Full Judgment Text
IN THE HIGH COURT OF DELHI
I.A. Nos. 9821/2005 & 1759/2006 in O.M.P. No. 448/2005
Judgment reserved on: January 23,
2007
Date of decision: March 6, 2007
UNION OF INDIA .... Petitioner
through: Mr. R.V. Sinha with Mr. A.S. Singh, Advocates
VERSUS
WISHWA MITTAR BAJAJ & SONS & ANR. ....Respondents
through: Mr. Harish Malhotra, Sr. Adv. with Mr. Tanuj
Khurana, Adv.
CORAM:
HON'BLE MS. JUSTICE GITA MITTAL
1. Whether reporters of local papers may be
allowed to see the Judgment? Yes
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in the
Digest? Yes
GITA MITTAL, J
1. The petitioner has filed objections under Section 34 of the
Arbitration & Conciliation Act, 1996 challenging the arbitration
th
award dated 25 July, 2005 passed by the sole arbitrator in favour
of the claimant/respondent. This petition was beyond the
limitation prescribed under Section 34 of the Arbitration &
Conciliation Act, 1996. Consequently, the petitioner has filed I.A.
No. 9821/2005 under Section 34 (3) of the Arbitration &
O.M.P. No. 448/2005 1
Conciliation Act, 1996 praying for condonation of the delay. The
respondent/claimant in the arbitration proceedings has
vehemently opposed this application pointing out that the
objections have been filed beyond the period which is permissible
for condonation of delay and for this reason, the same have to be
rejected.
2. Such a prayer has also been made by the respondent by way
of I.A. No. 1759/2006 which has been filed under Order 7 Rule 11
of the Code of Civil Procedure.
3. Inasmuch as the two aforesaid applications entail
consideration of the same facts, the same have been taken up
together for hearing and are being disposed of by this common
order.
4. From the facts ultimately emerging on record, there is no
dispute to the material facts relating to the date on which the
th
award dated 25 July, 2005 was served upon the petitioner. The
admitted position is that the award was received in the office of
th
Chief Engineer, Delhi Zone on the 28 of July, 2005. The
th
objections were filed by the petitioner in this court on 28
November, 2005 under Section 34 of the Arbitration &
Conciliation Act, 1996 being O.M.P. No. 448/2005.
O.M.P. No. 448/2005 2
5. Apart from these facts, there is dispute on all issues between
the parties to the manner in which the delay has to be condoned.
6. According to Mr. R.V. Sinha, learned counsel for the
petitioner, the award has to be held to have been received by it
rd
only on 3 August, 2005. He further contended that assuming
th
that even if it was received on 30 July, 2005, on calculations from
th
this date, the period of 3 months expired on 29 October, 2005.
According to the petitioner, the petitioner was entitled to
condonation of delay for further period of 30 days. It is further
th
submitted that as 27 November, 2005 was a Sunday, the
th
objections were filed on 28 November, 2005 and are therefore
within the period from which condonation of delay is permissible.
7. Mr. R.V. Sinha, learned counsel for the petitioner has
contended that even if it is held that the petitioner was served on
th
28 July, 2005, still as per Section 9(1) of the General Clauses Act,
the date on which service was effected cannot be counted and as
such, the objections would be within limitation.
8. Further urging that the Union of India has to explain only
the delay after expiry of the period of 3 months and for the
circumstances explained, in the light of the principles laid down by
the Apex Court in (1996) 3 SCC 132 State of Haryana Vs.
O.M.P. No. 448/2005 3
Chandra Mani & Ors. and ( 1996) 10 SCC 634 (Special
Tehsildar, Land Acquisition, Kerala Vs. K.V. Ayisumma,
the delay merits condonation. The submission is that there is no
benefit to the petitioner by the delay and that condonation of the
delay does not prejudice the respondent inasmuch as it can be
adequately compensated for the same by costs.
9. In support of the contention that limitation has to be
counted from the date the award was seen by the Garrisson
Engineer, reliance has been placed on the pronouncement of the
Apex Court in ( 2005) 4 SCC 239 Union of India Vs. Tecco
Trichy Engineers & Contractors (Para 6-11)
10. On the other hand, Mr. Harish Malhotra, learned senior
counsel for the respondent has contended that the limitation has
th
to be construed from 28 July, 2005 when the award was received
th
in the office of Chief Engineer. It has been contended that on 26
November, 2005, even the 30 days' period prescribed by Section
34 (3) of the Arbitration & Conciliation Act lapsed. It has been
submitted that in the light of the clear mandate of Section 34(3) of
the statute and the principles laid down by the Apex Court in
( 2001) 8 SCC 470 Union of India Vs. Popular
Construction Co., the delay in filing the objections cannot be
O.M.P. No. 448/2005 4
condoned.
11. Having given my considered thought to the submissions
made, I deem it essential to first consider the statutory mandate.
There is no dispute that the Arbitration & Conciliation Act, 1996 is
a special enactment which is intended to streamline and expedite
arbitration proceedings. The extent of judicial intervention has
been clearly stipulated in the enactment. Section 5 of the statute
contains a non-obstante clause setting the limits to the extent of
permissible judicial intervention.
12. The Arbitration & Conciliation Act, 1996 consolidates the law
relating to the arbitration on all matters connected therewith or
incidental thereto. The examination of the scheme of the statute
shows that it provides the complete machinery so far as arbitration
is concerned. My attention has been drawn to Section 3 (1) (a) and
sub-section (2) of the statute which governs the manner in which
written communications are to be received. These statutory
provisions deserve to be considered in extenso and read thus:-
“ 3. Receipt of written communications:-
(1) Unless otherwise agreed by the parties,-
(a) any written communication is deemed to
have been received if it is delivered to the
addressee personally or at his place of business,
habitual residence or mailing address, and
O.M.P. No. 448/2005 5
xxxx xxxx xxxx
(2) The communication is deemed to have been
received on the day it is so delivered.”
13. Section 5 of the statute contains a non-obstante clause and
provides the extent of judicial intervention which is permissible in
arbitration matters and reads thus:-
“5. Extent of judicial intervention:-
Notwithstanding anything contained in any other
law for the time being in force, in matters
governed by this Part, no judicial authority shall
intervene except where so provided in this Part.”
14. So far as objections to an arbitration award are concerned,
the same are permitted to be made under Section 34 in Chapter
VII of the statute. The petitioner has filed objections to the
th
arbitration award dated 25 July, 2005. However, the same have
been filed beyond the prescribed period of limitation. The
statutory provisions which govern the limitation period within
which the objections have to be made as well as the provision
whereunder delay may be condoned are contained in Section 34
(3) of the Arbitration & Conciliation Act, 1996 which reads thus:-
“ 34. Application for setting aside arbitral
award:-
xxxx xxxx xxxx
(3) An application for setting aside may not be
made after three months have elapsed from the
date on which the party making that application
had received the arbitral award or, if a request
had been made under section 33, from the date
on which that request had been disposed of by
O.M.P. No. 448/2005 6
the arbitral tribunal:
Provided that if the court is satisfied that
the applicant was prevented by sufficient cause
from making the application within the said
period of three months it may entertain the
application within a further period of thirty days,
but not thereafter.”
(Emphasis supplied)
Section 31(5) of the statute provides that after the arbitral
award is made, a signed copy shall be delivered to each party.
15. It is thus apparent that an application for setting aside the
arbitration award cannot be made after 3 months have elapsed
from the date from which the party objecting to the award has
received the same.
The statute has also prohibited the court from entertaining
such an application which is made after the period of 3 months of
receipt of the award, if the application is not made within a further
period of 30 days. The statute has clearly mandated that such
application can not be entertained thereafter.
16. There is no dispute that under Section 31(5) of the statute,
the learned arbitrator was required to deliver a signed copy of the
award to each party. In the present case, there is no dispute that
the award has been so sent to both parties. A dispute has been
raised at the instance of the petitioner that the 'delivery' which is
statutorily recognised has to be construed from the date the award
O.M.P. No. 448/2005 7
falls in the hands of the addressee or the concerned person.
17. My attention has been drawn to the stand of the petitioner
before this court in I.A. No. 9821/2005 filed under Section 34 (3)
of the Arbitration & Conciliation Act, 1996, wherein it was stated
th
that 'the certified copy of the impugned award dated 28 July,
rd
2005 was received by the petitioner on 3 August, 2005'.
18. The respondent had vehemently urged that this was a mis-
statement and that the award was actually received by the
th th
petitioner on the 28 July, 2005. It was only in court on the 28
of July, 2006 that the petitioner admitted for the first time that on
th
28 July, 2005 the award was received by the Chief Engineer who
forwarded the same to the Garrisson Engineer whose office
rd
received this award on 3 of August, 2005.
19. Perusal of the award in the instant case shows that the Chief
Engineer (Delhi Zone) was a party to the arbitration proceedings.
He has been so arrayed as a respondent in the arbitration
proceedings. There is no dispute that the award was received in
th
the office of the concerned Chief Engineer on 28 July, 2005.
Counsel has contended that the Chief Engineer saw this award for
th
the first time on 30 July, 2005 and for this reason, the limitation
has to be calculated from such date.
O.M.P. No. 448/2005 8
20. I find that the Apex Court had occasion to consider such a
situation. In the pronouncement reported at 2005 (4) SCC 239
Union of India Vs. Tecco Trichy Engineers &
Contractors, the Apex Court construed the meaning to be
assigned to the term 'party' in Section 31(5) and `party making
application under Section 34 of the Arbitration Act'. It was noticed
that the award had been sent to General Manager and was
received in his inward office. The General Manager in this case
was not a signatory to the contract and was not concerned with the
arbitration proceedings. In this context, the court has emphasised
the importance of delivery of the arbitration award under Section
31(5) as being the matter of substance and not a matter of mere
formality. The court laid down the following binding principles:-
“8. The delivery of an arbitral award under sub-
section (5) of Section 31 is not a matter of mere
formality. It is a matter of substance. It is only
after the stage under Section 31 has passed that
the stage of termination of arbitral proceedings
within the meaning of Section 32 of the Act
arises. The delivery of arbitral award to the
party, to be effective, has to be 'received' by the
party. This delivery by the Arbitral Tribunal and
receipt by the party of the award sets in motion
several periods of limitation such as an
application for correction and interpretation of
an award within 30 days under Section 33(1), an
application for making an additional award
under Section 33(4) and an application for
O.M.P. No. 448/2005 9
setting aside an award under Section 34(3) and
so on. As this delivery of the copy of award has
the effect of conferring certain rights on the
party as also bringing to an end the right to
exercise those rights on expiry of the prescribed
period of limitation which would be calculated
from that date, the delivery of the copy of award
by the Tribunal and the receipt thereof by each
party constitutes an important stage in the
arbitral proceedings.
9. In the context of a huge organisation like the
Railways, the copy of the award has to be
received by the person who has knowledge of the
proceedings and who would be the best person to
understand and appreciate the arbitral award
and also to take a decision in the matter of
moving an application under sub-section (1) or
(5) of Section 33 or under sub-section (1) of
Section 34.”
(Emphasis supplied)
21. Therefore, because the service of the award of the arbitrator
had been effected on a person who had not been a party in the
arbitration proceedings and time was taken by the department to
take appropriate steps, the court was of the view that service of
notice on the concerned Chief Engineer would be the starting
point of limitation.
22. Before this court, there is no dispute that the Chief Engineer,
th
Delhi Zone whose office received the award on 28 July, 2005 was
the authority concerned who had signed the contract and
contested the arbitration. Consequently, the attempt made by the
objector to orally urge that the limitation has to be construed from
O.M.P. No. 448/2005 10
the date on which the award was received by the Garrisson
Engineer is of no avail. In my view, the award has to be deemed as
having been delivered to the concerned party in accordance with
requirement of Section 31(5) of the Arbitration & Conciliation Act,
1996 when the same was received in the office of Chief Engineer
th
on 28 July, 2005.
23. I therefore also reject the contention on behalf of the
petitioner that service is to be deemed to have been effected on the
th
Chief Engineer when he saw it on 30 of July, 2005. There is no
explanation as to why the Chief Engineer did not examine the
th
matter immediately on receipt of the award on 28 July, 2005. In
this behalf, I find force in the submission made by learned counsel
for the respondent that such a plea cannot be permitted to be set
up inasmuch as the Chief Engineer may sleep over the matter and
not take up the award at all for a prolonged period after its receipt
in its office. Such failure to act would not have extended the date
from which the limitation would commence to run against the
petitioner.
24. I also find that the respondents have placed reliance on a
th
noting of the Chief Engineer which is dated 30 July, 2005 and
has been enclosed with the reply of the respondent to IA
O.M.P. No. 448/2005 11
th
No.1759/2006. This noting of the Chief Engineer is dated 30
July, 2005 and directs his office to link up the award and for the
same to be put up on the file. There is another noting by some
th
authority dated 30 July, 2005 which is not legible but is marked
`very urgent'. It is therefore apparent that it was certainly realised
th
on 30 July, 2005 in the office of the Chief Engineer that the
matter required urgent attention. There is nothing on record to
explain as to why the petitioner slept over the matter thereafter.
25. It now becomes necessary to examine the manner in which
the limitation would require to be calculated. Section 34(3)
provides a period of three months for filing objections to the award
from the date on which the party making the objections has
received the arbitral award. The expression `three months' has
not been defined by any statute. However, the expression 'month'
has been the subject matter of judicial interpretation in several
pronouncements. The same has also been defined by the
Halsbury's Laws of England (Volume 37), third edition in
paragraph 143 wherein it is described thus:-
“143. Calendar month running from arbitrary
date:- When the period prescribed is a calendar
month running from any arbitrary date the
period expires with the day in the succeeding
month immediately preceding the day
O.M.P. No. 448/2005 12
corresponding to the date upon which the period
starts; save that, if the period starts at the end of
a calendar month which contains more days than
the next succeeding month, the period expires at
the end of the latter month.”
26. Such meaning of a 'month' was accepted by this court in the
pronouncement of the Division Bench reported at AIR 1973
Delhi 58 Daryodh Singh Vs. UOI & Ors . In this behalf, the
court held thus:-
“15. The deposit of the amount of Rs. 4500/-
was actually made on May 16, 1960. It has,
therefore, to be seen whether the deposit was
made 'two months prior to 15-7-1960'. In its
ordinary accepted sense the expression 'month'
means a 'calendar month' and not a 'lunar
month'.
xxxx xxxx
Thus one month counted from July 15,
1960 would be on June 16 and the second month
counted from June 16 would be on May 17, 1960.
Evidently, therefore, the deposit made on May
16, 1960 was two months prior to July 15, 1960.”
27. In AIR 1970 AP 234 In re Vs. S. Metha & Ors., the
court considered the expression 'three months of the date' in
Section 106 of the Factories Act, 1948. It was held by the Court
that month has to be construed as the calendar month as per the
English Calendar.
28. Therefore, the expression 'three months' in Section 34(3) has
to be construed as three calendar months from the date on which
O.M.P. No. 448/2005 13
the signed award made by the arbitrator was delivered to the
party.
29. Learned counsel for the petitioner has submitted that the
th
award having been received on 28 July, 2005, this date has to be
excluded for the purposes of computation of the period of three
th
months and consequently, this period would end on 29 October,
2005.
30. If calculated on the basis of principles laid down by this court
in AIR 1973 Delhi 58 Daryodh Singh Vs. UOI & Ors., the
th th
first month counted from 28 July, 2005 would end on 27 of
th
August, 2005, the second month would end on 26 of September,
th
2005 and the third month would end on 25 of October, 2005.
Even if the contention of learned counsel for the petitioner
th
was to be accepted that the 28 of July, 2005 was required to be
th
excluded, then if the period of 3 months is construed from 29
th
July, 2005, the first month would end on 28 of August, 2005, the
th
second month would end on 27 of September, 2005 and the third
th
month would end on 26 of October, 2005.
31. On this basis, the period of 30 days which has to be
construed in terms of provision of Section 34(3), such further
th
period would expire on 24 of November, 2005. Such period, as
O.M.P. No. 448/2005 14
per the date suggested by learned counsel for the petitioner, would
th
expire on 25 November, 2005.
th
32. The objections having been filed on 28 November, 2005
were therefore clearly beyond the period of 30 days after the
expiry of three months from the date on which the petitioner
received the award.
33. Learned counsel for the petitioner has submitted that the
th
period of three months has ended on 29 October, 2005. The
th
period of 30 days thereafter expired on 28 November, 2005. It
th
has been submitted that 27 of November, 2005 was a Sunday and
therefore, having regard to the provision of Section 10 of the
General Clauses Act, such date of limitation being a holiday and
the objections having been filed on the next date are within
limitation.
It has therefore been submitted that objections were filed on
th
28 November, 2005 are within the 30 days' period of permissible
condonation.
34. In the light of the calculation effected hereinabove, I have
found that looked at from whichever angle, the condonable period
th
of thirty days has expired before the 27 November, 2005.
th
Therefore nothing turns on the fact that 27 of November, 2005
O.M.P. No. 448/2005 15
th th
was a Sunday. It is not the petitioner's contention that 24 to 26
of Novemebr, 2005 were non-working days for the courts.
35. I have noticed the statutory provisions hereinabove. I find
that the statute does not permit any condonation of delay upon
lapse of 30 days after 3 months have elapsed after the receipt of
the award.
In this behalf, it would be topical and instructive to advert to
the principles laid down by the Apex Court in the judicial
pronouncement reported at 2001 (8) SCC 470 entitled UOI Vs.
Popular Construction Co., wherein the court was required to
consider the question as to whether Section 5 of the Limitation
Act, 1963 would apply to proceedings under Section 34 for setting
aside the arbitral award. In this behalf, the court had held thus:-
“12. As far as the language of Section 34 of the
1996 Act is concerned, the crucial words are 'but
not thereafter' used in the proviso to sub-section
(3). In our opinion, this phrase would amount of
an express exclusion within the meaning of
Section 29(2) of the Limitation Act, and would
therefore bar the application of Section 5 of that
Act. Parliament did not need to go further. To
hold that the court could entertain an application
to set aside the award beyond the extended
period under the proviso, would render the
phrase 'but not thereafter' wholly otiose. No
principle of interpretation would justify such a
result.
xxx
O.M.P. No. 448/2005 16
14. Here the history and scheme of the 1996 Act
support the conclusion that the time-limit
prescribed under Section 34 to challenge an
award is absolute and unextendible by court
under Section 5 of the Limitation Act. The
Arbitration and Conciliation Bill, 1995 which
preceded the 1996 Act stated as one of its main
objectives the need 'to minimise the supervisory
role of courts in the arbitral process'. This
objective has found expression in Section 5 of the
Act which prescribes the extent of judicial
intervention in no uncertain terms:
“5. Extent of judicial intervention –
Notwithstanding anything contained
in any other law for the time being in
force, in matters governed by this
Part, no judicial authority shall
intervene except where so provided in
this Part.”
xxx
16. Furthermore, Section 34(1) itself provides
that recourse to a court against an arbitral award
may be made only by an application for setting
aside such award 'in accordance with' sub-section
(2) and sub-section (3). Sub-section (2) relates to
grounds for setting aside an award and is not
relevant for our purposes. But an application
filed beyond the period mentioned in Section 34,
sub-section (3) would not be an application 'in
accordance with' that sub-section. Consequently
by virtue of Section 34(1), recourse to the court
against an arbitral award cannot be made beyond
the period prescribed.”
36. In the light of the statutory mandate and the binding
principles of law laid down by the Apex Court, this court has no
jurisdiction to condone the delay which is beyond the 30 days'
period after 3 months have elapsed from the date on which the
O.M.P. No. 448/2005 17
petitioner has received the arbitral award. This court therefore
does not have the jurisdiction to condone the delay beyond such a
period.
37. Even otherwise, it would be appropriate to notice the reasons
given by the petitioner as a justification for the condonation of
th
delay. Despite the noting by the Chief Engineer on 30 July, 2005
that the matter needed urgent attention, I find that the petitioner
has proceeded in the matter most casually. As per the averments
in I.A. No. 9821/2005, the Government counsel was approached
th
for the first time only on 5 September, 2005. It has been stated
th
that she refused to give an opinion in the matter on 9 October,
2005. Therefore, opinion of a senior counsel was sought who also
refused to give his opinion.
No specific dates have been given in regard to this averment.
No communications in this behalf have been placed before this
th
court. Thereafter, steps were taken only on 28 October, 2005 to
seek opinion of the Legal Adviser (Division) without opinion of the
government counsel.
In para 6 of the application, the petitioner has stated that on
th
8 November, 2005, the litigation cell of the Ministry of Law and
Justice, Delhi High Court was approached for appointment of a
O.M.P. No. 448/2005 18
new government counsel for opinion and for filing objections. No
counsel was appointed by the litigation cell in the absence of
advice of the Legal Adviser (Division) to file objections and
absences of a decision taken by the competent authority based on
such advice.
According to the petitioner, advice of the Legal Adviser
th
(Division) was received only on 25 November, 2005 whereafter
th
the present counsel was appointed on 25 November, 2005.
th
Information sought by him was provided on 26 November, 2005
and objections were filed thereafter.
38. In my view, there cannot have been a more casual approach
in a matter which involves serious consequences and financial
liability. The respondents have sought to take shelter in the
pronouncement of the Supreme Court in (1996) 3 SCC 132
States of Haryana v. Chandra Mani & Ors .
It would be useful to notice the anguish expressed by the
Supreme Court in the manner in which the authorities of the State
function. Specific directions were issued by the Apex Court in
State of Haryana in paras 11 which were to the following effect : -
“11. It is notorious and common knowledge
that delay in more than 60 per cent of the cases
filed in this court – be it by private party or the
O.M.P. No. 448/2005 19
State – are barred by limitation and this court
generally adopts liberal approach in condonation
of delay finding somewhat sufficient cause to
decide the appeal on merits. It is equally
common knowledge that litigants including the
State are accorded the same treatment and the
law is administered in an even-handed manner.
When the State is an applicant, praying for
condonation of delay, it is common knowledge
that on account of impersonal machinery and the
inherited bureaucratic methodology imbued with
the note-making, file-pushing, and passing-on-
the-buck ethos, delay on the part of the State is
less difficult to understand though more difficult
to approve, but the State represents collective
cause of the community. It is axiomatic that
decisions are taken by officers/agencies
proverbially at slow pace and encumbered
process of pushing the files from table to table
and keeping it on routine. Considerable delay of
procedural red-tape in the process of their
making decisions is a common feature.
Therefore, certain amount of latitude is not
impermissible. If the appeals brought by the
State are lost for such default no person is
individually affected but what in the ultimate
analysis suffers, is public interest. The
expression “sufficient cause” should, therefore,
be considered with pragmatism in justice-
oriented approach rather than the technical
detection of sufficient cause for explaining every
day's delay. The factors which are peculiar to and
characteristic of the functioning of the
governmental conditions would be cognizant to
and requires adoption of pragmatic approach in
justice-oriented process. The court should decide
the matters on merits unless the case is
hopelessly without merit. No separate standards
to determine the cause laid by the State vis-a-vis
private litigant could be laid to prove strict
standards of sufficient cause. The Government at
O.M.P. No. 448/2005 20
appropriate level should constitute legal cells to
examine the cases whether any legal principles
are involved for decision by the courts or whether
cases require adjustment and should authorise
the officers to take a decision or give appropriate
permission for settlement. In the event of
decision to file appeal needed prompt action
should be pursued by the officer responsible to
file the appeal and he should be made personally
responsible for lapses, if any. Equally, the State
cannot be put on the same footing as an
individual. The individual would always be quick
in taking the decision whether he would pursue
the remedy by way of an appeal or application
since he is a person legally injured while State is
an impersonal machinery working through its
officers or servants. Considered from this
perspective, it must be held that the delay of 109
days in this case has been explained and that it is
a fit case for condonation of the delay.”
th
39. This judgment was pronounced on 30 January, 1996. The
instant case has arisen after almost a decade of the
pronouncement by the Apex Court. There is no justification as to
why no timely effort has been taken in this matter which relates to
a civil contract.
40. The other judgment relied upon by the petitioner reported at
(1996) 10 SCC 634 Special Tehsildar, Land Acquisition,
Kerala v. K.V. Ayisumma noticed that when the delay was
occasioned at the behest of the Government, it would be very
difficult to explain the day to day delay. The court noticed that
O.M.P. No. 448/2005 21
transaction of the business of the Government was being done
leisurely by officers who had no or evince no personal interest at
different levels. It was further held that “no one takes personal
responsibility in processing the matters expeditiously. As a fact at
several stages, they take their own time to reach a decision. Even
inspite of pointing out at the delay, they do not take expeditious
action for ultimate decision in filing the appeal. This case is one of
such instances. It is true that Section 5 of the Limitation Act
envisages explanation of the delay to the satisfaction of the court
and in matters of Limitation Act made no distinction between the
state and the citizen. Nonetheless adoption of strict standard of
proof leads to grave miscarriage of public justices. It would result
in public mischief by skilful management of delay in the process of
filing the appeal. The approach of the court should be pragmatic
and not pedantic........”
41. It is well settled that administrative delays which are urged
by the respondents have to be properly and adequately explained.
Negligence or indifference on the part of the authority or its
officers in pursuing a matter cannot be condoned simply because
the applicant is a State or government undertaking. The law of
limitation remains the same and certainly there cannot be two
O.M.P. No. 448/2005 22
laws, one governing the State and the other governing individuals.
Cryptic and routine explanations for condonation of delay cannot
be accepted as adequate explanation or sufficient cause for
condonation of delay. (Re: 61 (1996) DLT 99 DDA Vs.
Ramesh Kumar)
This court in several judgments has noted the manner in
which matters are proceeded with utmost casualness on the part of
the State and its officials. In this behalf, in a decision rendered on
nd
2 December, 1988 reported at 37 (1989) DLT 123 UOI Vs.
Mangat, noticing the judgments of the Apex Court where delay
was condoned observed thus:-
“4. .......The Supreme Court was thus concerned
with isolated cases of said abretions. What we
are facing in this court is a spate of delayed
appeals without any proper and convincing
explanation or even an attempt in doing so. It is
a common experience of Benches of this Court
that the condonation applications are in a
cyclostyled form and only the dates and days are
filled in hand. The stay applications are also
mechanically drafted and are in one standard
cyclostyled form. Usually, the appeals are filed
with defects. After the Registry points out the
defects, the defects are not removed for months
together. We do not think that the Supreme
Court judgments can be usefully availed of by the
union of India in the colossal situation of
negligence and delays as we find in this Court.
In fact, it appears, that the liberal approach of
the higher courts and the understanding of the
O.M.P. No. 448/2005 23
difficulties of the Government departments
shown by the courts have not been appreciated in
its proper perspective by the Government
departments. Nobody in the Government
Department feels any responsibility or takes any
responsibility for the delay caused in the
movement of files. There is no conscious and
systematic efforts to keep the deadline of
limitation in view and to speed up the disposal at
various stages. If a serious effort is made in the
Government Departments to fix the
responsibility on the persons causing delay the
present sorry state of affairs can be rectified
substantially within short time. Occasionally,
important questions of law or principles of
compensation or heavy financial stakes are
involved in land acquisition matters. The
agencies of the Government involved in the
acquisition, unfortunately, seems to be
completely oblivious of these considerations. In
some cases there is great urgency of acquisition
of land for urgent developmental projects. They
are likely to be frustrated by the habitual
negligence of Government departments.
5. The practical problem in the day to day
cases is how to reconcile the two principles laid
down by the Supreme Court, namely – (i) the
doctrine of equality before law demands that all
litigants including the State as litigant should be
accorded the same treatment and the law is
administered in an even-handed manner, and (ii)
it would perhaps be unfair and unrealistic to put
Government and private parties on the same
footing in all respects in such matters. The
Supreme Court in the judgments referred to
above had observed that the State should not be
given step-motherly treatment. If all the
petitions of condonation of delay filed in the
large number of cases are to be accepted, as
requested by the Government Advocate, a citizen
O.M.P. No. 448/2005 24
would naturally complain that the State is being
given a `son-in-law' treatment. In State of M.P.
& Ors., Vs.Vishnu Prasad Sharma and others'
AIR 196 SC 1593 at page 1598 the three Judges
Bench of the Supreme Court observed : “In
interpreting these provisions the court must keep
in view on the one hand the public interest which
compels such acquisition and on the other the
interest of the person who is being deprived of
his land without his consent.” The Supreme
Court further held: “the provisions of the statute
must be strictly construed as it deprives a person
of his land without his consent.” A golden rule
for reconciliation of these conflicting
considerations would be to use the discretion
with commonsense. Extreme positions of either
not condoning the delay howsoever negligible it
may be or to condone the delay howsoever large
and unjustifiable it may be should be avoided.
The discretion has to be exercised on the basis of
the facts of each case with commonsense and
public interest in view.”
42. There is, however, yet another angle to the miscarriage of
public justice. Despite the anguish expressed by the courts, there
is neither change in work habits nor in attitudes. The delays, it is
experienced, arise out of not only apathy but on account of failure
to discharge official and assigned duties. The sheer effort in
ensuring dispensation of substantial justice results in the
recalcitrant and negligent official from going scot free despite the
drastic consequences of their delay. Even if the costs of the
judicial time which is utilised in hearing and disposal of
O.M.P. No. 448/2005 25
applications seeking condonation of delays were to be ignored, it is
important to notice statutes as the Arbitration & Conciliation Act,
1996 and the Land Acquisition Act, 1894 prescribe extremely high
rates of interest rates on the awarded amounts. The rates are
higher than those paid by banks and financial institutions on
deposits of any kind. As a result of the apathetic and inefficient
function of its officials, the public exchequer is burdened with
huge liabilities on account of litigation costs, interest awards and
conditional costs for allowing such applications.
At the same time public administration gets steeped in
inefficiency and file pushing without application of mind and
involvement which attitude is manifested in daily function.
Looked at from any angle, it is the law abiding, conscientious
citizen alone who suffers. Lack of accountability aceberates not
only inefficiency, but becomes a breeding ground for corrupt
practices as no distinction is drawn between a bonafide delay and
one emanating from gross negligence. At a stage when the
economy is at the brink of a major leap forward, certainly such
apathy cannot be countenanced. Gone are the days when the
citizen had no choice when, say, for instance, air travel which was
once restricted to only one airline so that a passenger had to
O.M.P. No. 448/2005 26
endure such indolent conduct of its employees, which was as has
been commented upon by the Supreme Court. The ultimate loss
undoubtedly is to the nation.
It is therefore high time that such negligence not be
countenanced and some element of accountability introduced into
the system so that not only are Government servants compelled to
discharge the duties which they are paid for, but public money is
saved so that the element of efficiency is brought into public
dealing.
43. In the instant case, the matter had been brought to the notice
of the highest in the hierarchy of officials. It has passed through
the hands of those with legal training who knew better. Certainly
the mere fact that the file was carried from one table to another
and left there for unexplained duration, cannot by itself be
sufficient to condone the delay, if it were permissible.
In view of the foregoing discussion, the petitioner has failed
to render even satisfactory explanation for condonation of delay
even if the same were condonable, which I have held it is not.
For all the reasons stated, I.A. No. 9821/2005 is hereby
dismissed.
So far as I.A. No. 1759/2006 filed by the respondent is
O.M.P. No. 448/2005 27
concerned, the objections filed by the petitioner are delayed
beyond the condonable period and consequently have to be
dismissed in the light of the statutory provisions and the law laid
down by the Apex Court.
In view of the reasons recorded hereinabove, this application
deserves to be allowed.
(GITA MITTAL)
JUDGE
March 6, 2007
SD
O.M.P. No. 448/2005 28