Haryana

StateCommission

A/1045/2018

HUDA - Complainant(s)

Versus

SIKANDER BAKSHI - Opp.Party(s)

MAN MOHAN GUPTA

10 Mar 2023

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA

 

                                                      First Appeal No.1045 of 2018

                                                Date of Institution: 12.09.2018

Date of order: 10.03.2023

 

Haryana Shehri Vikas Pradhikaran, Sector 6, Panchkula through its Estate Officer, in the office of HSVP Sec-1, NMT-Rewari.

…..Appellant

Versus

Man Mohan Gupta s/o Sh. Jagdish Rai Gupta, R/o Housing Board Colony, House No. 432, Nasibpur, Narnaul, Tehsil Narnaul, District Mohindergarh Haryana.

…..Respondent

CORAM:    Mr.S.P.Sood, Judicial  Member

                   Mr. Suresh Chander Kaushik, Member

 

Present:-    Mr. Sikander Bakshi, Advocate for theappellant.

                   Mr.Rohit Mittal, Advocate for the respondent.

 

                                                ORDER

S P SOOD, JUDICIAL MEMBER:        

The present appeal No.1045 of 2018 has been filed against the order dated 11.12.2017 of the District Consumer Disputes Redressal Forum, Narnaul (In short Now “District Commission”) in complaint case No.109 of 2017, which was partly allowed.

2.      There is a delay of 238 days in filing the present appeal. Appellant-HSVP has filed an application under section 5 of the Limitation Act (in short “Act”) for condonation of delay of 238 days wherein, it is alleged that copy of order passed by District Commission, Narnaul was received by the appellant following which the matter was referred to Administrator, HSVP for filing appeal. The matter was approved by Administrator, HSVP Gurugram for engaging an advocate.After engaging the counsel from the panel, the counsel prepared the proposed draft of appeal and was sent for its vetting and for approval. The delay in filing of appeal was un-intentional and purely for the reasons mentioned above. Thus, delay of 238 days in filing of the present appeal may please be condoned.

3.      Arguments Heard. File perused.

4.      Learned counsel for the appellant vehemently argued that as per facts mentioned above, it is clear that delay in filing appeal was not intentional.    Continuing further he argued that copy of order passed by District Commission, Narnaulwas received by the appellant following which the matter was referred to Administrator, HSVP for filing appeal. The case was approved by Administrator, HSVP Gurugram for filing an appeal and further necessary action.  After engaging the counsel from the panel, the counsel prepared the proposed draft of appeal and was sent for its vetting as well as its approval.  Thus there was no delay in filing the present appeal and the same if any may be condoned. 

5.      Learned counsel for the respondent vehemently argued that the order dated 11.12.2017 passed by learned District Commission Narnaulwas well reasoned order and has been passed appreciating the facts of the case. Further argued that contents of para 2 of the application was a bunch of false averments as the appellant has failed to give any date as to on which date it had received the copy of order passed by DCDRF, Narnaul. The appellant has not given any date as to on which date the file was referred to Administrator, HSVP, Gurugram for filing of appeal and on which date necessary approvalwas granted and how much time was consumed in engaging the counsel. All these details have deliberately been concealed from this Commission. There was no justification in waiting for 238 days in filing the present appeal.

6.      These arguments of appellant counsel are not justified because in the application for condonation of delay the appellant has not given any date on which certified copy was received and thereafter when the file was referred to Administrator, HSVP, Gurugram for filing of appeal and then nothing has been disclosed as to when the Administrator Gurugram had granted approval for filing an appeal and then on which date the file was sent to Legal Cell of HSVP for engaging counsel. All these details were deliberately withheld by the appellant before this Commission. There was no plausible justification in waiting for 238 days for filing the present appeal.  A period of 30 days as per the old Act has been provided for filing an appeal against the order of the District Commission. The proviso therein permits the State Commission to entertain an appeal after the expiry of the period of 30 days if it is satisfied that there is “Sufficient cause” for not filing the appeal within the prescribed period. The expression of sufficient cause has not been defined in the Act rightly so, because it would vary from facts and circumstances of each case.

7.      The inordinate delay of 238 days cannot be condoned in the light of the following judgments passed by the Hon’ble Apex Court.

The Hon’ble Supreme Court in case Chief Post Master General &Ors Versus Living Media India Ltd. &Anr. 2021 (3) SCC 563 it has been held by the Hon’ble Supreme court:-

“12. 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.

13.    In our view, it is the right time to inform all the Government bodies, their agencies and instrumentalities and 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.  Accordingly, the appeals are liable to be dismissed on the ground of delay.

14. In view of our conclusion on issue (a), there is no need to go into the merits of the issues (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.

Appeal dismissed.”

The Hon’ble Supreme Court in case Bikram Dass Vs. Financial Commissioner and others, AIR, 1977 Supreme Court 1221 has held that;

“Section 5 of the Limitation Act is a hard task-master and judicial interpretation has encased it within a narrow compass. A large measure of case-law has grown around S.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 days delay.”

          The Hon’ble National Commission in case Government of U.T. Electricity Department & Others versus Ram Lubhai, II(2006) CPJ 104 has held that:-

“Consumer Protection Act, 1986 – Section 15 –Appeal –Maintainability – Limitation –Condonation of delay– Resjudicata –Appeal filed after a delay of 44 days –Plea of procedural delay in getting approval for filing appeal – Appeal filed by complainant against order of District Forum decided and copy of order dispatched to parties prior to filing of appeal by opposite party –Appeal and application for condonation of delay dismissed –Matter once finally concluded by any Court cannot be reopened by same Court.”

          In R.B. Ramlingam Vs. R.B. Bhavaneshwari 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.”

      In Ram Lal and Ors.  Vs.  RewaCoalfields  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 S.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 enquiry 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.”

         

8.      Taking into consideration the pleas raised by appellant in the application for condonation of delay and settled principle of law, this Commission does not find it a fit case to condone delay of 238 days in filing of the appeal.

9.      Perusal of the file shows that the appellant has filed this appeal before this Commission on 12.09.2018, whereas in the certified copy of the order passed by District Commission attached with the appeal date of preparation of copy shows as 15.12.2017 and date of issue/dispatch of copy is mentioned as 18.12.2017. The appellant has received the certified copy of the order on 18.12.2017 i.e.more than an year earlier.  The department could have filed this appeal almost an year back. Thusappellant have deliberately concealed the material facts from this Commission. There is no need to go into the merits of the case. The department-appellant has miserably failed to give any acceptable and cogent reasons sufficient to condone such a huge delay.  Hence, the application for condonation of delay in filing the appeal is dismissed on the ground of delay.

10.    It is admitted that initially on 21.06.2000 Plot No. 448, Sector-1, HUDA, Narnaul was allotted to Manju Mittal for a sum of Rs.4,34,251/- and there was enhancement of cost by Rs.1,86,781/. Thereafter, vide memo No. 3078 dated 19.05.2003 plot No. 448, Sector-1, HUDA, Narnaul was re-allotted to complainant It is also not disputed that appellant failed to hand over the possession of the said plot to the complainant. Learned District Commission has rightly directed appellant/Ops to hand over the possession of the plot or in the alternate to allot some other plot of same size, similar location and in the same sector. Thus, learned District Commission rightly allowed the claim of the complainant. The learned District Commission has committed no illegality while passing the order dated 11.12.2017. The appeal is also devoid of merits and stands dismissed on both grounds delay as well as on merits.

11.    The statutory amount of Rs.25,000/- deposited at the time of filing the appeal be refunded to the appellant against proper receipt and identification in accordance with rules, after the expiry of period of appeal/revision, if any.

12.       Applications pending, if any stand disposed of in terms of the aforesaid judgment.

13.       A copy of this judgment be provided to all the parties free of cost as mandated by the Consumer Protection Act, 1986/2019. The judgment be uploaded forthwith on the website of the commission for the perusal of the parties.

14.      File be consigned to record room.

 

10^thMarch, 2023       Suresh Chander Kaushik            S. P. Sood                                                                Member                                             Judicial Member    

 

S.K

(Pvt. Secy.)