Baldev Sharma vs Municipal Corporation, Shimla

Satyen Vaidya, J

By way of this petition, the petitioner has assailed order dated 08.04.2024 passed by the Divisional Commissioner, Shimla Division in Appeal No. 177/2020, whereby the application of the respondent herein for condonation of delay has been allowed.

The Municipal Corporation, Shimla ( for short “the Corporation”) initiated proceedings under Section 4 of the Himachal Pradesh Public Premises (Eviction and Rent Recovery) Act, 1971 (for short “the Act”) for eviction of petitioner. Eviction was claimed on the ground that the lease held by the petitioner had expired and hence the occupation of petitioner was unauthorised. The Collector under the Act, decided in favour of the petitioner and application of the Corporation was dismissed vide order dated 2.11.2016.

The corporation filed an appeal before the Commissioner, Shimla Division (for short “the Commissioner”) under Section 9 of the Act on 19.10.2020. Since, the appeal was barred by limitation, the corporation filed an application under Section 5 of the Limitation Act for condonation of delay in filing the appeal.

The Commissioner has allowed the application of Corporation for condonation of delay vide impugned order dated 08.04.2024. Hence this petition.

I have heard learned counsel for the parties and have also gone through the entire record carefully.

Shri Sanjeev Bhushan, learned Senior Advocate representing the petitioner would contend that the impugned order sans reasons. He would submit that the impugned order is result of failure to exercise jurisdiction in accordance with law; as the Commissioner has allowed the application without any sufficient cause being shown by the Corporation.

On the other hand, Shri Mukul Sood, Advocate representing the Corporation has submitted that the Corporation had duly explained the reasons for delay and had thereby made out a case of sufficient cause in not filing the appeal within the prescribed period of limitation.

Admittedly, there was a duly of more than 3 years and 10 months in filing the appeal. In the application for condonation of delay, it was submitted that after passing of order dated 02.11.2016 by the Collector, efforts were made to trace out the original lease deed executed by the petitioner with the Waqf Board along with correspondence made with the petitioner and others. Since, the case was very old it took sufficient time to trace out the relevant record. It was further submitted that there was involvement of huge financial implications and the matter was placed before the the General House of the Corporation through the Finance, Contract and Planning Committee. The said Committee, according to Corporation, was competent to take decision of the filing of appeal against order dated 02.11.2016. After due deliberations, another Committee was constituted of public representatives and officers of the Corporation to suggest the possible remedies. The said Committee submitted its report to Finance, Contract and Planning Committee which further placed the same before the General House of the Corporation in its meeting held on 31.01.2020. The General House of the Corporation endorsed the recommendation of the Finance, Contract and Planning Committee.

As per the Corporation, despite best efforts the issue remained unresolved, the Corporation was left with no other remedy except to assail the order dated 02.11.2016. Thereafter, due to Covid-19 pandemic, the appeal could be filed in October, 2020.

Reply was filed by the petitioner to the application for condonation of delay. It was alleged that no cause much less sufficient cause was made out from the contents of the application. The petitioner had acquired the vested right, which could not be taken away lightly.

In rejoinder filed by the Corporation, the facts as alleged in the application were reiterated. In addition, it was submitted that the order dated 02.11.2016 had not been published in accordance with law till the date of filing of rejoinder and for such reason the law relied upon by the petitioner would not be applicable to the facts of the case.

Section 9 of the Act provides for filing of appeal against the order passed by the Collector under Section 5 of the Act within 30 days from the date of publication of the order under sub-section (1) of Section 5 of the Act. The Commissioner has been vested with power to entertain the appeal after expiry of period of 30 days, if he is satisfied that the appellant was prevented by sufficient cause from filing the appeal in time.

The impugned order reveals that the Commissioner has allowed the application for condonation of delay by holding as under:-

“7. After hearing the parties and having gone through the contents of application, reply it has been observed that the matter remained under examination at various channels right from the Constitution of Committee and also with General House of Municipal Committee. There are sufficient reasons and explanation as rendered by the applicant and I am convinced that the delay in filing appeal is neither interdentally nor deliberate.

The issue is no longer res integra. Delay, however, may be condoned if it has been explained satisfactorily. The present case is securely covered under the judgment of Hon’ble Supreme Court in Civil Appeal No.8577 of 2014, titled as Executive Officer, Antiyur Town Apanchayat Vs. G. Arumugam (D) by LRs. The Hon’ble Supreme Court has held as under:-

“As held by this Court in State of Nagaland Vs. Lipok Ao and others (2005)3 SCC 752, the court must always take a justice-oriented approach while considering an application for condonation of delay. If the Court is convinced that there had been an attempt on the part of the government officials or public servants to defeat justice by causing delay, the court, in view of the larger public interest, should take a lenient view in such situation, condone the delay, however huge may be the delay, and have the matter decided on merits.

Accordingly, we set aside the impugned order and condone the delay of 1373 days in filing the second appeal.”

As a sequel of aforesaid discussion, the present application under section 5 of the Limitation Act, is allowed and the delay in filing appeal is condoned. A copy of this order be placed on the main appeal file of this Court and the main appeal numbered as 177/2020 shall be decided separately.”

Thus, it is evident that the Commissioner has considered the averments made in the application for condonation of delay as gospel truth. He has found the sufficient cause only for the reason that the matter was allegedly examined at various channels of the Corporation.

In Brahampal alias Sammy and Anr. vs. National Insurance Company, (2021)6 SCC 512, the Hon’ble Supreme Court has underlined the duties of Courts while deciding application for condonation of delay as under:-

“22. Undoubtedly, the statute has granted the Courts with discretionary powers to condone the delay, however at the same time it also places an obligation upon the party to justify that he was prevented from abiding by the same due to the existence of “sufficient cause”. Although there exists no strait jacket formula for the Courts to condone delay, but the Courts must not only take into consideration the entire facts and circumstances of case but also the conduct of the parties. The concept of reasonableness dictates that, the Courts even while taking a liberal approach must weigh in the rights and obligations of both the parties. When a right has accrued in favour of one party due to gross negligence and lackadaisical attitude of the other, this Court shall refrain from exercising the aforesaid discretionary relief.”

In the case in hand, even if, the averments made in the application were taken to be correct, still these could not be said to have qualified the requisite parameters. It was not in dispute that the premises from which eviction of petitioner was sought was not the same premises which was earlier leased to the petitioner by the Waqf Board. That being so, it is not understandable as to why the Corporation required the original lease deed executed by the Waqf Board with the petitioner in respect of some other premises, for the purpose of filing the appeal. Even otherwise, the order dated 02.11.2016 was passed by the Collector in second round. In the first instance the order dismissing the application of the Corporation was passed by the Collector on 22.02.2007. The corporation had filed an appeal against the said order, which came to be decided on 04.10.2010 and the matter was remanded back. Thereafter it remained pending with the Collector for another about 6 years. Thus, the proceedings under the Act were initiated by the Corporation against the petitioner even prior to the year 2007. In this background, it becomes more important to know as to what was imminent need of the lease deed after passing of order dated 02.11.2016. Further, it has not been mentioned in the application as to when the documents were found by the Corporation. Similarly, the Corporation had failed to provide the dates on which the matter was placed before the General House or was taken by the Finance, Contract and Planning Committee or the Committee specially constituted for the purpose. It has also not been shown as to what was the final decision of such committees. None of these aspects have been considered by the Commissioner. In Brahampal ‘s case (supra) the three Judges Bench of Hon’ble Supreme Court after taking into consideration the value of law of limitation sounded a caution for the Courts to take a strict approach in the cases of inordinate delay and held as under:-

“18. The Court in the abovementioned cases, highlighted upon the importance introducing the concept of “reasonableness” while giving the clause “sufficient cause” a liberal interpretation. In furtherance of the same, this Court has cautioned regarding the necessity of distinguishing cases where delay is of few days, as against the cases where the delay is inordinate as it might accrue to the prejudice of the rights of the other party. In such cases, where there exists inordinate delay and the same is attributable to the party’s inaction and negligence, the Courts have to take a strict approach so as to protect the substantial rights of the parties.”

Recently  in  H.  Guruswamy  &  Ors.  vs.  A. Krishnaiah since deceased by Lrs., 2025 SCC Online SC 54, the Hon’ble Supreme Court has held as under:-

“15. The rules of limitation are not meant to destroy the rights of parties. They are meant to see that the parties do not resort to dilatory tactics but seek their remedy promptly.

The length of the delay is definitely a relevant matter which the court must take into consideration while considering whether the delay should be condoned or not. From the tenor of the approach of the respondents herein, it appears that they want to fix their own period of limitation for the purpose of instituting the proceedings for which law has prescribed a period of limitation. Once it is held that a party has lost his right to have the matter considered on merits because of his own inaction for a long, it cannot be presumed to be non-deliberate delay and in such circumstances of the case, he cannot be heard to plead that the substantial justice deserves to be preferred as against the technical considerations. While considering the plea for condonation of delay, the court must not start with the merits of the main matter. The court owes a duty to first ascertain the bona fides of the explanation offered by the party seeking condonation. It is only if the sufficient cause assigned by the litigant and the opposition of the other side is equally balanced that the court may bring into aid the merits of the matter for the purpose of condoning the delay.

We are of the view that the question of limitation is not merely a technical consideration. The rules of limitation are based on the principles of sound public policy and principles of equity. No court should keep the ‘Sword of Damocles’ hanging over the head of a litigant for an indefinite period of time.”

In light of above discussion, there is no difficulty to hold that the Commissioner has failed to exercise the jurisdiction vested in him in accordance with law. A quasi judicial order that sans reasons cannot be sustained. This Court has found that the Corporation had failed to show sufficient cause, even the bonafide of the Corporation in delaying the matter is not clear. All the important aspects of the matter have completely been ignored by the Commissioner.

In result, the instant petition is allowed and the order dated 08.04.2024 passed by the Divisional Commissioner, Shimla Division is set aside and the application of the Corporation for condonation of delay in filing the appeal is dismissed.