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2008 DIGILAW 780 (ALL)

STATE OF U P v. ASHA SRIVASTAVA

2008-04-04

DILIP GUPTA

body2008
DILIP GUPTA, J. ( 1 ) -THIS petition under Article 226 of the Constitution has been filed by the State of U. P. through the Collector and the Trade Tax Officer for setting aside the order dated 31st December, 1998 passed by the Prescribed Authority under section 21 (8) of the U. P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as the act) enhancing the rent of the building to Rs. 6500/- per month. The petitioners have also sought the quashing of the order dated 23rd July, 2007 by which the Appeal filed by the petitioners for setting aside the order dated 1st December, 2003 was dismissed as barred by time. It needs to be mentioned that the application for review of the order dated 31st December, 1998 was rejected by the order dated 1st December, 2003. ( 2 ) THE records of the writ petition indicate that an application under section 21 (8) of the Act was filed on 13th September, 1994 by the respondent-landlord for enhancement of the rent. A reply was filed by the tenant and after calling for a report, the Rent Control and Eviction Officer passed an order on 31st December, 1998 for enhancement of the rent after hearing the learned Counsel for both the parties. Subsequently, the petitioners filed an application on 12th September, 2001 for review of the order dated 31st December, 1998. This application was rejected by the order dated 1st December, 2003 holding the no ground for review had been made out apart from the fact that the Review Petition was also barred by time. Feeling aggrieved by the order dated 1st December 2003, the petitioners filed an Appeal under section 22 of the Act. Along with the Appeal, an application for condoning the delay in filing the Appeal was also filed. By the order dated 23rd July, 2007 the Delay Condonation Application was rejected and consequently the Appeal was dismissed. ( 3 ) LEARNED Standing Counsel for the petitioners urged that the Appellate Court committed an illegality in rejecting the Delay Condonation Application and in support of his contention he has placed reliance upon the decisions of the Supreme Court in G. Ramegowda, Major etc. v. The Special Land Acquisition Officer, Bangalore, air 1988 SC 897 . and in N. Balakrishnan v. M. Knshnamurthy, (1998) SCC 123. v. The Special Land Acquisition Officer, Bangalore, air 1988 SC 897 . and in N. Balakrishnan v. M. Knshnamurthy, (1998) SCC 123. ( 4 ) SRI Sharad Malviya learned Counsel appearing for the respondent-landlord, however, submitted that in the facts and circumstances of the case, the Appellate Court was justified in rejecting the application filed by the petitioner-appellants for condoning the delay in filing the Appeal. He further submitted that the Rent Control and Eviction Officer by a detailed order dated 31st December, 1998 had enhanced the rent against which the review petition was not maintainable. He further submitted that even the Appeal filed by the petitioner against the order dated 1st December, 2003, by which the Review Petition was dismissed, was not maintainable. ( 5 ) IN support of his contentions, he has placed reliance upon the decisions of this Court in Kishori Lal alias Kashmiri and others v. Rent Control and Eviction Officer, Rampur and another,1984 (2) ARC 623. and in Smt. Dhooran alias Ghooran v. The District Judge, Kanpur and others,1982 (1) ARC 797. ( 6 ) IT has, therefore, first to be examined whether a review would lie against an order passed under section 21 (8) of the Act. Section 21 (8) of the Act is quoted below: "22. Proceedings for release of building under occupation of tenant.- (8) Nothing in clause (a) of sub-section (1) shall apply to a building let out to the State Government or to a local authority or to a public sector corporation or to a recognised educational institution unless the Prescribed Authority is satisfied that the landlord is a person to whom Clause (ii) or Clause (iv) of the Explanation to sub-section (1) is applicable: provided that in the case of such a building the District Magistrate may, on the application of the landlord, enhance the monthly rent payable therefor to a sum equivalent to one-twelfth of ten per cent of the market value of the building under tenancy, and the rent so enhanced shall be payable from the commencement of the month of tenancy following the date of the application: provided further that a similar application for further enhancement may be made after the expiration of a period of five years from the date of the last order of enhancement. " ( 7 ) THE Supreme Court in Patel Narshi Thakershi and others v. Pradyumansinghji Arjunsinghji, air 1970 SC 1273 . observed: "the order passed by Mr. Mankodi, in law amounted to a review of the order made by Saurashtra Government. It is well settled that the power to review is not an inherent power. It must be conferred by law either specifically or by necessary implication. No provision in the Act was brought to our notice from which it could be gathered that the Government had power to review its own order. If the Government had no power to review its own order, it is obvious that its delegate could not have reviewed its order. " ( 8 ) THERE is no provision in the Act which provides for filing of a review. Review is a statutory right. Learned Counsel for the petitioners fairly states that the Act does not contain any provision for review of such an order. In the absence of any power of review in the Act, the review application filed on 12th September, 2001 was not maintainable. ( 9 ) IN Kishori Lal (supra) this Court while examining the question as to whether a review would lie against an order passed by the Rent Control and eviction Officer under section 9-A of the Act observed that Review does not lie and the relevant portion is quoted below: "in the case of Shiv Behari (supra) Honble Mr. Justice M. P. Saxena has held that the Additional District Judge, in a case under the Act has correctly rejected the review application as he had no power to review. Similarly in the case of Abdul Hameed (supra) Honble Mr. Justice V. K. Mehrotra has held there is no power of review in cases under the Act and the power conferred on the Court under Rule 22 (f) empowers the Court to pass order under section 151, C. P. C. which is to prevent the abuse of process of Court and for ends of justice and nothing more. The learned Judge has quoted from the decision of the Supreme Court in Har Bhajan Singh v. Karam Singh,air 1966 SC 415. which is most appropriate for the purpose of disposing of the contention that the review in such cases is not maintainable. The learned Judge has quoted from the decision of the Supreme Court in Har Bhajan Singh v. Karam Singh,air 1966 SC 415. which is most appropriate for the purpose of disposing of the contention that the review in such cases is not maintainable. Thus I hold that the review application was not maintainable and the impugned order can very well be quashed on this ground alone. " ( 10 ) THUS, in view of the aforesaid, the Review Petition filed by the petitioners against the order dated 31st December, 1998 was not maintainable. ( 11 ) THE other question that needs to be examined is whether an Appeal can be filed under section 22 of the Act against the order rejecting the Review Petition because what has been impugned in the present petition is the order by which the application filed for condoning the delay in filing the Appeal under section 22 of the Act against the order rejecting the review application. ( 12 ) UNDER section 22 of the Act an Appeal lies against an order passed under section 21 of the Act within a period of thirty days from the date of the order. ( 13 ) IN Smt. Dhooran (supra) this Court held that an Appeal under section 22 of the Act would not lie against an order refusing to set aside the ex-parte order of release passed under section 21 of the Act and in this context the Court observed: "the learned Counsel for the petitioner contends that the learned District Judge was wrong in taking in view that no appeal lay against the order rejecting the petitioners application for setting aside of the ex parte order of release, I do not agree. An appeal is always creature of statute section 22 under which the petitioner filed the appeal provides for appeal against the order passed under section 21. No appeal is provided under the Act against an order rejecting an application for setting aside of an ex parte order of release. . . . . . . . . . . . . . No appeal is provided under the Act against an order rejecting an application for setting aside of an ex parte order of release. . . . . . . . . . . . . . " ( 14 ) LIKEWISE, in view of the aforesaid decision, it has to be held that an Appeal under section 22 of the Act would not lie against an order passed by the Rent Control and Eviction Officer deciding the review petition filed against an order passed under section 21 (8) of the Act. ( 15 ) IN this view of the matter, no relief can be granted to the petitioners in the present petition because the Appeal itself was not maintainable. ( 16 ) EVEN otherwise, I have examined the order by which the application filed under section 5 of the Limitation Act for condoning the delay in filing the Appeal was rejected and also the decisions relied upon by the learned Counsel for the petitioners. ( 17 ) THE Courts have repeatedly pointed out that whether or not there is "sufficient cause" for condonation of delay is a question of fact dependent upon the facts and circumstances of the case and that the discretion should not be defined or crystallised to convert it into a rigid rule of law. In State of Nagaland v. Lipok Ao and others,2005 (52) ACC 932 (SC)=2005 (29) AIC 65. the Supreme Court pointed out that proof of "sufficient cause is a condition precedent for exercise of the discretion vested in the Court and what counts is not the length of the delay but the sufficiency of the cause. The shortness of the delay is one of the circumstances to be taken into account is using the discretion. The Supreme Court also observed: ". . . . . . . . . . The provisions contemplates that the Court has to go in the position of the person concerned and to find out if the delay can be said to have been resulted from the cause which he had adduced and whether the cause can be recorded in the peculiar circumstances of the case is sufficient. . . . . . . . The provisions contemplates that the Court has to go in the position of the person concerned and to find out if the delay can be said to have been resulted from the cause which he had adduced and whether the cause can be recorded in the peculiar circumstances of the case is sufficient. 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. " ( 18 ) IN Brij Indar Singh v. Kanshi Ram,air 1917 PC 156. the Privy Council opined that the true guide for a Court to exercise the discretion under section 5 is whether the appellant acted with reasonable diligence in prosecuting the appeal. ( 19 ) IN Shakuntala Devi Jain v. Kuntal Kumari, air 1969 SC 575 . the Supreme Court observed that unless want of bona fides, in action or negligence as would deprive a party of the protection of section 5 is proved, the Court may in its discretion condone the delay. ( 20 ) IN G. Ramegowda (supra), the Supreme Court condoned the delay in filing the Appeal on account of the protracted correspondence between the Government Pleader and the Government as this persuaded the Court to hold that the Government was not negligent. It is in this context that the Supreme Court observed: ". . . . . . . . . . . . . . . . . . There is, it is true, no general principle saving the party from all mistakes of its Counsel, if there is negligence, deliberate or gross inaction or lack of bona fides on the part of the party or its Counsel there is no reason why the opposite side should be exposed to a time-barred appeal. Each case will have to be considered on the particularities of its own special facts. However, the expression "sufficient cause in section 5 must receive a liberal construction so as to advance substantial justice and generally delays in preferring appeals are required to be condoned in the interest of justice where no gross negligence or deliberate inaction or lack of bona fides is imputable to the party seeking condonation of the delay. However, the expression "sufficient cause in section 5 must receive a liberal construction so as to advance substantial justice and generally delays in preferring appeals are required to be condoned in the interest of justice where no gross negligence or deliberate inaction or lack of bona fides is imputable to the party seeking condonation of the delay. The law of limitation is, no doubt, the same for a private citizen as for Governmental authorities. Government, like any other litigant must take responsibility for the acts or omissions of its officers. But a somewhat different complexion is imparted to the matter where Government makes out a case where public interest was shown to have suffered owing to acts of fraud or bad faith on the part of its officers or agents and where the officers were clearly at cross-purposes with it. Therefore, in assessing what, in a particular case, constitutes "sufficient cause for purposes of section 5 it might, perhaps, be somewhat unrealistic to exclude from the considerations that go into the judicial verdict, these facts which are peculiar to and characteristic of the functioning of the Government. Governmental decisions are proverbially slow encumbered, as they are, by a considerable degree of procedural red-tape in the process of their making. A certain amount of latitude is, therefore, not impermissible. It is rightly said that those who bear responsibility of Government must have a little play at the joints. Due recognition of these limitations on Governmental functioning of course, within a reasonable limit-is necessary if the judicial approach is not rendered unrealistic. It would, perhaps, be unfair and unrealistic to put Government and private parties on the same footing in all respects in such matters. Implicit in the very nature of Governmental functioning is procedural delay incidental to the decision making process. " (Emphasis supplied) ( 21 ) IN N. Balakrishnan (supra) the Supreme Court observed: "it is axiomatic that condonation of delay is a matter of discretion of the Court. Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is no matter, acceptability of the explanation is the only criterion. Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is no matter, acceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be uncondonable due to a want of acceptable explanation whereas in certain other cases, delay of a very long range can be condoned as the explanation thereof is satisfactory. Once the Court accepts the explanation as sufficient, it is the result of positive exercise of discretion and normally the superior Court should not disturb such finding, much less in revisional jurisdiction, unless the exercise of discretion was on wholly untenable grounds or arbitrary or perverse. But it is a different matter when the first Court refuses to condone the delay. In such cases, the superior Court would be free to consider the cause shown for the delay afresh and it is open to such superior Court to come to its own finding even untrammelled by the conclusion of the Lower Court. It must be remembered that in every case of delay, there can be some lapse on the part of the litigant concerned. That alone is not enough to turn down his plea and to shut the door against him. If the explanation does not smack of mala fides or it is not put forth as part of a dilatory strategy, the Court must show utmost consideration to the suitor. But when there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time, then the Court should lean against acceptance of the explanation. While condoning the delay, the Court should not forget the opposite party altogether. It must be borne in mind that he is a loser and he too would have incurred quite large litigation expenses. It would be a salutary guideline that when Courts condone the delay due to laches on the part of the applicant, the Court shall compensate the opposite party for his loss. It must be borne in mind that he is a loser and he too would have incurred quite large litigation expenses. It would be a salutary guideline that when Courts condone the delay due to laches on the part of the applicant, the Court shall compensate the opposite party for his loss. " ( 22 ) THE inference that can be drawn from the aforesaid judgments is that there is no general principle for condoning the delay in filing the Appeal and each case has to be considered on its own facts but proof of sufficient cause is a condition precedent for exercise of the discretion vested in the Court and the true guide for the Court to exercise the discretion is to find out whether the appellant acted with reasonable diligence. It has also been pointed out that though "sufficient cause" in section 5 of the Limitation Act should receive a liberal construction so that generally delays in preferring appeals are condoned but where there is gross negligence or deliberate inaction or lack of bona fides imputable to the party seeking condonation of delay, the application should be rejected. However, while dealing with delay condonation applications moved on behalf of the Government, the facts which are peculiar and characteristic of the functioning of the Government, can be taken into consideration and a certain amount of latitude is permissible. The Courts have also emphasised that the Government must take the responsibility for the acts or omissions of its officers, except where the Government makes out a case that public interest has suffered owing to acts of fraud or bad faith on the part of its officers or agents and where the officers were clearly at cross-purposes with it. It has also been pointed out that there is no general principle saving the party from all mistakes of the Counsel and if there is negligence, deliberate or gross inaction or lack of bona fides on the part of the Counsel, the discretion to condone the delay should not be exercised. ( 23 ) IN the present petition the petitioners have annexed as Annexure-8 to the petition a copy of the application filed by them under section 5 of the Limitation Act. ( 23 ) IN the present petition the petitioners have annexed as Annexure-8 to the petition a copy of the application filed by them under section 5 of the Limitation Act. It has been stated that the order under section 21 (8) of the Act was passed on 31st December, 1998 and after obtaining the permission from the State Government the Review Petition was filed which was rejected by the order dated 1st December, 2003. The petitioners got knowledge of the said order only on 31st January, 2004. They then made the queries on 31st January, 2004 and also applied for copies which were supplied on 13th February, 2004. The procedural delay had taken place and thereafter the Appeal was filed on 28th February, 2004. As noticed above, the limitation for filing the Appeal under section 22 of the Act is thirty days. The application does not mention as to how they obtained knowledge of the order passed on the Review Petition only on 31st January, 2004 when, in fact, the application was rejected on 1st December, 2003. The pleadings for explaining the delay are lacking. The Appellate Court has considered this aspect and has observed that in the absence of any explanation it cannot be said that sufficient cause existed for condoning the delay. ( 24 ) WHILE deciding an application for condoning the delay in filing an appeal, the Court must also keep in mind the observations made by the Supreme Court in Commissioner of Wealth Tax v. Amateur Riders Club,1994 Supp (2) SCC 603. wherein the delay of 264 days was not condoned and they are: "for quite sometime in the past, this Court has been making observations as to the grave prejudice caused to public interest by appeals brought on behalf of the Government being lost on the point of limitation. Such observations have been made for over a few years in the past. But there seems to be no conspicuous improvement as is apparent in the present petition which is filed in November, 1993. . . . . . . . . . . . . After the earlier observations of this Court made in several cases in the past, we hoped that the matters might improve. There seems to be no visible support for this optimism. . . . . . . . . . . . . After the earlier observations of this Court made in several cases in the past, we hoped that the matters might improve. There seems to be no visible support for this optimism. There is a point beyond which even the Courts cannot help a litigant even if the litigant is the Government which is itself under the shackles of bureaucratic indifference. Having regard to the law of limitation which binds everybody, we cannot find any way of granting relief. It is true that Government should not be treated as any other private litigant as, indeed, in the case of the former the decisions to present and prosecute appeals are not individual but are institutional decisions necessarily bogged down by the proverbial red-tape. But there are limits to this also. Even with all this latitude, the explanation offered for the delay in this case merely serves to aggravate the attitude of indifference of the Revenue in protecting its common interest. The affidavit is again one of the stereotyped affidavits making it susceptible to the criticism that the Revenue does not seem to attach any importance to the need for promptitude even where it affects its own interest. The application for condonation of delay is, accordingly, dismissed. The special leave petition is, therefore, dismissed as barred by time. " ( 25 ) A Division Bench of this Court in Kamal Mustafa Khan (supra) after considering the aforesaid decision of the Supreme Court in Chandra Mani (supra) did not condone the delay and it was observed : "we are of the opinion that no doubt greater latitude has to be shown by the Court to the State Government while considering whether the delay in filing the appeal should be condoned or not, but the above observation of the Supreme Court cannot be interpreted to mean that the State Government is at liberty to file an appeal whenever it so chooses. In above decision of the Supreme Court the delay was of 109 days in filing the appeal whereas in the present case the delay is of 385 days, i. e. , almost 13 months. " ( 26 ) THE aforesaid decision of the Division Bench was followed in Mohd. In above decision of the Supreme Court the delay was of 109 days in filing the appeal whereas in the present case the delay is of 385 days, i. e. , almost 13 months. " ( 26 ) THE aforesaid decision of the Division Bench was followed in Mohd. Nahid (supra) and it was observed: "these facts reveal the casual, irresponsible and shoddy manner in which such appeals are being treated by the State Government. There is inexplicable delay between 10. 2. 1999 when the S. L. A. O. , wrote a letter to the Secretary, Revenue Department, U. P. for seeking permission to file an appeal, and the receipt of the permission on 24. 8. 1999. This delay of more than six months is totally unexplained. Thereafter also there is no proper explanation for filing of the appeal is said to have been received from the State Government and September, 2000 when the appeal was actually filed, i. e. , unexplained delay of more than one year. " ( 27 ) THUS, in the facts and circumstances of the case, in the absence of any satisfactory explanation for the delay, the order passed by the Appellate Court rejecting the application filed under section 5 of the Limitation Act does not suffer from any infirmity. ( 28 ) THE petitioners have also sought the quashing of the order dated 31st December, 1998 by which the rent has been enhanced under section 21 (8) of the Act. As noticed hereinabove, an Appeal lies under section 22 of the Act but no Appeal was filed by the petitioners. In such circumstances they cannot be permitted to challenge the said order directly in this Court particularly after a lapse of about ten years. ( 29 ) THE writ petition is, accordingly, dismissed. Petition Dismissed. .