Anand And Anr vs Union Of India
2020 Latest Caselaw 1274 Del

$~A-46
*     IN THE HIGH COURT OF DELHI AT NEW DELHI
%                                      Date of decision: 26.02.2020
+     W.P.(C) 2881/2017
      ANAND AND ANR                                    ..... Petitioners
                  Through              Mr.Ashish Upadhayay, Adv.

                    versus
      UNION OF INDIA                                   ..... Respondents
                    Through            Mr.Yeeshu Jain, Standing Counsel
                                       with Ms.Jyoti, Adv. for the
                                       Respondent.

      CORAM:
      HON'BLE MR. JUSTICE JAYANT NATH

JAYANT NATH, J. (ORAL)

1. This order has been passed in continuation of the order dated 24.02.2020. The relevant facts are stated in the order dated 24.02.2020 as follows:-

"The case of the petitioners is that notification was issued for acquisition of land situated in the revenue estate of Matiala, New Delhi. The share of the petitioners in the aforesaid land was to the extent of 1/8th each. The Date of Birth of petitioner No.1 is 04.01.1977 and Date of Birth of petitioner No. 2 is 17.01.1978. They were minors at the time of acquisition. The father of the petitioners was in the Army and expired on 01.03.1978. After the death of the father the uncle of the petitioners' was appointed as the Guardian. On 05.10.1987 on behalf of the petitioners, the uncle of the petitioners filed an application for allotment of an alternative plot of 400 Sq.Yds before the respondents. The application was taken up at Serial No. 16217 in the prescribed format and was accompanied with all the requisite documents.

W.P.(C)2881/2017 Page 1 It is the case of the petitioners that the application that was filed on behalf of the petitioners on 05.10.1987 was lost by the respondent. Thereafter, the petitioners filed a fresh application on 15.01.1992. This application was rejected by the respondent on 03.03.1999 stating it to be barred by time. Subsequently, the petitioners filed a writ petition being W.P.(C) No. 9336/2014, which was disposed of by this Court directing the respondent to communicate to the petitioners and inform the status of the application filed on 05.10.1987 within four weeks from today.

It is the grievance of the petitioners that despite this order, nothing has been heard from the respondent whatsoever. This writ petition was filed in 2017. Till date no counter affidavit has been filed by the respondent. On 25.09.2019, this Court had granted a final opportunity to file counter affidavit. The needful has still not been done."

2. Learned counsel for the respondent has taken me through the record, she has pointed out that the application for alternate plot filed by Shri Bahadur Singh, the guardian of the petitioner was not filed on 05.10.1987 as claimed by the petitioner but was filed on 14.01.1992. She states that this is evident from the application itself. She further states that the application form being Serial No. 16217 is a serial number which has a date of 14.01.1992 and not the date of 05.10.1987, hence it is pleaded that the application is barred by time. She further states that even otherwise the application of the petitioner was rejected on 03.03.1999 and hence the present writ petition is even otherwise barred by delay and laches.

3. Firstly, I cannot help noticing that despite several opportunities respondent did not file a counter affidavit. These facts now pleaded were not brought on record to enable the petitioner to refute the same.

4. That apart, no doubt, the record of the respondents shows that the

W.P.(C)2881/2017 Page 2 application for alternate plot was filed by the petitioner on 14.01.1992 and this is the only application that is available on record. The above plea is rebutted by the learned counsel for the petitioner who states that it is on account of the loss of the original application filed on 05.10.1987 that the subsequent application was filed.

5. I do not wish to go into the controversy about the allegation made by the learned counsel for the respondent that the application dated 05.10.1987 is a forged application. It is an admitted position that the father of the petitioner who was in the Army expired on 01.03.1978. It was the petitioners' uncle Shri Bahadur Singh who was appointed as a guardian in appropriate judicial proceedings. It is Shri Bahadur Singh who as guardian of the petitioners moved the application allegedly on 05.10.1987 and as the same was said to be lost thereafter on 14.01.1992 (as the first application was allegedly lost by the respondent).

6. The petitioners have become majors in 1995 and 1996 respectively. The application for allotment of alternate plot was admittedly filed on 14.01.1992 (the second date) i.e. before the petitioners became major. Even as per the record of the respondents, the compensation was received by Shri Bahadur Singh sometime in 1987 as a legal guardian of the petitioner. Hence, as per the respondents, as per the public notice the cut off date for filing of application for seeking alternate plot in the case of petitioners was 30.04.1989/01.05.1989. An application has been filed on 14.01.1992 i.e. at best a delay of one and half years. Keeping in view the facts that the petitioners were minor, in my opinion, they would be entitled to condonation of delay for the application that was filed allegedly belatedly.

7. Reference in this regard may be had to the statutory provisions of the

W.P.(C)2881/2017 Page 3 Limitation Act. I may note that Section 6(1) of the Limitation Act deals with Rights of a minor. It reads as follows:

"6.Legal Disability.- (1) Where a person entitled to institute a suit or make an application for the execution of a decree is, at the time from which the prescribed period is to be reckoned, a minor or insane, or an idiot, he may institute the suit or make the application within the same period after the disability has ceased, as would otherwise have been allowed from the time specified therefore in the third column of the Schedule. ......."

8. Reference may be had to the judgment of the High Court of Lahore in the case of Mussammat Umrao Begum & Ors. v. Rahmat Ilahi, AIR 1939 Lah 439 where the court held as follows:

"......Though we consider that section 6 of the Limitation Act does not extend the period of making such applications till after minority has ceased, we consider that minority is a factor to be taken into account when considering circumstances which justify the application of section 5 of the Limitation Act. We hold that applications for the extension of time under section 5 have to be more liberally construed in favour of minors than other litigants. If it were necessary therefore, to invoke the provisions of section 5 to allow time in favour of the minors, we would have no hesitation in doing so. We are of the opinion, however, that as an application on behalf of some of the heirs was made within time, the appeal had not abated and the applications on behalf of the other heirs could be subsequently made, and in this aspect it is not necessary to invoke the aid of section 5 of the Limitation Act."

9. Reference may further be had to the judgment of a Co-ordinate Bench of this Court in the case of Smt.Gargia & Gargi W/o Late Sh.Kallu & Ors. vs. Union of India, 2009 SCC OnLine Del 3483, where the delay was condoned in the interest of minors by holding as follows:

W.P.(C)2881/2017 Page 4 "13. In the present case, there is a special circumstance to be taken into consideration and, that is, that three of the appellants are minors. The period of their minority has to be taken into account for the purpose of limitation. Since rights of minor are also involved in this case, I deem it necessary in the interest of justice to condone the delay in filing of the claim petition. Accordingly, the present appeal stands allowed."

Hence, dehors the controversy about whether an application for alternate plot was filed on 05.10.1987 or not, the petitioner is entitled to his application dated 14.01.1992 being considered by the respondent. The delay in filing the application is liable to be condoned.

10. Another objection raised by the respondent is the issue of delay and laches. The plea is that the application of the petitioner was rejected on 03.03.1999. This writ is filed in 2017.

11. I may note that the petitioner had filed an earlier writ petition being W.P.(C) No. 9336/2014 which was dispose of on 23.12.2014 where a direction was passed as follows:

"4. Learned counsel for the petitioner submits that a notification dated 27.01.1984, was issued for acquisition of agricultural land situated in revenue estate of Matiala, New Delhi and same was acquired vide Award dated 19.09.1986. On 11.03.1987 Shri Bahadur Singh, son of Late Sh.Roop Chand, uncle of Master Anand and Parmanand was appointed the guardian of the minors till 04.01.1995 and 16.01.1999, in guardianship case number 317/1986. Accordingly, on 05.10.1987 application for alternative plot was filed vide serial number 16217 by the guardian of Master Anand and Parmanand. Thereafter the petitioners made number of correspondence with the respondent thereby filed all relevant documents, however, till date the status of the application for alternative plot has not been conveyed by the respondent.

W.P.(C)2881/2017 Page 5

5. Keeping in view the averments made in the instant petition and submissions of the learned counsel for the petitioners, this Court directs the respondent to communicate with the petitioners and informed the status of their application within four weeks from today."

12. Learned counsel for the petitioners states that in response to the above direction of this court no communication was received by the petitioners. Hence this fresh writ.

13. In my opinion, the issue of delay and laches should have been raised by the respondents when the first writ petition namely W.P.(C) No.9336/2014 was filed by the petitioners. This is the second petition filed as the respondent did not implement the directions dated 23.12.2014. Hence it is not possible to accept the plea of the respondent that this petition suffers from delay and laches.

14. In view of the above directions, I quash the order dated 03.03.1999. Accordingly, it is directed that the respondent will consider the application of the petitioners for alternate plot as available in its record expeditiously preferably within three months.

JAYANT NATH, J.

FEBRUARY 26, 2020/st




W.P.(C)2881/2017                                                           Page 6