KANPUR DEVELOPMENT AUTHORITY vs Ajay Verma

PRESENT revision has been filed by the petitioner challenging order dated 9.2.2010, passed by State Consumer Disputes Redressal Commission, Lucknow (for short as ''State Commission ''). Along with it, an application for condonation of delay has also been filed but no period of delay has been mentioned in it.

THE dispute between the parties pertains to allotment of Plot No. 1/401/40, Block E, Sujat Ganj. This plot was initially allotted to one Sh. Laxmi Narain and Smt. Sudha Devi but somehow they could not deposit the entire price of the plot. Since, they were unable to deposit the balance amount, they filed an application like the transfer of adjoining plot No. 1/40-A, the aforesaid plot be allotted to Ajay Verma (respondent herein). The said proposal was put up for consideration before the authorities and petitioner accorded sanction for the said transfer. Since, letter of allotment was not issued in time, respondent filed a complaint in the District Forum praying for allotment of the said plot in his name and also sought directions to the petitioner to complete other formalities. Petitioner in its written statement, took the plea that respondent was never allotted plot No. 1/40, Sujat Ganj, hence is not entitled to get possession of the said plot. It is further stated that if respondent without any scheme being published has deposited any amount in the petitioner ''s account, then he may produce the receipt in original. As per rules, he can take back that amount, but shall not be entitled for any interest on the said amount. It is also stated that there is no such procedure with the petitioner that plot in the name of one person or the amount deposited by one person, be transferred in the name of other person.

DISTRICT Forum,vide order dated 30.7.2002, allowed the complaint and passed the following directions: "That petitioner shall on the rates prevalent at the time of allotment shall allot this land No. 1/40, E Block, Sujatganj to the complainant Sh. Ajay Verma on the basis of the recommendation dated 26.3.1992 on the note sheet of the then Vice Chairman and shall ascertain the doing of the possession and registry etc. formalities within one month of this order and shall also pay him Rs. 1,000 in the form of litigation expenses. "

AGGRIEVED by the order of District Forum, petitioner filed an appeal before the State Commission, which was dismissed,vide impugned order, with costs of Rs. 5,000. This is how the matter has reached before this Commission.

TAKING up the application for condonation of delay, impugned order was passed on 9.2.2010, whereas, revision petition was filed on 5.12.2011. Thus, there is a delay of 574 days in filing of this revision.

NOW the question which arises for consideration is as to whether reasons mentioned in the application show any sufficient cause or justify any grounds on which petitioner would be entitled to have the delay condoned. Relevant averments made in the application are read as under: "3. That the impugned order was passed on 9.2.2010. That the petitioner was not aware of the order passed by the Hon ''ble State Commission as there had been changes in the petitioners Counsel at Lucknow. That as per Mr. A.K. Srivastav, Advocate was removed from the panel and thereafter coming to know of the order, the petitioner checked for the record, which were not found. Thereafter, on 19.7.2010, the office directed to trace the movement record of the file which was sent to record keepervide noting dated 24.7.2010. 4. That on 18.8.2010, the Head Clerk, Zone-3 where the disputed plot is situated noted that no such record exists with respect to plot No. 1/40, Block E, Sujat Ganj. On 19.8.2010, it was decided to ask the erstwhile/previous Scheme Clerks about the records of the case who informed the department that they have not received any such record during their tenure. 5. On 28.9.2010, it was proposed to nominate any Advocate for obtaining the records of the case from the Hon ''ble District Forum. Mr. Shyamji Srivastav, Advocate was nominated by the Department on 20.10.2010 to obtain the records of the case. The learned Advocatevide letter dated 10.1.2011 informed the department that the records from the learned District Forum could only be made available at the time after the opposite party files for execution. Thereafter efforts were made to contact the respondent for obtaining the records of the case on 21.1.2011 Also a report was called regarding the disputed plot from the concerned supervisor on 10.2.2011 which was given on 24.2.2011 and further sent to higher officials on 30.5.2011. It was also proposed to contract the respondent for obtaining the records of the case on 21.1.2011. That 1.8.2011, the Head Clerk informed thatvide letter dated 28.7.2011 from the Law Department, caveat application has been received filed by the respondent in this Hon ''ble Commission and that the records have been made available by the representative of the respondent. 6. That on 2.8.2011, the file was sent by Deputy Secretary to the concerned official for filing of Appeal and nominate the present Counsel for filing the Revision Petition. Thereafter after departmental communication, legal approval was received on 6.8.2011. 7. That in the meantime, the Petitioner also obtained legal opinion for filing a Writ Petition on the matter as it involved Financial matter. On 14.10.2011, the petitioner decided to sent the file to the present Counsel for filing appropriate petition. 8. That on 15.10.2011, the present Advocate after studying the papers asked for some more documents and check if some record are available. 9. That some papers were dim and illegible which were again provided by the department on 19.11.2011. 10. That it took some time in drafting the petition, translation, etc . "

On the face of it, application for condonation of delay is not maintainable and is liable to be dismissed on this short ground as the same is not accompanied by the affidavit of the petitioner.

MOREOVER , petitioner, till date has not filed the certified copy of the impugned order, which could have thrown light as to on which date petitioner has applied for the certified copy of the impugned order and when the same was supplied to it. In order to circumvent that process, petitioner has filed an application seeking exemption from filing of the certified copy. Thus on this ground also, present revision petition is liable to be dismissed.

EVEN on merits, no sufficient cause has been shown for condoning the delay. In the entire application it is no where pleaded as to on which date and from what source, petitioner came to know about the passing of the impugned order. It has been averred in para 3 of the application - "that thereafter coming to know of the order, the petitioner checked for records, which were not found. Thereafter, on 19.7.2010, the office directed to trace the movement record of the file which was sent to the record keepervide noting dated 24.7.2010. "

ASSUMING for arguments sake that knowledge of impugned order came to the petitioner prior to 19.7.2010, even thereafter present petition has been filed only on 5.12.2011. Reasons for not filing the petition till 5.12.2011, are not at all convincing and same are absolutely vague and does not lead us anywhere.

IT is well settled that "sufficient cause " for not filing the revision petition within the period of limitation, is a question of fact. In Ram Lal and Others v. Rewa Coalfields Ltd., AIR 1962 SC 361, it has been observed: "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 bona fides 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 R.B. Ramlingam v. R.B. Bhavaneshwari, I (2009) SLT 701=I (2009) CLT 188 (SC)=2009 (2) Scale 108, Supreme Court has been observed: "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. "

RECENTLY , Supreme Court in Anshul Aggarwal v. New Okhla Industrial Development Authority, IV (2011) CPJ 63 (SC), has laid down 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. "

Thus, no sufficient cause whatsoever has been shown by the petitioner which entitles it to have the delay condoned in the present proceedings.

EVEN after getting adverse findings from two Foras below petitioner has chosen to file this petition knowing fully well that, there is no sufficient cause for not filing it within the period of limitation, since there is a delay of 574 days.

IT is a wellknown fact that Courts across the country are saddled with large number of cases. Public Sector undertakings indulgences further burden them. Time and again, Courts have been expressing their displeasure at the Government/Public Sector undertakings compulsive litigation habit but a solution to this alarming trend is a distant dream. The judiciary is now imposing costs upon Government/Public Sector undertaking not only when it pursue cases which can be avoided but also when it forces the public to do so. Public Sector undertakings spent more money on contesting cases than the amount they might have to pay to the claimant. In addition thereto, precious time, effort and other resources go down the drain in vain. Public Sector undertakings are possibly an apt example of being pennywise, pound-foolish. Rise in frivolous litigation is also due to the fact that Public Sector undertakings though having large number of legal personnel under their employment, do not examine the cases properly and force poor litigants to approach the Court.

APEX Court in Bikaner Urban Improvement Trust v. Mohal Lal, I (2010) CPJ 1 (SC)=2010 CTJ 121 (SC) (CP), has made significant observations which have material bearing, namely - "4. It is a matter of concern that such frivolous and unjust litigation by Governments and statutory authorities are on the increase. Statutory Authorities exist to discharge statutory functions in public interest. They should be responsible litigants. They cannot raise frivolous and unjust objections, nor act in a callous and highhanded manner. They cannot behave like some private litigants with profiteering motives. Nor can they resort to unjust enrichment. They are expected to show remorse or regret when their officers act negligently or in an overbearing manner. When glaring wrong acts by their officers is brought to their notice, for which there is no explanation or excuse, the least that is expected is restitution/restoration to the extent possible with appropriate compensation. Their harsh attitude in regard to genuine grievances of the public and their indulgence in unwarranted litigation requires to the corrected. 5. This Court has repeatedly expressed the view that the Governments and statutory authorities should be model or ideal litigants and should not put forth false, frivolous, vexatious, technical (but unjust) contentions to obstruct the path of justice. We may refer to some of the decisions in this behalf. 5.1 In Dilbagh Rai Jarry v. Union of India, 1973 (3) SCC 554, where this Court extracted with approval, the following statement (from an earlier decision of the Kerala High Court): "The State, under our Constitution, undertakes economic activities in a vast and widening public sector and inevitably gets involved in disputes with private individuals. But it must be remembered that the State is no ordinary party trying to win a case against one of its own citizens by hook or by crook; for the State ''s interest is to meet honest claims, vindicate a substantial defence and never to score a technical point or overreach a weaker party to avoid a just liability or secure an unfair advantage, simply because legal devices provide such an opportunity. The State is a virtuous litigant and looks with unconcern on immoral forensic successes so that if on the merits the case is weak. Government shows a willingness to settle the dispute regardless of prestige and other lesser motivations, which move private parties to fight in Court. The lay-out on litigation costs and execution time by the State and its agencies is so staggering these days because of the large amount of litigation in which it is involved that a positive and wholesome policy of cutting back on the volume of law suits by the twin methods of not being tempted into forensic showdowns where a reasonable adjustment is feasible and ever offering to extinguish a pending proceeding on just terms, giving the legal mentors of Government some initiative and authority in this behalf. I am not indulging in any judicial homily but only echoing the dynamic national policy on State litigation evolved at a Conference of Law Ministers of India way back in 1957. "

5.2. In Madras Port Trust v. Hymanshu International by its Proprietor V. Venkatadri (Dead) by L.Rs., (1979) 4 SCC, 176, held - "2. It is high time that Governments and public authorities adopt the practice of not relying upon technical pleas for the purpose of defeating legitimate claims of citizens and do what is fair and just to the citizens. Of course, if a Government or a public authority takes up a technical plea, the Court has to decide it and if the plea is well founded, it has to be upheld by the Court, but what we feel is that such a plea should not ordinarily be taken up by a Government or a public authority, unless of course the claim is not well founded and by reason of delay in filing it, the evidence for the purpose of resisting such a claim has become unavailable. "

5.3 In a three-Judge Bench judgment of Bhag Singh and Ors. v. Union Territory of Chandigarh through LAC, Chandigarh, (1985) 3 SCC 737. "3. The State Government must do what is fair and just to the citizen and should not, as far as possible, except in cases where tax or revenue is received or recovered without protest or where the State Government would otherwise be irretrievably be prejudiced, take up a technical plea to defeat the legitimate and just claim of the citizen. "

Unwarranted litigation by Governments and statutory authorities basically stem from the two general baseless assumptions by their officers. They are - (i) All claims against the Government/statutory autho-rities should be viewed as illegal and should be resisted and fought up to the highest Court of the land. (ii) If taking a decision on an issued could be avoided, then it is prudent not to decide the issue and let the aggrieved party approach the Court and secure a decision. The reluctance to take decisions, or tendency to challenge all orders against them, is not the policy of the Governments or statutory authorities, but is attributable to some officers who are responsible for taking decisions and/or officers-in-charge of litigation. Their reluctance arises from an instinctive tendency to protect themselves against any future accusations of wrong decision making, or worse, of improper motives for any decision-making. Unless their insecurity and fear is addressed, officers will continue to pass on the responsibility of decision-making to Courts and Tribunals. The Central Government is now attempting to deal with this issue by formulating realistic and practical norms for defending cases filed against the Government and for filing appeals and revisions against adverse decisions, thereby, eliminating unnecessary litigation. But, it is not sufficient if the Central Government alone undertakes such an exercise. The State Governments and the statutory authorities, who have more litigations than the Central Government, should also make genuine efforts to eliminate unnecessary litigation. Vexatious and unnecessary litigation have been clogging the wheels of justice, for too long making it difficult for Courts and Tribunals to provide easy and speedy access to justice to bona fide and needy litigants. 7. In this case, what is granted by the State Commission is the minimum relief in the facts and circumstances, that is to direct allotment of an alternative plot with a nominal compensation of Rs. 5,000. But instead of remedying the wrong, by complying with the decision of the Consumer Fora, the Improvement Trust is trying to brazen out its illegal act by contending that the allottee should have protested when it illegally laid the road in his plot. It has persisted with its unreasonable and unjust stand by indulging in unnecessary litigation by approaching the National Commission and then this Court. The Trust should sensitize its officers to serve the public rather than justify their dictatorial acts. It should avoid such an unnecessary litigation. "

IN Ravinder Kaur v. Ashok Kumar, VI (2003) SLT 505=AIR 2004 SC 904, Apex Court observed: "Courts of law should be careful enough to see through such diabolical plans of the judgment debtor to deny the decree holders the fruits of the decree obtained by them. These type of errors on the part of the judicial form only encourage frivolous and cantankerous litigations causing law ''s delay and bringing bad name t the judicial system ". Thus, no sufficient cause has been shown to us by the petitioner which entitles it to have the delay condoned. Averments made in the application are absolutely vague and same are without any basis. No record with regard to these averments has been placed on record.

PETITIONER , being a public authority ought not to have pursued this meritless litigation just for the sake of wasting the public exchequer. It is not that every order passed by the Fora below is to be challenged even if the same are based on sound reasonings.

UNDER these circumstances, application for condonation of delay as well as revision petition stand dismissed. For filing meritless application for conodnation of delay, petitioner is burdened with punitive costs of Rs. 25,000 (Twenty-five thousand only). Petitioner is directed to deposit the costs of Rs. 25,000 by way of demand draft in the name of "Consumer Legal Aid Account ", within four weeks from today.

MEANWHILE , petitioner shall recover the costs from the salaries of the delinquent officials, who have been pursuing this merit-less litigation with the sole aim of wasting the public exchequer. Affidavit giving details of the officials from whose salaries the costs have been recovered, be also filed within four weeks.

IN case, costs are not deposited within the prescribed period, then petitioner shall be liable to pay interest @ 9% p.a., till realization. Pending application, if any stands disposed of.

LIST on 27th April, 2012, for compliance. Revision Petition dismissed.