REKHA GUPTA, PRESIDING MEMBER

          This revision petition has been filed by the petitioner against the order dated 03.08.2015 passed by the U.P. State Consumer Disputes Redressal Commission, Lucknow (short, “State Commission) in Appeal No.121/2010.

2.      The facts of the case as per the respondent/complainant are that he was a displaced shop owner whose shop was demolished on 14.10.1992 without giving any notice by the petitioner/OP.  Subsequently petitioner assured the complainant that he would be provided an alternative shop on easy installment on no profit, no loss basis, which were constructed under ‘Kanpur Road Scheme’.  Accordingly, complainant was allotted shop no.S-1/67/B, Commercial Complex, Sector-B, (Bara Birba), Kanpur Road Scheme on 31.10.1992 by the petitioner.  Along with allotment letter, possession was also given to the complainant.  Complainant was given a notice in September 1993 regarding payment of shops.  The expected cost of the shop was shown as Rs.83,300/- and the registration amount was Rs.8,500/-.  But this cost was too high and not based on no profit, no loss as directed by the Hon’ble Minister to the Vice-Chairman of the petitioner.  Subsequently, the cost of the shop was fixed Rs.2,15,000/- and the monthly installment was fixed as Rs.4427/-.  Further, Rs.21560/- only were to be deposited within 30 days.  Electricity was provided in 1997 in the shop, due to which the complainant suffered a loss of Rs.1,50,000/- approximately between 14 October 1992 to 1997.  Hence, the said complaint was filed in the District Forum for the following reliefs:

(i)      Cost should be taken on no profit no loss basis on easy installments without any interest.

(ii)      Rs. 1,50,000/- for loss of electricity charges.

(ii)      Cost of suit Rs.2,000/-.

3.      The petitioner/opposite party contested the complaint before the District Forum and had refuted the claim of the respondent.  The opposite party stated that the respondent was allotted the shop on the basis of mutual agreement between the shop-keepers and the opposite party on no profit, no loss basis.  After allotment, the   respondent had been informed the cost of the shop for which he did not agree and the payment was not deposited.  As regard water, electric connection, these were to be provided by separate departments and not by the opposite party.  Rs.83,300/- had been fixed on no profit, no loss basis only.  Due to non-payment of the amount, interest was accruing on the said amount continuously due to which cost of shop was increasing.  The opposite party stated that the complaint was liable to be rejected as complainant had not deposited any amount except the registration amount while he was in possession of the shop and using the same.

4.      The District Forum vide their order dated 17.02.2007 while partially allowing the complaint observed as under:-

“Therefore, we are of the opinion that there is no legal right vested in the complainant to get the price re-determined on the basis of principle of no profit no loss.  The recommendation of the Minister filed on the representation of the complainant has only persuasive value and it does not create any right in favour of the complainant, if it has not been accepted upon by the LDA till now.

We are of the further opinion that in the circumstances of the case complainant has to pay the same price of the shop what other allottee have paid in the year 1992.

In this view of the other, the complainant is liable to pay Rs.83,300/- the initial cost of the shop.  Since the complainant is prosecuting this case under a bonafide impression that the shop in question will be given to him on a price based on the principle of no loss-no gain as recommended by the Minister, he does not deserve to be punished by imposing interest on the aforesaid price, he should be given this shop for Rs.83,300/- with no interest.

ORDER

    The complaint is partially allowed.  The opposite party is directed to execute the Sale Deed and get it registered in favour of the Complainant on the payment of Rs.83,300/- only (Rs. Eighty Three Thousand and Three Hundred only) and on furnishing the requisite stamps by the complainant within three months from the date of receipts of stamps.  It is further made it clear that no interest will be charged on the aforesaid price of the shop.

    Parties will bear their own costs.”

5.      Aggrieved by the order of the District Forum, the petitioner/OP filed an appeal no.121/2010 before the State Commission.  The State Commission vide their order dated 03.08.2015, dismissed the appeal on limitation as the appeal had been filed with the delay of 2 years and 11 months.    

6.      Hence, the revision petition.

7.      We have heard the counsel for the parties.

8.      The learned counsel for the petitioner contended that the State Commission ought to have appreciated that the delay in filing the Appeal No.121/2010 was properly explained and the aforesaid delay was procedural and not intentional and was liable to be condoned.  The State Commission further ought to have appreciated that the delay has occurred due to the pending litigation with regard to the same subject matter regarding withdrawal of the Regular Suit No.85/1994 filed before the Court of Civil Judge, Malihabad, Lucknow.  The State Commission further ought to have appreciated that the District Forum overlooked the fact that the shop was allotted in October 1992 to the respondent and since then 16 years have elapsed and only 10% registration amount i.e. Rs.8500/- has been deposited by him along with interest since the time of allotment of shops.  The District Forum overlooked the fact that the Respondent was enjoying the possession for the last 16 years without full payment and interest. The District Forum has erred in allowing the complaint and further in directing the petitioner to execute the Sale Deed in favour of the respondent on the estimated cost of Rs.83,300/- without any interest and did not consider that during the time of registration, the respondent as per the brochure allotted the shop on estimated cost and the allottees in general were to deposit Rs.8500/- as registration amount and rest of the amount was to be deposited in installments which was inclusive of 18% and in default of depositing the installments within stipulated time 21% per annum interest was to be deposited by the allottees on rest of the amount.  Further, the respondent had also filed a suit before the Civil Judge, Malihabad, Lucknow for the same cause of action, therefore, his complaint before the District Forum was not maintainable.

9.      The learned counsel for the respondent however argued in favour of the impugned order.

10.    We have carefully gone through the record.  A careful reading of the affidavit of application seeking condonation of delay of the appeal before the State Commission shows that the delay was primarily due to administrative delays.  The file kept moving from one department to other department without any final decision being taken.  We agree with the State Commission that “if any department keeps on thinking for 3 years whether to file or not, then that is gross irresponsibility of the department and especially in that situation when the department itself has a legal cell”.

11.    We are of the view that the petitioner has failed to explain the reasons for the day to day delay of about 2 years and 11 months. 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]”.

12.        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”.

13.    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. 

14.    Under these circumstances, we are of the view that the State Commission rightly dismissed the appeal on limitation.  However, it is indeed surprising to note that the petitioner department, as given in the grounds of revision petition, not only allotted but handed over the possession of the shop to the respondent in October 1992.  The authority as per revision petition handed over the possession even when the registration amount had not been paid as also the balance cost of the shop.  We direct the petitioner to fix the responsibility not only for the inordinate delay in filing the appeal but also the circumstances under which the possession of the shop was given if as they allege no payments were received.  The loss if any may be recovered from the officials held responsible.

15.    In the circumstances mentioned above, we do not find any reason to disagree with the finding given by the State Commission.  There is no illegality or material irregularity in the impugned order passed by the State Commission. The present revision petition stands dismissed and we uphold the order of the State Commission.