Order 1

Order Details: Other
Pdf Text: 1 Delay appln.86.18
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
Delay Application No.86 of 2018
In
Misc.Appeal Stamp No.4702 of 2018
Gokulesh Premises CHS. ..Appllicant/
Org. respdet.no.7
V/s.
The Board of Trustees of
Port of Mumbai & Ors. ..Respondents
Coram : H.H.THE PRINCIPAL JUDGE
Mrs.P.V. GANEDIWALA
Dated : 16th April,2018
(C.R.No.19)
Advocate Mr.Viren Ashar for applicant.
Advocate Mr.N.B. Bhadang with Advocate Mr.Ajay Khaire for
respondents.
O R A L O R D E R
This is an application to condone the delay of 102 days in
filing appeal under Section 9 of the Public Premises (Eviction of
Unauthorized Occupants) Act,1971 (hereinafter referred to as the ' PPE
Act, 1971') assailing the order dated 7th December,2017 passed by the
Estate Officer under Section 5, 5(1), 7(1) and (2)(A) and u/s. 7(2A)(2)
of the Public Premises (Eviction of the Unauthorized Occupant)
Act,1971 for eviction and payment of rent and damages.
2 The applicant herein is a society registered under the
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provisions of the Maharashtra CoOperative Housing Societies Act,1960.
3 The respondent no.1 is the Board of Trustees of the Port of
Mumbai, a statutory Corporation, constituted under the Major Port
Trusts Act, 1963.
2 The applicantsociety states that the respondent no.1 viz.
the Board of Trustees of the Port of Bombay had let out to the
respondent nos.3 to 8, a plot of land bearing No.F.P. 80 A, admeasuring
406.43 sq.mtrs. situated at Elphinstone Estate, Mumbai on a 30 years
lease commencing from 16/2/1974 and expiring on 15/2/2004 on
certain terms and conditions. The respondent nos.3 to 8 (since 1976)
had sold various units in the constructed building in the plot to the
members of the applicantsociety. The respondent no.1 by Notice of
Termination dated 4/12/2014 terminated the lease/ tenancy in respect
of the said plot of land bearing no.F.P. 80 and called upon the
respondent nos.3 to 8 to quit, vacate and handover vacant and peaceful
possession of the said plot of land failing which they threatened to file
proceedings under the PPE Act, 1971.
3 Thereafter, on 29th July,2015, the respondent no.1 filed
petition against the respondent nos.3 to 8 and the applicantsociety
under the PPE Act 1971, for eviction, payment of rent and damages.
The respondent no.2, issued show cause notice/s under Section 4 and 7
of the 1971 Act.
4 The applicantsociety states that upon receiving the Show
cause notice from the respondent no.2, the applicantsociety
immediately contacted advocate Mrs.Sadhna Patil and instructed to do
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the needful. She appeared and filed her Vakalatnama and reply on
behalf of the appellant. No one appeared for respondent nos. 3 to 8.
5 The applicantsociety states that thereafter the proceedings
were continued by the Estate Officer exparte as no one appeared for
applicantsociety and exparte orders came to be passed by the Estate
Officer respondent no.2 on 7/12/2017.
6 The applicantsociety states that they were under bonafide
belief that having instructed their advocate and having paid her fees,
she would diligently attend the matter; but she has failed to do so and
hence exparte orders came to be passed on 7/12/2017.
7 The applicantsociety states that all the office bearers of the
society have been shifted to other places and therefore there is no
responsible person is available in the society office in the suit premises
on a regular day to day basis since the past few years. The applicant
society has no managerial staff at its society office in the suit premises,
and the same remains usually locked.
8 The applicantsociety states that it was only much later on
25/3/2018, when the Secretary Mr.Mehta visited the suit premises
their watchman Tarakant Mishra handed over him the exparte
impugned order which had been handed over to him by Mr.Bajarang
Mittal, viz. their society member with instructions to hand it over to the
Secretary. On enquiry with Mr.Bajran Mittal, he informed that he
remembered handing over “some papers” to the watchman Tarakant
Mishtra some time ago, but did not remember the contents thereof.
Mr.Mehta states that on 25/3/2018 he also saw some paper pasted on
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the wall of the suit premises. He says that thereafter, realizing that ex
parte orders for eviction etc. had been passed, and realizing the urgency
in the mater, a Managing Committee meeting of the appellant society
was called on 27/3/2018; and immediately a Resolution was passed
during the said meeting delegating him the authority to file the present
Appeal. He immediately approached and appointed suitable advocate
and instructed him to draft and file the present appeal.
9 In view of the above reasons, the appellansociety prays to
condone the delay of 102 days in filing the appeal. The appellant states
that there is no deliberate delay or dilatory tactic in filing the appeal
beyond the statutory time prescribed.
10 The respondent no.1 strongly objects the application vide
its affidavit in reply and additional affidavit.
11 I have heard both the ld.counsels on behalf of both the
parties.
12 The ld.counsel for the applicant reiterated the reasons for
the delay as specified in their application and relied on the following
authorities in support of his contention.
In the judgment of N.Balakrishnan V/s. M.
Krishnamurthy, reported in (1998) 7 Supreme Court Cases,123, it
is inter alia held as under:
“Section 5 of the Limitation Act does not say
that such discretion can be exercised only if the delay is
within a certain limit. Length of delay I no matter,
acceptability of the explanation is the only criterion.
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Sometimes delay of the shortest range may be
uncontainable due to want of acceptable explanation
whereas in certain other cases delay of very long range
can be condoned as the explanation thereof is
satisfactory.”
13 In the judgment of Collector, Land Acquisition Anantnag
and another V/s. Mst.Katiji and others, reported in (1987) 2
Supreme Court Cases 107, it is inter alia held as under:
“It is common knowledge that this Court has
been making a justifiably liberal approach in matters
instituted in this Court. But the message does not appear
to have percolated down to all the other courts in the
hierarchy. And such a liberal approach is adopted on
principle as it is realized that:”
14 In the judgment of Special Land Acquisition Officer V/s.
Lilavatiben Kodar Ranchood and ors., reported in
MANU/GJ/0176/2002, it is inter alia held as under:
“Para 8, III”9. The expression “sufficient cause” must
receive a liberal construction so as to advance
substantial justice and generally delays in preferring the
appeals are required to be condoned in the interest of
justice where ino gross negligence or deliberate inaction
or lack of bona is imputable to the party seeking
condonation of delay.
15 In the judgment of Rafiq and another V/s. Munshilal
and another, reported in (1981) 2 Supreme Court Cases 788, it is
inter alia held as under:
“After engaging a lawyer, the party may remain
supremely confident that the lawyer will look after his
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interest. At the time of the hearing of the appeal, the
personal appearance of the party is not only not required
but hardly useful.
16 In the judgment of M.K. Prasad V/s. P. Arumugam,
reported in (2001) 6 Supreme Court Cases,176 it is iner alia held as
under:
“Even through the Appellant appears not to
be vigilant as he ought to have been, yet his conduct
does not, on the whole, warrant to castigate him as
an irresponsible litigant.”
17 While the ld.counsel for the respondent no.1 took me
through the various provisions of the PPE Act,1971 and submitted that
in view of the nature and object of the Act and legislative intent in
amending the provisions of the PPE Act from time to time in order to
curtail the time line and for expeditious release of the public property,
the application deserves to be rejected.
18 I have considered the submissions. At the outset, Section 9
of the PPE Act,1971 provides for appeal before this court. The
limitation period in filing the appeal as it stood originally was of 15
days from the date of publication of order passed under Section 5 of the
Act. The period was further curtailed from 15 days to 12 days by way
of Amendment Act 61 of 1980. In the statement of objects and
reasons of the Amendment Act of 61, it is stated that the Public
Premises (Eviction of Unauthorized Occupants) Act, 1971 was enacted
to provide for speedy and summary eviction of unauthorized occupants
from the premises of the Central Government. It was proposed to make
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amendments of Sections 3, 4, 5, 9 and 18 of the Act with a view to
overcome the difficulties which have been experienced in the working
of the Act and to make the administration of the Act more effective.
The amendments of Sections 4 ,5 and 9 of the Act was proposed the
period for showing cause against notice of eviction from 10 days to 7
days, eliminating personal hearing after cause is shown by an
unauthorized occupant, reducing the period within which the
unauthorized occupant should vacate the premises after eviction orders
have been passed from 30 days to 15 days, and reducing the period
for filing an appeal against the order of an Estate Officer from 15
days to 12 days.
19 After passing of the Amendment Act 61 of 1980, the PPE
Act,1971 is made applicable in relation to premises belonging to or
taken on lease by or on behalf of autonomous and statutory
organisations, such as major ports, Bhakra Management Board,
Universities etc as considerable difficulties have been experienced by
these organisations in evicting unauthorized occupants from their
premises.
20 The Hon'ble Supreme Court in the case of S. D. Bandi V/s
Divisional Traffic Officer, Karnataka Road Transport Corporation and
others, judgment dated 05/07/2013 in Civil Appeal No. 4046/2004
(2013) 12 SCC 631 had given twenty suggestions with regard to the
procedure and time line for eviction of unauthorized occupants from
public premises.. The Parliamentary Standing Committee on Urban
Development had also given certain observations/recommendations on
Public Premises (Eviction of Unauthorised Occupants) Amendment Bill,
2011 aimed at smooth and speedy eviction of unauthorized occupants
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from the public premises in a time bound manner. In order to give
statutory form to the recommendations of the Parliamentary Standing
Committee and the suggestions of the Hon'ble Supreme Court in the
aforesaid judgment which have been accepted by the Government and
certain amendments have been proposed in section 4, section 5, section
7 and section 9 of the PPE Act, 1971.
21 One of the suggestions of the Hon'ble Supreme Court in the
aforesaid judgment to the appellate authority under PPE Act,1971 is
regarding to condone delay for filing appeal. The said suggestion is in
para 33.17 of the judgment which is in the following language :
“33.17 The liberty of the appellate officer to condone
delay in filing the appeal under section 9 of the Act should
be exercised very reluctantly and it should be an
exceptional practice and not a general rule.”
The wordings in this suggestion clearly convey the message to the
subordinate judiciary, keeping in view the object and purpose of the
Act, that the discretion to condone delay is to be used sparingly,
reluctantly and it should be an exceptional practice and not a general
rule.
22 In view of the above suggestion of the Hon'ble Apex Court ,
the Parliament enacted the Amendment Act 2 of 1915, proviso to sub
section 2 of Section 9 is substituted in the following terms
“Provided that the appellate officer may
entertain the appeal in exceptional cases after the
expiry of the said period, if he is satisfied for reasons
to be recorded in writing that there was compelling
reasons which prevented the person from filing the
appeal in time.”
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The proviso to sub section 2 of Section 9 as stood earlier was in the
following terms:
“ Provided that the appellate officer may entertain
the appeal after the expiry of the said period , if he is
satisfied that the appellant was prevented by sufficient
cause from filing the appeal in time.”
23 While Section 5 of Limitation Act provides as under:
“Extension of prescribed period in certain
cases Any appeal or any application, other than an
application under any of the provision of Order XXI
of the Code of Civil Procedure,1908, may be
admitted after the prescribed, if the appellant or the
applicant satisfies the Court that he had sufficient
cause for not preferring the appeal or making the
application within such period.”
On comparing the terminology of Section 5 of Limitation Act with
the proviso to Section 9(2) of PPE Act,1971 as it stood earlier (prior to
amendment) the words “sufficient cause” is appearing in both these
provisions. While comparing the terminology of Section 5 of Limitation
Act with the proviso to Section 9(2) of PPE Act,1971, after amendment
the words “sufficient cause” have been substituted for “compelling
reasons”.
24 Ld.Counsel for the applicants stressed on the point of
application of the provisions of Limitation Act in view of Section 29(2)
of the Limitation Act. There is no doubt about it. Sections 4 to 24 of the
Limitation Act, 1963 are applicable to the PPE Act in view of Section 29
(2) of Limitation Act.
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25 In the instant case, the reasons for the delay alleged to be
that applicants advocate did not appear before the Estate Officer and
hence the exparte order was passed against it. And the copy of the
order was received by the Joint Secretary of the society. He being a
Hindi speaker, studied upto 11th standard only signed as received and
handed over the same to the watchman to be given to the Secretary. It
was only given on 27th March,2018.
26 The reasons as stated above do no appear to be the
compelling and the exceptional circumstances. It is difficult to digest
that the officer bearer of the society of the rank of Jt.Secretary even
after knowing the order passed and the copy is affixed to the premises,
does not care to inform the Secretary and left it with the watchman to
be given to the Secretary. As rightly submitted by the Ld.Counsel for
respondent no.1 that the story as narrated above cannot be believed. It
does not reflect the behavior of an ordinary prudent man in similar
circumstances. The Parliament has taken all pains to undergo the
cumbersome procedure of amendment of the PPE Act,1971 to expedite
the enquiry proceeding before the Estate Officer in order to remove the
difficulties as experienced in working of the law prior to the
amendment and curtailed the period of limitation from 15 days to 12
days, is not a mere formality. It has some purpose in public interest,
being the public property. Otherwise, three days delay is negligible so as
to attract the attention of the legislature and the need was felt to curtail
it. Furthermore, even the Hon'ble Supreme Court thought it proper to
curtail the discretion of the appellate authority while deciding delay
application, by setting up detailed guidelines with time lines in the case
of Bandi (cited supra) which have been graciously accepted by the
legislature by passing the PPE, Amendment Act of 2015.
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27 The bunch of authorities as cited by the Ld. Counsel for the
applicant are no doubt the landmark judgments of Hon'ble Supreme
Court and the High Courts on section 5 of the Limitation Act. There is
no doubt about the interpretation of section 5 of the Limitation Act.
The law is well settled. Had the present case is u/s. 5 of the Limitation
Act, it would have been definitely a case deserving condonation of
delay. In addition to this, this is not the case of 8 or 10 days delay. It is
a case of delay of 102 days. As stated above, the wordings of Section 5
of the Limitation Act and proviso to Section 9(2) of the PPE Act,1971
are different. Though the appellate authority under PPE Act is
empowered to condone delay, however, discretion is to be used
sparingly and reluctantly and not liberally as being construed for
condoning delay under Section 5 of the Limitation Act.
28 Furthermore, the present application is not for setting aside
exparte decree so as to consider the absence of advocate favourably in
favour of the party being not at fault.
29 In view of the above reason I am not inclined to condone
delay of 102 days. Hence, I pass the following order:
O R D E R
Delay Application No.86/2018 stands rejected with costs.
16/04/2018 (P.V. GANEDIWALA)
Principal Judge,
Gr.Bombay.
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Dictated on : 16/04/2018
Transcribed on : 16/04/2018
Signed by HHJ on :
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER
Name of Stenographers: Mrs.Aruna S. Jayade
Upload date and time: 21/04/2018 (At 11.30 a.m.)
Name of the Judge H.H.THE PRINCIPAL JUDGE
Mrs.P.V.GANEDIWALA(C.R.No.19)
Date of Pronouncement of Order 16th April,2018
Order signed by P.O. on 20th April,2018
Order uploaded on 21st April,2018
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