In the Uttar Pradesh Real Estate Appellate Tribunal†
(Before D.K. Arora, Chairman and Tej Bahadur Singh, Member (Judicial) and Rajiv Misra, Member (Administrative))
Appeal No. (D) 480/2020
Lucknow Development Authority … Appellant;
Versus
Anupama Singh … Respondent.
And
Appeal No. (D) 481/2020
Lucknow Development Authority … Appellant;
Versus
Murli Manohar Verma … Respondent.
Appeal No. (D) 480/2020 and Appeal No. (D) 481/2020
Decided on June 11, 2021, [Disposal of Applications Dated: 26.09.2020]
1. The facts of the above mentioned both cases-Appeal No. (D) 480/2020 and Appeal No. (D) 481/2020 are similar with a very bit difference, which would be clarified later on at the appropriate places. Being of similar nature both cases would be decided by a common order, therefore both above mentioned cases-Appeal No. (D) 480/2020 and Appeal No. (D) 481/2020 are consolidated for convenience, and Appeal No. (D) 480/2020 will be leading case.
Appeal No. (D) 480/2020
2. The learned counsel for the applicant/appellant has moved an application dated 26.09.2020 supported with affidavit for condonation of delay in filing the instant appeal against the impugned order dated 04.09.2019 passed by Adjudicating Officer. The Contents of the application dated 26.09.2020 supported with affidavit are mentioned as under:
3. The instant appeal is being filed after expiry of limitation period as specified under sub-Section (2) of Section 44 of the Act.
4. The impugned judgment and order was passed on 04.09.2019 by the learned Adjudicating Officer. The applicant/appellant applied for certified copy of the impugned judgment and order dated 04.09.2019 on 10.09.2019 and the same was received by the applicant/appellant on 20.09.2019. As such, the Appellant for the first time, came to know about the impugned order on 10.09.2019.
5. The appellant being a Development Authority and an instrumentality of state is having a lengthy administrative process for taking any decision. After coming to know about the impugned judgment and order dated 04.09.2019 immediately a decision was taken for filing the instant appeal and the Appellant-Authority, instructed one of its panel counsel to file instant appeal.
6. The documents sought by the counsel could not be provided in time on account of misplacement of papers book of the property in question from concerned Section of the Department due to transfer of concerned dealing clerk.
7. The aforesaid papers book/documents were provided to the counsel for the appellant on 10.02.2020. However, thereafter due to some personal reasons the aforesaid counsel resigned from the panel of appellant-Authority and thus the instant appeal could not be filed at relevant point of time.
8. It is pertinent to mention here that soon thereafter the Hon’ble Appellate Tribunal was closed on account of Holi Vacation and soon after Holi vacation, nationwide lockdown was announced from 22.03.2020 to 14.04.2020 on account of continuous outbreak of Covid-19 pandemic which was subsequently extended from time to time by the Government orders.
9. It was only after expiry of lockdown around 31.05.2020 when situation was bit eased out, the instant matter was allotted to the counsel for appellant authority on 04.06.2020 and necessary documents pertaining to the filing of the instant appeal were made available to the counsel for the appellant only on 25.06.2020.
10. That due to continuous outbreak of covid-19 pandemic, the counsel for appellant was unable to file the instant appeal till 28.07.2020 because the Hon’ble Appellate Tribunal was closed from 29.07.2020 to 16.08.2020. It was only after this the situation became some normal from the ongoing pandemic, and the instant appeal was filed on 28.09.2020 before the Hon’ble Appellate Tribunal.
11. In the aforesaid regard, it is humbly submitted that the cause of action for filing the instant appeal firstly arose on 20.09.2019 when the copy of the impugned judgment and order dated 04.09.2019 was received by the appellant.
12. For filing the appeal, the statutory period of limitation as contained under Section 44(2) of RERA Act is sixty days from the date of receiving the copy of impugned judgment and order dated 04.09.2019, which has expired on 10.01.2019. Thus, after delay of about 112 working days after expiry of limitation period the instant appeal is being filed.
13. In view of the facts mentioned above, the delay caused in filing instant appeal is neither deliberate nor intentional and the same is bona-fide, hence the above delay in filing the instant appeal deserves to be condoned and appeal be heard on merits, otherwise the applicant/appellant being an instrumentality of state will suffer irreparable loss and injury which would result into loss to public exchequer.
14. The learned counsel for the applicant/appellant has cited the following cases in support of his contentions:
(i). In re: State of Nagaland v. Lipok AO, JT (2005) 4 SC 10.
(ii). B. Madhuri Goud v. B. Damodar Reddy, (2012) 12 SCC 693.
(iii). Esha Bhattacharya Jee v. Managing Committee of Raghunathpur Nafar Academy, Civil Appeal Nos. 8183-8184 of 2013 decided on 13.09.2013.
OBJECTION AGAINST APPLICATION FOR CONDONATION OF DELAY
15. The counsel for opposite party/respondent has filed an objection dated 07.01.2021 supported with counter affidavit against the aforementioned delay condonation application dated 26.09.2020 with the following contentions:
1. The instant appeal has been filed on 26.09.2020 i.e. after 359 days from the date of obtaining certified copy of the judgment and order dated 04.09.2019, with delay condonation application wherein no sufficient cause or reason has been explained by the appellant for condonation of delay. Thus, it is obvious that the instant appeal has been filed after the period of limitation of 60 days as prescribed under sub-Section (2) of Section 44 of the Real Estate (Regulation & Development) Act, 2016.
2. The law of limitation is applicable to all litigants including the state.
3. The appellant has not disclosed the name of its panel counsel to whom the present appeal had been instructed immediately after the knowledge about the impugned judgment and order dated 04.09.2019.
4. The allegations of the appellant regarding misplacement of papers book are beyond the acceptable excuse and the conduct of the appellant is highly unprofessional and grossly negligent and the same is unparallel to the reasonable standard of a prudent and cautious litigant.
5. The allegations of the appellant are unreasonable. It is pertinent to state here that more than five months were allegedly wasted by the appellant in providing the documents to the counsel. Further, no affidavit of the said clerk has been filed to prove the credibility of the occurrence of the alleged event of misplaced documents.
6. It is submitted that the Holi vacation lasted from 07.03.2020 to 14.03.2020 and in the name of Holi vacations, the appellant remained inactive for further 40 days from 10.02.2020 to 22.03.2020 and it has failed to explain it.
7. In affidavit, which has been filed on behalf of the appellant in support of the application for condonation of delay, it is alleged that the matter was allocated to the counsel and on 25.06.2020 the counsel was provided with the documents for filing the appeal. After this, the appellant took another 20 days for providing the relevant papers/documents to the counsel despite the fact that the matter has already crossed the limitation period. Thus, it is obvious that the appellant has been highly negligent and careless.
8. The delay from 25.06.2020 to 28.07.2020 has not been sufficiently explained. Further, the delay from 16.08.2020 to 26.09.2020, when the appeal was finally filed, is not even explained by the appellant. It took 378 days from date of impugned judgment and order dated 04.09.2019 for the appellant to file the present appeal.
9. The limitation for filing the present appeal has expired on 19.11.2019 and not on 10.01.2020 as alleged by the appellant. There is more than 300 days delay for filing the present appeal from the date of end of limitation. The delay has not been sufficiently explained and the appellant has to explain delay of each day, which the appellant has failed to do so. The appellant has acted in a highly unreasonable, unprofessional and in a negligent manner.
10. The judgments, referred by the appellant are not applicable in the present case.
11. The application for condonation of delay lacks bonafide and it is against the spirit of Sec 44(2) of Real Estate (Regulation and Development) Act, 2016, as such, the same is liable to be dismissed.
12. The learned counsel for respondent has cited the case of Baswaraj v. Special Land Acquisition Officer, (2013) 14 SCC 81 in support of his submission.
16. Against the afore-stated objection, the counsel for applicant has filed reply on 23.01.2021 re-iterating the facts mentioned in the delay condonation application dated 26.09.2020.
Connected Appeal No. (D) 481/2020
17. So far as, appeal no. (D) 481/2020 is concerned the facts of this appeal are quite akin to the facts of the appeal no. (D) 480/2020 with following minor differences:
i. In this appeal no. (D) 481/2020 the impugned judgment and order relates to 14.08.2019 which was passed by the learned Regulatory Authority, Lucknow, whereas in appeal no. (D) 480/2020 the impugned judgment and order relates to 04.09.2019, which was passed by learned Adjudicating Officer, Lucknow.
ii. In appeal no. (D) 481/2020 the question of 127 days delay is involved excluding limitation period as per averment of applicant’s counsel, whereas in appeal no. (D) 480/2019, the question of 112 days delay is involved after excluding limitation period as per version of applicant’s counsel.
18. Rest of the facts of the application as moved by applicant/appellant’s counsel for condonation of delay and the contents of objection filed against limitation application in both cases are quite similar to each other.
ASSESSMENT OF ARGUMENTS SUBMITTED BY LEARNED COUSNELS
19. Having heard the rival contentions of the learned counsels for both the parties, we perused the whole record.
20. The first submission of the learned counsel for the applicant/appellant is that the statutory period of limitation is sixty days as provided under Section 44(2) of the Real estate (Regulation and Development) Act, 2016 from the date of receiving the copy of impugned order, which has expired in this case on 20.11.2019. In our view, this submission of learned counsel for the appellant is unacceptable because it is no where mentioned in Section 44(2) of the Act that the period of limitation shall be counted from the date of receiving the certified copy of impugned order. For perusal, verbatim language of Section 44(2) of the Act is reproduced as below:
“44(2) Every appeal made under sub-section (1) shall be preferred within a period of sixty days from the date on which a copy of the direction or order or decision made by the Authority or the adjudicating officer is received by the appropriate Government or the competent authority or the aggrieved person and it shall be in such form and accompanied by such fee, as may be prescribed:
Provided that the Appellate Tribunal may entertain any appeal after the expiry of sixty days, if it is satisfied that there was sufficient cause for not filing it within that period.”
From the aforesaid provisions of Section 44(2), the following inferences can be drawn:
i. The period of limitation is sixty days and the appeal shall be preferred within a period of sixty days.
ii. The period of limitation shall be counted from the date on which a copy of the impugned direction or order or decision given by the authority or the adjudicating officer is received.
iii. The expression-“The appeal shall be preferred within a period of sixty days from the date on which a copy of the direction or order or decision….. is received”, used in Section 44(2) also signifies the copy of communication of order, decision or direction sent through electronic media.
Before proceeding further, it is pertinent to mention here Section 2(ha) and 2(j) of the Information Technology Act, 2000.
Section 2(ha) reads as below:
“Communication device” means cell phones, personal digital assistance or combination of both or any other device used to communicate, send or transmit any text, video, audio or image]
Section 2(j) says down:
“Computer network” means the interconnection of one or more computers or computer systems or communication device through-
(i) the use of satellite, microwave, terrestrial line, wire, wireless or other communication media; and
(ii) terminals or a complex consisting of two or more interconnected computers or communication device whether or not the inter-connection is continuously maintained;]
Thus, the communication by electronic media i.e. through S.M.S., e-mail, whatsapp & e-portal of the Court/Tribunal is also considered as a mode to bring into knowledge of the parties to the suit, the said direction, order or decision passed by Tribunal/Authority/Adjudicating Officer etc. If this mode is not adopted, the mandate of Section 44(5) of the Act to decide the case within a period of sixty days, has no meaning.
iv. The appeal may be filed even after expiry of a period of sixty days, if there exists sufficient cause for not filing the same within that period i.e. sixty days.
In the present case, (i.e. Appeal (D) 480/2020) the appeal has been filed on 28.09.2020 i.e. after 389 days, if counted from the date of impugned order dated 04.09.2019 and after excluding the period of limitation (i.e. sixty days), the instant appeal has been filed after delay of 329, days and if it is counted from the date of receiving the certified copy of the impugned order dated 04.09.2019 on 20.09.2019, the instant appeal has been filed after delay of 313 days, excluding the period of limitation.
21. Now, we have to examine: Whether applicant/appellant Development Authority has sufficiently explained the delay of 313 days in filing the instant appeal?
22. In this regard the submission of the learned counsel for applicant/appellant is that the appellant-Lucknow Development Authority being an instrumentality of state adopts lengthy administrative process for taking any decision, hence delay caused in filing the present appeal, but this submission is not tenable because it is settled constitutional provision that—
“No one is above the law, either may be a common man or any high ranking person/officer i.e. everyone is equal before the law and is entitled to get equal protection of the law”. [Article 14 of the Constitution of India]. Hence in view of this provision, the appellant-Development Authority is not entitled to get any additional favour as to condonation of delay in filing the instant appeal.
23. It was also one of the main arguments of the learned counsel for the applicant/appellant that due to transfer of concerned dealing clerk papers book of property in question could not be provided in time to the counsel. These papers/documents were provided to the counsel on 10.02.2020, but the said counsel resigned from the panel of appellant-Development Authority and thereafter due to Holi Vacation and Covid 19 Pandemic, these papers/documents were made available to another counsel only on 25.06.2020, consequently, the delay caused in filing the instant appeal. This submission of the learned counsel for the applicant also cannot be accepted because when any employee is transferred from any Section/Department to another Section/Department then he prepares an inventory of the papers/documents and articles (i.e. prepares list of the files and articles) and hands over it to the coming employee/clerk who takes over the charge in his place. Hence, no question arises to say that due to transfer of dealing clerk the required papers/documents could not be made available to the counsel or anyone who is legally entitled to have them.
24. Besides the above, the learned counsel for the applicant neither has mentioned the name of employee who was dealing the file of property in question and was transferred from that Section/Department nor he has mentioned the name of that employee who took over charge in his place. The applicant has also not mentioned when (i.e. on which date) the said employee was transferred and on which date another employee, in his place took over the charge. These facts show that the applicant-Development Authority has been very negligent and careless in filing the instant appeal.
25. According to appellant’s averment, it (i.e. Development Authority) for first time, came to know about the impugned order, on 10.09.2019, and required papers/documents were provided to the counsel for applicant/appellant on 10.02.2020’, and after sometime the said counsel resigned. If appellant’s this averment is accepted as true, it means after passing of 150 days from the date when applicant came to know about the impugned order, on 10.09.2019, the applicant-Development Authority provided required papers/documents to the counsel and later on, the said counsel resigned from the panel of appellant-Development Authority.
When the earlier counsel resigned?
26. This fact has not been made clear by the applicant-Development Authority while for the purpose of condonation of delay applicant-Development Authority is under an obligation to show/mention the exact date when earlier counsel resigned from panel of applicant-Development Authority. In this regard, it was also submitted by the counsel of applicant that after resigning the earlier counsel this matter was allotted to another counsel on 04.06.2020 but required papers/documents pertaining to this appeal were made available to the said counsel only on 25.06.2020.
27. Now question arises– Why the papers/documents were provided to the newly engaged counsel after 20 days? Undoubtedly engagement of another counsel on 04.06.2020 and to provide papers/documents related with this appeal to him (that counsel) after 20 days puts a sign of interrogation against working style of appellant-Development Authority. This attitude of the Development Authority also shows its disinterest and negligence in filing the instant appeal, and to shield its negligence, the Development Authority takes the plea of misplacement of papers book/documents etc. due to transfer of dealing clerk. This attitude of Development Authority cannot be appreciated in any way.
28. The learned counsel for applicant/appellant further submitted that Holi Vacation and Covid-19 Pandemic also created hindrances on account of which the present appeal could not be filed in time.
29. Countervailing the said argument of the learned counsel for appellant, Counsel Sri Sachin Garg appearing on behalf of respondent submitted that the appellant has wasted a lot of time in name of Holi Vacation and Covid-19, in filing the instant appeal, in fact, it shows applicant’s disinterest and negligence. He further stated that the applicant has not sufficiently explained the delay of each day, hence the application for condonation of delay be dismissed.
30. In this context again we perused the whole record. From the record, prima-facie, it is apparent that the impugned order relates to 04.09.2019. As per version of applicant-Development Authority, the applicant came to know about the impugned order on 10.09.2019 and applied for its certified copy on the same day i.e. on 10.09.2019 which (i.e. certified copy) was made available to applicant-Development Authority on 20.09.2019.
31. The record also reveals that the applicant-Development Authority prepared memo of appeal on 26.09.2020 but the instant appeal was filed on 28.09.2020 in this Appellate Tribunal.
32. If limitation period is counted from 20.09.2019 (as per version of Applicant – Development Authority that it received copy of the impugned order on 20.09.2019), then the instant appeal should have filed maximum by 20.11.2019 but the applicant-Authority failed to do so and filed the instant appeal after delay of 313 days i.e. on 28.09.2020 without showing any genuine cause or reason.
33. The contention of applicant’s counsel that on 10.09.2019 when he came to know about the impugned order dated 04.09.2019, applied for the certified copy on the same day i.e. on 10.09.2019 and thereafter applicant-Authority after making rigorous exercise decided to file the present appeal and for this purpose the related papers were made available to the concerned counsel on 25.06.2020.
34. This submission of the learned counsel for appellant also has no substance because it is known fact that the appeal may be filed without certified copy of the impugned order, taking leave of the Tribunal/Court and the certified copy may be filed later on. The effect of non-enclosure of certified copy of the impugned order is only this-that the appeal would be registered as “defective appeal” and that defect can be cured after submitting the certified copy of the impugned order. These facts are known to every counsel appearing before this Appellate Tribunal.
35. The submission of the applicant’s counsel that necessary documents relating to filing of the instant appeal were made available to the counsel for the applicant only on 25.06.2020, because of misplacement of related papers by dealing clerk, Holi Vacation and suspension of Tribunal’s functioning due to Covid-19 Pandemic, also cannot be taken as true and correct facts.
36. Regarding misplacement of related papers we have already discussed earlier under Para 3 of this order, hence no need to repeat it again.
37. So far as Holi Vacation and suspension of Tribunal’s functioning due to Covid-19 are concerned, it is notable here that Holi Vacation was from 07.03.2020 to 15.03.2020 (15th March being Sunday) and lockdown was declared due to Covid-19 Pandemic, from—
22.03.2020 to 14.04.2020, 1st Phase
15.04.2020 to 03.05.2020, 2nd Phase
04.05.2020 to 17.05.2020, 3rd Phase, and also the functioning of the most of the institutions was suspended from 18.05.2020 to 31.05.2020.
38. During the aforesaid period, whether the Tribunal was functional or not, no litigant can be expected to appear before this Tribunal on palm of his life.
39. In this context, it is also pertinent to mention here the case of Suo Motu Petition Writ (Civil) No. 3 of 2020, decided on 08.03.2020 by Hon’ble Apex Court, wherein due to the onset of Covid-19 Pandemic the Hon’ble Supreme Court taking Suo Motu cognizance of the situation arising from the difficulties faced by the litigants across the Country has observed:
1. In computing the period of limitation for any suit, appeal, application or proceeding, the period from 15.03.2020 till 14.03.2021 shall stand excluded. Consequently, the balance period of limitation remaining as on 15.03.2020, if any, shall become available with effect from 15.03.2021.
2. In cases where the limitation would have expired during the period between 15.03.2020 till 14.03.2021, notwithstanding the actual balance period of limitation remaining, all persons shall have a limitation period of 90 days from 15.03.2021. In the event the actual balance period of limitation remaining, with effect from 15.03.2021, is greater than 90 days, that longer period shall apply.
40. From the above observation, it is obvious that only in those case in which period of limitation has expired during the period between 15.03.2020 to 14.03.2021, the litigants are entitled to get the additional (balance) period of limitation to file the suit/appeal after 14.03.2021, and accordingly the limitation period shall be calculated.
41. The above propositions do not apply to the present case.
42. From perusal of the whole facts of this case it is obvious that the applicant-Authority was not vigilant at all to file this appeal in time, “perhaps applicant-Authority did not think proper to remember “time is essence of lodging the appeal”. It is admitted fact of the applicant that earlier counsel resigned and thereafter related papers with this appeal were made available to other counsel on 25.06.2020. The applicant-Authority has not mentioned in its application that on which date the earlier counsel resigned and another counsel was engaged. It is not fault on the part of the counsel. It is carelessness and negligence on the part of applicant-Development Authority, if it were fault of counsel, even then it was equally the duty of the applicant-appellant to see that the appeal be filed in time. If the appellants noticed that the lawyer was not taking interest in attending to the brief in question, then they should have immediately engaged some other lawyer to ensure that the appeal be filed in time by another lawyer. [Estate Officer, Haryana Urban Development Authority v. Gopi Chand Atreja, Civil Appeal Nos. 5051-5052 of 2009 Decided on 12.03.2019, (S.C.) per Abhay Manohar Sapre, J.]
43. In Lala Mata Din v. A. narayanan, (1969) 2 SCC 770AIR 1970 SC 1953 (D.B.), the Hon’ble Supreme Court has held:
“There is no general proposition that mistake of counsel by itself is always a sufficient ground for condoning delay. It is always a question whether the mistake was bonafide or was merely a device to cover an ulterior purpose, such as laches on the part of the litigant or an attempt to save limitation in an underhand way.”
44. In case at hand, there is no fault or mistake on part of counsel. Obviously, there is laches and negligence which can be attributed only and only to the applicant-Authority; for not lodging the appeal in time. The applicant-Authority has tried to explain the delay laking the baseless plea while filing the instant appeal, but in vain.
45. The learned counsel for applicant Sri Amit Yadav relying on the proposition laid down in case of— In re: State of Nagaland v. Lipok AO, JT (2005) 4 SC 10 submitted that this Hon’ble Tribunal may graciously be pleased to condone the delay and should not allow the technicalities like laches which come in way of substantial justice.
46. The learned counsel for the applicant also drew our attention to the principles laid down in the case of B. Madhuri Goud v. Damodar Reddy, (2012) 12 SCC 693 and submitted that in-this case the Hon’ble Supreme Court has laid down that “There should be a liberal, pragmatic, justice-oriented, non-pedantic approach while dealing with an application for condonation of delay, for the courts are not supposed to legalise injustice but are obliged to remove injustice.” Substantial Justice being paramount and pivotal the technical considerations should not be given undue and uncalled for emphasis.
47. We are of the considered view that the concept of liberal approach, while dealing with the application for condonation of delay does not mean that party seeking condonation of delay is exempted to prove that “sufficient cause exists” for condonation of delay.
48. In the case of Esha Bhattacharjee v. Managing Committee of Raghunathpur Nafar Academy, (2013) 123 SCC 64, on which the reliance has been placed upon by the learned counsel for applicant, the Hon’ble Supreme Court has already laid down that — “if the explanation offered is concocted or the grounds urged in the application are fanciful, the courts should be vigilant not to expose the other side unnecessarily to face such a litigation.”
49. In the same case the Hon’ble Apex Court has summarised the principles applicable to an application for condonation of delay which are as follows:
(i). There should be a liberal, pragmatic, justice-oriented, non-pedantic approach while dealing with an application for condonation of delay, for the courts are not supposed to legalise injustice but are obliged to remove injustice.
(ii). The terms “sufficient cause” should be understood in their proper spirit, philosophy and purpose regard being had to the fact that these terms are basically elastic and are to be applied in proper perspective to the obtaining fact-situation.
(iii). Substantial justice being paramount and pivotal the technical considerations should not be given undue and uncalled for emphasis.
(iv). No presumption can be attached to deliberate causation of delay but, gross negligence on the part of the counsel or litigant is to be taken note of.
(v). Lack of bona-fides imputable to a party seeking condonation of delay is a significant and relevant fact.
(vi). It is to be kept in mind that adherence to strict proof should not affect public justice and cause public mischief because the courts are required to be vigilant so that in the ultimate eventuate there is no real failure of justice.
(vii). The concept of liberal approach has to encapsulate the conception of reasonableness and it cannot be allowed a totally unfettered free play.
(viii). There is a distinction between inordinate delay and delay of short duration or few days, for to the former doctrine of prejudice is attracted whereas to the latter it may not be attracted. That apart, the first one warrants strict approach whereas the second calls for a liberal delineation.
(ix). The conduct, behaviour and attitude of a party relating to its inaction or negligence are relevant factors to be taken into consideration. It is so as the fundamental principle is that the courts are required to weigh the scale of balance of justice in respect of both parties and the said principle cannot be given a total go by in the name of liberal approach.
(x). If the explanation offered is concocted or the grounds urged in the application are fanciful, the courts should be vigilant not to expose the other side unnecessarily to face such a litigation.
(xi). It is to be borne in mind that no one gets away with fraud, misrepresentation or interpolation by taking recourse to the technicalities of law of limitation.
(xii). The entire gamut of facts are to be carefully scrutinized and the approach should be based on the paradigm of judicial discretion which is founded on objective reasoning and not on individual perception.
(xiii). The State or a public body or an entity representing a collective cause should be given some acceptable latitude.
(xiv). An application for condonation of delay should be drafted with careful concern and not in a haphazard manner harbouring the notion that the courts are required to condone delay on the bedrock of the principle that adjudication of a lis on merits is seminal to justice dispensation system.
(xv). An application for condonation of delay should not be dealt with in a routine manner on the base of individual philosophy which is basically subjective.
(xvi). Though no precise formula can be laid down regard being had to the concept of judicial discretion, yet a conscious effort for achieving consistency and collegiality of the adjudicatory system should be made as that is the ultimate institutional motto.
(xvii). The increasing tendency to perceive delay as non-serious matter and, hence, lackadaisical propensity can be exhibited in a nonchalant manner requires to be curbed, of course, within legal parameters.
50. Thus, from the above observations it is itself clear that-If the explanation offered (for delay) is concocted or the grounds stated in the application are fanciful, the courts should be vigilant not to expose the other side unnecessarily to face such litigation.
51. The Hon’ble Apex Court in the case of Dehri Rohtas Light Railway Company Ltd. v. District Board, Bhojpu, (1992) 2 SCC 598 observed that the real test to determine the delay is that the petitioner should come to the Court before a parallel right is created and that the lapse of time is not attributable to any laches or negligence. Further, the Hon’ble Apex Court in the case of Post Master General v. Living Media Limited, (2012) 3 SCC 563 also observed that in the matter of condonation of delay when there was no gross negligence or deliberate inaction or lack of bona fides, a liberal concession has to be adopted to advance substantial justice. The claim on account of impersonal machinery and inherited bureaucratic methodology of making several notes cannot be accepted in view of modern technologies being used and available. The law of limitation undoubtedly binds everybody including the Government and condonation of delay is an exception and should not be used as an anticipated benefit for the government departments. The law shelters every one under the same light and should not be swirled for the benefit of a few.
52. In fact, the law of limitation is based on the English Dictum:“Time when once, it has commenced to run in any case will not cease to do so by reason of any subsequent event.” In other words, when limitation period has begun to run, no subsequent disability or inability will stop this running.
53. Duty of Court goes to the root of the matter. If suit, appeal or application is beyond limitation, Court or Adjudicating Authority has no jurisdiction; power or authority to entertain the matter and decide it on merits. The Court has an independent duty to look into aspect of limitation even though limitation has not been set up as a defence. [Noharlal Verma v. Distt. Co-operative Central Bank Ltd., (2008) 14 SCC 445].
54. In Basawaraj v. Land Acquisition officer, (2013) 14 SCC 81, the Hon’ble Supreme Court has held as below:
The term, “sufficient cause” means that the party should not have acted in a negligent manner or there was a want of bona fide on its part in view of the facts and circumstances of a case or it cannot be alleged that the party has “not acted diligently” or “remained inactive”.
55. The applicant must satisfy the court that he was prevented by any “sufficient cause” from prosecuting his case, and unless a satisfactory explanation is furnished, the court should not allow the application for condonation of delay. The court has to examine whether the mistake is bona fide or was merely a device to cover an ulterior purpose. (See also: Manindra Land and Building Corpn. Ltd. v. Bhutnath Banerjee, AIR 1964 SC 1336, Mata Din v. A. Narayanan, (1969) 2 SCC 770 : AIR 1970 SC 1953, Parimal v. Veena, (2011) 3 SCC 545 : (2011) 2 SCC (Civ) 1 : AIR 2011 SC 1150 and Maniben Devraj Shah v. Municipal Corpn. of Brihan Mumbai, (2012) 5 SCC 157 : (2012) 3 SCC (Civ) 24 : AIR 2012 SC 1629.
56. In Ramlal v. Rewa Coalfields Ltd., (1962) 2 SCR 762 : AIR 1962 SC 361 the Hon’ble Apex Court while construing Section 5 of the Limitation Act has held that the Court should bear in mind two important considerations while dealing with the explanation for condonation of delay. Firstly, that the expiration of the period of limitation prescribed for making an appeal gives rise to a right in favour of the decree holder to treat the decree as binding between the parties and this legal right which accrues to the decree holder by lapse of time should not be light-heartedly disturbed, and secondly, that if sufficient cause for the delay is shown discretion is given to the Court to condone the dely. The Apex Court, however, has further ruled 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 sufficient cause is a condition precedent for the exercise of the discretionary jurisdiction vested in the Court by S.5. If sufficient cause is not proved nothing further has to be done; the application for condonation of delay 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 bona fides may fall for consideration; but the scope of the enquiry 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.
57. In Arjun Singh v. Mohindra Kumar: AIR 1964 SC 993 the Hon’ble Apex Court explained the difference between a “good cause” and a “sufficient cause” and observed that every “sufficient cause” is a good cause and vice versa. However, if any difference exists it can only be that the requirement of good cause is complied with on a lesser degree of proof than that of “sufficient cause”.
58. The expression “sufficient cause” should be given a liberal interpretation to ensure that substantial justice is done, but only so long as negligence, inaction or lack of bona fides cannot be imputed to the party concerned, whether or not sufficient cause has been furnished, can be decided on the facts of a particular case and no straitjacket formula is possible. (See also: Madanlal v. Shyamlal, (2002) 1 SCC 535 : AIR 2002 SC 100 and Ram Nath Sao v. Gobardhan Sao, (2002) 3 SCC 195 : AIR 2002 SC 1201).
59. In the same case (Basawaraj case) the Court has also held:
It is a settled legal proposition that law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribes. The court has no power to extend the period of limitation on equitable grounds. “A result flowing from a statutory provision is never an evil. A court has no power to ignore that provision to relieve what it considers a distress resulting from its operation.” The statutory provision may cause hardship or inconvenience to a particular party but the court has no choice but to enforce it giving full effect to the same. The legal maxim “dura lex sed lex” which means “the law is hard but it is the law”, stands attracted in such a situation”. It has consistently been held that, “inconvenience is not” a decisive factor to be considered while interpreting a statute.
60. The Hon’ble Court has further observed:
“The law on the issue can be summarised to the effect that where a case has been presented in the court beyond limitation, the applicant has to explain the court as to what was the “sufficient cause” which means an adequate and enough reason which prevented him to approach the court within limitation. In case a party is found to be negligent, or for want of bona fide on his part in the facts and circumstances of the case, or found to have not acted diligently or remained inactive, there cannot be a justified ground to condone the delay. No court could be justified in condoning such an inordinate delay by imposing any condition whatsoever. The application is to be decided only within the parameters laid down by this Court in regard to the condonation of delay. In case there was no sufficient cause to prevent a litigant to approach the court on time condoning the delay without any justification, putting any condition whatsoever, amounts to passing an order in violation of the statutory provisions and it tantamounts to showing utter disregard to the legislature.”
61. In P. Ramachandra Rao v. State of Karnataka, (2002) 4 SCC 578 : 2002 SCC (Cri) 830 : AIR 2002 SC 1856, the Hon’ble Supreme Court held that judicially engrafting principles of limitation amounts to legislating and would fly in the fact of law laid down by the Constitution Bench in Abdul Rehman Antulay v. R.S. Nayak, (1992) 1 SCC 225 : 1992 SCC (Cri) 93 : AIR 1992 SC 1701 (also noted in Baswaraj case).
62. It was the last argument of the learned counsel for applicant-Development Authority that the word “day” has been defined in Section 2(r) of the Real Estate (Regulation and Development), Act; 2016. According to this definition the word “day” means the working day, in the concerned State or Union Territory. The learned counsel further stated that if this definition is taken into view, there is delay of maximum 122 days in filing the instant appeal. The counsel for the applicant in support of his contention cited the following cases:
(i). P. Kasilingam v. P.S.G. College of Technology of 1995 Supp (2) SCC 348.
(ii). Feroze N. Dotivala v. P.M. Wadhwani, (2003) 1 SCC 433.
(iii). Nehal Chand Laloochand Private Limited Panchali Co-operative Housing Society Ltd., (2010) 9 SCC 536.
(iv). Bhagwati Developers Pvt. Ltd. v. Peerless Gen. Finance, (2013) 9 SCC 584.
63. We perused the above cases as cited by learned counsel for applicant.
64. In P. Kasilingam v. P.S.G. College of Technology of 1995 Supp (2) SCC 348, the Hon’ble Supreme Court held:
“A particular expression is often defined by the Legislature by using the word ‘means’ or the word ‘includes’. Sometimes the words ‘means and includes’ are used. The use of these words indicate that “definition is a hard-and-fast definition, and no other meaning can be assigned to the expression that is put down in definition. The word ‘includes’ when used, enlarges the meaning of the expression defined so as to comprehend not only such things as they signify according to their natural import but also those things which the clause declares that they shall include. The words ‘means and includes’, on the other hand, indicate “an exhaustive explanation of the meaning which, for the purposes of the Act, must invariably be attached to these words or expressions.”
65. In Feroze N. Dotivala v. P.M. Wadhwani, (2003) 1 SCC 433, relying on Kishan Lal v. State of Rajasthan, 1990 Supp SCC 742 : AIR 1990 SC 2269, the Hon’ble Supreme Court observed: Generally, when definition of a word begins with “means” it is indicative of the fact that the meaning of the word has been restricted; that is to say, it would not mean anything else but what has been indicated in the definition itself. There can also be extensive definitions when the definition starts with “includes”.
66. The definition clause is inserted for the purpose of defining particular subject-matter dealt with and it helps in revealing the legislative meaning. However, the definition clause may itself require interpretation because of ambiguity or lack of clarity in its language. [Nehal Chand Laloochand Private Limited Pancholi Co-operative Housing Society Ltd., (2010) 9 SCC 536, (Para 31)]
67. In Bhagwati Developers Pvt. Ltd. v. Peerless Gen. Finance, (2013) 9 SCC 584, the Hon’ble Apex Court has ruled:
68. When a word is defined in a statute meaning of said word does not vary when the same word is used elsewhere in said statute.
69. The learned counsel for the appellant further submitted that in the light of above observation the word “day” means the “working day” only and in this Appellate Tribunal, in a week only five days are working days, Saturday and Sunday being Holidays and if the definition of day as given in Section 2(r) is taken into view there is delay of maximum 122 days which has been sufficiently explained.
70. With respect to this submission, it is pertinent to mention here that the definition of the term “day” as given in Section 2(r) of this Act will not apply while calculating the period of limitation for filing the instant appeal, because no where it is mentioned in this Act that how the period of limitation shall be reckoned? On this point this Act is silent but it is expressly mentioned in Section 2(zr) of this Act that– “Words and expressions used herein but not defined in this Act and defined in any law for the time being in force or in the municipal laws or such other relevant laws of the appropriate Government shall have the same meanings respectively assigned to them in those law”.
71. As it is well known that for the purpose of limitation, the government has enacted exclusively the Indian limitation Act, 1963. If any doubt or question arises as to the point of ‘calculating the period of limitation’ and regarding which the Real Estate (Regulation & Development) Act, 2016 is silent, then there is no bar to seek the help from the Indian Limitation Act, 1963.
72. Regarding calculation of limitation period for the purposes of present case, Sections, 4 and 9 of the Indian Limitation Act, 1963 are also relevant which are reproduced as below:
Section 4 reads:
“Expiry of prescribed period when court is closed– Where the prescribed period for any suit, appeal or application expires on a day when the court is closed, the suit, appeal or application may be instituted, preferred or made on the day when the court reopens.
Explanation.— A Court shall be deemed to be closed on any day within the meaning of this section if during any part of its normal working hours it remains closed on that day”.
Section 9 reads:
“Continuance running of time.- When once time has begun to run, no subsequent disability or inability to institute a suit or make an application stop it:
Provided that, where letters of administration to the estate of a creditor have been granted to his debtor, the running of the period of limitation for a suit to recover the debt shall be suspended while the administration continues”.
73. As it was submitted by the learned counsel for appellant/applicant that in this Appellate Tribunal only five days are working days (Saturday and Sunday being Holidays) and “day” means only working days as given in Section 2(r) of this Act, in this regard it is worth noting that there is a difference between Holiday and non-working Saturday of Court. During the period of Holiday the Court/Tribunal remains closed but non-working Saturday of Court is meant for Judges to enable them to write judgments, when Registry remains functional, it cannot be regarded as a Court Holiday. It is also pertinent to mention that even during period of Holidays on most of the days the Registry was functional and appeals were filed through online.
74. In the case of Ajay Gupta v. Raju, (2016) 14 SCC 314, last date for filing suit was 31.12.2010, i.e. it was the last day of winter vacation for Court and next day was a non-working Saturday. But the suit was filed on 03.01.2011 (Monday). The Hon’ble Supreme Court held the suit is barred by limitation since non-working Saturday cannot be treated as a closed day of Court.
75. Courts should not take liberal approach in matter of condonation of delay when state’s action in preferring appeal is marred by serious laches and negligence in absence of “sufficient cause”. [Amelendu Kumar Bera v. State of West Bengal, (2013) 4 SCC 52 (2013) 2 SCC (Civ) 459].
76. In P.K. Ram Chandram v. State of Kerala, (1997) 7 SCC 556, the Hon’ble court observed:
“Law of limitation may harshly affect a particular party but it has to be applied with all its rigours when the statute so prescribes and the courts have no power to extend the period of limitation on equitable grounds.” [page 558 para 6].
77. It is also worth noting here that-No premium can be given for total lethargy or utter negligence of State Office/Machinery/instrumentality and condonation of delay caused by such officers cannot be allowed as a matter of course by accepting plea that dismissal on ground of limitation will cause injury to public interest. [Maniben Devraj Shah v. Municipal Corporation of Brihan Mumbai, (2012) 5 SCC 157].
78. The object of law of limitation is in accordance with the maxim “interest reipublicae ut sit finis litium” i.e., the interest of the State requires that there should be an end of litigation. Statutes of limitation and prescription are statutes of peace and repose. Rule of vigilance which is foundation of statute of limitation rests on principles of public policy. The purpose of rules of limitation is to induce the claimants to be prompt in claiming relief. Parties who seek to up hold their legal rights should be vigilant and should consult their legal experts as quickly as possible. They cannot sleep over the matter and, at a later stage, seek to enforce their rights, which is likely to cause prejudice to their opponents. This precisely the reason why periods of limitation are prescribed in many statutes.
79. The law of limitation is founded on public policy. The object of limitation is to put a quietus on stale and dead disputes. A person ought not to be allowed to agitate his claim after a long delay. The period of limitation fixes the life span of a legal remedy for the redress of legal injury.
80. The object of law of limitation is to discourage continuity of litigation and to bury all accumulated past disputes with the passage of time so that there may be repose, peace and justice. (Sadguru Sharnanand Ji Mahraj v. Hai Kumar, (2013) 6 ALJ 395).
81. In the light of the propositions laid down in the aforementioned judgments we shall now examine whether the explanation given by the applicant for 313 days’ delay (while applicant says delay of 122 days) has any semblance of any credibility?
82. The answer would be no.
83. In our view, if there was any iota of truth in the applicant’s story that the papers required for filing the instant appeal were misplaced by the then dealing clerk and the same were noticed by the Section/Department later on, in such a situation the minimum which applicant was expected to do was to file an affidavit of the dealing clerk, but failed to do so. Apart from this, the explanation given by the applicant-Development Authority for delay of 313 days (as per version of applicant’s counsel 112 days) in Appeal no. (D) 480/2020 and for delay of 323 days (as per version of applicant’s counsel 127 days) in Appeal no. (D) 481/2020 is vague and fanciful.
84. Hence, the applications for condonation of delay in filing the instant appeal in both the aforementioned cases are liable to be rejected.
ORDER
85. The applications for condonation of delay in filing the instant appeal no.(D) 480/2020 and Appeal no. (D) 481/2020 are rejected and consequently the Appeal no. (D) 480/2020 and Appeal no. (D) 481/2020 also stand dismissed.
86. Let a copy of this order be placed in the record of Appeal no. (D) 481/20.