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2006 DIGILAW 4218 (PNJ)

Swaran Bawa v. Home Secretary (UT) Administration, Chandigarh

2006-10-27

ARVIND KUMAR, J.S.NARANG

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JUDGMENT J.S. Narang, J. - The instant application has been filed under Section 5 of the Limitation Act, 1963 for seeking condonation of delay of 885 days in filing the Review Application, though registered as Review Application No. 32 of 2004, without the delay having been condoned as yet. 2. The facts need to be noticed are that the applicant is seeking review of the judgment dated August 30, 2001 rendered in L.P.A. No. 1631 of 1991, vide which the C.W.P. No. 4631 of 1991 filed by the applicant-petitioner has been dismissed. 3. The ground and the plea set up for seeking condonation of delay is that the counsel for the late Sh. Rameshwar Puri, died in the year 2002 and that the petitioner was not aware of his death and when she visited the office of the deceased counsel in the first week of October 2003 to know the fate of her above said case, it came to her knowledge that her case had been decided alongwith the aforesaid L.P.A. on August 30, 2001. A certified copy of the aforesaid order was applied for on October 8, 2003 and the same supplied to her on January 21, 2004. In this entire process, a delay of 885 days has occurred. 4. It has been pleaded that the delay of 885 days has occurred on account of circumstances beyond the control of the petitioner and on account of death of her counsel, which was the cause of lack of communication between the two and that this in itself is a sufficient cause for condoning the delay of 885 days for entertaining the application for review. Notice of this application was issued vide order dated November 11, 2005 by a Division Bench of this Court. The respondents filed a detailed reply and have contested the application. A preliminary objection has been taken that the Civil Appeal against the common judgment of 86 writ petitions, including that of the applicant-petitioner, has already been disposed of by passing modified directions by the Honble Supreme Court of India in one of the cases defined as Hira Tikkoo v. Union Territory of Chandigarh, which has been reported as 2004(6) S.C.C. 765. Thus, the application for seeking condonation of delay neither the Review Application, are maintainable. Another objection taken is that the applicant has neither explained the delay by articulately spelling out the delay accordingly. Thus, the application for seeking condonation of delay neither the Review Application, are maintainable. Another objection taken is that the applicant has neither explained the delay by articulately spelling out the delay accordingly. The fact of the matter is that the petition was disposed of by a common judgment rendered by a Division Bench on August 30, 2001 in the presence of the counsel for the petitioner and that the counsel for the petitioner died in the year 2002 i.e. much after the decision of the petition. This delay has not been explained nor any reason has been spelt out. It is the settled law that the law of limitation has to be applied with all its rigor prescribed by the statute and the Courts do not have the power to extend the period of limitation on equitable grounds. Reliance has been placed upon a judgment of the Honble Supreme Court rendered in re : P.K. Ramachandran v. State of Kerala and another, AIR 1998 SC 2276. The applicant has neither pleaded nor has claimed that the clerk of the counsel had ever informed the petitioner or the information was required to be given by the counsel and not the Clerk. No affidavit in this regard has been submitted by the applicant-petitioner nor any fact has been averred in this regard. Thus, the delay from August 30, 2001 to 2002 i.e. the date of death of the counsel cannot be termed as accrual of cause of subsequent action, which can be taken as having arrested the running of time, which in fact had already started running from August 30, 2001. Thus, by no rule or any judicial predecent, the period from August 30, 2001 upto 2002 i.e. the date of death of the Counsel, can be excluded while determining the prescribed period of limitation. Since the applicant has not been able to establish sufficient cause for seeking condonation of delay of 885 days, the indulgence claimed by virtue of Section 5 of the Limitation Act, 1963 is not grantable. Resultantly the application merits dismissal. 5. We have heard learned counsel for the parties and have also perused the paper book containing the respective pleas of the parties. We are of the considered opinion that the applicant has not been able to explain the delay by way of reasonably spelling out the factual status accordingly. Resultantly the application merits dismissal. 5. We have heard learned counsel for the parties and have also perused the paper book containing the respective pleas of the parties. We are of the considered opinion that the applicant has not been able to explain the delay by way of reasonably spelling out the factual status accordingly. Admittedly, the applicant-petitioner was represented by the counsel before the Division Bench, when L.P.A. No. 1631 of 1991 had been finally disposed of vide order dated August 30, 2001, which had been further challenged by way of Civil Appeal No. 4725 of 2002, which has been finally decided vide judgment dated April, 13, 2004. The Honble Supreme Court has partly maintained the directions issued by the Division Bench of this Court vide order dated August 30, 2001, but certain modifications, substitution and addition to the directions have been made, which read as under :- "As a result of detailed discussion aforesaid, the appeals and connected matters are disposed of by partly maintaining the directions contained in the impugned order of the High Court but with the modifications, substitution and addition of directions as mentioned below :- 1. The prayer of the appellants/petitioners for directing the authorities of Chandigarh Administration to hand over possession of the plots allotted on the basis of draw held in November, 1982 is rejected. 2. The total available plots of different sizes as mentioned in Annexure-A to the affidavit of the Administration of U.T.C., shall be allotted by draw of lots separately or jointly as per the procedure evolved by the Administration to 23 consentees found eligible in accordance with the new environmental norms and to 13 allottees of one kanal plot. It is for the Administration of U.T.C. to work out the manner in which draw of lots will be held between 23 consentees and 13 allottees of one kanal plot for the available number of plots of different sizes as contained in Annexure-A to the affidavit. It is made clear that the Administration of U.T.C. will have liberty keeping in view the industrial projects submitted by the consentees and other restrictions if they make it necessary to suitably alter the sizes of plots to accommodate the identified 23 consentees. It is made clear that the Administration of U.T.C. will have liberty keeping in view the industrial projects submitted by the consentees and other restrictions if they make it necessary to suitably alter the sizes of plots to accommodate the identified 23 consentees. It is clarified that allotment of plots from the area of the scheme which falls within restricted 900 metres zone from the air-base under Aircraft Act, would be granted by the Administration with a condition that if in future, any such restriction is reimposed, the allotments may be cancelled and there would be no liability on the Administration of U.T.C. to pay any damage or compensation to the parties due to non-utilisation of plots or its cancellation. If the allotment of plots in the restricted zone are cancelled due to restriction aforesaid, the price paid for the plots shall be refunded to the parties concerned without any liability of interest on the price which remained as deposit with the Administration. 3. The consentees and allottees of one kanal plot, who even though found eligible for allotment, because of limited number of plots (as mentioned in Annexure-A), do not get accommodation in the available plots, they be considered on the same price paid by them for alternative plots in the new industrial area Phase-III i.e. Mouli Jagran. It is made clear that the requirement of the Act and the Rules and the new environmental norms as existing on the date of fresh allotment of plots in the industrial area phase-Ill would be made applicable to such consentees and allottees of one kanal plot. 4. The non-consentees shall be granted by the Administration of U.T.C., option by asking them to submit their willingness in writing within a period of one month from the date of this order for considering allotment to each of them a suitable plot in the new industrial zone Phase III at Mouli Jagran. It is left to the Administration of U.T.C. to evolve a fair and just method of allotment by draw of lots in accordance with the Act and the Rules. It is made clear that the allotment of plots in the new Industrial area III i.e. Mouli Jagran would be at the price prevailing on the date of fresh allotments. It is left to the Administration of U.T.C. to evolve a fair and just method of allotment by draw of lots in accordance with the Act and the Rules. It is made clear that the allotment of plots in the new Industrial area III i.e. Mouli Jagran would be at the price prevailing on the date of fresh allotments. The price with interest already paid by the non-consentees for their original plots, if so far not refunded to them, shall be adjusted towards the total price payable for the new sites. It is also made clear that in accordance with the existing industrial policy and the environmental norms, the allottees will have to submit their project reports for considering viability of their proposed industries by the Administration. In the event, the non consentees are unwilling to take plots in the new industrial zone phase III or their project reports are ultimately found to be not approvable, the price deposited by them for the original plots would be refunded to them with interest at the rate of 12% per annum from the date of initial deposit. 5. The reliefs in the nature of directions made in favour of consentees and non-consentees and allottees of one kanal plot are restricted only to such of them who were parties before the High Court. All claims of remaining consentees or non-consentees or allottees of one kanal plot, who were not parties in the cases before the High Court, stand rejected. 6. Notification dated 28.4.2000 containing new Industrial Policy would not be made applicable to the allottees of plots in phase-I & II who are successful in fresh draw of lots to be held under the above directions. 7. The Administration of U.T.C. shall complete the requisite formalities and carry out the directions made above in accordance with law within a period of four months from the date of this order and hand over possession of the plots to the successful allottees. 8. All applications seeking interventions, impleadment as parties and special leave petitions filed by parties, who were not parties before the High Court, are, hereby rejected. 9. As a result of the discussion aforesaid, the appeals and connected mattes are disposed of by substituting/modifying above-mentioned directions for the directions contained in the impugned order of the High Court. 8. All applications seeking interventions, impleadment as parties and special leave petitions filed by parties, who were not parties before the High Court, are, hereby rejected. 9. As a result of the discussion aforesaid, the appeals and connected mattes are disposed of by substituting/modifying above-mentioned directions for the directions contained in the impugned order of the High Court. Keeping in view the peculiar circumstances of the case, we make no order as to costs which shall be borne by the parties as incurred by them. Sd/ Shivaraj V. Patil Sd/- D.M. Dharamadhikari New Delhi. 13th April, 2004." 10. It is obvious that the judgment of this Court rendered in L.P.A. No. 1631 of 1991 has been maintained on all counts except for certain modifications, noticed above. Thus, by applying theory of merger, the judgment of this Court has merged into the judgment of the Honble Supreme Court. The applicant-petitioner had been represented by a counsel and that the matter was decided by the judgment rendered in L.P.A. No. 1631 of 1991 by categorically holding that the applicant-petitioner in C.W.P. No. 4631 of 1991 had prayed for a direction to the respondents for considering the application for allotment of plot on the basis of the draw held on March 27, 1981, it has been held that upon perusal of the averments made in the writ petition, it shows that the applicant-petitioner had not applied in pursuance of advertisement No. 1 of 1987 and she was not one of the successful allottees of November 1982 draw. It has been noticed that as a matter of fact, she had submitted application dated May 20, 1981 without reference to any advertisement issued by Chandigarh Administration for allotment of industrial plots. Thus, non- consideration of her application in the draw held on 27.3.1991 for successful allottees of 1982 draw cannot be termed as arbitrary or violative of her fundamental right to equality. It has been observed by the Honble Supreme Court that the prayer of the appellants/petitioners for directing the authorities of Chandigarh Administration to hand over possession of the plots allotted on the basis of draw held in November, 1982 is rejected. Fresh draw of lots had been directed to be held separately or jointly as per the procedure evolved by the Administration to 23 consentees found eligible in accordance with the new environmental norms and to 13 allottees of one kanal plot. Fresh draw of lots had been directed to be held separately or jointly as per the procedure evolved by the Administration to 23 consentees found eligible in accordance with the new environmental norms and to 13 allottees of one kanal plot. The manner in which the draw of lots was to be held between 23 consentees and 13 allottees, as aforesaid, was to be held by working out the mannerism accordingly. It has also been held that the non-consentees shall be granted the option for submitting their willingness in writing within a period of one month from the date of order for considering allotment to each of them a suitable plot in the new Industrial zone Phase III at Mouli Jagran. In the event, the non-consentees are unwilling to take plots in the new industrial zone phase III or their project reports are ultimately found to be not approvable, the price deposited by them for the original plots would be refunded to them with interest at the rate of 12% per annum from the date of initial deposit. The relief has been granted by restricting it only to such of them who were parties before the High Court. 11. Admittedly, the applicant had never ever questioned the order of this Court passed in L.P.A. No. 1631 of 1991 and perhaps came to be satisfied with the order passed by a Division Bench of this Court in regard to her claim. The applicant-petitioner has not produced on record any affidavit of the clerk of the deceased counsel to the effect that the order had never ever been communicated to her, in the absence thereof we cannot accept the contention that the applicant-petitioner was ever anxious to know the fate of her case and continued to wait from August 31, 2001 to 2002. It is for this reason that the vague plea has been set up that the counsel had died in the year 2002 and that she had gone to find out the fate of her case in 1st week of October 2003, meaning thereby that she virtually went to the office of her counsel after 25 months, there is no explanation forthcoming or rendered in the application in this regard. The law of limitation, no doubt, is penal in character but the rights have to come to a rest on one day or the other. The law of limitation, no doubt, is penal in character but the rights have to come to a rest on one day or the other. It is the settled law that if an applicant is able to satisfy the Court by rendering reasonable explanation for the delay, the period may be any, the Court would certainly grant the indulgence accordingly. In the instant case, the applicant has not been able to render reasonable explanation for having approached the office of the counsel after 25 months. Thus, the question of making out sufficient cause, the basic ingredient under Section 5 of the Limitation Act, 1963, is not made out. Resultantly, we find no reason for allowing the application for condoning the delay of 885 days and the same is hereby dismissed. Petition dismissed.