KANPUR DEVELOPMENT AUTHORITY vs INDRA SINGH

PETITIONER /opposite party being aggrieved by order dated 19.12.2011, passed by State Consumer Disputes Redressal Commission, Uttar Pradesh, Lucknow (for short, ''State Commission'') in First Appeal (No. 2440 of 2011) has filed the present revision petition under Section 21(b) of Consumer Protection Act, 1986 (for short, ''Act''). Facts in brief are that Respondent/Complainant purchased one freehold plot situated in Sharda Nagar, Kanpur from one Abdul Shakoor. After purchase of the plot, respondent made effort to deposit the development fee with the petitioner, but no action was taken in this regard. In the year 1991, petitioner published a notification for regularization of the property by collecting development fee, etc. On the basis of said notification, respondent deposited a sum of Rs. 10,117 in the account of the petitioner. In spite of numerous requests, the petitioner did not give any approval. Alleging deficiency on the part of Petitioner -Authority, respondent filed a consumer complaint.

THE complaint was contested by the petitioner who in its written statement has admitted that the respondent had deposited a sum of Rs. 10,117 on 27.3.1991. The other plea taken by respondent is, that the plot in question is in unauthorized occupation of the respondent and same is earmarked for a proposed park. District Consumer Disputes Redressal Forum, Kanpur Dehat (for short, ''District Forum'') allowed the complaint. It directed the petitioner to regularize the plot in dispute at the rate prevalent in the year 1990 -91, after collecting the balance from the respondent within 30 days and intimate the District Forum. Petitioner was also directed to pay Rs. 10,000 as compensation for mental agony and harassment and Rs. 2,000 towards cost of litigation.

BEING aggrieved, petitioner filed an appeal before the State Commission, after a period of two and a half years.

THE State Commission, vide impugned order dismissed the appeal on the ground of limitation as well as on merits. Now, petitioner has filed the present petition against the order of the State Commission. Along with it, an application for condonation of delay has been filed. However, no period of delay has been mentioned in the application at all. Be that as it may, as per Office Note there is delay of 519 days.

WE have heard learned Counsel for the petitioner and gone through the record.

IT has been contended by learned Counsel that delay has occurred due to office procedure. However, petitioner has a case on merits, since respondent is in unauthorized occupation of the plot and the complaint is also barred by limitation. The grounds on which condonation of delay has been sought read as under: 2. That there is a delay of __________days in preferring the above said petition. It is submitted that the above said delay is neither intentional nor deliberate but it is on account of facts stated hereinbelow.

That the impugned order was passed on 19.12.2011 wherein the appeal was dismissed for delay on behalf of the appellants as well as on merits.

That vide letter dated 1.4.2012, Shri Kanchan Gupta, concerned Clerk met the undersigned with the wrong file by the same name.

That the file which was wrongly sent earlier was received back to the Kanpur Development Authority on 4.8.2012. Thereafter vide letter dated 21.6.2013, the clarification was sought for from Shri Azaz Ansari for not making available necessary documents as zonal plan, layout plan, revenue plan, copy of award to the concerned Advocate. That the office of the undersigned received the regularization file from the concerned official on 25.8.2012. That the undersigned asked for other necessary documents like the copy of the award, zonal plans, revenue documents, etc.

That the undersigned vide letter dated 8.9.2012 asked for the necessary papers as the appeal before the Hon''ble State Commission was dismissed as the authority had not adduced evidence to support the claim.

That again vide letter dated 25.5.2013, the undersigned asked for the copy of the award which is legible as the copy supplied earlier was illegible.

That explanation has been sought from Mr. Kanchan Gupta and Mr. Azaz Ansari, officials of the authority for delay in filing the present revision petition and appropriate action will be taken for causing the delay.

Thereafter it took some time in drafting the petition, translations, etc.

IT is an admitted fact that impugned order was passed on 19.12.2011. However, petitioner has cleverly omitted to mention an important fact as on which date it received the certified copy of the impugned order. As per certified copy of the impugned order placed on record, petitioner had received it on 20.1.2012. The explanation given by petitioner is, that vide letter dated 1.4.2012, Shri Kanchan Gupta, Clerk met the Counsel for the petitioner with wrong file by the same name. Thus, the file which was sent wrongly earlier was received by the petitioner on 4.8.2012. Thereafter, vide letter dated 21.6.2012 certain clarifications were sought from one Shri Azaz Ansari. As apparent from the record, present petition was filed before this Commission only on 20.9.2013. No plausible explanation has been given by the petitioner for this long delay of 519 days. Even otherwise, petitioner had not filed any affidavit of the concerned officials, namely, Mr. Kanchan Gupta and Mr. Azaz Ansari who were dealing with the matter, nor it had filed the affidavit of the Counsel who was dealing with the matter.

IN Ram Lal and Others v. Rewa Coalfields Ltd., : AIR 1962 Supreme Court 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) CLT 188 (SC) : I (2009) SLT 701 : 2009(2) Scale 108, it 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.

HON ''ble Supreme Court after exhaustively considering the case law on the aspect of condonation of delay observed in Oriental Aroma Chemical Industries Ltd. v. Gujarat Industrial Development Corporation, reported in : I (2010) CLT 333 (SC) : II (2010) SLT 205 : (2010) 5 SCC 459, as under: We have considered the respective submissions. The law of limitation is founded on public policy. The Legislature does not prescribe limitation with the object of destroying the rights of the parties but to ensure that they do not resort to dilatory tactics and seek remedy without delay. The idea is that every legal remedy must be kept alive for a period fixed by the Legislature. To put it differently, the law of limitation prescribes a period within which legal remedy can be availed for redress of the legal injury. At the same time, the Courts are bestowed with the power to condone the delay, if sufficient cause is shown for not availing the remedy within the stipulated time.

THE Apex Court in Anshul Aggarwal v. New Okhla Industrial Development Authority, : IV (2011) CPJ 63 (SC), has observed: 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.

Lastly, in Post Master General and Others (supra), Hon''ble Supreme Court observed: 24. 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 Apex 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 bona fide, 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 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 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.

THE observations made by Apex Court in the authoritative pronouncements discussed above are fully attracted to the facts and circumstances of the case.

EVEN otherwise also, the petitioner had been non -suited before the State Commission, on the ground of delay for more than two and a half years. The explanation offered before the State Commission seeking condonation of delay states: The file was not traceable for some time.

The State Commission while disposing the appeal rightly observed: It appears to be a vague submission of the Development Authority just to justify the delay. Since, we do not find any merit in the explanation offered by Kanpur Development Authority, we are not inclined to accept it and condone the delay.

EVEN on merit, the State Commission observed that appeal is devoid of force and held: The complainant''s claim for regularization in accordance with the scheme of the Kanpur Development Authority was resisted and contested by the Kanpur Development Authority on the ground that the land in occupation of Smt. Indra Singh was a part of the public park. This plea is being reiterated by the Development Authority for the last several years but not an iota of documentary evidence has been filed either before the Forum below or before us to substantiate the said plea.

We are, therefore, not impressed with the Development Authority''s ground, of resistance. The complainant purchased the land in her occupation from Sri Abdul Shakoor. The Kanpur Development Authority has not even adduced in evidence any paper or document to prove that the land of Sri Abdul Shakoor was acquired by it and compensation paid to him. In the absence of the relevant documents, it is difficult to accept the appellant''s plea that the land in question was a part of the public park.

WE fully agree with the reasoning given by the State Commission that there was delay of two and a half years in filing the appeal before it. Under such circumstances, it rightly refused to condone the long delay of two and a half years. In the present case, petitioner as per averments made in para No. 5 of the written statement admits: That it had accepted a sum of Rs. 10,117 on 27.3.1991 from the petitioner.

THERE is nothing on record to show that petitioner has returned that amount to the respondent so far. Thus, petitioner had been enjoying the aforesaid amount for last more than 23 years without any lawful authority.

ACCORDINGLY , the present petition is nothing but gross abuse of the process of law and has been filed just to waste time of this Commission and to deprive the respondent fruits of the award which was passed in his favour as early as in the year 2009. It is well settled that frivolous litigation clogs the wheels of justice, making it difficult for Courts to provide easy and speedy justice to the genuine litigants. A strong message is required to be sent to those litigants who are in the habit of challenging the order of the Fora below even if the same are based on sound reasoning. No one should be permitted to frustrate the object of the Act which provide for speedy justice, by indulging in frivolous litigation. Under these circumstances, the present revision petition is liable to be dismissed with punitive cost.

NOW , question which arise for consideration is as to what should be the quantum of cost which should be imposed upon the Petitioner -Authority for wasting the time of State Commission as well as of this Commission. It has been clearly established from the record that petitioner had been pursuing this litigation in a very careless, casual and negligent manner.

APEX Court in Ramrameshwari Devi and Ors. v. Nirmala Devi and Ors., : V (2011) SLT 196 : 111 (2011) CLT 44 (SC): Civil Appeal Nos. 4912 -4913 of 2011 decided on July 4, 2011, has observed: We are clearly of the view that unless we ensure that wrong doers are denied profit or undue benefit from the frivolous litigation, it would be difficult to control frivolous and uncalled for litigations. In order to curb uncalled for and frivolous litigation, the Courts have to ensure that there is no incentive or motive for uncalled for litigation. It is a matter of common experience that Court''s otherwise scarce and valuable time is consumed or more appropriately wasted in a large number of uncalled for cases.

It is also a matter of common experience that to achieve clandestine objects, false pleas are often taken and forged documents are filed indiscriminately in our Courts because they have hardly any apprehension of being prosecuted for perjury by the Courts or even pay heavy costs. In Swaran Sing v. State of Punjab, : (2000) 5 SCC 668, this Court was constrained to observe that perjury has become a way of life in our Courts.

It is a typical example how a litigation proceeds and continues and in the end there is a profit for the wrongdoers.

Learned Amicus articulated common man''s general impression about litigation in following words - -

Make any false averment, conceal any fact, raise any plea, produce any false document, deny any genuine document, it will successfully stall the litigation, and in any case, delay the matter endlessly. The other party will be coerced into a settlement which will be profitable for him and the probability of the Court ordering prosecution for perjury is less than that of meeting with an accident while crossing the road.

While imposing costs we have to take into consideration pragmatic realities and be realistic what the defendants or the respondents had to actually incur in contesting the litigation before different Courts. We have to also broadly take into consideration the prevalent fee structure of the lawyers and other miscellaneous expenses which have to be incurred towards drafting and filing of the counter affidavit, miscellaneous charges towards typing, photocopying, Court fee, etc.

The other factor which should not be forgotten while imposing costs is for how long the defendants or respondents were compelled to contest and defend the litigation in various Courts. The appellants in the instant case have harassed the respondents to the hilt for four decades in a totally frivolous and dishonest litigation in various Courts. The appellants have also wasted judicial time of the various Courts for the last 40 years.

On consideration of totality of the facts and circumstances of this case, we do not find any infirmity in the well -reasoned impugned order/judgment. These appeals are consequently dismissed with costs, which we quantify as Rs. 2,00,000 (Rupees two lakh only). We are imposing the costs not out of anguish but by following the fundamental principle that wrong doers should not get benefit out of frivolous litigation.

Accordingly, the present revision petition being barred by limitation as well as not maintainable on merit, stand dismissed with cost of Rs. 50,000 (Rupees fifty thousand only). Petitioner is directed to deposit the cost by way of a demand draft in the name of ''Consumer Legal Aid Account'' of this Commission, within four weeks.

IN case, petitioner fails to deposit the cost within the prescribed period, then it shall be liable to pay interest @9% p.a., till realization.

THEREAFTER , the petitioner shall recover the costs amount from the salaries of the delinquent officials who had been pursuing this meritless litigation with the sole aim of wasting the public exchequer. An affidavit, duly sworn by the Chairman of Petitioner -Authority giving details of the officials from whose salaries the costs have been recovered, be also filed within four weeks. Pending applications stand disposed of. List for compliance on 25.4.2014.