HOUSING BOARD, HARYANA vs S.L.CHAUDHARY

WHETHER an autonomous Board or Corporation is on a different footing than a private party, for seeking condonation of delay in filing an appeal under the proviso to Section 15 of the Consumer Protection Act, 1986, is the significant threshold question in this case.

SINCE this appeal must founded on the bed-rock of the bar of limitation, it suffices to notice the relevant facts to the said issue alone. The respondent-Dr. S.L. Chaudhary had preferred a complaint before the District Forum, Hissar, claiming a variety or reliefs against the appellant-Board, pertaining to the allotment of premises under its High Income Group Scheme at Hissar. By its order dated the 14th May, 1990, the District Forum directed the payment of Rs. 6,417/- by the appellant to the respondent. On the appellant''s own showing, a copy of the detailed order aforesaid of the District Forum was duly dispatched and received in the office of the Board on the 8th June, 1990. However, the present appeal against the said order has been preferred on the 9th August. 1990, admittedly 30 days beyond the period prescribed under Section 15 of the Consumer Protection Act. 1986 (hereinafter referred to as ''the Act''). Along with the appeal. an application expressly under Section 5 of the T-imitation Act, for the condonation of delay, has been filed on behalf of the appellant-Board. In support thereof an affidavit of Shri S.P. Gupta, Chief Engineer, Housing Board, Haryana, has been attached. The somewhat bald and cryptic averments in the said affidavit are to the effect that after the order of the District Forum was pronounced, the papers were sent to the concerned officer at Chandigarh in the Head Office of the appellant-Board, for scrutiny and opinion. Thereafter sanction to file an appeal was taken from the competent authority, and, as such, in this process, the appeal could not be filed within limitation and a delay of 30 days was occasioned.

Mr. V.K. Vashishta. learned counsel for the appellant, while pressing his application for condonation, had attempted to argue that the appellant herein being an autonomous Board, it had to go through a long process of practice and procedure in filing appeals. On these premises, he contended that the. appellant-Board should be treated on a footing more favorable than the ordinary litigant for condoning the delay.

IN appraising the aforesaid submission, we would wish to notice at the very outset that even though the application for condonation makes no mention, whatsoever of any provision under the Act, it is somewhat plain that herein in the context of the special law pertaining to the protection of consumers, the material and relevant provision is Section 15 of the Act alone. The said provision prescribes both the period within which the appeal is to be preferred and the proviso thereto empowers the State Commission to entertain appeals beyond the same for sufficient cause. The matter, therefore, has necessarily to be governed by the said provisions, we do not herein wish to enter into the intricate and ticklish questions as to whether the said Section 15 of the Act would be deemed to expressly exclude all the provisions of the Limitation Act or whether the Commission is a Court within the meaning of Section 5 thereof. Eschewing all hyper-technicalities, we world with some liberality entertain the application of the appellant-Board, as one under both the provisions of law, which may be attracted. Since the whole issue herein revolves around Section 15 of the Act, and in particular, the proviso thereto, it is apt to notice the said provision in exten so: " 15. Appeal.- Any person aggrieved by an order made by the District Forum may prefer an appeal against such order to the State Commission within a period of thirty days from the date of the order, in such form and manner as may be prescribed: Provided that the State Commission may entertain an appeal after the expiry of the said period of thirty days if it is satisfied that there was sufficient cause for not filing it within that period."

NOW a bare look at Section 5 of the Limitation Act makes it plain that the material part of the language of the proviso to Section x 5 of the Act is in pari materia therewith. The crucial common words "sufficient cause" and "satisfied", now employed in the recently enacted proviso to Section 15 of the Act have to be given the same meaning, which has been attributed thereto over a long line of precedents under Section 5 of the Limitation Act, 1963, and its predecessor statute of 1908. Since the language, character and purpose of these two provisions bear the closest similarity, if no identity, it is plain that the larger principles earlier underlying the applicability of Section 5 of the Limitation Act would equally govern those under the proviso to Section 15 of the Act. Consequently, the hallowed precedents under Section 5 of the Limitation Act would also be applicable and govern the language of the proviso to Section 15 of the Act, which we are called upon to construe. Once it is held as above, it would indeed be somewhat wasteful to examine the question whether an autonomous Board or Corporation is on a different footing than a private party under proviso to Section 15, on general principles. It is somewhat clear that the matter is governed by way of analogy, by binding precedents on the virtually identical language employed in Section 5 of the Limitation Act. The question whether the Central or the State Governments stand on a footing different from that of a private litigant for the purpose of condonation of delay under Section 5 of the Limitation Act has arisen innumerably and has been adjudicated by a plethora of precedents of various High Courts, and in the ultimate analysis, by the Final Court itself. It is unnecessary to multiply precedents and it suffices to primarily refer to the decisions within this jurisdiction alone. In Punjab State v. Jasbir Singh and others, 1964 PLR 763, a Division Bench has categorically held that it has been settled by the high authority that the State is not entitled in this respect to any concession more than a private party, and there can scarcely be any question to interpret the words "sufficient cause" more liberally merely because the party in default is the Government. Observations of similar import have been made in The Special Deputy Collector, Land Acquisition (Industries) Hyderabad v. Nawab Turdb Yar Jung and others, AIR 1973 Andhra Pradesh 43. and Union of India v. Kundan, AIR 1977 Delhi 38 which may be instructively referred to. However, the culminating and the conclusive observations of the Final Court in The State of West Bengal v. The Administrator, Howrah Municipality and others, AIR 1972 Supreme Court 7 deserve notice in extenso: "Mr. D. Mukerji, learned counsel for the first respondent, is certainly well-founded in his contention that the expression "sufficient cause" cannot be construed too liberally, merely because the party in default is the Government. It is no doubt true that whether it is a Government or a private party, the provisions of law applicable are the same, unless the statute itself makes any distinction...."

From the above it is manifest that even a much larger and bigger body like the State, be it the Central Government or a State Government, is on no different footing than the private litigant for the purposes of condonation of delay against the bar of limitation. An autonomous Board or a Corporation, being a much smaller and a compact body, would, obviously, be on even a lower footing vis-a-vis the Central or the State Government. Though on principle the matter seems to be plain, there is also precedent to buttress the same in The Bihar State Board of Religious Trust v. Rameshrey Prasad Choudhary, AIR 1977 Patna 272, wherein it was held that the Bihar State Board of Religious Trust was not entitled to any different treatment than a private party. In the light of larger principle and binding precedents, the answer to the question posed at the very outset is rendered in the negative. It is held that the appellant-Board is on no different footing, whatsoever, than a private party in seeking relief under the proviso to Section 15 of the Act.

IN view of the aforesaid answer to the legal question the primal submission of Mr. Vashishta in pressing his application for condonation must fail.

THE learned counsel has, however, further argued somewhat halfheartedly that on the basis of the supporting affidavit to the application, the delay for 30 days merits condonation. The second submission of Mr. Vashishta is even more untenable, once the legal issue has been resolved as above, the task of the appellant-Board in securing condonation is not merely uphill, but indeed impossible. Herein the hallowed principle has to be kept in mind that to overcome the bar of limitation, each day''s delay beyond the prescribed period has to be explained. Mr. Vashishta was indeed fair enough to state that the law in this context is well settled and if the appellant-Board is in the identical position of a private party, it is equally obliged to explain for every day beyond the terminus of limitation. However, we do not wish to rest ourselves on the mere concession of the learned counsel because herein also the matter is equally concluded by precedents, including that of the Final Court.

Nearly three decades ago, the Final Court had occasion to consider the question in the context of Section 5 of the Limitation Act, and has observed as under in Ramlal and others v. Rewa Coal Fields Ltd., AIR 1962 Supreme Court 361: "The context seems to suggest that within such period" means within the period which ends with the last date of limitation prescribed. In other words, in all cases falling under Sec. 5 what the party has to show is why he did not file an appeal on the last day of limitation prescribed. That may inevitably mean that the party will have to show sufficient cause not only for not filing the appeal on the last day but to explain the delay made thereafter day by day. In other words, in showing sufficient cause for condoning the delay the party may be called upon to explain for the whole of the delay covered by the period between the last day prescribed for filing the appeal and the day on which the appeal is filed...."

Again a Special Bench of three Judges of the Delhi High Court in Madan Gopal v. Lt. Governor of Delhi and another, 1972 (74) PLR (Delhi) 323, has authoritatively opined that it was incumbent upon an appellant seeking condonation under Section 5 to explain each day''s delay. To the same tenor are the observations of the Division Bench in Union of India v. Kundan, AIR 1977 Delhi 38, and in Municipal Corporation of Delhi v. Shri Brij Mohan and another, 1979 PLR (D) 174. Without further multiplying the case law, it would suffice to refer to the binding precedent in Bikram Doss v. Financial Commissioner and others, AIR 1977 Supreme Court 2221 wherein Chandrachud, J. (as His Lordship then was), speaking for the Court, has succinctly held as under: "Section 5 of the Limition Act is a hard task-master and judicial interpretation has encased it within a narrow compass. A large majority of case-law has grown around Sec. 5, its highlights being that one ought not easily to take away a right which has accrued to a party by lapse of time and that therefore a litigant who is not vigilant about his rights must explain every day''s delay. ..."

In the light of the above, it would seem settled beyond cavil that it is incumbent on the appellant to explain each day of default beyond the terminus line of the prescribed period of limitation.

ONCE the decks are clear about the true legal position enunciated above, it is somewhat plain herein that the appellant-Board does not have even as semblance of a case for condonation. On its own showing, a delay of as many as 30 days has to be explained day by day. Far from doing so, there does not seem to be even an attempt to conform to the law. The only relevant averment in the affidavit of the Chief Engineer of the Board is totally cryptic and bald in its explanation of the admitted delay of 30 days. Indeed it has not even been averred as to when the prescribed period of limitation expired and the facts or factors from that point till the date of the filing of the appeal. An omnibus version that in the processing of the appeal, the same could not be filed within limitation, has been made, which cannot even remotely advance the case of the-appellant. It appears to us that the appellant- Board does not seem to be aware of the strict requirements of law herein and the burden it has to discharge to avail the benefit of condonation both under Section 5 of the Limitation Act or the proviso to Section 15 of the Act. For the foregoing reasons, we find not the least merit in the application for condonation and dismiss the same. Inevitably, the appeal of the Board has, therefore, to be dismissed because of the bar of limitation. In view of the fact that we did not think it necessary to issue notice to the respondent, we would refrain from imposing any costs. Appeal dismissed.