Dev Dutta And Others vs N.O.I.D.A. And Another
2022 Latest Caselaw 4173 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 2
 
Order on Civil Misc. Delay Condonation Application in filing the Review Application 
 
IN 
 
Civil Misc. Review application
 
IN
 
Case :- FIRST APPEAL No. - 11 of 2011
 
Appellant :- Dev Dutta And Others
 
Respondent :- N.O.I.D.A. And Another
 
Counsel for Appellant :- D.V.Singh,Shri Krishna Mishra
 
Counsel for Respondent :- ,Ambrish Shukla
 

 
Hon'ble Dr. Kaushal Jayendra Thaker,J.

Hon'ble Ajai Tyagi,J.

1. This is an application filed under Section 5 of Limitation Act, 1963 ( hereinafter referred to as "Act, 1963") seeking condonation of delay in filing the review which is reported to have been filed with a delay of 9 years.

2. After we decided to dismiss the appeal as it is belated review of the matter which has attained finality upto the Supreme Court, we pass the following order.

3. The litigation stems from the award dated 15.5.2001 passed by Vth Additional District Judge, who granted compensation at rate of Rs.233 per square yard. This came to be challenged by the present review petitioners.

This Court passed orders for enhancing at the rate of Rs.297.50 per square yard on 17.11.2009. A review application was filed before this very Court in which the Acting Chief Justice enhanced the amount to Rs.340 per square yard by order dated 17.11.2009 with a clarification.

4. The appellants herein namely the review petitioners moved the Apex Court by way of Special Appeal Nos.118620-18623 of 2017 for enhancing the compensation to Rs.449/- per square yard along with other statutory benefits.

5. The Judgment of the Supreme Court in Special Leave to Appeal (C) No.12779-12782 of 2016, Bir Singh and others v. State of U.P and another, decided on 09.11.2017 is pressed into service by the review petitioners.

6. As against this, Shri Shivam Yadav, Advocate submits that appeal preferred by the present appellant-Dev Dutta, who had challenged the orders in review by filing S.L.P. No.5607 of 2011, the Apex Court dismissed the Special Leave Petition and also other interlocutory applications.

7. A review application was filed by the appellants-petitioners herein. The notice was issued by the Apex Court on 2.12.2019 in the review filed by one Chandrabhan Singh-appellant.

8. It is submitted by Shri Shivam Yadav, Advcoate that this review which is filed after a considerable delay of 9 years should not be entertained.

9. Learned Counsel for the appellants relies on the judgment of Veer Singh (supra) and seeks enhancement. The said decision cannot be made applicable to the facts of this case. The reason being the appellant has already approached the Apex Court against the award which has dismissed the appeal of the appellant herein and therefore we cannot review said order.

10. There is a gross delay is the first point which has been brought into focused by Shri Shivam Yadav, Advocate.

11. There is no presumption that delay in approaching the court is always deliberate. No person gains from deliberate delaying a matter by not resorting to take appropriate legal remedy within time but then the words "sufficient cause" shows that delay, if any, occurred, should not be deliberate, negligent and due to casual approach of concerned litigant, but, it should be bona fide, and, for the reasons beyond his control, and, in any case should not lack bona fide. If the explanation does not smack of lack of bona fide, the Court should show due consideration to the suiter, but, when there is apparent casual approach on the part of suiter, the approach of Court is also bound to change. Lapse on the part of litigant in approaching Court within time is understandable but a total inaction for long period of delay without any explanation whatsoever and that too in absence of showing any sincere attempt on the part of suiter, would add to his negligence, and would be relevant factor going against him.

12. We need not to burden this judgment with a catena of decisions explaining and laying down as to what should be the approach of Court on construing "sufficient cause" under Section 5 of Act, 1963 and it would be suffice to refer a very few of them besides those already referred.

13. In Shakuntala Devi Jain Vs. Kuntal Kumari, AIR 1969 SC 575 a three Judge Bench of the Court said, that, unless want of bona fide of such inaction or negligence as would deprive a party of the protection of Section 5 is proved, the application must not be thrown out or any delay cannot be refused to be condoned.

14. The Privy Council in Brij Indar Singh Vs. Kanshi Ram ILR (1918) 45 Cal 94 observed that true guide for a court to exercise the discretion under Section 5 is whether the appellant acted with reasonable diligence in prosecuting the appeal. This principle still holds good inasmuch as the aforesaid decision of Privy Council as repeatedly been referred to, and, recently in State of Nagaland Vs. Lipok AO and others, AIR 2005 SC 2191.

15. In Vedabai @ Vaijayanatabai Baburao Vs. Shantaram Baburao Patil and others, JT 2001(5) SC 608 the Court said that under Section 5 of Act, 1963 it should adopt a pragmatic approach. A distinction must be made between a case where the delay is inordinate and a case where the delay is of a few days. In the former case consideration of prejudice to the other side will be a relevant factor so the case calls for a more cautious approach but in the latter case no such consideration may arise and such a case deserves a liberal approach. No hard and fast rule can be laid down in this regard and the basic guiding factor is advancement of substantial justice.

16. In Pundlik Jalam Patil (dead) by LRS. Vs. Executive Engineer, Jalgaon Medium Project and Anr. (2008) 17 SCC 448, in para 17 of the judgment, the Court said :

"...The evidence on record suggests neglect of its own right for long time in preferring appeals. The court cannot enquire into belated and state claims on the ground of equity. Delay defeats equity. The court helps those who are vigilant and "do not slumber over their rights."

17. In Maniben Devraj Shah Vs. Municipal Corporation of Brihan Mumbai, 2012 (5) SCC 157, in para 18 of the judgment, the Court said as under:

"What needs to be emphasised is that even though a liberal and justice oriented approach is required to be adopted in the exercise of power under Section 5 of the Limitation Act and other similar statutes, the Courts can neither become oblivious of the fact that the successful litigant has acquired certain rights on the basis of the judgment under challenge and a lot of time is consumed at various stages of litigation apart from the cost. What colour the expression 'sufficient cause' would get in the factual matrix of a given case would largely depend on bona fide nature of the explanation. If the Court finds that there has been no negligence on the part of the applicant and the cause shown for the delay does not lack bona fides, then it may condone the delay. If, on the other hand, the explanation given by the applicant is found to be concocted or he is thoroughly negligent in prosecuting his cause, then it would be a legitimate exercise of discretion not to condone the delay. In cases involving the State and its agencies/instrumentalities, the Court can take note of the fact that sufficient time is taken in the decision making process but no premium can be given for total lethargy or utter negligence on the part of the officers of the State and / or its agencies/instrumentalities and the applications filed by them for condonation of delay cannot be allowed as a matter of course by accepting the plea that dismissal of the matter on the ground of bar of limitation will cause injury to the public interest."

18. In our view, the kind of explanation rendered herein does not satisfy, the observations of Apex Court that if delay has occurred for reasons which does not smack of mala fide, the Court should be reluctant to refuse condonation. On the contrary, we find that here is a case which shows a complete careless and reckless long delay on the part of applicant which has remain virtually unexplained at all. Therefore, we do not find any reason to exercise our judicial discretion exercising judiciously so as to justify condonation of delay in the present case.

19. We are convinced that once the Apex Court has dismissed the appeal of the appellants herein. This review was not maintainable and this is a misdemeanour on part of the appellant in filing this review.

20. We have no other option but to dismiss the review.

21. In the result, the application deserves to be rejected.

22. We order accordingly.

Order Date :- 26.5.2022 / A.N. Mishra

Case :- FIRST APPEAL No. - 11 of 2011

Appellant :- Dev Dutta And Others

Respondent :- N.O.I.D.A. And Another

Counsel for Appellant :- D.V.Singh,Shri Krishna Mishra

Counsel for Respondent :- ,Ambrish Shukla

Hon'ble Dr. Kaushal Jayendra Thaker,J.

Hon'ble Ajai Tyagi,J.

Order on Civil Misc. Review Application No.10443 of 2018

Since this review application has been filed beyond time and application seeking condonation of delay has been rejected vide order of date, this review application stands dismissed being barred by limitation.

Order Date :- 26.5.2022

A.N. Mishra