondent/ complaint was required to deposit in instalments. However, the respondent deposited only Rs.2,84,534.00. In the meantime, the appellant was engaged in litigation with the Army Authorities regarding the ownership of the land in question and consequently, another flat bearing no.86, GF, Nehru Enclave was allotted to the respondent on 21.6.2002 (in place of flat no.134 G.F.) and she was directed to deposit the balance amount. Since the respondent failed to deposit the balance/enhanced amount of Rs.6,47,674.00, therefore, the then Vice Chairman of the LDA cancelled the allotment order on 30.5.2009 and hurriedly, allotted the house to one Sri Raj Kumar Raj on 25.9.2009 and executed the sale-deed in his favour on 9.6.2010. Aggrieved by this colourful abuse of power, high handedness and apparent malfeasance on the part of  the then Vice Chairman of the LDA, the appellant filed the complaint case no.742 of 2003 before the Ld. DCDRF, Lucknow. From perusal of the judgment, it transpires that

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Sri Rahul Shukla, Advocate/Penal Lawyer of the LDA received the notices but failed to submit written statement. Consequently, the case was ordered to proceed exparte. The exparte judgment was passed on 1.7.2005 and the appellant was directed to either re-allot the original flat no.134, GF, Nehru Enclave, Gomtinagar, Lucknow to the complainant or a similar flat to the complainant and the complainant was directed to pay balance amount of Rs.6,42,000.00 to the appellant minus the amount already deposited by her. The appellant was also directed to execute sale-deed after completing the above formalities. Compensation and cost of litigation was also awarded to the respondent.

Aggrieved by this order, the instant appeal has been filed on 30.9.2013 i.e. after a lapse of 8 years 2 months from the date of order. An application for condonation of delay has been moved in which day-to-day explanation for delay has not been given. It has been submitted the information of the exparte judgment was given to the appellant belatedly and, therefore, the appeal could not be filed within the period of limitation.

We have given due consideration to the facts, circumstances and evidence available on record. Admittedly, Sri Rahul Shukla, Advocate/Penal Lawyer of the LDA received the notices on behalf of the appellant but written statement was not filed by him in time and, therefore, the case proceeded exparte before the Forum below. There is no denial of this fact in the affidavit and there is no irregularity or illegality in this order. It has only

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been contended that the case was decided by only 2 members of the Forum below, in the absence of the President. Admittedly, two members can concurrently pass a judgment under the Act 68 of 1986 and there is no remiss in the same. Therefore, the defence taken by the Development Authority carries no force. From perusal of the records, it transpires that the Development Authority suo-motu kept on changing the allotment order and even cancelled the same without giving appropriate opportunity of hearing. Even the cancellation order and allotment of the same to Sri Raj Kumar Raj was passed in am most clandestine nand utterly hurried manner which prima-facie amounts to misfeasance in public office by the appellant. In the backdrop of the same, we proceeded to examine whether there was sufficient cause to condone the delay of more than 8 years in filing the appeal.

Section 15 of the Consumer Protection Act, 1986 provides that any person aggrieved by an order made by the District Forum may prefer an appeal against such order to the State Commission within a period of 30 days from the date of the order, in such form an manner as may be prescribed; provided that the State Commission may entertained an appeal after expiry of the said period of 30 days, if it is satisfied that there was sufficient cause for not filing it within that period. In the instant, matter, the delay is of more than 8 years from the date of order and, therefore, we are required to see whether there is any sufficient cause for not filing the appeal within the

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statutory period of 30 days. In Mahindra & Mahindra Financial Services Ltd. Vs. Naresh Singh, I(2013) CPJ 407 (NC), where the delay was of 71 days only, it was held by the Hon'ble National Commission that:

"condonation cannot be a matter to routine and the petitioner is required to explain delay for each and every date after expiry of the period of limitation".

Similarly, in U.P. Avas Evam Vikas Parishad Vs. Brij Kishore Pandy, IV (2009) CPJ 217 (NC), the delay of 111 days was not condoned as day-to-day delay was not explained. In Delhi Development Authority Vs. V.P. Narayanan, IV (2011) CPJ 155 (NC), where the delay was of only 84 days, it was held that:

 "this is enough to demonstrate that there was no reason for this delay, much less a sufficient cause to warrant its condonation." 

In Anshul Agarwal Vs. NOIDA, IV(2011) CPJ 63 (SC), it has been observed by the Hon'ble Apex Court at para 7 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 petition filed against the orders of the Consumer Fora."

          It may be observed here that even after a party cites sufficient cause for filing the appeal beyond the period of limitation, it cannot claim condonation as a matter of right.

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The proof of sufficient cause is a discretionary jurisdiction, vested in the Fora under Section 15 of the Act. If "sufficient cause" is not shown, nothing further is required to be done; and the application for condonation has to be dismissed on that ground alone. If, however, a sufficient cause is shown, then Forum has to enquire whether, in its discretion, it should condone the delay or not? 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 enquiry, while exercising the discretionary power, after sufficient cause is shown, would naturally be limited only to such facts as the Forum may record as relevant. The Hon'ble Apex Court has recently observed in  Civil Appeal No.2474-2475 of 2012, Chief Post Master General and Ors. Vs. Living Media India Ltd. and Anr., that:

 "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 every one 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

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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. Accordingly, the appeals are liable to be dismissed on the ground of delay."

          In view of the aforesaid discussions and rulings laid down by the Hon'ble Appellate Courts, we are of the considered view that the appellant Lucknow Development Authority has miserably failed to show any cogent reason or submit  sufficient cause for the inordinate delay of more than 8 years in filing the appeal. The law assists only those who are vigilant, and not those who sleep over their rights and later on claim mercy on one ground or the other. There is nothing on record which may indicate that the appeal could not be filed in time in spite of best efforts made by the appellant. There is no remiss, irregularity or illegality in the impugned judgment as well. The object of expeditious adjudication of the consumer disputes will certainly get frustrated if such highly belated appeals are entertained.  No irreparable loss will be caused to the appellant nor will there be any failure of justice if the appeal is dismissed at the admission stage as highly barred by limitation.   

          Consequently, the appeal, being meritless, is dismissed at the admission stage as barred by limitation for more than 8 years. No order as to costs. Certified copy of this judgment be provided to the parties as per rules.

         (A.K. Bose)                               (Jugul Kishor)

    Presiding Member                             Member

Jafri ST G-1

Court No.5