The duty of authorities to prevent unauthorized occupation of public land and the illegality of demolition carried out without notice and in violation of an injunction order.

Prathiba M. Singh, J.

CM APPL. 38630/2016 (delay in filing), CM APPL. 38631/2016 (delay in re-filing), CM APPL. 38629/2016 (stay) in RFA 821/2016

1. Arguments have been heard on the applications for condonation of delay in filing and re-filing as also on merits.

2. The present appeal impugns order dated 20th July, 2015 passed by learned Additional District Judge by which the suit by the Respondent/Plaintiff (hereinafter ‘Plaintiff’) has been decreed for a sum of Rs.50,000/- along with the pendente lite and future interest @ 6% per annum.

3. The limitation period for filing the appeal expired on 19th October, 2015. The appeal was filed on 29th January, 2016 and on the same date the Registry scrutinized the appeal. The matter was returned under objections. On 5th October 2016, the appeal was re-filed. The Appellant (‘hereinafter MCD’) prays for condonation of delay of 97 days in filing the appeal and 215 days in re-filing the appeal.

4. The Court has perused the reasons given in both the applications. There is no plausible and valid explanation firstly in filing, inasmuch as the certified copy was obtained by the MCD on 31st August, 2015 itself. Despite that, the appeal was not filed till January, 2016. Insofar as the refiling is concerned, the only reason given is that the file was lost by the clerk of the counsel.

5. The Court has perused the record as also the reasons sought for condonation of delay. The Supreme Court in Office of Chief Post Master General & Ors. Vs. Living Media India Ltd. & Anr. 2012 Law Suit (SC) 124 clearly held that the law of limitation binds the governmental authorities and there cannot be any relaxation given to the same. Condonation of delay has been held to be the exception and not the rule.

6. Condonation insofar as re-filing is concerned, the same appears to be a mistake by the office of the counsel engaged by the MCD. In view thereof, the MCD cannot be held responsible for the same. Condonation of delay in re-filing is condoned.

7. Insofar as the delay of 97 days after obtaining the certified copy on 31st September, 2015 is concerned, though seeking of legal opinion is not a tenable ground, in the facts and circumstances of this case, the delay of 97 days is condoned subject to payment of costs of Rs. 10,000/-.

8. On merits, the case of the MCD is that the Plaintiff was an unauthorized occupant of public land and thus, the demolition which was carried out, was valid and legal. The suit filed by the Plaintiff prays for a sum of Rs.10 Lakhs towards damages on the ground that the demolition was illegal and unlawful and was without notice. Learned counsel for the Plaintiff submits that an earlier suit for injunction being Suit no. 45/1992 had been filed by him in which MCD was a party and a restraint order was passed in the said suit on 25th February, 1992. Though the said suit was subsequently dismissed on 31st March 2001, on the date when the demolition took place i.e. 10th August, 2000, the injunction order was in operation and that too without notice. In these circumstances, the learned trial court awarded a sum of Rs.50,000/- along with the pendente lite and future interest @ 6% per annum.

9. There is no dispute to the proposition that unauthorized occupation or encroachment of public land cannot be condoned. Authorities are duty bound to ensure that public land is not encroached upon and if encroachments are found, the same ought to be dealt with strictly and in accordance with law. The power of the MCD to take action against unauthorized occupation exists in the statute and has to be exercised in accordance with law.

10. The brief background of the present litigation is that the demolition action had taken place against the Plaintiff for having encroached upon the public land belonging to the MCD. The said demolition action was carried out on 10th August, 2000. Previously the Plaintiff had filed a civil suit bearing no.45/92, which was dismissed by the Trial Court on 31st March, 2001 on the gro