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TMI Blog2019 (12) TMI 1293X X X X Extracts X X X X X X X X Extracts X X X X ..... on permission was allowed on the plot leased out to the Delhi Metro Rail Corporation (hereinafter referred to as the, "DMRC" for short) by permitting segregation of 2 hectares as a separate entity from the total 3 hectares of land, acquired for the metro station. 4. The principal contentions of the appellantUniversity on the merits of the challenge were as follows: a) the permission sought by Respondent No. 13 (namely, M/s Young Builders Private Limited) for the proposed construction of a group housing society on the land originally owned by the Ministry of Defence in the University enclave is violative of the MPD2021 and is against the larger public interest, given the fact that the project site in question and its vicinity are within the North Campus of the University and that it contains various historical and archaeological buildings, apart from it being the centre of higher education and advanced learning; and b) the change in the character of the subject landis impermissible in law, since the land having been acquired for public purpose for construction of the metro rail project, has suddenly been diverted to private commercial use and auctioned to private buil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hed on 11.11.2016 is stated to have been laid before the Executive Council of the University and after due consideration of the report and the judgment of the learned Single Judge, the Executive Council of the University through their resolution dated 28.02.2017/07.03.2017 decided to prefer an intraCourt Appeal in the High Court. 8. While the above deliberations were on, accessibility concern to the University's Metro Station area was raised under the Rights of Persons with Disabilities Act, 2016 by persons with disabilities. The University also received a report on preventive measures to be taken in the accidentprone area of the Metro Station. With these and other projection, the appeal in LPA No.89/2018 came to be filed on 01.03.2018 after a delay of 916 days, together with the C.M.No.8654/2018 for condonation of delay in filing the appeal. 9. The delay of 916 days caused in preferring the Appeal was explained in the application seeking delay condonation and the rejoinder to the reply to said application to the following effect; (i) Nonconvening of Executive Council and delayoccasioned due to nonavailability of ViceChancellor. The case in the present LPA is dif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uncil meeting held on 7.3.2017 (continued meeting), where the members of the Council referred to the earlier discussions and decisions of both the Academic Council and the Executive Council with respect to the same matter and it was decided unanimously to prefer an Appeal against the Order of the learned Single Judge dated 27.04.2015 after adequate preparation. (iv) In the meanwhile, reservation was strongly put forth by the disabled students and faculty in the light of the proposed project by the private builder at the very main entrance of the University of Delhi. Such representations were received from individuals as well as groups which the University had to consider and were therefore forwarded to the Equal Opportunity Cell for consideration. The Equal Opportunity Cell, University of Delhi, which looks after the welfare of disabled students and others, in the light of the new enactment on the Rights of Persons with Disabilities Act, 2016, analyzed the probable outcome. After detailed deliberations, the Equal Opportunity Cell submitted its Report on 28.04.2017 which was brought to the notice of Competent Authorities for their consideration. The Report was considered at variou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deliberate inaction. The endeavor of the Courts according to Shri Parasaran should be to do substantial justice to the parties by deciding the matters on merits but in the present case, neither the learned Single Judge nor the Division Bench of the High Court had considered the merit of the contention raised by the appellant University. Shri Parasaran argues that the expression "sufficient cause" is elastic enough to enable the courts to apply the law of limitation in a meaningful manner. He also projects that since the builders are yet to start their construction, the delayed filing of the LPA should not have resulted in non consideration of the contention on merits, as major public interest issues have been raised in the present matter. The learned Senior Counsel argues that important questions effecting public interest cannot be defeated on technical objection, inasmuch as the proposed site for construction was originally owned by the Defence Ministry and the land was acquired for public purpose at public expense but is now sought to be given over to a private builder, for a profit oriented motive. The said contentions are also supplemented by Shri R. Venkataramani and Shri Ramj ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the LPA. It is contended that the cause of action if any should be construed on 23.09.2005 when the area was converted into residential, but the writ petition was filed only on 07.05.2012 and despite the writ petition having been disposed of on 27.04.2015 the LPA was filed only on 01.03.2018 after a delay of 916 days. The reason assigned that a decision to file the LPA could not be taken as the office of Vice Chancellor had fallen vacant also cannot be accepted since such vacancy arose only on 28.10.2015 while the writ petition had already been disposed of on 27.04.2015 and there was sufficient time to file the LPA if they had the intention to do so. The learned Senior Counsel further refers to the large number of cases that was filed on behalf of the University during the said period. It is contended that while considering condonation of delay the prejudice that would be caused to the opposite side is also one of the aspects to be considered. If that situation is kept in view, in the instant case the request for proposal in favour of the respondent No.13 was notified on 23.06.2008 and the Letter of Acceptance was issued on 13.08.2008 and the lease being for 90 years, already 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llant herein would not be justified. Ms. Binu Tamta, learned Counsel submitted in support of the contentions raised by the respondents. 16. Shri Mohan Parasaran, learned Senior Counsel in reply to the said contention would reiterate the contentions put forth relating to the explanation of delay and would contend that the conclusion of the learned Single Judge that the writ petition was hit by laches is fallacious inasmuch as the respondent No.13 themselves had filed a writ petition raising certain disputes with regard to the limit of FAR through the Notification dated 20.01.2005 and such challenge by the respondent No.13 had come to an end on 18.05.2011 and the NOC etc. were obtained subsequently, after which the writ petition was filed by the appellant herein in the year 2012. Hence the delay and laches has been explained and it is not a case of negligence. It is contended that the stand of the DMRC that it would be put to financial loss cannot be accepted at this point since the question as to whether they would be liable to pay interest or not are matters which would have to be considered in appropriate proceedings. Hence, he contends that the High Court ought to have condoned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties. 3. "Every day's delay must be explained" does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay? The doctrine must be applied in a rational common-sense pragmatic manner. 4. When substantial justice and technicalconsiderations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay. 5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk. 6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so. Making a justice-oriented approach from this perspective, there was sufficient cause for condoning the delay in the institution of the appeal. The fact that it w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there was no gross negligence or deliberate inaction or lack of bona fides, 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 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 the government departments. The law shelters everyone under the same light and should not be swirled for the benefit of a few." 20. From a consideration of the view taken by this Court through the decisions cited supra the position is clear that, by and large, a liberal approach is to be taken in the matter of condonation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lanation for the inordinate delay of 916 days is twofold, i.e. the non availability of the Vice Chancellor due to retirement and subsequent appointment of new Vice Chancellor, also that the matter was placed before the Executive Council and a decision was taken to file the appeal and the said process had caused the delay. The reasons as stated do not appear very convincing since the situation was of availing the appellate remedy and not the original proceedings requiring such deliberation when it was a mere continuation of the proceedings which had already been filed on behalf of the appellant herein, after due deliberation. Significantly, the Vice Chancellor who was at the helm of affairs when the writ petition was filed, prosecuted and disposed of on 27.04.2015 was available in the same office till 28.10.2015, for about six months which was a long enough period as compared to 30 days limitation period for filing appeal. In that circumstance when the said Vice Chancellor who had prosecuted the writ petition was available, the submission of the learned Senior Counsel for the appellant that unseen hands are likely to have prevented the filing of the appeal also cannot be accepted. S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dispute to the fact that the Respondent No. 13 being aggrieved by the decision of DDA had filed a petition bearing W.P. No.3135/2010 assailing the letter dated 19.08.2009 and the same was disposed of only on 18.05.2011 but the appellant cannot take shelter under the same to explain the laches. This is because much water had flown under the bridge before the said development and those events ought to have triggered action from the appellant in challenging, more so when there were other litigations relating to the same subject, as noticed in the order of the learned Single Judge. 26. In the present matter, the land was converted to residential use in 2005 and Respondent No.11 - DMRC had invited bids and public auction was conducted on 28.07.2008 which ought to have awakened the appellant herein for the first time since the fact of conversion of the land into residential development was in public domain even if is assumed that the earlier process of approval etc. by the DDA on the approval request of DMRC are internal process and not be known to the appellant. In fact, the learned Single Judge while taking note of the challenge raised by the appellant herein has also taken note of an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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