The Commissioner vs B.A.Rajakumari Anand
2021 Latest Caselaw 567 Kant

                           -1-


     IN THE HIGH COURT OF KARNATAKA, BENGALURU

         DATED THIS THE 11TH DAY OF JANUARY, 2021

                         PRESENT

         THE HON'BLE MRS. JUSTICE B.V.NAGARATHNA

                           AND

            THE HON'BLE MRS. JUSTICE M.G. UMA

             WRIT APPEAL No.35/2020 (BDA)

BETWEEN:

THE COMMISSIONER
BENGALURU DEVELOPMENT AUTHORITY,
KUMARA PARK WEST,
BENGALURU - 560 020.
REPRESENTED BY DEPUTY SECRETARY-III.         ... APPELLANT

(BY SRI BIPIN HEGDE, ADVOCATE (THROUGH V/C))

AND:

1.     B.A. RAJAKUMARI ANAND
       W/O. ASHOK ANAND,
       AGED ABOUT 56 YEARS,
       R/O. NO.19, PAR RESIDENCY,
       FLAT NO.5, 34TH MAIN ROAD,
       4TH CROSS ROAD, I PHASE,
       VYSYA BANK COLONY, J.P. NAGAR,
       BENGALURU - 560 078.

2.     GOVERNMENT OF KARNATAKA
       URBAN DEVELOPMENT DEPARTMENT,
       MULTISTORIED BUILDING,
       DR. AMBEDKAR VEEDHI,
       BENGALURU - 560 001,
       REP. BY IT'S PRINCIPAL SECRETARY.   ... RESPONDENTS

(BY SRI R. RAVI, ADVOCATE FOR R-1;
    SRI C.N. MAHADESHWARAN, AGA FOR R-2)


       THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE
KARNATAKA HIGH COURT ACT PRAYING TO a) SET ASIDE THE
ORDER DATED 08/04/2019 PASSED BY THE LEARNED SINGLE
                                 -2-


JUDGE      IN     W.P.NO.58482/2015    AND    DISMISS      THE
W.P.NO.58482/2015 FILED BY THE RESPONDENT NO.1; b)
AWARD THE COST OF PROCEEDINGS.


      THIS APPEAL COMING ON FOR PRELIMINARY HEARING
THIS DAY, NAGARATHNA J., DELIVERED THE FOLLOWING:-


                        JUDGMENT

There is a delay of 238 days in filing the appeal.

2. I.A.No.1/2020 has been filed seeking

condonation of delay, nevertheless, we have heard learned

counsel for the respective parties both on the aspect of

delay and on the merits of the matter.

3. Learned counsel for the appellant/Bangalore

Development Authority ("BDA") drew our attention to the

application filed under Section 5 of the Limitation Act,

1963 (hereinafter referred to as "the Act" for the sake of

brevity) and to the contents of paragraph No.7 thereof.

This was in order to demonstrate the fact that after the

disposal of the writ petition (W.P.No.58482/2015 disposed

on 08/04/2019), the papers were forwarded along with the

certified copy of the impugned order to the legal section to

seek legal opinion and approval to file an appeal. That the

legal section, after going through the file and on having

discussions, obtained approval from the Commissioner of

the BDA to file the appeal and thereafter appeal has been

filed. That the delay has occurred due to administrative

reasons and is unintentional and bona fide.

4. Learned counsel for the appellant/BDA

contended that the delay may be condoned as the

appellant has a good case on merits.

5. Learned counsel for the respondent objected to

the application filed by the BDA seeking condonation of

delay of 238 days in filing the appeal. He submitted that

the affidavit filed is bald and bereft of any detail and the

reason for long delay of 238 days has not been explained.

He further submitted that there is no merit in the appeal.

Hence, the application seeking condonation of delay may

be dismissed.

6. We have perused the affidavit of Bhaskar, son

of Narayana Swamy, Deputy Secretary-III, working as

Deputy Commissioner in the BDA. Paragraph No.7 of the

said affidavit reads as under:

"7. I state that there is delay of 238 days in filing the above appeal. The reason for the delay is after obtaining the certified copy the same was

forwarded to legal section along with file pertaining to the above appeal to get legal opinion & approval to file an appeal. I state that the Legal section after going through the file and after discussion and after obtaining legal opinion the legal section obtained the approval from the commissioner. After obtaining the approval from the commissioner, immediately we have issued the letter to our Legal Counsel to file an Appeal before the Hon'ble High Court of Karnataka. For the aforesaid administrative reason the delay is caused in preferring the above appeal. I state that the delay is caused is only bonafide and not intentional. Hence, it is just and necessary to allow the accompanying application."

7. We have closely perused the attempt made by

the BDA to seek condonation of delay of 238 days in filing

the appeal. We find that the said affidavit is bald, bereft of

any detail and it only states that, in order to seek legal

opinion and approval to file an appeal, there has been a

delay of 238 days in doing so without explaining the

reason as to why the delay of 238 days has occurred.

Hence, we find that the delay has not been explained in

the instant case and there is no reason to condone the

delay that has occurred in filing this appeal. In this

regard, we place reliance on the judgment of the Hon'ble

Supreme Court in the case of Post Master General &

others vs. Living Media India Ltd. & another [(2012)

3 SCC 563], wherein in paragraph Nos.27 to 30, it has

been observed 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 swirled for the benefit of a 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 has 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."

Further, recently, the Hon'ble Supreme Court in

State of Madhya Pradesh & others vs. Bherulal

[Special Leave Petition (Civil) Diary No.9217/2020],

has opined in paragraph Nos.5 and 7 as under:

"5. A preposterous proposition is sought to be propounded that if there is some merit in

the case, the period of delay is to be given a go- by. If a case is good on merits, it will succeed in any case. It is really a bar of limitation which can even shut out good cases. This does not, of course, take away the jurisdiction of the Court in an appropriate case to condone the delay.

x x x

7. We are thus, constrained to send a signal and we propose to do in all matters today, where there are such inordinate delays that the Government or State authorities coming before us must pay for wastage of judicial time which has its own value. Such costs can be recovered from the officers responsible."

In the aforesaid case, the delay in filing the special

leave petition was 663 days. The same opinion has been

expressed even in Municipal Corporation of Greater

Mumbai & others vs. Uday N.Murudkar [Special

Leave Petition (Civil) Diary No.9228/2020 disposed

of on 15/10/2020] and the State of Uttar Pradesh

and another vs. Prem Chandra [Special Leave

Petition (Civil) Diary No.971/2020 disposed of on

27/11/2020].

8. In the circumstances, the application

(I.A.No.1/2020) seeking condonation of delay is

dismissed.

9. Even on merits, we find that the learned single

Judge has found that there was a unilateral decision taken

by the appellant/authority in cancelling the allotment

without providing any opportunity of hearing. In the

circumstances, learned single Judge directed the BDA to

allot an alternative site of the same/reasonable dimension

in the same layout or in any other layout, regard being

made to all competing equities with applicable sital value

as per the allotment price as on the date of the impugned

order with interest at 24% per annum from the date of

allotment till the date of deposit.

10. Learned counsel for the respondent also states

that the respondent will abide by the conditions imposed

by the learned single Judge.

11. We find no merit in the appeal. The appeal is

hence dismissed both on the aspect of delay as well as on

merits.

12. The appellant/BDA is granted two months' time

from the date of receipt of the certified copy of this

judgment to comply with the directions of the learned

single Judge. Ordered accordingly.

In view of dismissal of the appeal, I.A.No.2/2020

stands dismissed.

Sd/-

JUDGE

Sd/-

JUDGE S*