JDA vs Pankaj Sharma

Alok Sharma, J.—The review petition has been filed after a delay of 723 days. In the accompanying application under section 5 of the Limitation Act, 1963 (hereinafter ''the Act of 1963'') it has been submitted that the concession made by the counsel before the Court on 1.5.2012 when the writ petition was finally disposed of thereon, that the area where the residential plot of the respondent is situate had been allowed for commercial use under the Jaipur''s New Master Plan, 2025 was an error in view of Counsel not being instructed that in terms of an earlier pre-existing Gazette Notification dated 16.4.2005 construction only of big commercial complexes was permissible and in exceptional circumstances in the area where the respondent''s plot is situate. Counsel submits that in the event the aforesaid notification dated 16.4.2005 had been in the knowledge of the JDA and he was accordingly instructed, the concession made in Court on behalf of JDA for issue of a commercial lease deed to the respondent in respect of the plot in dispute, would not have been made. It has been submitted that this review petition has been filed on the said notification dated 16.4.2005 coming to the notice of the JDA. Sr. Counsel''s submission is that if the delay in filing the review petition were not to be condoned it would cause irreparable loss to the JDA and be synonymous with prejudice to public interest. The delay in filing the review petition in the circumstances is unintentional and was beyond the control of the JDA. Therefore the delay be condoned and the review petition be heard on merits.

Reply to the review petition has been filed by the respondent No. 1. It has been submitted that the grounds for seeking condonation of delay are imaginary and without substance and in-fact affected by malice. It has been submitted that the order dated 1.5.2012 was passed by this Court on the basis of the Master Plan, 2025 notified on 5.9.2011 indicating in the map annexed thereto that the area in issue in the writ petition was commercial aside of institutional. He submits that the notification dated 19.2.2005 is not even relevant-the notification dated 5.9.2011 bringing into force Jaipur Master Plan, 2025 being a subsequent notification. It has been submitted that the notification dated 16.4.2005 was in the knowledge of the respondents and infact had been earlier relied upon in SBCW P. No. 852/2004, JDA v. Pankaj Sharma & Anr., where-under this Court vide order dated 22.5.2006 had remanded the case to the Tribunal. It. has been submitted that the Tribunal had subsequently considered the said notification and even thereafter passed the order dated 11.7.2006 directing that the residential lease for the respondent''s plot be issued by the JDA. It has been further submitted that the concession of the JDA in SBCW P. No. 10067/2006 disposed of on 1.5.2012 emanated in the circumstance that this Court had required the JDA to submit an affidavit in the context of the allegations of discrimination against the respondent in as much as a residential lease deed issued albeit by the then extant UIT, the statutory predecessor of JDA for the same area where the respondent''s plot was situate (in the name of Nirmla Devi w/o Tej Kumar, Ex-IAS) had not been cancelled and similarly a residential house adjacent to the plot of the respondent No. 1 had been allowed to be constructed under the specific direction of the then Minister for Urban Development & Housing Department and had been in existence and use for several years without JDA taking any action there-against as would otherwise have been taken in the event there was any legal prohibition in the user of the land/area in issue as residential. It has been submitted that no reason has even been attempted for justifying the filing of the review petition belatedly after 723 days.

I have heard the counsel for the petitioner JDA and the respondent.

The Limitation Act, 1963 is a statute of repose and an instrument of public interest. Litigants cannot be made to suffer reopening of concluded matters after long unexplained, unconscionable delay as in the present case. No doubt that Courts indeed have discretion to condone the delay. But it is not open sesame. A party purported aggrieved, taking legal proceedings after inordinate delay can not invite the discretion of the Court for its mere askance and a heavy burden lies on it to explain "sufficient cause" to be entitled to condonation of delay. The Hon''ble Apex Court in the case of Amlendu Kumar Bera and Others Vs. The State of West Bengal, has held that absence of sufficient cause where there is serious delay, laches and negligence does not warrant a liberal approach even in cases where the State is a litigant. Similarly in the case of Oriental Aroma Chemical Industries Ltd. Vs. Gujarat Industrial Development Corporation and Another, the Hon''ble Apex Court has held that in the absence of sufficient cause for taking legal proceedings within the period of limitation, there can be no ground for exercising the discretion of the Court. The Hon''ble Apex Court held that the Law Department of the respondent in the said SLP was aware of the proceedings and yet no requisite steps were taken and such a situation did not warrant the exercise of discretion in condoning inordinate delay by the Court. In the case of Esha Bhattacharjee Vs. Managing Committee of Raghunathpur Nafar Academy and Others, the Hon''ble Apex Court has detailed the principles with broadly, should be taken into consideration while considering applications for condonation of delay in taking legal proceedings beyond the statutorily prescribed permit of limitation. While it has been held that the Courts should adopt a liberal, pragmatic, justice-oriented, non-pedantic approach in dealing with an application for condonation of delay and some "acceptable latitude" be given to the state and public bodies, yet gross negligence on the part of the litigant is to be taken note of and a "liberal approach" cannot be allowed a totally unfettered free play. It has been emphasized that the case of inordinate delay warrants strict approach whereas short delay may invite for a more liberal delineation. The same principle had been laid down in Collector, Land Acquisition, Anantnag and Another Vs. Mst. Katiji and Others, .

Further the Hon''ble Apex Court and various High Courts including this court have held that the exercise of power under Section 5 of the Limitation Act is a matter of discretion of the court, even when "sufficient cause" for delay in taking legal proceedings has been explained. But before the question of the exercise of discretion by the courts arises on an application under Section 5 of the 1963 Act, "sufficient cause" has indeed to be established. What constitutes "sufficient cause" has not been defined under the Limitation Act, 1963, yet has been construed by the Hon''ble Apex Court and this Court in catena of decisions. "Sufficient cause" fundamentally entails situations credible to the court where availing of remedy, such as of review in this case, is not vitiated by gross negligence, inaction, malafides and indolence etc. "Sufficient cause" can only be found where the person/party seeking condonation of delay under Section 5 of the 1963 Act has been vigilant, efficient focused and active as also alive to his/its rights in law and has not by its conduct contraindicated its aforesaid obligations.

In the case of Lanka Venkateswarlu (D) by L.Rs. Vs. State of A.P. and Others, the Hon''ble Supreme Court has held that the recommended "liberal approach" in considering the sufficiency of cause for condonation of delay in taking legal proceedings beyond statutorily prescribed limitation should not override the substantial law of limitation, specially when courts find no justification for the delay. It has been held that while considering the application under section 5 of the limitation Act, the courts do not enjoy unlimited and unbridled discretionary powers and the discretion has to be exercised within reasonable bounds. It has been further held that the discretion under section 5 of the Limitation Act has to be systematically exercised duly informed by reasons and where whims or fancies, prejudices or predilections cannot and should not form the basis of exercising the discretionary powers to condone delay.

In the context of the aforesaid delineated law, reverting to the facts of the present case, a bare look at the application for condonation of delay shows that the grounds in support of the application under section 5 of the Act of 1963 are vague. It has not been stated as to on which date and how the notification dated 16.4.2005 earlier allegedly hidden came to the notice of the JDA and of which official and whether disciplinary action was taken against the erring officials. Aside of the aforesaid fact it is also extremely odd that the JDA within its own legal department was not aware of a notification pertaining to its own affairs for about ten years. Casualness is writ large in the application for condonation of the delay of 723 days in filing the review petition. The "sufficient cause" central to the exercise of the discretion of this Court for condoning the inordinate delay in issue is wholly absent.

In the facts obtaining I am not inclined to condone the delay of 723 days in filing the review petition. The review petition is accordingly dismissed.