Delhi High Court
Raj Kumar Gupta vs India Tourism Development ... on 30 October, 2012
Author: Rajiv Sahai Endlaw
*IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 30th October, 2012
+ LPA No.714/2012
RAJ KUMAR GUPTA ..... Appellant
Through: Mr. Subhiksh Vasudev, Adv.
Versus
INDIA TOURISM DEVELOPMENT
CORPORATION & ANR. ..... Respondents
Through: Mr. Sushant Kumar & Ms. Shikha
Singh, Advs. For ITDC.
CORAM :-
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
RAJIV SAHAI ENDLAW, J
1. The counsel for the respondent caveator appears and we have heard
the counsels finally on the appeal.
2. This intra-court appeal impugns the order dated 20 th September, 2012
of the learned Single Judge of dismissal of W.P.(C) No.4104/2012 preferred
by the appellant. The said writ petition was preferred impugning the order
dated 23rd January, 2012 of the District Judge exercising powers as an
Appellate Authority under the Public Premises (Eviction of Unauthorized
Occupants) Act, 1971 (PP Act) dismissing the appeal preferred by the
appellant against the order dated 14th July, 2010 of the Estate Officer of the
respondent directing the appellant to pay a sum of Rs.10,85,640/- along with
interest @ 18% per annum in case the said amount was not paid within 30
days from the order.
3. The respondent had approached its Estate Officer on 2 nd November,
2007 for recovery of the aforesaid amount from the appellant due on account
of the rooms booked by the appellant in the hotel of the respondent between
7th December, 2005 and 15th December, 2005. The appellant in the
memorandum of this appeal admits receipt of notice of the proceedings
before the Estate Officer and of having participated in the said proceedings
till May, 2008 and having objected to the jurisdiction of the Estate Officer;
the appellant further admits having thereafter stopped participating in the
said proceedings and after several dates of ex parte hearing wherein
ultimately the order dated 14th July, 2010 of recovery of amount aforesaid
from the appellant was passed. The said order itself records copy thereof
having been sent to the appellant. The appellant has not stated that the
address at which the copy of the order is recorded to have been sent is not of
the appellant or is incorrect. The appellant however sat quite. It appears that
the respondent approached the SDM for recovery of the amounts aforesaid
from the appellant as arrears of land revenue but the SDM did not take any
action. The respondent in the circumstances filed W.P.(C) No.7638/2011 in
this Court seeking direction to the SDM to recover the amount from the
appellant as arrears of land revenue. The appellant was also impleaded as a
party in the said writ petition and the counsel for the appellant admits having
appeared in the said writ proceedings on 12 th December, 2011 though states
that no notice of the said writ petition had been issued to the appellant. It is
the case of the respondent that advance copy of the writ petition had been
served on the appellant and in pursuance whereto the appellant had
appeared. Though the appellant, from the said writ petition also had
knowledge of the order dated 14th July, 2010 of the Estate Officer but the
appeal was not filed within the prescribed limitation period of 12 days from
then also and is informed to have been filed only on 10 th January, 2012. The
same was dismissed as barred by time vide order dated 23 rd January, 2012
supra of the District Judge. The challenge thereto by writ petition also failed
as aforesaid before the learned Single Judge. The learned Single Judge
however reduced the rate of interest from 18% per annum to 9% per annum
from the date of the order of the Estate Officer, till realization.
4. We have enquired from the counsel for the appellant as to why the
appellant had stopped participating in the proceedings before the Estate
Officer. The counsel for the appellant has fairly stated that there is no
explanation whatsoever therefor on record and admits the default of the
appellant in this regard. We have next asked the counsel for the appellant as
to whether the appellant had controverted the receipt of the copy of the order
dated 14th July, 2010 of the Estate Officer as purported to be sent from the
noting to the said effect on the order. Though the counsel denies receipt but
is unable to show any plea to the said effect. We have then enquired from
the counsel for the appellant as to what was the case set-up by the appellant
in the application for condonation of delay in filing the appeal before the
District Judge. The counsel states that no application for condonation of
delay was filed along with the appeal. There is similarly no explanation for
delay after 12th December, 2011 in preferring the appeal.
5. However notwithstanding the aforesaid , the counsel urges us to look
into the merits of the defence of the appellant to the claim of the respondent
allowed by the Estate Officer.
6. We, in exercise of our appellate powers, cannot overlook the gross
neglect and defaults and delays of the appellant and for which no
explanation also exists or is furnished and further, cannot convert our
jurisdiction to that of the original fora and go into the merits of the defence
of the appellant to the claim of the respondent. It cannot be lost sight of that
the legislature has provided a short period of 12 days for preferring appeals
against the order of the Estate Officer and no further appeals have been
provided against the order of the Estate Officer. The writ petition was
preferred invoking the powers of this Court of judicial review under Article
226 of the Constitution of India. However said powers are discretionary and
cannot be permitted to be invoked by a person who is guilty of neglect,
default, delays and latches. The Supreme Court as far back as in State of
Madhya Pradesh Vs. Nandlal Jaiswal (1986) 4 SCC 566 held that
discretion under Article 226 is not to assist the tardy and the indolent of the
acquiescent and the lethargic.
7. Not only so, the appellant is a defaulter of public dues. The factum of
the appellant having booked the rooms in the hotel of the respondent is not
disputed. It is also not the case of the appellant that full and final payment on
the said account was made. Admittedly a dispute was brewing and only
some payment had been made by the appellant. It was for the appellant to
contest the proceedings before the Estate Officer. Even if it was the case of
the appellant that the claim of the respondent before the Estate Officer was
not within the purview of the PP Act and the Estate Officer had no
jurisdiction, admittedly the said plea had been rejected by the Estate Officer
vide order dated 12 th May, 2008 and of which the appellant admits
knowledge. The appellant did not take any remedies against the said order
also and instead stopped participating in the proceedings. It is apparent that
the appellant took a chance on, the respondent losing track of its claim
against the appellant in bureaucratic red tape. However the respondent
persisted with the claim. The appellant only when pressed to the wall started
invoking the legal process and which cannot be permitted. A litigant who
takes such a chance and benefits therefrom has to also suffer the
consequences thereof.
8. We therefore do not find any merit in this appeal, which is dismissed.
No costs.
RAJIV SAHAI ENDLAW, J
CHIEF JUSTICE
OCTOBER 30, 2012
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