Nusarat Tabassum vs Ndmc & Anr.
2011 Latest Caselaw 2016 Del

               IN THE HIGH COURT OF DELHI AT New Delhi

                           C.M.(M) No.1031/2010

                               Date of Decision: 07.4.2011



Nusarat Tabassum                               ........ Petitioner
                                   Through:    Mr.   Chandra
                                   Shekhar with Mr. Saurabh
                                   Upadhyay, Advs. for the
                                   petitioner.

                               Versus

N.D.M.C. and Another                          ........ Respondents
                                    Through: Mr. Nilav Banerjee
                                    with Mr. Arpan Behl, Advs. for
                                    Mr. Manoj K. Singh, Adv. for
                                    the respondents
       CORAM:
       HON'BLE MR. JUSTICE S.L. BHAYANA

       1.     Whether reporters of local paper may be
              allowed to see the judgment?               Yes
       2.     To be referred to the reporter or not?     Yes
       3.     Whether the judgment should be referred in
              the Digest?                           Yes


S. L. BHAYANA, J.

The present petition under Article 227 of the Constitution

of India has been filed by the petitioner against the impugned

order dated 5.4.2010 passed by the Trial Court, wherein the

Trial Court has condoned the delay in filing an appeal in favour

of the respondent.

2. The brief facts of this case are that the shop No.195,

Palika Bazar, Cannaught Place, New Delhi was allotted to the

2nd respondent by the 1st respondent Council on license basis.

Subsequently the petitioner joined the 2nd respondent in terms

of partnership deed dated 2.5.2003. However, the partnership

suffered dissolution in view of the dissolution deed dated

25.8.2003 according to which the petitioner remained in

occupation of the shop in question with full knowledge and

notice of the respondent Council. The shop was regularized by

the 1st respondent in the name of the petitioner. Since the

term of the license expired, the respondent (NDMC)

approached the Estate Officer for seeking eviction of the

petitioner and respondent No.2 from the premises in question

on the ground that they are occupying the premises

unauthorisedly.

3. The Estate Officer issued show cause notice under

section 4(1) of the Public Premises (Eviction of Unauthorized

Occupants) Act on 13.7.2005. The respondent council

contested the matter and the same was rejected by the Estate

Officer vide order dated 7.9.2009.

4. Thereafter, the respondent challenged the same by filing

P.P Appeal on 14.1.2010 before the District Judge after the

delay of about 3 months. The reason for the delay is explained

as the file had been misplaced by the clerk of the counsel Mr.

Manoj K. Singh and could be traced on 8.1.2010 in the bunch

of files in which writ petition pertaining to Gole Market were

listed before the High Court.

5. I have heard the arguments advanced by the counsel for

the parties and perused the record carefully. The contention of

the petitioner herein is that the petitioner has been subjected

to gross prejudice in terms of allowing the application for

condonation of delay by the Learned District Judge without

applying his mind. There is no sufficient explanation given by

the counsel for the respondent for the delay in filing of the

appeal. Learned counsel for the petitioner has relied upon

N.D.M.C. Vs. Airtech (P) Ltd., 1998 IV AD (Delhi) 221 wherein

the Division Bench of this Court had dismissed the appeal of

the respondent on the ground of delay. In that case, the Court

has observed that the delay cannot be condoned in the cases

where the public authority has not disclosed any cause and the

delay cannot be condoned on mere asking.

6. On the other hand counsel for the respondent has

asserted that the respondent has not intentionally caused

delay in filing the appeal. The concerned officer perused the

file and made a brief note of the case and placed it before the

concerned authority for advice on 16.9.2009. Thereafter, the

file was processed through various channels and permission

was accorded to file the appeal and the file was marked to Mr.

Manoj K.Singh, special counsel for NDMC for preparing an

appeal on 15.10.2009.

7. It was submitted by learned counsel for respondent that

due to inadvertence of the clerk of the counsel, the file was

misplaced. The file was found in the bunch of files of writ

petitions pertaining to Gole Market listed before the High Court

on 8.1.2010. Along with the application of condonation of

delay the affidavit of Deputy Director Estate, N.D.M.C. was also

filed. Learned counsel for the respondent has relied upon State

(NCT of Delhi) Vs. Ahmad Jaan, JT 2008 (10) SC 179, wherein

the Supreme Court has observed that the term sufficient cause

should be considered with pragmatism in justice oriented

approach rather than technical detection of sufficient cause for

explaining everyday's delay.

8. In view of the submissions made by the counsels for the

parties, I am of the opinion that refusal to condone the delay

would result in grave miscarriage of justice. It is clear from the

explanation given by the counsel for the respondent that the

mistake committed by the counsel was bonafide and it was not

tainted by any mala fide motive. The order passed by the Trial

Court is well reasoned order. The respondent has sufficiently

explained the reason for delay in filing the appeal. The

Supreme Court in case of State (NCT of Delhi) Vs. Ahmad Jaan

(supra) has held that:-

"It is axiomatic that decisions are taken by officers/agencies proverbially at slow pace and encumbered process of pushing the files from table to table and keeping it on table for considerable time causing delay-intentional or otherwise- is a routine. Considerable delay of procedural red- tape in the process of their making decision is a common feature. Therefore, certain amount of latitude is not impermissible. If the appeals brought by the state are lost for such default no person is individually affected but what in the ultimate analysis suffers, is public interest. The expression "sufficient cause" should, therefore, be considered with pragmatism in justice-oriented approach rather than the technical detection of sufficient cause for explaining everyday's delay. The factors which are peculiar to and

characteristic of the functioning of the governmental conditions would be cognizant to and requires adoption of pragmatic approach in justice-oriented process. The court should decide the matters on merits unless the case is hopelessly without merit. No separate standards to determine the cause laid by the State vis-à-vis private litigant could be laid to prove strict standards of sufficient cause. The Government at appropriate level should constitute legal cells to examine the cases whether any legal principles are involved for decision by the courts or whether cases require adjustment and should authorize the officers to take a decision or give appropriate permission for settlement. In the event of decision to file appeal needed prompt action should be pursued by the officer responsible to file the appeal and he should be made personally responsible for lapses, if any. Equally, the State cannot be put on the same footing as an individual. The individual would always be quick in taking the decision whether he would pursue the remedy by way of an appeal or application since he is a person legally injured while State is an impersonal machinery working through its officers or servants."

9. In view of the ratio laid down by Supreme Court in the case of

State (NCT of Delhi) Vs. Ahmad Jaan (supra), I find no

infirmity in the order passed by the Learned Trial Court.

10. The petition is without any merit and the same is, therefore,

dismissed.

S.L. BHAYANA, J

April 07, 2011