New Delhi Municipal Council & Anr. vs Arkay Radios
2014 Latest Caselaw 2463 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI
                                             Date of Decision: May 15, 2014
+                          CM(M) 1108/2010

      NEW DELHI MUNICIPAL COUNCIL & ANR.        ..... Appellants
                  Through: Mr. Arvind Sah, Advocate.

                           versus

      ARKAY RADIOS                                           ..... Respondent

                           Through:     Mr. Satish Sahai & Mr. Ankur
                                       Aggarwal, Advocates along with
                                       respondent in person.
      CORAM:
      HON'BLE MR. JUSTICE NAJMI WAZIRI

%     MR. JUSTICE NAJMI WAZIRI (Open Court)

1. The petitioner has challenged the order dated 9th March, 2010

whereby an application under Section 5 of the Limitation Act, 1963 for

condonation of delay in filing the appeal was dismissed on the ground that

there was unexplained delay of 111 days and that the applicant had failed to

show sufficient cause for its condonation.

2. It is logical that if an application under Section 5 is dismissed then as

a corollary the appeal or the main petition too would be dismissed as barred

by limitation. Mr. Arvind Sah, the learned counsel for the petitioner submits

that the Trial Court had relied upon dicta of the Supreme Court in

"Collector, Land Acquisition, Anantnag & Anr. vs. Mst. Ktiji & Ors."

1987, ILLJ 500 and " State of Nagaland vs. Lipok AO & Ors.", (2005) 3

SCC 752, which held that the Courts should take a liberal approach in

condoning delay and in considering the question whether sufficient cause

exists or not, they should consider all the facts and circumstances especially

procedural technicalities in the matters pertaining to the Government and its

authorities. The Trial Court was of the view that each and every

explanation, however absurd or implausible the same may be, should not be

considered sufficient cause. The Trial Court was further of the view that the

appellant had failed to explain the delay by showing any sufficient cause. It

noted that the averments in the application, that the relevant file was handed

over to the ALO concerned, who in turn attached the file with some other

files, thus inadvertently burying the relevant file and leading to the delay, is

not supported by any particulars as to who the said ALO was, nor has any

supporting affidavit by the said ALO been filed to support the averments.

The application was also devoid of the date on which the relevant file got

buried/tagged with other files or was otherwise misplaced nor was there any

whisper of the date on which and under what circumstances, the misplaced

file was discovered. Interestingly, the application claims that the delay was

because, after preparation of the appeal, it had to pass through various

„tables‟ for obtaining signatures of the official concerned. However, a

perusal of the memorandum of appeal reveals that it was prepared only on

6.1.2010. Assuming that the application for obtaining the certified copy of

the order dated 29.7.2009 was made on the same day, and prepared and

delivered on 21.8.2009 as mentioned on the certified copy, the period of

limitation for filing the present appeal being 30 days, expired on 20.09.2009.

The appeal was preferred only on 12.1.2010. Therefore there is a delay of

111 days.

3. The learned counsel for the respondent relies upon a judgment of this

Court in "MCD vs. Hamdard (Wakf) Laboratories India" 2005 IAD

(Delhi) 53 which held that in a case of inaction and negligence, no

indulgence can be given to the appellant for condonation of delay:-

"8. Tested on the touchstone of the aforenoted broad principles to be kept in view while dealing with such applications, we are of the view that the applicant has miserably failed to show any cause, much less a sufficient cause for delay in filing the appeal. The afore-extracted paragraph hardly discloses any reason for the delay. It is not explained as to why for over four months, the Counsel did not send the certified copy of the judgment to the department, while recommending filing of LPA. Then again the department took more than two months in collecting the relevant files. It is not indicated where the file was misplaced; how and by whom was it traced out. Evidently, it is not a case where delay in filing appeal was on account of procedural complexities. This is not even pleaded. It is a plain and simple case of inaction and negligence, for which no indulgence can be given to the

appellant. In our opinion the afore-extracted paragraphs hardly spell out any reason/cause for condonation of delay."

The learned counsel further relies upon another judgment of this Court in

"The General Manager Northern Railway vs. Mr. Vishva Nath Nangia"

2005 V AD (Delhi) 586 which held that condonation of delay is not a matter

of right. The delay has to be properly explained and where the

circumstances show that due diligence was not discernible from the conduct

of the officers, there would be no occasion for condoning the delay. He also

relies upon dicta of the Supreme Court in "Postmaster General and others

vs. Living Media India Limited and Another" (2012) 3 Supreme Court

Cases 563 which held that condonation of delay is an exception and should

not be used as an anticipated benefit and offering unusual explanation that

file was kept due to procedural red tape. The Court further held in paras 27

to 30 which reads as under:-

"27. It is not in dispute that the person(s) concerned were well aware or conversant with the issues involved including the prescribed period of limitation for taking up the matter by way of filing a special leave petition in this Court. They cannot claim that they have a separate period of limitation when the Department was possessed with competent persons familiar with court proceedings. In the absence of plausible and acceptable explanation, we are posing a question why the delay is to be condoned mechanically merely because the Government or a wing of the

Government is a party before us.

28. Though we are conscious of the fact that in a matter of condonation of delay when there was no gross negligence or deliberate inaction or lack of bona fides, a liberal concession has to be adopted to advance substantial justice, we are of the view that in the facts and circumstances, the Department cannot take advantage of various earlier decisions. The claim on account of impersonal machinery and inherited bureaucratic methodology of making several notes cannot be accepted in view of the modern technologies being used and available. The law of limitation undoubtedly binds everybody, including the Government.

29. In our view, it is the right time to inform all the government bodies, their agencies and instrumentalities that unless they have reasonable and acceptable explanation for the delay and there was bona fide effort, there is no need to accept the usual explanation that the file was kept pending for several months/years due to considerable degree of procedural red tape in the process. The government departments are under a special obligation to ensure that they perform their duties with diligence and commitment. Condonation of delay is an exception and should not be used as an anticipated benefit for the government departments. The law shelters everyone under the same light and should not be swirl for the benefit of few.

30. Considering the fact that there was no proper explanation offered by the Department for the delay except mentioning of various dates, according to us, the Department miserably failed to give any acceptable and cogent reasons sufficient to condone such a huge delay. Accordingly, the appeals are liable to be dismissed on the ground of delay."

4. From a consideration of the aforesaid facts and discussions, it is

evident that the reasons given for the delay are not cogent or persuasive.

The petitioner has failed to set out the case for condonation of delay. The

reasons given for condonation are weak excuses to cover obvious lapses of

the local body in preferring the appeal within the time prescribed. This is an

apt example of an "impersonal machinery and inherited bureaucratic

methodology" failing before the legal process because of indolence and

indifference or perhaps being under the notion that the delay would be

condoned in any case. However, as settled by the Supreme Court in Post

Master General (supra), the "law of limitation binds everybody equally

including Government..." therefore excuses bordering on indolence,

indifference and vagueness shall not be accepted. There is no reason, let

alone sufficient reason, to condone the delay of 111 days. The reasons for

arriving at the impugned decision are cogent and correct. The impugned

order does not call for any interference by this Court. The petition is

without merit and accordingly is dismissed.

NAJMI WAZIRI (JUDGE) MAY 15, 2014 nk