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2017 DIGILAW 771 (AP)

Kameswari Co-operative Housing Society Ltd. , Hyderabad v. Special Officer and Competent Authority, Urban Land Ceiling, Hyderabad

2017-11-20

P.NAVEEN RAO

body2017
ORDER : P. Naveen Rao, J. This petition is filed to condone delay of 2423 days in filing WPMP (SR) No.68048 of 2017 to restore the writ petition by recalling the order dated 19.7.2010 dismissing the writ petition for non-prosecution as there was no representation for petitioner when case was called. 2. Heard Sri S. Satyanarayana Prasad, learned Senior Counsel for petitioner and learned Special Government Pleader (TG) for respondents. 3. Learned Senior Counsel astutely projected the delay of 2423 days as can be condoned. He would plead that the delay is not deliberate and wilful and for the absence of Counsel on a given day to represent this case, members of petitioner society should not suffer. The delay was neither wilful nor deliberate, but occasioned on the wrong assumption that case is pending and that the Counsel is prosecuting the case. They came to know only recently when they were pursuing other pending case in this Court and immediately thereafter this application is filed. He would submit that quantum of delay is not relevant and what is crucial for the Court to consider such application is whether party has shown sufficient cause In a given case like the one on hand, though delay of 2423 days looks huge, since petitioner was never put on notice about dismissal of the case and is bona fide in his assertion, the delay can be condoned. 4. He would implore that though sufficient opportunity was afforded, respondents have not filed counters in this petition and it is deemed that they are not opposing the prayer of petitioner and, therefore, delay can be condoned. 5. On the scope of condoning ti delay in filing such petitions, he cited follow precedent decisions. (i) Rafiq and another v. Munshilal and another, (1981) 2 SCC 788 ; (ii) Manohar v. State of Karnataka and others, 1995 Supp (4) SCC 218; (iii) N. Balakrishnan v. M. Krishnamurthy (1998) 7 SCC 123 : 1998 ALD (S.C.S.N.) 26-3; (iv) State of Bihar and another v. Abhay Chand Bothra, (2000) 9 SCC. (v) Davinder Pal Sehgal and another v. Partap Steel Rolling Mills Pvt. L and others, (2002) 3 SCC 156; (vi) Balmukund Arora v. State, AIR 2005 Raj. 228 ; and (vii) Ram Kumar Gupta and others v. Har Prasad and another, (2O10) 1 SCC 391. 6. (v) Davinder Pal Sehgal and another v. Partap Steel Rolling Mills Pvt. L and others, (2002) 3 SCC 156; (vi) Balmukund Arora v. State, AIR 2005 Raj. 228 ; and (vii) Ram Kumar Gupta and others v. Har Prasad and another, (2O10) 1 SCC 391. 6. Learned Special Government pleader would submit that petitioner has been litigating before this Court and, therefore, petitioner must be aware of Court procedures. Association has filed several cases. Association cannot plead ignorance of the stage of the case. Pointing out to averments in the affidavit filed in support of this petition, he would submit, would show that petitioner cautiously did not intend to prosecute the writ petition and allowed it to be dismissed. 7. Sri V.R.N. Prashanth, learned Counsel appearing for respondents 3 and 4 and Sri K.R. Prabhakar, learned Counsel appearing for respondent No.5 would submit that there is huge delay in filing this petition and sufficient cause is not shown. A bald affidavit is filed and that no case is made out to condone such huge delay. 8. Condoning the delay in filing a petition is the discretion of the Court. If sufficient cause is shown in not prosecuting the matter earlier the delay can be condoned. However, as the delay enlarges and the shadows widen, the scrutiny by the writ Court becomes more stringent and rigid. The Court considers pleadings minutely and only if sufficient cause is shown and that petitioner endeavours to point out that he was under bona fide impression of case as pending or the party was not aware of the order of Court, or that he was prevented from attending to Court on account of extraordinary event/s occurred thereafter. Court may accept the petition to condone the delay and to restore the case. thus, burden is on petitioner to satisfy this Court with cogent reasons and persuade the Court to condone the delay. 9. While exercising discretion to condone delay/entertaining a belated application, what is upper most in the mind of the writ Court is innocent/bona fide litigant should not suffer of injustice and delay in prosecuting litigation cannot come in the way of writ Court to remedy the injustice. The primary objective of writ Court is to reach out to genuine litigant and extend long arm of law to remedy the injustice. Ordinarily, technicalities and procedural infirmities, if pitted against justice, justice should prevail. The primary objective of writ Court is to reach out to genuine litigant and extend long arm of law to remedy the injustice. Ordinarily, technicalities and procedural infirmities, if pitted against justice, justice should prevail. However, at the same time Court should take note that when delay is long any decision to condone delay in filing the petition may have an impact on rights accrued to opposite party. Thus, Court is required to satisfy on two aspects, (1) showing of sufficient cause for not prosecuting the matter in time/within reasonable time of happening of an event; and (2) even cause shown may be genuine, whether passing any order in favour of such person, who was not diligent to prosecute the litigation, would affect the rights accrued to the opposite party in the meantime. In addition, Court is also required to note that settled things cannot be unsettled, more so in the hands of a person who was not diligent in prosecuting the litigation. 10. What is required to be seen is, what are the extenuating circumstances, which prevented the petitioner in prosecuting the litigation, whether the averments made in the affidavit filed in support of the petition reflect the bona fide intentions of the party and the nature of litigation the party is prosecuting. 11. Thus, to appreciate the contentions of learned Senior Counsel, it is necessary to consider the pleadings in the affidavit filed in support of the petition to condone delay. They read as under; "3. I state that during the pendency of the above writ petition, Urban Land (Ceiling and Regulation) Act, 1976 was repealed in the State of Andhra Pradesh with effect from 28.3.2008 and consequently G.O. Ms. No.455 dated 29.7.2002 has ceased to exist. The State Government had issued G.O. Ms. No.747 dated 18.6.2008 for regularisation of the ceiling surplus lands which got vested in the State. Since the same persons who earlier applied under G.O. Ms. No.455 dated 29.7.2002 have again applied under G.O. Ms. No.747 dated 18.6.2008 and the State Government was considering regularisation of the land, the petitioner society has filed another writ petition in WP No. 18768 of 2011 which is pending. 4. I state that due to inadvertence, the above writ petition was not pursued as G.O. Ms. No.455 dated 29.7.2002 have again applied under G.O. Ms. No.747 dated 18.6.2008 and the State Government was considering regularisation of the land, the petitioner society has filed another writ petition in WP No. 18768 of 2011 which is pending. 4. I state that due to inadvertence, the above writ petition was not pursued as G.O. Ms. No.455 dated 29.7.2002 has lost its legal existence consequent to the Repeal of the Urban Land (Ceiling and Regulation) Act, 1976 and the said writ petition was dismissed for non prosecution on 19.7.2010. I state that the petitioner did not keep track of the above said writ petition. The petitioner is not guilty of any latches. The petitioner is juristic person. As the petitioner was not aware of the listing of this case on 19.7.2010 it could not instruct its Counsel to take appropriate steps. The petitioner came to know about the dismissal of the above writ petition as aforesaid when on its behalf instructions were being given recently in connected matters which have come up for hearing before a Division Bench of this Hon’ble Court. Then the petitioner and its Counsel on verification got to know that the above writ petition was dismissed for non prosecution. The dismissal of the above writ petition for non prosecution will not operate as Res judicata as against the petitioner or as against any one as the above writ petition was not heard and disposed of. However, to create legal hurdles and to prolong the litigation the said dismissal of the above writ petition for default may be put against the petitioner in other proceedings pending this Hon’ble Court on the same subject-matter land." 12. Two things are noticed from the above averments. 13. Firstly, according to petitioner, G.O. Ms. No.455, dated 29.7.2002 ceased to exist in view of repealing of Urban Land (Ceiling and Regulation) Act, 1976 on 28.3.2008 and thereafter Government notified G.O. Ms. No.747 dated 18.6.2008 According to the understanding of petitioner as G.O. Ms. No.455 lost its legal significance in view of these developments, he did not deem it necessary to pursue the writ petition. In other words, petitioner was not interested in prosecuting the writ petition and, therefore, allowed the writ petition to be dismissed. Thus; it was a conscious decision. It is not necessary for this Court to consider whether it was a well informed decision. 14. In other words, petitioner was not interested in prosecuting the writ petition and, therefore, allowed the writ petition to be dismissed. Thus; it was a conscious decision. It is not necessary for this Court to consider whether it was a well informed decision. 14. Secondly, after repealing of the Act, 1976 and issuance of G.O. Ms. No. petitioner filed WP No. 18768 of 2011 this writ petition, petitioner prayed to declare that Government has no power or authority to bring the very same land for allotment under G.O. Ms. No.747. The affidavit filed in support of the writ petition was deposed on 3.7.2011, within one year of dismissal of above writ petition. However, there is no whisper in the said affidavit about filling of WP No. 9422 of 2004 and its status though, strangely, there is discussion of some other writ petition. The Court is also informed that as learned Single Judge did not grant interim relief, WA No.603 of 2011 were filed. During this period, no steps were taken to seek restoration of this writ petition though petitioner was independently prosecuting litigation concerning same property and arising out of subsequent G.O. issued in super session of G.O. Ms. No.455. 15. At this stage, it is also useful to consider the prayer in the writ petition, It reads as under: “issue an appropriate writ more particularly in the nature of writ of mandamus declaring the action of respondents herein in not conducting the Joint Survey of Sy.No.260 in General and Sy.Nos.260/15, 260/16 and 260/18 in particular situated at Mysigandi Village Amangal Mandal, Mahabubnagar District even after the specific directions given by the Hon’ble IV Additional District and Sessions Judge (FTC) at Mahabubnagar by a common order dated 5.6.2008 in Crl. A Nos.25, I 26,27 and 28 of 2008 as illegal, arbitrary and oppose to established principles of law and consequently direct the respondents herein to conduct the Joint Survey of Sy.No.260 in General and Sy.Nos.260/15, 260/16 corresponding New Sy.Nos.260/86, 260/87 and 260/18 in particular situated at Mysigandi Village, Amangal Mandal, Mahabubnagar District in accordance with the notification given by the Forest Department under Section 15 of the Andhra Pradesh Forest Act 1967 (Act of 1967) vide G.O. Ms. No. 1464 Food & Agriculture (Forest-III) 13th July, 1970 by fixing a particular time and pass..... ” 16. No. 1464 Food & Agriculture (Forest-III) 13th July, 1970 by fixing a particular time and pass..... ” 16. In the light of prayer sought and averments made in the affidavit filed in support of this petition, extracted above, it appears, according to the understanding of petitioner, the cause in the writ petition does not survive in view of repealing of the Act, 1976 and issuance of G.O. Ms. No.747. It is not clear what impelled him to review his understanding and to file this petition and why it took the petitioner almost seven years to file this petition. 17. As noticed above, there is not even a semblance of explanation in not filing such petition immediately, after it was dismissed, more so when petitioner was prosecuting other litigation. 18. The reading of averments in the affidavit, extracted above, also do not give an impression that petitioner was bona fide in stating that he was not aware of the dismissal of writ petition. 19. In the normal circumstances, this petition could have been dismissed in limini as delay, on the face of it, is huge. However, as learned Senior Counsel endeavoured this Court to take a different course and sought to persuade the Court to condone the delay, necessitating consideration of the issue in greater detail and passing an elaborate order, than a summary disposal. 20. Learned Senior Counsel cited several decisions to entreat this Court to accept the plea of petitioner to condone the delay. The said decisions are carefully considered. 21. Showing ‘sufficient cause’ is condition precedent for exercise of discretion by the Court for condoning the delay in filing an application. When mandatory provision is not complied with and the delay is not properly, satisfactorily and convincingly explained, the Court cannot condone delay on sympathetic grounds alone (Brijesh Kumar v. State of Haryana, 2014 (4) ALD 1 (SC) : (2014) 11 SCC 3561). While there can be no dispute with the proposition that mere technicalities should not come in the way of rendering justice, it is the duty of the High Court to consider the reasons assigned for the delay and thereafter come to the conclusion whether on the grounds urged, sufficient cause, within the meaning of Section 5 of Limitation Act, has been made out (Kumar v. Kernataka Industries Corporation Bank Ltd., (2013) 11 SCC 668 ). 22. 22. In Ashok Kumar v. District Magistrate, Basti and another, (2012) 3 SCC 311 , the plea taken to condone the delay was that mother of the appellant was ill. Supreme Court noticed that in support of the contention of ailment of the mother, appellant did not produce any documentary evidence, such as, medical certificates issued by the competent Doctor and in the absence of such evidence, Supreme Court observed, the High Court was justified in rejecting the appeal on the ground of delay and latches. 23. In the case on hand also, petitioner has not explained why he kept quiet for almost seven years. His averments are vague. When a person prays the Court to condone the delay, more so when delay is very high, it is mandatory for him to explain the reasons for such delay in greater detail to persuade the Court to exercise its discretion. As noted above, immediately after dismissal of this writ petition, petitioner filed WP No. 18768 of 2011 challenging subsequent Government order through same Counsel. Thus, no case is made out to condone the delay. This WPMP fails and it is accordingly dismissed with costs quantified at Rs. 5,000/- (Rupees five thousand only) payable to the Secretary, High Court Le Services Committee, Hyderabad.