* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: May 15, 2014
+ CM(M) 1108/2010
NEW DELHI MUNICIPAL COUNCIL & ANR. ..... Appellants
Through: Mr. Arvind Sah, Advocate.
versus
ARKAY RADIOS ..... Respondent
Through: Mr. Satish Sahai & Mr. Ankur
Aggarwal, Advocates along with
respondent in person.
CORAM:
HON'BLE MR. JUSTICE NAJMI WAZIRI
% MR. JUSTICE NAJMI WAZIRI (Open Court)
1. The petitioner has challenged the order dated 9th March, 2010 whereby an application under Section 5 of the Limitation Act, 1963 for condonation of delay in filing the appeal was dismissed on the ground that there was unexplained delay of 111 days and that the applicant had failed to show sufficient cause for its condonation.
2. It is logical that if an application under Section 5 is dismissed then as a corollary the appeal or the main petition too would be dismissed as barred by limitation. Mr. Arvind Sah, the learned counsel for the petitioner submits that the Trial Court had relied upon dicta of the Supreme Court in "Collector, Land Acquisition, Anantnag & Anr. vs. Mst. Ktiji & Ors." CM(M) 1108 of 2010 Page 1 of 6 1987, ILLJ 500 and " State of Nagaland vs. Lipok AO & Ors.", (2005) 3 SCC 752, which held that the Courts should take a liberal approach in condoning delay and in considering the question whether sufficient cause exists or not, they should consider all the facts and circumstances especially procedural technicalities in the matters pertaining to the Government and its authorities. The Trial Court was of the view that each and every explanation, however absurd or implausible the same may be, should not be considered sufficient cause. The Trial Court was further of the view that the appellant had failed to explain the delay by showing any sufficient cause. It noted that the averments in the application, that the relevant file was handed over to the ALO concerned, who in turn attached the file with some other files, thus inadvertently burying the relevant file and leading to the delay, is not supported by any particulars as to who the said ALO was, nor has any supporting affidavit by the said ALO been filed to support the averments. The application was also devoid of the date on which the relevant file got buried/tagged with other files or was otherwise misplaced nor was there any whisper of the date on which and under what circumstances, the misplaced file was discovered. Interestingly, the application claims that the delay was because, after preparation of the appeal, it had to pass through various CM(M) 1108 of 2010 Page 2 of 6 „tables‟ for obtaining signatures of the official concerned. However, a perusal of the memorandum of appeal reveals that it was prepared only on 6.1.2010. Assuming that the application for obtaining the certified copy of the order dated 29.7.2009 was made on the same day, and prepared and delivered on 21.8.2009 as mentioned on the certified copy, the period of limitation for filing the present appeal being 30 days, expired on 20.09.2009. The appeal was preferred only on 12.1.2010. Therefore there is a delay of 111 days.
3. The learned counsel for the respondent relies upon a judgment of this Court in "MCD vs. Hamdard (Wakf) Laboratories India" 2005 IAD (Delhi) 53 which held that in a case of inaction and negligence, no indulgence can be given to the appellant for condonation of delay:-
"8. Tested on the touchstone of the aforenoted broad principles to be kept in view while dealing with such applications, we are of the view that the applicant has miserably failed to show any cause, much less a sufficient cause for delay in filing the appeal. The afore-extracted paragraph hardly discloses any reason for the delay. It is not explained as to why for over four months, the Counsel did not send the certified copy of the judgment to the department, while recommending filing of LPA. Then again the department took more than two months in collecting the relevant files. It is not indicated where the file was misplaced; how and by whom was it traced out. Evidently, it is not a case where delay in filing appeal was on account of procedural complexities. This is not even pleaded. It is a plain and simple case of inaction and negligence, for which no indulgence can be given to the CM(M) 1108 of 2010 Page 3 of 6 appellant. In our opinion the afore-extracted paragraphs hardly spell out any reason/cause for condonation of delay."
The learned counsel further relies upon another judgment of this Court in "The General Manager Northern Railway vs. Mr. Vishva Nath Nangia" 2005 V AD (Delhi) 586 which held that condonation of delay is not a matter of right. The delay has to be properly explained and where the circumstances show that due diligence was not discernible from the conduct of the officers, there would be no occasion for condoning the delay. He also relies upon dicta of the Supreme Court in "Postmaster General and others vs. Living Media India Limited and Another" (2012) 3 Supreme Court Cases 563 which held that condonation of delay is an exception and should not be used as an anticipated benefit and offering unusual explanation that file was kept due to procedural red tape. The Court further held in paras 27 to 30 which reads as under:-
"27. It is not in dispute that the person(s) concerned were well aware or conversant with the issues involved including the prescribed period of limitation for taking up the matter by way of filing a special leave petition in this Court. They cannot claim that they have a separate period of limitation when the Department was possessed with competent persons familiar with court proceedings. In the absence of plausible and acceptable explanation, we are posing a question why the delay is to be condoned mechanically merely because the Government or a wing of the CM(M) 1108 of 2010 Page 4 of 6 Government is a party before us.
28. Though we are conscious of the fact that in a 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, we are of the view that in the facts and circumstances, the Department cannot take advantage of various earlier decisions. The claim on account of impersonal machinery and inherited bureaucratic methodology of making several notes cannot be accepted in view of the modern technologies being used and available. The law of limitation undoubtedly binds everybody, including the Government.
29. In our view, it is the right time to inform all the government bodies, their agencies and instrumentalities that unless they have reasonable and acceptable explanation for the delay and there was bona fide effort, there is no need to accept the usual explanation that the file was kept pending for several months/years due to considerable degree of procedural red tape in the process. The government departments are under a special obligation to ensure that they perform their duties with diligence and commitment. Condonation of delay is an exception and should not be used as an anticipated benefit for the government departments. The law shelters everyone under the same light and should not be swirl for the benefit of few.
30. Considering the fact that there was no proper explanation offered by the Department for the delay except mentioning of various dates, according to us, the Department miserably failed to give any acceptable and cogent reasons sufficient to condone such a huge delay. Accordingly, the appeals are liable to be dismissed on the ground of delay."
4. From a consideration of the aforesaid facts and discussions, it is evident that the reasons given for the delay are not cogent or persuasive. CM(M) 1108 of 2010 Page 5 of 6 The petitioner has failed to set out the case for condonation of delay. The reasons given for condonation are weak excuses to cover obvious lapses of the local body in preferring the appeal within the time prescribed. This is an apt example of an "impersonal machinery and inherited bureaucratic methodology" failing before the legal process because of indolence and indifference or perhaps being under the notion that the delay would be condoned in any case. However, as settled by the Supreme Court in Post Master General (supra), the "law of limitation binds everybody equally including Government..." therefore excuses bordering on indolence, indifference and vagueness shall not be accepted. There is no reason, let alone sufficient reason, to condone the delay of 111 days. The reasons for arriving at the impugned decision are cogent and correct. The impugned order does not call for any interference by this Court. The petition is without merit and accordingly is dismissed.
NAJMI WAZIRI (JUDGE) MAY 15, 2014 nk CM(M) 1108 of 2010 Page 6 of 6