Delhi High Court

University Of Delhi vs Union Of India & Ors on 29 October, 2018

 IN THE HIGH COURT OF DELHI AT NEW DELHI

                   Judgment reserved on: October 04, 2018
                  Judgment delivered on: October 29, 2018

+ LPA 89/2018, CM Nos. 8651/2018, 8654/2018, 8655/2018,
26300/2018 & 41259/2018
UNIVERSITY OF DELHI
                                               ..... Appellant

                    Through:   Mr. Ramji Srinivasan, Sr. Adv.
                               and Mr. Dayan Krishnan,
                               Sr. Adv. with Mr. Mohinder J.S.
                               Rupal, Mr. Anurag Ojha,
                               Mr. Prasanna S.,Mr.Prang
                               Newmai, Ms. Slomita Rai and
                               Mr.Bunmeet Singh Grover,
                               Advs.
versus

UNION OF INDIA & ORS
                                               ..... Respondents
                   Through:     Mr. P.S. Narsimha, ASG with
                                Mr. Tarun Johri, Mr. Ankur
                               Gupta and Mr. Ankit Saini,
                               Advs. for DMRC
                               Mr. Anil Dabas, Adv. for R-1 &
                               R-1A
                               Ms. Mini Pushkarna, SC with
                               Ms.Swagata Bhuyan, Ms. Shiva
                               Pandey & Ms. Neha Goel,
                               Advs. for NDMC/R-7
                               Mr. Arvind Nigam, Sr. Adv.
                               with Mr. Manish Srivastava,
                               Mr. Mikhil Sharda &
                               Mr. Mehtaab
                               Singh Sandhu, Advs. for R-12
                               Mr. Prashant Singh, Adv. for
                               Intervenor



   LPA 89/2018                                      Page 1 of 22
                                  Mr. Rajiv Bansal, Sr. Adv. with
                                 Mr.Namit Suri, Ms. Fiza Saluja,
                                 Ms.Aprajita Gupta, Mr. Saaket
                                 Jain, Mr.Kunal Kumar &
                                 Mr. Dipender Chauhan, Advs.
                                 for DDA
                                 Mr. Febin Mathew with
                                 Mr. Dhiraj Philip, Advs. for
                                 R-11/DUAC

 CORAM:
 HON'BLE THE CHIEF JUSTICE
 HON'BLE MR. JUSTICE V. KAMESWAR RAO
                       JUDGMENT

V. KAMESWAR RAO, J

CM No. 8654/2018 u/S 151 CPC (condonation of delay)

1. This is an application filed by the appellant seeking

condonation of 916 days delay in filing the appeal. Replies to the

application have been filed by the respondent No.3 / DDA,

respondent No.10 / DMRC, respondent No.12 / Young Builders

Pvt. Limited. Rejoinders to the replies filed by the aforesaid

respondents have also been filed by the appellant University.

2. Mr. Ramji Srinivasan, learned Senior Counsel appearing

for the appellant University submitted that the present appeal has

been filed on March 01, 2018 to assail the judgment dated April

27, 2015 of the learned Single Judge in W.P. (C) 2743/2012 after

a delay of 916 days which was principally due to the reasons as

explained in the application and the rejoinder to the reply to the

application, albeit, the hour to hour-minutes to minutes cause is

not pleaded but bona fide factum of situation beyond the

appellant control has been delineated. According to him, the

present appeal is different from other litigations preferred or

contested by the appellant. It is only the case where the approval

from the Executive Council of the University of Delhi was

required to be taken and before such approval various

deliberations preceded so as to apprise the Executive Council of

the different shades of the subject matter. Being the statutory

body and adherence to the just method of decision making

requires consultation with effective department of the University

itself and therefore, the final say in the matter rest with the

Executive Council which includes the Senior most Deans,

democratically elected representatives of Teachers, Chancellor's

nominee, Visitor's nominee, Registrar, Treasurer, Director South

Campus and Vice Chancellor. He stated that there is no

negligence or deliberate inaction or red-tapism on the part of the

appellant. He stated that it is a settled law qua the condonation of

delay that it is not the degree of delay but the cause of delay

which assumes significance. In other words, it is the sufficiency

of reason which is the bed rock for deciding the condonation. He

in support of his application has narrated the following facts:

(a) The judgment of learned Single Judge dated April 27,

2015 was sent by the counsel representing the University quite

late. It was then placed before the legal cell of the University for

examining the matter and deciding the further course of action.

After a detailed scrutiny which took time since the case filed

comprising of approximately 1001 pages was required to be

examined.

(b) After going through the voluminous paper book it was

opined that the matter be referred to Vice Chancellor for

consideration and pursuant thereto a meeting was held wherein it

was decided that the matter needs to be dealt with holistically

having regard to all the issues decided by the learned Single

Judge.

post of Vice Chancellor had fallen vacant w.e.f. October 28, 2015

and the important issue could be taken up for consideration after

the new Vice Chancellor had assumed office and taken stock of

things.

(d) That the selection process of Vice Chancellor had taken

considerable time as there are specific procedures to be followed

for the same.

(e) That on March 10, 2016 the new Vice Chancellor joined

the office and in order to ensure democratic functioning of the

University, it was decided by the newly appointed Vice

Chancellor to constitute a Committee. The terms of reference of

the five member committee was to recommend the course of

action to the University in the light of the dismissal of the writ

petition filed by the University.

(f) The Committee gave its report on November 11, 2016

which included the University to take appropriate legal

professional opinion and guidance.

(g) That based on the report of the Committee it was decided

that the subject matter be referred to the Executive Council for

the final decision in the matter.

(h) The matter was placed before the Executive Council on

February 28, 2017 when the subject matter was discussed. It was

again discussed on March 07, 2017 where a decision was taken to

prefer an appeal against the order of the learned Single Judge

dated April 27, 2015. In the meanwhile, representations were

received from differently abled students and Faculty in the light

of the proposed project by the private builder at the very main

entrance of the University. Such representations were required to

be considered and were accordingly forwarded to the Equal

Opportunity cell for consideration.

(i) The said cell examined the issue in the context of the

Disability Act 2016 and probable outcome which the project in

contraction with the Master Plan will entail to the vulnerable

section of society. The Equal Opportunity cell submitted its

report on April 28, 2017. The same was placed before the

Competent Authority for a decision regarding the future course of

action. The report of the equal opportunity cell was considered at

various levels of the University which process entailed a period

of five to six months before a considered opinion could be

generated by the University of Delhi. The representations and the

reports could be finally considered by the University of Delhi

during the end of the year 2017.

(j) In the interregnum an accident occurred at Chattra Marg

which led to the preparation of a report by the office of the

Proctor of the University dated February 05, 2018 wherein it was

recommended that the area be declared as accident prone. A

reference is made about the filing of a PIL by differently abled

persons and the order passed therein.

(k) A legal opinion was sought, draft petition was prepared

which thereafter got vetted and settled by the Senior Counsel.

The finalized appeal was considered at the highest level of the

University for taking a final decision which entailed sometime

resulting in the filing of the appeal on March 01, 2018.

3. Mr. Ramji Srinivasan endeavor was to highlight that the

aforesaid facts cannot be said to be accentuated by any inaction

much less the deliberate one, in the delay. He also submitted the

aforesaid facts suggest that all the authorities and bodies, who

have taken part in the decision making process have exercised

their independent mind after going through the files which

approximately consisted of 1001 pages. He relied upon the

judgment of the Supreme Court in the case of Collector, Land

Acquisition, Anantnag vs. Katiji, AIR 1987 Supreme Court

1353 to contend that the provision of Section 5 of the Limitation

Act has been enacted by the legislature in order to enable the

Courts to do substantial justice to the parties by disposing of the

matters on merits. According to him, the expression "sufficient

cause" employed by the legislature is adequately elastic to enable

the Courts to apply law in a meaningful manner which subserves

the ends of justice.

4. It was also the submission of Mr. Ramji Srinivasan that

no prejudice is caused to respondent No.12 M/s Young Builders

Pvt. Limited inasmuch as no rights of the said respondent are

frustrated if the delay is condoned. Even after elapse of 3 years

19 days of the impugned judgment of the learned Single Judge,

not a single brick is laid for construction at the project site in

question and when the repercussion for the proposed construction

is violation of certain rights of public at large in addition to

specific bars contained in MPD-2021, it is essential that the

matter is heard on merits. He also stated that the appellant

University being in public service, any relief to the appellant will

benefit public at large and neither any explanation was offered by

the respondent No.12 justifying the public purpose for which the

land in question was acquired from the Ministry of Defence and

subsequently used for parking nor disclosed the identities of the

members of the Group Housing Society for whose benefit the

respondents have sought to prevail over the vital interest of the

appellant and beneficiaries of its perpetual service.

5. In substance it is his submission that important question

affecting public interest cannot be defeated on technical

objections raised by the builder who has not laid even a single

brick till date. According to him, the site in question, given the

vast traffic congestion in the nearby area, was used for parking

and it has been stopped for no reason thus causing an unbearable

disservice to society. He also stated that the site in question was

originally owned by the Ministry of Defence and the site was

acquired for "public purpose" at "public expense" but it has

fallen into the hands of a private builder through a dubious and

illegal process.

6. Finally, it is his submission that the cause of delay was

unintentional due to the appellant's limitation being public body

to ensure a fair decision making process through Executive

Council and the absence of Vice Chancellor both fall beyond the

control of the University and shall not deprive a better cause to be

lost on mere technicalities when no prejudice let alone the

disadvantage suffered by the private builder as they themselves

have allowed the time period "free from any pending lis" to be

wasted for the reasons best known to them.

7. On the other hand, Mr. Arvind Nigam, learned Senior

Counsel appearing for the respondent No.12 has drawn our

attention to the reply filed by the said respondent to the

application and submitted that the present application for

condonation of delay is liable to be dismissed on the sole ground

that no justification, let alone "sufficient cause" whatsoever is

offered by the appellant herein for delay of more than 1,013 days

in filing the present appeal as the statutory period of the 30 days

expired on May 26, 2015 itself under clause 4 of Part A(a) of

Chapter 1, Volume V of the Delhi High Court Rules.

8. According to him, the reasons given for delay in filing the

appeal are not only vague and lacks in material particulars but are

also incorrect. The appellant is seeking condonation of delay

more than 1000 days on the ground that the Apex Body of the

appellant could not convene a meeting to decide on the appeal

and hence, due to the said reason approval for filing the appeal

could not be taken. It is submitted that the public institutions /

government bodies such as Delhi University are under a special

obligation to ensure that they perform their duties with diligence

and commitment. The bureaucratic delay and inactions cannot be

a ground to seek condonation of delay. A perusal of the

application would reveal that there was no bona fide effort on

part of the appellant to file the present appeal and explanation

that the file was kept pending for several months / years due to

considerable degree of procedural red-tapism and approval

cannot be ground for condonation of delay in filing appeal.

9. It is also submitted that apart from above, the falsity of

stand of appellant is evident from the fact that during the period

2015 till December 2017, appellant has filed at least 27 writ

petitions and 11 Letters Patent Appeals before this Court as per

official website of this Court. In addition to the above, 392 cases

were filed against the appellant and the same were defended by

the appellant before this Court, which is evident from print out of

website of this Court i.e. Annexure-R-1 of reply filed by the

respondent No.12.

10. He stated that similarly, during said period, at least 31

number of cases were either filed by the Delhi University before

the Supreme Court or defended by it. Hence, to allege that due

to non-availability of Vice Chancellor or non-convening of

meeting appeal could not be filed is incorrect and in fact a

deliberate false statement. Further, if contention of the appellant

is taken to be correct, if appears that no proceeding or work or

decision has been taken by the appellant during the period, for

which condonation of delay is sought. Even as per admissions in

the application by appellant, there has been gross negligence and

deliberate inaction as well as lack of bona fides on part of the

appellant University.

11. It is submitted that in Para 3(F) of application, even as per

best case of the appellant, the appellant got alleged approval on

February 28, 2017 / March 07, 2017 for filing appeal but there is

no explanation as to why the said appeal was not filed

immediately thereafter and was filed after more than a year

(approx.363 days) from said alleged approval, which was filed

only on March 01, 2018. The appellant is under obligation to

explain each and every day of the delay but in the present case,

there is no explanation at all. It is submitted that on this ground

alone, application for condonation of delay is liable to be

dismissed. He also stated that it is settled law that the

condonation of delay cannot be a matter of course and that the

State / Public bodies like Delhi University cannot claim any

preferential or special treatment. 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

Government department. He would rely upon the judgments of

the Supreme Court in Post Master General & Ors. vs. Living

Media India Ltd. & Anr. (2012) 3 SCC 563; Basawaraj & Anr.

vs. The Spl. Land Acquisition Officer AIR 2014 SC 746 and

Union of India & Ors. vs. Prithwi Singh & Ors. Diary No.8754

of 2018 to contend that the alleged justification of the appellant

on account of inherited bureaucratic methodology of making

several notes, transferring files, passing resolutions, convening

meetings cannot be accepted, which binds everybody, including

appellant University.

12. According to him, the present application is nothing but

an abuse of process of law and a dilatory tactics. It is important to

mention that even the writ petition was also filed by the appellant

with delay of more than 7-8 years. In fact, the learned Single

Judge has also taken note of the said fact and dismissed the writ

petition also on the ground of delay and laches. A perusal of

contents of the application would reveal that even as per their

own admission appellant not only acted in negligent manner but

also there is not a single explanation for delay in filing the

present appeal, which can be said to be sufficient cause or reason,

which was beyond control of the appellant. He seeks the

dismissal of the application and also the appeal.

13. The DMRC has also filed reply to the application through

its counsel Mr. Tarun Johri. It is the case of the DMRC that the

appeal filed after a delay of 1006 days does not explain the

reasons which actually led to the delay in filing the appeal. It is

stated that only vague averments in the application for

condonation of delay have been made without submitting

documentary proof of the same which are not admissible in the

eyes of law. The DMRC seeks the dismissal of the application.

14. Mr. Rajiv Bansal, learned Senior Counsel appearing for

the respondent No.3 DDA submitted that no justification, let

alone sufficient cause has been offered by the appellant

University for delay of more than 1000 days in filing the Appeal.

He seeks the dismissal of the application on the sole ground that

the reasons given for delay in filing the appeal are vague and the

same also demonstrate lackadaisical approach of the appellant

and even otherwise it is a settled proposition of law that

departmental delay on account of non moving file from one

department / officer to another cannot be a sufficient cause for

condoning abnormal delay of more than 1000 days. According to

Mr. Bansal the condonation of delay cannot be allowed as matter

of routine and that the State / Public bodies like Delhi University

cannot claim any preferential or special treatment. They are

under obligation to ensure that they performed their duties with

due diligence and commitment.

15. Reference is made to the judgment of the Supreme Court

in the case of Post Master General & Ors.(supra) and Basawaraj

& Anr.(supra). In the end the DDA seeks the dismissal of the

application resultantly the appeal as well.

16. Having heard the learned counsel for the parties, suffice

to state in substance the reasons given by the University for the

delay is because of the due procedure followed in the matter and

the time taken by the democratically elected Executive Council

for taking a decision for final course of action after consulting all

the stakeholders as such the delay is neither willful nor deliberate

nor intentional.

17. From the facts stated above, it is a conceded position that

the copy of the impugned judgment dated April 27, 2015 was

received by the University in the month of May 2015. A plea has

been taken that the position of the Vice Chancellor had become

vacant on October 28, 2015 which is after five months of the

receipt of the judgment from the Counsel. But much before that

the limitation period had expired. Surely, the University

consisting of a Law Department, and battery of Lawyers, was

aware of the limitation period, for filing an appeal. When the

judgment was received, the Vice Chancellor was in place, so also

the Executive Council but still no action was taken. The plea that

a case file comprising of 1000 pages was required to be examined

is also an excuse as it cannot be denied that the writ petition itself

was filed by the University to which counter affidavits have been

filed by the parties which would have been duly examined by the

University before filing the rejoinders. Further, the writ petition

must have been argued by the Counsel after due deliberations

with the officers of the University. It cannot be said that the case

file was examined for the first time after the impugned judgment

had come.

18. So the plea that in the absence of Vice Chancellor the

decision to file appeal could not have been taken cannot be

accepted.

19. Even after the appointment of the new Vice Chancellor in

October 2018, the plea that he had constituted a committee for

proposing the line of action and further consideration of the issue

by the Executive Council and further consultation with the other

stakeholders including the consideration of representations by the

Equal Opportunity cell is a process which is unheard of more

particularly for taking a decision to file an appeal. It is only a

ploy to justify the delay.

20. The application for condonation of delay and the written

submissions does not refer to the dates on which representations

have been received from the individuals as well as groups of the

University which were forwarded to the Equal Opportunity cell

for consideration. In any case, the Equal Opportunity cell gave

its report on April 28, 2017 and whereas the appeal was filed on

March 01, 2018. The explanation given by the University

justifying this period does not inspire confidence.

21. The submission of Mr. Nigam that between the period

2015 till December 2017 the appellant University had filed at

least 27 Writ Petitions and 11 LPAs before this Court as seen

from the official website, is appealing. In addition, the

submission of Mr. Nigam that 392 cases were filed against the

appellant University which have been defended by the appellant

University before this Court and at least 31 number of cases were

either filed by the Delhi University before the Supreme Court or

defended by it, is also appealing.

22. The aforesaid has not been denied by the appellant

University in its rejoinder which suggest that the plea of non

availability of Vice Chancellor because of which decision could

not been taken for filing an appeal is an incorrect stand taken by

the appellant University. So the reasons given by the University

being not bonafide and do not inspire confidence, the same

cannot be accepted.

23. Mr. Nigam is justified in relying upon the judgment of the

Supreme Court in the case of Post master General & Ors. (supra)

wherein in Paras 28 ad 29 the supreme Court has held as under:

"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 bonafide, 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 bonafide 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 government departments. The law shelters everyone under the same light and should not be swirled for the benefit of a few."

24. Similarly in the case of Basawaraj & Anr. (supra) the

Supreme Court in Paras 12 and 15 held as under:

"12. The Court has no power to extend the period of limitation on equitable grounds. "A result flowing from a statutory provision is never an evil. A Court has no power to ignore that provision to relieve what it considers a distress resulting from its operation." The statutory provision may cause hardship or inconvenience to a particular party but the Court has no choice but to enforce it giving full effect to the same. The legal maxim "dura lex sed lex" which means "the law is hard but it is the law", stands attracted in such a situation. It has consistently been held that, "inconvenience is not" a decisive factor to be considered while interpreting a

statute.

15. The law on the issue can be summarized to the effect that where a case has been presented in the court beyond limitation, the applicant has to explain the court as to what was the "sufficient cause" which means an adequate and enough reason which prevented him to approach the court within limitation. In case a party is found to be negligent, or for want of bonafide on his part in the facts and circumstances of the case, or found to have not acted diligently or remained inactive, there cannot be a justified ground to condone the delay. No court could be justified in condoning such an inordinate delay by imposing any condition whatsoever. The application is to be decided only within the parameters laid down by this court in regard to the condonation of delay. In case there was no sufficient cause to prevent a litigant to approach the court on time condoning the delay without any justification, putting any condition whatsoever, amounts to passing an order in violation of the statutory provisions and it tantamount to showing utter disregard to the legislature."

25. The reliance placed by Mr. Srinivasan on the judgment of

the Supreme Court in the case of Collector, Land Acquisition

Anantnag (supra) is concerned, the facts are that an appeal

preferred by the State of Jammu & Kashmir arising out of a

decision enhancing compensation in respect of acquisition of land

for a public purpose to the extent of Rs.14 lakhs by making an

upward revision to the tune of 800%, which also raised important

question as regards principles of valuation, was dismissed as time

barred being four days beyond time. The application for

condonation of delay was allowed upon satisfaction of the Court

that sufficient cause existed, that too of four days. The said

judgment shall not be applicable in the facts of this case, which