HIMACHAL PRADESH HOUSING & URBAN DEVELOPMENT AUTHORITY (HIMNUDA) THROUGH ITS CHIEF EXECUTIVE OFFICER CUM SECRETARY vs TARA WATI & ORS.

Revision petition no. 2437 of 2016 has been filed against the judgment dated 21 st March 2016 of the Himachal Pradesh State Consumer Disputes Redressal Commission, Shimla (''the State Commission'') in First Appeal no. 30 of 2016.

The brief facts of the case as per the respondent/ complainant are that respondent Shri Narain Singh Bramta (since dead and now represented by his LRs) was the owner in possession of land bearing Khasra no. 29, measuring 1-4 Bighas, situated at Mauza Pateog, Pargana Jajhot, Tehsil and District Shimla, Himachal Pradesh. This land was an agricultural land and over a portion of the same and there existed an old construction. The respondent had purchased this land from its previous owner Smt Shanti Devi to raise construction of residential house on a part of this land and further to raise orchard on the remaining part of this land. After purchase of this land the respondent submitted a plan for construction of a four storeyed building on the same. Since the competent authority did not communicate sanction or refusal within the prescribed period, the respondent took it as a deemed sanction and raised construction over the land, which was completed in the year 1985 and thereafter, he started living in the said house along with his family. On 24.01.1986, the State Government issued notification under Section 4 and 17 (4) of the Land Acquisition Act, 1894 for acquisition of land for construction of residential complex at village Pateog under the interim plan. This notification also included a part of the land of the respondent comprised of Khasra no. 29. Thereafter, further proceedings were conducted and award was passed and the possession of the acquired land was delivered to the petitioner/ opposite party for construction of the proposed residential complex. At the time of acquisition of the land the respondent had already constructed house over land measuring 5 biswas on Khasra no. 29 and he had also constructed septic tank of the building. As per notification dated 12.06.1986 issued by the petitioner, houses and adjoining land of the persons whose agricultural land was proposed to be acquired, was exempted from acquisition. No developmental charges were to be levied on them and such persons were to be given preferential allotment for purchase of plot/ house/ flat. The respondent ignored and overlooked its own notification and acquired the entire vacant area of the land of the respondent except that on which the house was constructed and also charged 30% development charges from the respondent illegally and unauthorizedly. The respondent also did not leave the set back as required under the Town and Country Planning Act while raising construction adjoining to the house of the respondent on plot no. 3 and 4 towards Khalini side. The respondent was forced to file a suit for injunction against the petitioner for raising construction over the set-back area of the building of the respondent which was required to be left vacant. The suit was decreed in second appeal by the High Court of H P and the petitioner was directed to leave 1.5 meters between their boundary and the property of the respondent. When the petitioner did not comply with the decree passed by the High Court, the respondent was constrained to file a contempt petition before the High Court, which was later on compromised. As per compromise the respondent was to apply for the adjoining plot no. A 2, adjacent to his existing house and the respondent was to consider the same in accordance with law. However, the respondent vide communication dated 19.11.1998 intimated the petitioner that his application has been considered and rejected. Upon this the respondent filed suit for declaration and mandatory injunction directing the petitioner to allot plot No.A-2 in his favour. This suit was dismissed by the trial court but decreed by the District Judge in appeal and the order of the petitioner rejecting the application of the respondent for allotment of the plot was set aside and the petitioner was directed to consider the application of the respondent within three months. The second appeal filed by the petitioner in the High Court was dismissed in limini . Pursuant to the orders of the High Court the petitioner allotted plot No.2-A to the respondent vide communication dated 21.01.2010. The respondent immediately thereafter on 23.02.2010 represented to the petitioner that the cost of the land sought to be charged was not justified and similarly situated persons had been granted plots on much lower consideration amount i.e., Rs.535/- per square meter. This was because of the fact that the respondent had been wrongly denied the allotment for a considerable period and for the delay on the part of the petitioner the respondent could not be penalized as was sought to be done. It was further represented that development charges of the plot could not have been sought from the respondent as the same stood already deducted from the compensation paid to the respondent. The petitioner was requested to work out the total consideration amount afresh. But the petitioner did not consider the request of the respondent and the respondent was once again called upon to make payment vide intimation 25.03.2010.The respondent thereafter made payment of Rs.8,67,779/- on 20.04.2010 subject to his rights.

In the aforesaid facts and circumstances the respondent has alleged that the petitioner has indulged in an unfair trade practice and deficiency in service because the persons similarly situated have been allotted plots at the rate of Rs.535/-per square meter and the respondent has been asked to pay exorbitant sum of Rs.20,80,403/. Hence this complaint for issuing directions to the petitioner to refund charges taken in excess of Rs.535/- per square meter and development charges.

The petitioner resisted and contested this complaint by filing reply in which preliminary objections with respect to the maintainability of the complaint in the present form, jurisdiction of this forum to entertain this complaint and estoppel have been taken. On merits the petitioner admitted that the land of the respondent was acquired and from the compensation payable to the respondent 30% developmental charges were deducted. The respondent had made encroachment over 37.42 meters land of the petitioner. The Court had directed the petitioner to consider the representation of the respondent for allotment of the plot in terms of the compromise arrived at between the parties. The allotment of plot to the respondent was not as a matter of right, but the authorities in order to settle the controversy at rest between the parties to the proceedings finally decided to allot the plot to the respondent vide letter dated 21.1.2010 for a total cost of Rs.20,06,144/- which was the market value of the plot at the time of allotment of the plot and the respondent was informed accordingly. The respondent, though he represented about the alleged higher price but agreed to accept the allotment. The respondent had an option to withdraw from the allotment of the plot but he failed to do the same. The land was allotted to the respondent at the rate of Rs.11,200/- per square meter which was the market rate prevailing at the time of allotment of the plot. His plea that similarly situated persons were allotted plots at the rate of Rs.535/- per square meter was not correct. At the time of initial allotment of the plots in the year 1991 plots were allotted at the rate of Rs.910/- per sq. meter but in the year 1993 Rs.342/- were again charged from the allottees due to enhancement of the award. As such the land was allotted to the allottees at the rate of Rs.1252/- per sq.meter. The petitioner denied that they have indulged in unfair trade practice or there has been any deficiency of service on their behalf.

The District Consumer Disputes Redressal Forum, Shimla (''the District Forum'') vide its order dated 24.09.2015 while partly allowing the complaint, passed the following order: "For the foregoing reasons, we hold that the act of the OP charging the market rate of the plot No.A-2 existing as on the date of actual allotment amounts to unfair trade practice. Consequently, this complaint is allowed and the OP is directed to issue revised allotment letter of the plot No.A-2 in favour of the LR''s of the deceased complainant by charging the market rate which was prevailing on the date when the application of the complainant was initially rejected i.e.,19.11.1998 and refund the excess amount to the LR''s of the complainant along with interest at the rate of 9% per annum from the date of filing this complaint till realization within 45 days from the date of this order. The LR''s of the complainant shall also be entitled to litigation cost which is assessed at Rs.5000/-".

The petitioner/ opposite party then filed an appeal before the State Commission with a delay of 40 days. The State Commission vide its order dated 21.03.2016 while dismissing the appeal in default as also on limitation decided as under: " Nobody appears for the applicant/appellant. In the connected appeal, i.e., F A No. 229/2015 also nobody appears for the appellant (HIMUDA) who is impleaded as respondent therein, despite the fact that earlier advocates had been appearing for it. Absence of the applicant/ appellant in the present matter, as also in the connected matter, i.e. F A No. 229/2015, shows that applicant/appellant, is not interested in pursuing the matter.

Otherwise also, there seems to be no justification for condoning delay in filing this appeal. Appeal is intended to be preferred against this order dated 24.09.2015, after seeking condonation of delay. Memorandum of appeal was presented on 16.02.2016, or say a little less than five months, after the passing of impugned order. It is stated in the application for condonation of delay, i.e. M.A. No.55/2016, that copy of order, sought to be assailed in the present appeal, was received on 21.11.2015 and thereafter, legal opinion was sought, which was received on 03.12.2015. No explanation has been offered for the delay beyond 03.12.2015. Appeal was filed on 16.02.2016. Therefore, application for condonation of delay deserves rejection on merits also, besides it being liable to rejection on account of default in appearance of the applicant/appellant.

Consequently, application for condonation of delay, i.e., M A No.55/2016, is rejected. Appeal i.e., F A No. 30/2016, being barred by time, is also dismissed".

Hence the present revision petition.

The present revision has also been filed with a delay of 62 days. I have heard the learned counsel for the petitioner. He has contended that the impugned order should be set aside because the State Commission had dismissed the First Appeal of the petitioner/ authority in default and on limitation and therefore, the petitioner authority have been deprived of consideration of the First Appeal on merits.

I have gone through the application submitted before the State Commission for condonation of delay of 40 days. The reasons given for the delay are as under: "The order in the complaint filed by the respondent/ complainant was passed by the District Forum on 24.09.2015 where after copy of the order dated 24.09.2015 was received by the appellant/ applicant on 21.11.2015 by Registered post in the diary branch. The copy was forwarded to the concerned branch for further directions. The concerned branch send the same to the legal branch of the HIMUDA office on _____ 2015, where after legal opinion in the matter was sought on _____ whereby filing of appeal was recommended. Thereafter, the file was processed from different quarters as the impugned order is to have far reaching consequences and finally handed over to the Counsel for the purpose of drafting appeal on _______. While drafting appeal it reveals that the case assigned to the panel advocate remained the counsel for the complainant in the District Forum, thereafter the file was sent back to the appellant/ opposite party. Thereafter the appellant/ opposite party engaged another counsel for filing the present appeal".

It is seen that the application has been filed in a most routine and casual manner with some blanks. The petitioner has failed to explain the day to day delay of 40 days and only a vague explanation has been given without giving any names and dates of officials/ counsel who delayed the matter. The State Commission has rightly dismissed the matter in default and also on limitation.

At the time of filing the revision petition also there is a delay of 62 days. The reasons given in the application for condonation of delay are as under: "It is submitted that by order dated 21.03.2016 the State Commission had dismissed the 1 st Appeal filed by the petitioner authority for default of non-appearance on the date of hearing. It is submitted that it is not clear as to why the Counsel for the petitioner had not appeared on that date of hearing, i.e., 21.03.2016. The petitioner authority had asked the Counsel to explain as to why he failed to appear on that date of hearing before the State Commission. However, the said Counsel Mr Munish Serkek had not given any reply so far. The petitioner authority, therefore, filed an application for restoration through another counsel Mr Arush Matiotia. However, by order dated 01.07.2016, the State Commission had dismissed the said application as being not maintainable. As such, it had taken sometime for filing the revision petition against the order of the State Commission dated 21.03.2016. The circumstances causing the delay have already been explained in the restoration application filed before the State Commission".

The petitioner has again failed to give any detailed reasons for the day today delay of 62 days and merely stated that "as such they have taken some time for filing the revision petition against the order of the State Commission dated 21.03.2016".

It would appear that the petitioner has failed to appear before the State Commission and also in filing the revision petition within limitation has also again filed the revision petition with an unexplained delay of 62 days. The petitioner has adopted a very careless and causal approach in their case and failed to monitor the case. The petitioner has put the entire blame for the delay on their counsel. They have not explained why they were not vigilant and careful in pursuing the matter with their counsel both before the State Commission and this Commission. They have also not placed on record the action taken against the Counsel Mr Munish Serkek.

I am not convinced with the reasons given for the delay before the State Commission as also in filing the revision petition. The petitioner has failed to give detailed reasons for the day to day delay of 62 days. Hence, I find no reason to condone the delay of 62 days as the petitioner has failed to give ''sufficient cause'' for the same. This view is further supported by the following judgment: In Anshul Aggarwal vs. New Okhla Industrial Development Authority , IV (2011) CPJ 63 (SC), it has been held that "It is also apposite to observe that while deciding an application filed in such cases for condonation of delay, the Court has to keep in mind that the special period of limitation has been prescribed under the Consumer Protection Act, 1986 for filing appeals and revisions in consumer matters and the object of expeditious adjudication of the consumer disputes will get defeated if this Court was to entertain highly belated petitions filed against the orders of the Consumer Foras".

In R.B. Ramlingam vs. R.B. Bhavaneshwari , I (2009) CLT 188 (SC)= I (2009) SLT 701=2009 (2) Scale 108, it has been observed that "We hold that in each and every case the Court has to examine whether delay in filing the Special Appeal Leave Petitions stands properly explained. This is the basic test which needs to be applied. The true guide is whether the petitioner has acted with reasonable diligence in the prosecution of his appeal/petition".

In Ram Lal and Others vs. Rewa Coalfields Ltd ., AIR 1962 Supreme Court 361, it has been observed that "It is, however, necessary to emphasize that even after sufficient cause has been shown a party is not entitled to the condonation of delay in question as a matter of right. The proof of a sufficient cause is a discretionary jurisdiction vested in the Court by Section 5. If ''sufficient cause'' is not proved nothing further has to be done; the application for condonation has to be dismissed on that ground alone. If ''sufficient cause'' is shown then the Court has to enquire whether in its discretion it should condone the delay. This aspect of the matter naturally introduces the consideration of all relevant facts and it is at this stage that diligence of the party or its bonafides may fall for consideration; but the scope of the inquiry while exercising the discretionary power after sufficient cause is shown would naturally be limited only to such facts as the Court may regard as relevant."

In Sow Kamalabai, W/o Narasaiyya Shrimal and Narsaiyya, S/o Sayanna Shrimal Vs. Ganpat Vithalroa Gavare , 2007 (1) Mh. LJ 807, it was held that "the expression ''sufficient cause'' cannot be erased from Section 5 of the Limitation Act by adopting excessive liberal approach which would defeat the very purpose of Section 5 of Limitation Act. There must be some cause which can be termed as a sufficient one for the purpose of delay condonation. I do not find any such ''sufficient cause'' stated in the application and no such interference in the impugned order is called for".

In Balwant Singh Vs. Jagdish Singh & Ors ., ( Civil Appeal no. 1166 of 2006 ), decided by the Apex Court on 08.07.2010 it was held:

"The party should show that besides acting bonafide, it had taken all possible steps within its power and control and had approached the Court without any unnecessary delay. The test is whether or not a cause is sufficient to see whether it could have been avoided by the party by the exercise of due care and attention. [Advanced Law Lexicon, P. Ramanatha Aiyar, 3rd Edition, 2005]".

Hon''ble Supreme Court in Post Master General and others vs. Living Media India Ltd. and another (2012) 3 Supreme Court Cases 563 has held ;

" After referring various earlier decisions, taking very lenient view in condoning the delay, particularly, on the part of the Government and Government Undertaking, this Court observed as under ;

" It needs no restatement at our hands that the object for fixing time-limit for litigation is based on public policy fixing a lifespan for legal remedy for the purpose of general welfare. They are meant to see that the parties do not resort to dilatory tactics but avail their legal remedies promptly. Salmond in his Jurisprudence states that the laws come to the assistance of the vigilant and not of the sleepy.

Public interest undoubtedly is a paramount consideration in exercising the courts'' discretion wherever conferred upon it by the relevant statutes. Pursuing stale claims and multiplicity of proceedings in no manner subserves public interest. Prompt and timely payment of compensation to the land losers facilitating their rehabilitation /resettlement is equally an integral part of public policy. Public interest demands that the State or the beneficiary of acquisition, as the case may be, should not be allowed to indulge in any act to unsettle the settled legal rights accrued in law by resorting to avoidable litigation unless the claimants are guilty of deriving benefit to which they are otherwise not entitled, in any fraudulent manner. One should not forget the basic fact that what is acquired is not the land but the livelihood of the land losers. These public interest parameters ought to be kept in mind by the courts while exercising the discretion dealing with the application filed under Section 5 of the Limitation Act. Dragging the land losers to courts of law years after the termination of legal proceedings would not serve any public interest. Settled rights cannot be lightly interfered with by condoning inordinate delay without there being any proper explanation of such delay on the ground of involvement of public revenue. It serves no public interest."

The Court further observed;

" 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.

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.

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. 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.

In view of our conclusion on I ssue (a), there is no need to go into the merits of I ssues (b) and (c). The question of law raised is left open to be decided in an appropriate case.

In the light of the above discussion, the appeals fail and are dismissed on the ground of delay. No order as to costs ".

Accordingly, I find that there is no ''sufficient cause'' to condone the delay of 62 days in filing the present revision petition. The application for condonation of delay is without any merit as well as having no legal basis and is not maintainable. Consequently, the present revision petition being time barred by limitation is dismissed with no order as to cost.