Union Of India & Anr. vs M/S Mahalaxmi Saw Mills Pvt. Ltd
2015 Latest Caselaw 469 Del

          *IN THE HIGH COURT OF DELHI AT NEW DELHI
%                                           Date of decision: 19th January, 2015.
+                                    LPA No.2514/2005
       UNION OF INDIA & ANR.                     ..... Appellants
                    Through: Mr. Ruchir Mishra & Mr. Mukesh
                             Kumar Tiwari, Advs.
                                         Versus
    M/S MAHALAXMI SAW MILLS PVT. LTD.          ..... Respondent
                  Through: Mr. S.K. Rungta, Sr. Adv. with Mr.
                           Prashant Singh, Adv.
CORAM:-
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
RAJIV SAHAI ENDLAW, J.

CMs No.13486/2014 & 13487/2014 (for restoration of the appeal dismissed in default of appearance on 28th January, 2010 and for condonation of four years four months delay in applying therefor)

1. Notice of these applications was issued and we have heard the counsel

for the appellants and the senior counsel for the respondent.

2. The appellants i.e. the Union of India and the Land and Development

Officer (L&DO) had preferred this intra-court appeal against the judgment

dated 10th June, 2005 of the learned Single Judge of this Court of allowing

W.P.(C) No.2546/2003 filed by the respondent by quashing the claim of the

appellants for unearned increase in accordance with the terms and conditions

of the perpetual lease of land underneath property No.3/13, Industrial Area,

Kirti Nagar, New Delhi. The appeal was entertained and notice thereof

issued. The appeal, on 9th January, 2007, was admitted for hearing and

ordered to be listed for hearing in the category of 'Regular Matters' in the

week commencing from 5th March, 2007. On 9th January, 2007, the counsel

for the respondent also made a statement that he would not press for

compliance of the order of the learned Single Judge. It appears that the

appeal did not come up for hearing in the week commencing from 5th March,

2007 or at any time thereafter till 28th January, 2010 when none appeared for

either of the parties. The appeal was accordingly dismissed in default of

appearance. These applications for restoration with condonation of delay in

applying for restoration were filed in or about July / August, 2014 and came

up on 20th August, 2014 when notice thereof was issued.

3. The respondent has opposed the application for condonation of delay

as well as the application for restoration of the appeal by contending; i) that

the delay is too long; ii) that the appellants have falsely stated in the

applications that they were not aware of the appeal having been dismissed;

and, iii) that the respondent in fact had delivered demand letters dated 20th

January, 2011, 27th May, 2013, 3rd June, 2013, 31st October, 2013 and

14th March, 2014 in the office of the L&DO for compliance of the order of

the learned Single Judge, also citing the dismissal of the appeal.

4. The senior counsel for the respondent in opposition has relied on

Brijesh Kumar Vs. State of Haryana 2014 (4) SCALE 50 upholding the

judgment of the High Court of refusing to condone the inordinate delay of

ten years two months and twenty nine days in preferring the appeal under

Section 54 of the Land Acquisition Act, 1894.

5. We have considered the matter and are of the opinion that in the

present facts and circumstances, a sufficient cause is made out for condoning

the delay and for restoring the appeal, for the following reasons:-

(a) The appeal was admitted for hearing and though ordered to be listed for

hearing in the week commencing from 5th March, 2007 but did not come

up for hearing and came up for hearing suddenly on 28 th January, 2010

when it was dismissed in default without even keeping it on board for

some time to enable the counsels to have another chance to notice the

same in the cause list of this Court.

(b) It is not as if the respondent noticed that the appeal had come up for

hearing on 28th January, 2010; none appeared for the respondent also on

that date.

(c) The advocate who had filed and was pursuing the appeal on behalf of the

appellants was in July, 2011 designated as a Senior Advocate of this

Court and it can be presumed, would have ceased to be the advocate for

the appellants and hence the dismissal of the appeal remained to be

noticed.

(d) Not only so, the said advocate was on 17th April, 2013 elevated as a

Judge of this Court.

(e) Though the appeal was dismissed on 28th January, 2010 and though the

respondent claims to have, though not on that date, subsequently become

aware of the said dismissal but the respondent did not seek enforcement

of the order of the learned Single Judge, stay of enforcement whereof

stood vacated on dismissal of the appeal and applied for enforcement

only in or about May, 2014 (Cont.Cas.(C) No.342/2014) and

immediately whereafter these applications were filed; though we

enquired from the senior counsel for the respondent, the reason for the

respondent also for over four years not seeking enforcement of the order

of the learned Single Judge but no reply was forthcoming; the

respondent itself was thus lackadaisical and cannot deprive the

appellants from condonation of delay.

(f) As far as the argument of the respondent having demanded compliance

of the order of the learned Single Judge by writing letters to the

appellants is concerned, it cannot be lost sight of that owing to the large

number of officers in government offices and allocation of work between

them, generally one hand does not know what the other is doing; thus

though ordinarily from such letters, knowledge of dismissal would have

been concluded but such letters received in government offices often are

simply filed without proper application of mind thereon; moreover it is

common knowledge that litigation cell which pursues the matters is

entirely different. The Supreme Court in State of Haryana Vs. Chandra

Mani (1996) 3 SCC 132 observed that it is common knowledge that on

account of impersonal machinery and the inherent bureaucratic

methodology imbued with the note-making, file-pushing and passing-on-

the-buck ethos, delays on the part of State occur and that since the State

represents collective cause of the community, grant of certain amount of

latitude to it is not impermissible. It was further held that factors which

are peculiar to and characteristic of the functioning of the governmental

conditions would be cognizant to and require adoption of pragmatic

approach in justice-oriented process and the Courts should decide the

matters on merit unless the case is hopelessly without merit. The same

thought was echoed earlier in Collector, Land Acquisition, Anantnag

Vs. Mst. Katiji (1987) 2 SCC 107. Both the said judgments were

recently followed in Delhi Development Authority Vs. Bhola Nath

Sharma (2011) 2 SCC 54.

(g) The appeal entails a question of law of larger public ramifications; the

learned Single Judge, in the judgment impugned in the appeal has held

that notwithstanding a clause in the perpetual lease deed to the effect that

no transfer of the land leased or of the construction raised thereon could

be effected without prior permission of the L&DO, which the appellant

L&DO would be entitled to refuse in its absolute discretion or grant

subject to payment of 50% unearned increase, the demand of the

appellant L&DO for such unearned increase on conversion of the

partnership firm which was the perpetual lessee into a private limited

company was not payable because there was no assignment; such

questions arise and are likely to arise in large number of other cases and

need to be considered in appeal especially when the appeal was admitted

for hearing and the operation of the order of the learned Single Judge

stayed on the statement of the respondent itself; and,

(h) The respondent in the present case has not averred any loss on account

of delay.

6. The Supreme Court in judgment dated 21st July, 2014 in Civil Appeals

No.6599-6601/2014 titled Dhiraj Singh Vs. Haryana State, in the context

of appeal for enhanced compensation for land acquisition, held that

substantive rights should not be allowed to be defeated on technical grounds

by taking hyper technical view of the self-imposed limitations and that

equities have to be balanced. Finding in that case that the only effect of

appeal could be to deprive the appellants therein from the interest for the

period of delay, the delay was condoned.

7. We accordingly, allow these applications by condoning the delay in

applying for restoration and by restoring the appeal dismissed in default on

28th January, 2010 to its original position. Axiomatically, the interim

arrangement in force also stands restored.

The applications are disposed of.

RAJIV SAHAI ENDLAW, J.

CHIEF JUSTICE JANUARY 19, 2015 'gsr'