Govt. Of Nct Of Delhi & Ors. vs Mamta Rani
2011 Latest Caselaw 3578 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

+     C.M. NO.5536/2011 in WP(C) NO.418/2007

                                       Date of Decision: 27th July, 2011

      GOVT. OF NCT OF DELHI & ORS.        ..... Petitioners
                     Through   Mr. Vinod Wadhwa, Advocate.

                    versus


      MAMTA RANI                                 ..... Respondent
                           Through     Mr. Manish Chauhan, Advocate.

      HON'BLE MR. JUSTICE ANIL KUMAR
      HON'BLE MR. JUSTICE SUDERSHAN KUMAR MISRA

ANIL KUMAR, J. (ORAL)

1. This is an application by the petitioner for recalling the

order dated 21st February, 2011, dismissing the writ petition in default

of appearance of the petitioners and their counsel.

2. The applicant has contended that, on 21st February, 2011,

no one could appear on behalf of the petitioners as panel of lawyers,

as per the Government of NCT of Delhi, was reconstituted and the

previous counsel ceased to be counsel for the Government. The

change of panel of lawyers was gazetted in the first week of February,

2011, however all the counsels, who had been put on panel on behalf

of the Government of NCT of Delhi, were not notified due to

procedural aspects.

3. The applicant has further contended that since the panel

of lawyers of the Government of NCT of Delhi had changed the

counsel who had been appearing earlier ceased to be the Government

counsel. Therefore, the earlier counsel in the matter returned the

brief. The counsel, who had been appearing in the present writ

petition, therefore, did not appear on 21st February, 2011.

4. The brief was entrusted to the new counsel by the

Standing Counsel on 28th February, 2011. The applicant has

contended that the new counsel made enquiry about the proceedings

which took place on 21st February, 2011, realized that the petition was

dismissed on account of non-appearance of counsel and anyone on

behalf of the petitioners.

5. The application for restoration was, however, filed on 6th

April, 2011 beyond the period of thirty days. No explanation has been

given as to why the application could not be filed within the period of

limitation nor any application has been filed on behalf of the

petitioners for condonation of delay.

6. The learned counsel for the respondent/non-applicant

states that the reply to the application has been filed. However, the

reply to the application is not on the record. Learned counsel for the

respondent has given the copies of the reply filed on behalf of the

respondent. The respondent has contended that the petitioners have

not come to the Court with clean hands and the petitioners are guilty

of suppression and concealment of true and material facts as the

respondent is posted at Directorate (Family Welfare) and her

Disciplinary Authority is the Director (Family Welfare). However, in

place of Department (Family Welfare), the Department (Food &

Supplies) is pursuing the matter against the respondent. The

respondent/non-applicant has also opposed the application on the

merits of the writ petition. The respondent has also contended that

while remanding the matter back to the Disciplinary Authority, liberty

was given to pass appropriate order within the period of three months.

However, with the sole aim to satisfy their egos and to please their

controlling officer, i.e. the Chief Secretary, Delhi, the present writ

petition had been filed.

7. The learned counsel for the respondent has further

contended that though he has not taken the objection that the

application for restoration is barred by time, however, it is apparent

that the application has not been filed within time and it is for the

petitioner to explain as to why the application for restoration could not

be filed within time and seek condonation of delay in filing the

application.

8. Learned counsel for the respondent, however, on

instruction contends that considering the facts and circumstances and

status of the respondent, who is a very poor person, the delay may be

condoned and application for restoration be allowed, subject to

condition of imposing costs on petitioners.

9. A perusal of the record reveals that, by order dated 23rd

January, 2007, Mr. Rabin Mazumdar, Advocate, appointed as Amicus

Curiae for the respondent and the Delhi High Court Legal Services

Authority was directed to provide all expenses and fees to the Amicus

Curiae. In the circumstances, it was also directed that an on account

payment of Rs.5,000/- be made to Mr. Majumdar to conduct the case

of the respondent. Learned counsel for the respondent contends that,

later on, the respondent has appointed him as her counsel.

10. Considering the facts and circumstances, and contentions

raised by the learned counsel for the parties, it will be just and proper,

and in the interest of justice, to recall the order dated 21 st February,

2011, subject to cost of Rs.10,000/-, payable to the respondent. Cost

be paid within four weeks. Application is allowed. Delay is condoned

and the writ petition is restored to its original number.

WP(C) No.418/2007

11 . List in the category of 'After Notice Misc. Matters' for

consideration on 30th September, 2011.

ANIL KUMAR, J.

SUDERSHAN KUMAR MISRA, J.

JULY 27, 2011 dr