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2007 DIGILAW 107 (DEL)

DELHI DEVELOPMENT AUTHORITY v. DALIP KUMAR

2007-01-16

J.M.MALIK

body2007
JUDGMENT J.M. Malik, J.- The Trial Court decreed the suit of the respondent vide judgment dated 15.3.2002. The respondent had filed a suit for declaration to the effect that decision of D.D.A. as per letter dated 26.6.1987 annulling the allotment of residential plot is illegal, null and void and that the respondent is the lawful allottee of the plot bearing No. J-47 measuring 200 square yards situated at Shalimar Bagh. It was further prayed that decree of possession be passed in favour of the respondent, decree of mandatory injunction be also passed directing the appellant to restore allotment of plot to the plaintiff/respondent and to execute the D.D.A. perpetual lease in respect of the plot in favour of the respondent. Aggrieved by this order, the D.D.A. filed an appeal before the first Trial Court. The first Trial Court dismissed the appeal as barred by time vide its order dated 22.10.2003. Aggrieved by that order, this second appeal has been preferred. 2. Before the learned Additional District Judge, the appellant had moved an application for condonation of delay under Section 5 of the Limitation Act, wherein the following grounds were enumerated. Appellant D.D.A. being a statutory body acts through its officials. File has to move through various hands i.e. one department to another, before a decision is taken for filing the appeal. In the case in hand, copies of impugned judgment and decree were obtained by the Senior Law Officer and he sent the same to the Department on 1.4.2002. The copies were sent to DD (CE) Branch and not LSB as the matter concerned about the cancellation of plot. As a matter of fact, the certified copies of judgment and decree sent to Department were lost somewhere. The same were not traceable in Vikas Sadan. Respondent filed an execution petition before the Trial Court. Notice was received. Consequently, it was felt that appeal should be filed urgently. Consequently, other copies of judgment and decree were obtained and appeal was filed immediately. 3. The respondent contested this application tooth and nail. It was contended that no cogent reasons were given. 4. The learned Court of Additional District Judge dismissed the application under Section 5 of the Limitation Act on the following grounds. Consequently, other copies of judgment and decree were obtained and appeal was filed immediately. 3. The respondent contested this application tooth and nail. It was contended that no cogent reasons were given. 4. The learned Court of Additional District Judge dismissed the application under Section 5 of the Limitation Act on the following grounds. The authorities cited by the learned Counsel for the appellant reported in N. Balakrishnan v. M. Krishnanurthy, VII (1998) SLT 334=IV (1998) CLT 63 (SC)=1999 FISJ (Banking) 1; State of Haryana v. Chandramani, III (1996) CLT 62 (SC)= AIR 1996 SC 1623 ; and Union of India v. R.P. Builders, 57 (1995) DLT 337 (DB), reveal that the Apex Court as well as Delhi High Court have held that whenever a State machinery is involved, a liberal approach has to be adopted while condoning the delay. He, however, also pointed out that these authorities also lay down that the details of the movement of the file has also to be given. It was for the appellant to show that prompt action was taken at every stage and there was no negligence and no inaction on the part of the officials of the State machinery. The liberal approach does not mean that delay has to be condoned even in the cases, where no sufficient or cogent grounds have been furnished. It was pointed out that the dates regarding movement of the file from one Department to another Department have not been mentioned. The date when the certified copy was made available, was also not mentioned. Again, it was not mentioned as to when certified copies were dispatched by Senior Law Officer to the DD(CE) and LSB Branch and in what manner. There is nothing on record to show as to when the same were received by DO (CE) and LSB Branch and what actions were taken after receipt of certified copies of the impugned judgment and decree. The date when the first certified copy was misplaced has not been mentioned. The application for second certified copy was filed on 9.10.2002 i.e. Seven months after the announcement of the judgment. No evidence was produced to show that application for certified copies was filed earlier. 5. I have heard the learned Counsel for the parties. The date when the first certified copy was misplaced has not been mentioned. The application for second certified copy was filed on 9.10.2002 i.e. Seven months after the announcement of the judgment. No evidence was produced to show that application for certified copies was filed earlier. 5. I have heard the learned Counsel for the parties. Learned Counsel for the appellant in order to embolden her case has cited the judgment of this Court incase bearing RSA No. 134/2002 and CM 368/2002 titled as D.D.A. v. Steel Trading Corporation decided on 26.8.2003, wherein under the similar circumstances delay was condoned and D.D.A. was directed to pay costs in the sum of Rs.10,000/- to the opposite party. The facts of that case were these. The file was sent to the Standing Counsel for the Department in the Delhi High Court on 29.5.2001 but he did not return the same during summer. The case was marked to another learned Counsel on 17.7.2001. The queries raised by the learned Counsel were cleared by the Department on 28.9.2001 and thereafter the matter was drafted and filed in the Court on 3.10.2001. It was held: "1 have heard the learned Counsel for the parties and gone through the Order and judgment under challenge. I find that although, the D.D.A. has acted in a lackadaisical manner and should not be encouraged, yet where public exchequer is involved the impersonal behaviour and attitude of the D.D.A. employees should not be allowed to defeat the ends of justice. I am also informed by learned Counsel for the D.D.A. that the Department has taken serious note of the lapses on part of its employees and is proceeding against them departmentally. In view of the fact that the Department is serious about the lapses of its employees and has taken action against them I deem it appropriate to condone the delay in filing the Appeal to the First Appellate Court and remand the matter for adjudication on merits before the First Appellate Court. Accordingly, the judgment and Order dated 27th May, 2002 is set aside. The first appeal is remanded to the Appellate Court for decision in accordance with law. D.D.A. to pay costs quantified at Rs.1 0,000/- to the respondents." 6. Now, I turn to the case in hand. Accordingly, the judgment and Order dated 27th May, 2002 is set aside. The first appeal is remanded to the Appellate Court for decision in accordance with law. D.D.A. to pay costs quantified at Rs.1 0,000/- to the respondents." 6. Now, I turn to the case in hand. The learned Counsel for the D.D.A., however, surprisingly, pointed out that since a number of officials are involved in the instant case, therefore, no responsibility could be fixed on any of the officials. 7. On the other hand, learned Counsel for the respondent vehemently argued that the judgment passed by the lower Court is well reasoned and he placed reliance on the same. 8. The story propounded by the D.D.A. that no responsibility could be fixed as a number of officials were involved does not just stack up. The alacrity with which the Counsel for the D.D.A. explained that no responsibility could be fixed because a large number of persons were involved gave one the impression that concerned officers of D.D.A. who instructed her to advance the argument in this manner, thought that the entire world around them composed of morons. A copy of this order be sent to the learned Chairman, D.D.A. for perusal and I leave to his discretion to initiate action against the officials, who are at fault. 9. The respondent may snigger at this point but the Court cannot ignore the fact that some officials of the D.D.A. may be working in cahoots with the respondent. Secondly, Public Exchequer is involved as pointed out by this Court in the above said authority. Thirdly, the view taken by the Apex Court neatly dovetails with this view. In State of Nagaland v. Lipok Ao and Others, III (2005) SLT 455=II (2005) CCR 47 (SC)= AIR 2005 SC 2191 , it was held: "The proof by sufficient cause is a condition precedent for exercise of the extraordinary restriction vested in the Court. What counts is not the length of the delay but the sufficiency of the cause and shortness of the delay is one of the circumstances to be taken into account in using the discretion. Although no special indulgence can be shown to the Government which, in similar circumstances. is not shown to an individual suitor, one cannot but take a practical view of the working of the Government without being unduly indulgent to the slow motion of its wheels. Although no special indulgence can be shown to the Government which, in similar circumstances. is not shown to an individual suitor, one cannot but take a practical view of the working of the Government without being unduly indulgent to the slow motion of its wheels. It is axiomatic that decisions are taken by officers/agencies proverbially at slow pace and encumbered process of pushing the files from table to table and keeping it on table for considerable time causing delay - intentional or otherwise - is a routine. Considerable delay of procedural red-tape in the process of their making decision is a common feature. Therefore, certain amount of latitude is not impermissible. If the appeals brought by the State are lost for such default no person is individually affected but what in the ultimate analysis suffers, is public interest. The expression "sufficient cause" should, therefore, be considered with pragmatism in justice-oriented approach rather than the technical detection of sufficient cause for explaining every days delay. The factors which are peculiar to and characteristic of the functioning of the governmental conditions would be cognizant to and requires adoption of pragmatic approach in justice-oriented process. The State cannot be put on the same footing as an individual. The individual would always be a quick in taking the decision whether he would pursue the remedy by way of an appeal or application since he is a person legally injured while State is an impersonal machinery working through its officers or servants." A similar view was taken in State of Haryana v. Chandra Mani, (supra) and in State of Bihar v. Subhash Chand, II (1997) CLT 82 (SC)= AIR 1997 SC 1390 . 10. Again, it is also well settled that 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. 11. In the light of this discussion, I accept the appeal and condone the delay. The case is remanded to the first Appellate Court for decision in accordance with law. I also impose costs in the sum of Rs.l0,000/- upon the appellant D.D.A., to be deposited with Delhi High Court Mediation and Conciliation Centre, UCO Bank Account No. 48852, within a fortnight. The case is remanded to the first Appellate Court for decision in accordance with law. I also impose costs in the sum of Rs.l0,000/- upon the appellant D.D.A., to be deposited with Delhi High Court Mediation and Conciliation Centre, UCO Bank Account No. 48852, within a fortnight. Its receipt be deposited with the first Appellate Court. The appeal stands disposed of. Appeal disposed of.