M/S Promotional Club Thru Sh. ... vs Chief Executive Officer ...
2021 Latest Caselaw 4948 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved on 27.01.2021
 
                                                                      Delivered on 13.4.2021
 

 
Case :- WRIT - C No. - 56046 of 2013
 

 
Petitioner :- M/S Promotional Club Thru Sh. Keshav Verma
 
Respondent :- Chief Executive Officer N.O.I.D.A. And Another
 
Counsel for Petitioner :- Rakesh Kumar, Chandra Kumar Rai, Deba Siddiqui, Kshitij Shailendra, Munesh K. Sharma
 
Counsel for Respondent :- C.S.C., Kaushalendra Nath Singh, Shivam Yadav
 

 
Hon'ble Naheed Ara Moonis, J.

Hon'ble Saral Srivastava,J.

(Delivered by Hon'ble Saral Srivastava, J.)

Order on Civil Misc. Delay Condonation Application No.18 of 2020.

1. The present delay condonation application no.18 of 2020 has been filed by respondent no.1 for condoning the delay in filing the review application no.19 of 2020.

2. The review application preferred by the respondent-NOIDA is beyond time by 417 days. It has been averred in the delay condonation application that writ petition was decided on 31.07.2019 with a direction to consider the case of the petitioner in accordance with law within a period of two months from the date of deposit of Rs.8 lacs per application with New Okhla Industrial Development Authority.

3. The respondent-New Okhla Industrial Development Authority (hereinafter referred to as 'NOIDA') on the advice of counsel, proceeded to consider the application of the petitioner. The NOIDA on 11.11.2019 issued a letter to the petitioner fixing 15.11.2019 for considering the eligibility of the petitioner. In the meantime, in the process of considering the claim of the petitioner, it was found that the claim of the petitioner based on the instruction provided by the NOIDA about the availability of 8 plots under the old scheme was incorrect. The officer concerned, who had given incorrect instruction to the counsel for the NOIDA, was put a show-cause notice directing him to submit a reply within seven days. It is further averred in the application that NOIDA had proceeded to consider the claim of the petitioner and held a draw of lots on 22.06.2020 in which the petitioner was not successful.

4. The NOIDA on 03.09.2020 filed a Civil Misc. Modification/Clarification Application No.17 of 2020 seeking clarification/modification in the judgement dated 31.07.2019 which was dismissed by this Court by order dated 01.10.2020. After the dismissal of the modification/clarification application, the present review application has been filed without any further delay.

5. The petitioner filed a reply to the review application contending inter alia that the grounds on which delay in filing the review application has been sought are not tenable in law as NOIDA has failed to sufficiently explain the delay in filing the review application.

6. Learned counsel for the NOIDA has placed reliance upon paragraphs 17 & 18 the judgement of Apex Court in the case of University of Delhi Vs. Union of India and Others 2019 SCC Online SC 1634 wherein LPA of the Delhi University was dismissed on the ground of delay of 916 days in preferring the appeal. Paragraphs 17 & 18 judgement are being reproduced hereinbelow:-

"17. Though we have exhaustively referred to the pleadings and the contentions of the parties, including contentions put forth on merits, the same is only for completeness and to put the matter in perspective before considering the issue relating to delay and laches. In the instant case, considering that the Division Bench of the High Court has dismissed the LPA on the ground of delay of 916 days, that aspect of the matter would require consideration at the outset and the facts on merits is noted to the limited extent to find out whether in that background the public interest would suffer. The learned Senior Counsel for the appellant in order to impress upon this Court the principle relating to consideration of "sufficient cause" for condonation of delay and the factors that are required to be kept in view, has relied on the decision in the case of Collector, Land Acquisition, Anantnag v. Katiji, (1987) 2 SCC 107 wherein it is held as hereunder:

"3. The legislature has conferred the power to condone delay by enacting Section 5 [ Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period.] of the Indian Limitation Act of 1963 in order to enable the courts to do substantial justice to parties by disposing of matters on "merits". The expression "sufficient cause" employed by the legislature is adequately elastic to enable the courts to apply the law in a meaningful manner which subserves the ends of justice -- that being the life-purpose for the existence of the institution of courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters instituted in this Court. But the message does not appear to have percolated down to all the other courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:

"1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.

2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties.

3. "Every day's delay must be explained" does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay? The doctrine must be applied in a rational common-sense pragmatic manner.

4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay.

5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.

6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.

Making a justice-oriented approach from this perspective, there was sufficient cause for condoning the delay in the institution of the appeal. The fact that it was the "State" which was seeking condonation and not a private party was altogether irrelevant. The doctrine of equality before law demands that all litigants, including the State as a litigant, are accorded the same treatment and the law is administered in an even-handed manner. There is no warrant for according a step-motherly treatment when the "State" is the applicant praying for condonation of delay. In fact experience shows that on account of an impersonal machinery (no one in charge of the matter is directly hit or hurt by the judgment sought to be subjected to appeal) and the inherited bureaucratic methodology imbued with the note-making, file- pushing and passing-on-the-buck ethos, delay on its part is less difficult to understand though more difficult to approve. In any event, the State which represents the collective cause of the community, does not deserve a litigant-non- grata status. The courts therefore have to be informed with the spirit and philosophy of the provision in the course of the interpretation of the expression "sufficient cause". So also the same approach has to be evidenced in its application to matters at hand with the end in view to do even-handed justice on merits in preference to the approach which scuttles a decision on merits. Turning to the facts of the matter giving rise to the present appeal, we are satisfied that sufficient cause exists for the delay. The order of the High Court dismissing the appeal before it as time-barred, is therefore, set aside. Delay is condoned. And the matter is remitted to the High Court. The High Court will now dispose of the appeal on merits after affording reasonable opportunity of hearing to both the sides."

18. Further the decision in the case of Dehri Rohtas Light Railway Company Ltd. v. District Board, Bhojpur (1992) 2 SCC 598 is relied upon, wherein this Court has indicated the real test to determine the delay is that the petitioner should come to Court before a parallel right is created and that the lapse of time is not attributable to any laches or negligence."

7. Counsel for NOIDA submits that if averments made in the affidavit filed in support of the delay condonation application are tested on the law laid down by the Apex Court in the aforesaid judgement, the NOIDA is entitled to condonation of delay in filing the review application. He further submits that because some incorrect facts have been placed on record, therefore, the interest of justice demands that Court should take a lenient view instead of a pedantic view so that meritorious matter may not be thrown out at the very threshold and cause of justice be defeated.

8. On the other hand, learned counsel for the petitioner contends that from the averments made in the affidavit, it is evident that a very casual and callous approach had been adopted by the NOIDA in filing the review application.

9. We have heard learned counsel for the parties and perused the record.

10. Considering the submissions advanced by learned counsel for the parties and principles of law enunciated by the Apex Court, this Court finds that in view of the averments made in the affidavit that some incorrect information had been placed by the NOIDA on record which, if allowed to continue, would result in grave injustice to the NOIDA, therefore, considering the law laid down by the Apex Court in the case of University of Delhi (supra), this Court finds that delay in filing the review application be condoned and review application may be treated to have filed in time.

11. Accordingly, the delay condonation application is allowed.

Order Date :- 13.4.2021

Jaswant