Smt. Nirmala Sharma vs Life Insurance Corporation Of ...
2003 Latest Caselaw 479 Del

JUDGMENT

Badar Durrez Ahmed, J

1. In this Writ Petition the petitioner, inter alia, seeks quashing of the order dated 16.7.1983 passed by the learned Additional District and Sessions Judge, Delhi passed under Section 9(1) of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971, (hereinafter referred to as the"Act"). The Appeals preferred by the petitioner were disposed of by the said order dated 16.7.1983 essentially on the ground that the same were barred by limitation.

2. The entire scope of this petition is with regard to the question as to whether the appeals of the petitioner under Section 9(1) could at all have been dismissed on the ground of limitation. However, to appreciate the rival contentions of the parties, it would be necessary to briefly narrate the admitted sequence of events.

2.1. The petitioner is the daughter of the original tenant in respect of House No. 105, Sunder Nagar, New Delhi. These premises belong to the Life Insurance Corporation of India (LIC), i.e. the Respondent No. 1. The petitioner's father late Shri Purshotam Trikam Das became a tenant in respect of the said premises in 1956 at a monthly rent of Rs. 600/- per mensem. (this has subsequently been increased to Rs. 900/- per mensem). In May 1969 late Shri Purshotam Trikam Das passed away and his widow late Mrs. Leela P. Trikam Das was accepted as a tenant by LIC in respect of the said premises. She continued paying the rent and there was no difficulty in her tenancy till 1980. However, for the period April 1980 to January 1981 (i.e. nine months) there was a default in payment of rent. By a notice dated 29.1.1981, LIC terminated the tenancy of the late Mrs. Trikam Das with effect from 28.2.1981. The Estate Officer issued a show cause notice dated 9.6.1981 to the late Mrs. Trikam Das under Section 4(1) of the said Act. In the said show cause notice the date of hearing fixed was 22.6.1981. She was required to show cause as to why an order of eviction should not be made against her. Despite service of the said show cause notice, late Mrs. Trikam Das did not appear on 22.6.1981. The Estate Officer also issued a notice under Section 7(3) of the said Act calling upon the late Mrs. Trikam Das to show cause on 14.7.1981 as to why an order requiring her to pay the damages indicated therein should not be made. The petitioner requested for an adjournment by telegram on 13.7.1981 and asked for another date. The Estate Officer fixed 17.7.1981 as the next date, i.e. the date as requested by the petitioner. However, admittedly, no notice indicating that 17.7.1981 had, in fact, been fixed as the next date was sent to her. Since the late Mrs. Trikam Das did not appear, ex parte proceedings were initiated and the matter was adjourned to 4.8.1981. Ex parte evidence was completed on 22.9.1981 and on 9.12.1981 the Estate Officer passed the order of eviction against the late Mrs. Trikam Das. Copy of this order was served on late Mrs. Trikam Das on 15.12.1981.

2.2. The limitation prescribed for filing the appeal under Section 9(1) was twelve days. Accordingly, the late Mrs. Trikam Das could have filed her appeal within twelve days of 15.12.1981 i.e. by 27.12.1981. She did not do so.

2.3. In fact, she filed her appeal on 29.3.1982, i.e. after a delay of about three months. The appeals were heard and disposed of by the impugned judgment and order of the learned Additional District Judge dated 16.7.1983. It is pertinent to note that during the pendency of the appeal the late Mrs. Trikam Das cleared her arrears of rent as also the damages levied upon her.

2.4. On 5.8.1983 late Mrs. Trikam Das also passed away. Thereafter, this writ petition was filed by the petitioner who is her daughter. The petitioner is a divorcee and has a son of about thirty years of age who is blind and they now occupy the First Floor of the said premises although, originally the entire bungalow was under the tenancy of her father and mother.

3. The short point for consideration is whether the learned ADJ's order dated 16.7.1983, whereby he dismissed the appeals (one against Eviction Order and the other against the order of Damages) on the ground of delay, is liable to be quashed and/or set aside? As indicated in the impugned order the late Mrs. Trikam Das had filed an application for condensation of delay in each of the appeals. It was indicated therein that the impugned order against which the appeals were being preferred were received by the late Mrs. Trikam Das on or about 15.12.1981. It was further indicated that she was an aged and sick lady and inadvertantly she did not remember about the order of the Estate Officer (which admittedly had been served upon her on 15.12.1981) until somebody came on Saturday, 27th March, 1982 at about 4 p.m. alleging that he had come from the office of the collector. It is alleged that the late Mrs. Trikam Das searched her papers and found the impugned orders passed by the Estate Officer. It was further alleged that the late Mrs. Trikam Das was bed-ridden for the last almost two years and that the delay in filing of the appeal was, therefore, neither deliberate nor intentional and that there was sufficient ground for condensation of delay.

4. These were controverter by the Respondent LIC and accordingly, issue No. 1 framed by the learned ADJ was:-

"whether there are sufficient grounds for condensation of the delay in filing of the appeal?"

5. From a perusal of the impugned judgment and order of the learned ADJ, it is clear that the late Mrs. Trikam Das examined herself as AW-1 and the respondent did not lead any oral evidence. After hearing the learned counsel for the parties at length, the learned ADJ noted that the late Mrs. Trikam Das appearing as AW-1 also stated that she was very sick and forgot about the orders on account of her illness and that she further stated that one Dr. D.R. Mahajan had been treating her though she did not take oath that she was bed ridden for almost two years as originally indicated in her application for condensation of delay. It is indicated that Mrs. Trikam Das was not hospitalised during the period between 15.12.1981 to the end of March, 1982 and that she admitted that she was an educated lady and that she had written a letter being Ext. R-1 to LIC on 26.12.1981 in her handwriting. The learned ADJ after examining the rival contentions did not believe the version of the late Mrs. Trikam Das particularly in view of the fact that she was not hospitalised during the relevant period and she was in a condition to move about and was attending to her normal activities. According to learned ADJ the grounds given for condensation of delay were not worthy of credence. It also appears that the learned Additional District Judge was impressed with the respondent's contention that the statements of the late Mrs. Trikam Das were lacking in bona fides. Accordingly, he decided issue No. 1 against late Mrs. Trikam Das and dismissed the appeals.

6. Learned Senior counsel appearing on behalf of the petitioner drew my attention to the provisions of the Section 9 of the said Act and in particular to the proviso to sub-section (2) which reads as under:-

"Provided that the appellate officer may entertain the appeal after the expiry of the [said period], if he is satisfied that the appellant was prevented by sufficient cause from filing the appeal in time............"

According to him a liberal approach must be taken as has been the trend of Supreme Court decisions. As regards this submission of the learned Senior counsel it must be acknowledged that the Supreme Court has indeed favored a liberal approach but at the same time, it has also laid down the parameters within which this liberal approach for doing substantial justice would be permissible. In the case of G. Ramegowda v. Special Land Acquisition Officer, Bangalore, AIR 1988 SC 897, the Supreme Court observed as under:

"The contours of the area of discretion of the courts in the matter of condensation of delays in filing appeals are set out in a number of pronouncements of this Court. See: Ramlal, Motilal and Chhotelal v. Rewa Coalfield Ltd. (1962) 2 SCR 762: AIR 1962 SC 361); Shakuntala Devi Jain v. Kuntal Kumari (1969) 1 SCR 1006: AIR 1969 SC 575); Concord of India Insurance Co. Ltd. v. Nirmala Devi ((1979) 3 SCR 694: (1979) 4 SCC 365: AIR 1979 SC 1666); Lala Mata Div V. A. Narayanan (1970) 2 SCR 90: (1969) 2 SCC 770: AIR 1970 SC 1953); Collector, Land Acquisition v. Katiji (1987) 2 SCC 107) etc. There is, it is true, no general principle saving the party from all mistakes of its counsel. If there is negligence, deliberate or gross inaction or lack of bona fides on the part of the party or its counsel there is no reason why the opposite side should be exposed to a time-barred appeal. Each case will have to be considered on the particularities of its own special facts. However, the expression `sufficient cause' in Section 5 must receive a liberal construction so as to advance substantial justice and generally delays in preferring appeals are required to be condoned in the interest of justice where no gross negligence or deliberate inaction or lack of bona fides is imputable to the party seeking condensation of the delay."

Further, a Division Bench (of which I was a member) of this Court in the case of K.M. Sharma v. Union of India, in RFA No. 36/2003 and RFA 37/2003, decided on 03.04.2003 observed:-

"The Supreme Court has also consistently held that delays in preferring appeals are not to be condoned where there is gross negligence or deliberate inaction or lack of bona fides imputable to the party seeking condensation of the delay. The question of liberal interpretation and substantial justice would only arise when there is no gross negligence or deliberate inaction or lack of bona fides imputable to the party seeking condensation of the delay."

In the case at hand the learned ADJ has found as a finding of fact that the stand of Late Mrs. Trikem Das was lacking in bona fides. Obviously, then, the question of giving a liberal interpretation does not arise.

7. He further submitted that public bodies even in respect of dealings with its tenants must act in public interest and an infraction of the duty is amenable to examination either in civil suit or in writ jurisdiction. He further submitted that where contractual privileges are made immune from the protection of the rent Act for LIC because of the public position occupied by it, its actions were amenable to judicial review to the extent that the State must act validly for a discernible reason and not whimsically for any ulterior purpose. He further contended that where any special right or privilege is granted to any public or statutory body on the presumption that it must act in a certain manner, such bodies must make good such presumption while acting by virtue of such privileges. Judicial review to oversee if such bodies are so acting is permissible. In support of these contentions the learned senior counsel cited the decision of the Supreme Court in Dwarkadas Marfatia and Sons v. Board of Trustees of the Port of Bombay, AIR 1989 SC 1642 and particularly paragraph 23 thereof. There can be no exception to these principles. However, it must be noted that the action that has been complained of is not on the part of the respondent, LIC. What is complained of is the factum of dismissal of the appeals on the ground of the bar of limitation by the learned Additional District Judge. So, what is being reviewed in the present case is not the action of the LIC as it were but the decision of the learned Additional District Judge. As such, the aforesaid decision of the Supreme Court does not apply to the present case.

8. Learned senior counsel appearing for the petitioner next placed reliance on the decision of the Supreme Court in Shangrila Food Products Ltd. v. Life Insurance Corporation of India and Anr., (1996) 5 SCC 54, to advance his argument that this Court could and should interfere with the impugned orders under Article 226 and 227 of the Constitution of India. He placed reliance on paragraphs 10 and 11 thereof which are set out as under:-

" 10. The inherent temper of restraint of the High Court under Article 226 of the Constitution was posed and pressed into service by the learned counsel for the appellants contending that the High Court should not have opened up a finalised litigation relatable to damages to barter a remand on the question of the quality of occupation of the appellant Company, i.e., whether it was authorised or unauthorised. It was maintained that by conduct, the Life Insurance Corporation, respondent, had submitted to those orders and had not put them to challenge in proceedings under Article 226 and/or Article 227 of the Constitution. On that axis it was asserted that the direction on remand to resettle the question of damages may be quashed, maintaining the other direction and order with regard to the nature of occupation. Regretfully we are not persuaded to adopt such course.

11. It is well settled that the High Court in exercise of its jurisdiction under Article 226 of the Constitution can take cognisance of the entire facts and circumstances of the case and pass appropriate orders to give the parties complete and substantial justice. This jurisdiction of the High Court, being extraordinary, is normally exercisable keeping in mind the principles of equity. One of the ends of the equity is to promote honesty and fair play. If there be any unfair advantage gained by a party priorly, before invoking the jurisdiction of the High Court, the Court can take into account the unfair advantage gained and can require the party to shed the unfair gain before granting relief. What precisely has been done by the learned Single Judge, is clear from the above emphasised words which be reread with advantage. The question of claim to damages and their ascertainment would only arise in the event of the Life Insurance Corporation, respondent, succeeding to prove that the appellant Company was an unlawful sub-tenant and therefore in unauthorised occupation of public premises. If the findings were to go in favor of the appellant Company and it is proved to be a lawful sub-tenant and hence not an unauthorised occupant, the direction to adjudge the claim for damages would be rendered sterile and otiose. It is only in the event of the appellant Company being held to be an unlawful sub-tenant and hence an unauthorised occupant that the claim for damages would be determinable. We see therefore no fault in the High Court adopting such course in order to balance the equities between the contestants especially when it otherwise had power of superintendence under Article 227 of the Constitution in addition. We cannot be oblivious to the fact that when the occupation of the premises in question was a factor in continuation the liability to pay for the use and occupation thereof, be it in the form of rent or damages, was also a continuing factor. The cause of justice, as viewed by the High Court, did clearly warrant that both these questions be viewed interdependently. For those who seek equity must bow to equity." (underlining added).

9. In the above quoted passages, the key expression, to my mind, is:-

"This jurisdiction of the High Court, being extraordinary is normally exercisable keeping in mind the principles of equity. One of the ends of equity is to promote honesty and fair play."

In the facts and circumstances of the present case, as indicated above, the Learned Additional District Judge has clearly held that the stand taken by the late Mrs. Trikam Das was lacking in bona fides. In such a situation, principles of equity cannot be invoked for, it is well settled that, he who seeks equity must also do equity.

10. In fact, this is the very extent of the argument of the learned counsel for the respondent whereby he has pointed out that late Mrs. Trikam Das, although she had stated that she was hospitalised and/or bed ridden in her application, in her evidence it transpired that she had not been hospitalised at the relevant time and nor was she willing to state on oath that she was bed ridden for the last two years. He made a pointed reference to the learned ADJ's order wherein, as aforesaid, it is recorded that the stand of the late Mrs. Trikan Das was lacking in bona fides.

11. Lastly, it was urged on behalf of learned Senior counsel appearing on behalf of the petitioner that in any event the Ministry of Urban Development and Poverty alleviation had by a Resolution dated 30.5.2002 issued guidelines to prevent arbitrary use of powers to evict "genuine" tenants from public premises under the control of Public Sector Undertakings/financial institutions. In particular, he referred to paragraph 2 (iii) thereof which is set out hereinbelow:-

" (iii) A Person in occupation of any premises should not be treated or declared to be an unauthorised occupant merely on service of notice of termination of tenancy, but the fact of unauthorised occupation shall be decided by following the due procedure of law. Further, the contractual agreement shall not be wound up by taking advantage of the provisions of the P.P.(E) Act, 1971. At the same time, it will be open to the public authority to secure periodic revision of rent in terms of the provisions of the Rent Control Act in each State or to move under genuine grounds under the Rent Control Act for resuming possession. In other words, the public authorities would have rights similar to private landlords under the Rent Control Act in dealing with genuine legal tenants."

12. These guidelines have no legal effect inasmuch as guidelines cannot over-ride statutory provisions. In any event this issue is no longer res-integra inasmuch as a Division Bench of this Court in the case of Shri Uttam Prakash Bansal v. LIC, CW No. 2804/1983, decided on 19.09.2002 (also reported in 2002 (100) DLT 497) has clearly held the guidelines to be inapplicable in the following terms:-

" The submission of Mr. Chandhiok to the effect that for initiating a proceeding of this nature the guidelines issued by the Ministry of Urban Development and Poverty Alleviation should have been followed, cannot be accepted on more than one ground. Firstly the Life Insurance Corporation of India is a statutory Corporation. Secondly the guidelines have been issued only in the year 2002 whereas the proceeding had been initiated in the year 1976.

Even otherwise having regard to the clear and ambiguous provisions of the statute as such not following of the said guidelines cannot be raised as a defense."

13. In view of the foregoing discussion no interference with the impugned orders is called for. As such, the writ petition is dismissed. However, keeping in mind that the petitioner is a divorcee who is working with an NGO and is living in the premises in question with her thirty year-old blind son, it would be appropriate if a direction be given that the petitioner be not evicted from the said premises for a period of three months from the date of this order.

There shall be no order as to costs.