Case: UNIVERSITY OF DELHI Vs. UNION OF INDIA

3. The challenge in the writ petition was, inter alia, to the decision dated 12.5.2011 of the Delhi Development Authority (hereinafter referred to as the, DDA for short) who had allowed respondent no.13¬M/s Young Builders (P) Ltd. to construct a high¬rise multistory group housing society in the control zone of Zone-C in the University campus, without any height restriction. The construction 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 station6. The learned Single Judge having noticed the entire sequence refused to entertain the writ petition of the University including on the ground of delay and laches. In the judgment dated 27.04.2015 the Court however observed that DDA is the master of the formulation and implementation of the Master Plan and, necessary approvals have been taken from various statutory authorities for the housing project. It was also observed that the change in the land use from public to residential is permissible by adverting to the Delhi High Courts Division Bench Judgment in Adil Singh vs. Union of India (2010) 171 DLT 748. According to the Writ court, since it was a policy decision taken by the Government body and since the appellant-University has failed to demonstrate any illegality, impropriety, mala fide in the decision making by the authority, interference of the Court with the policy decision, would not be justified7. It is the case of the appellant that following the dismissal of the writ petition and being concerned about the future use of the subject land, the University Authorities constituted a Committee to recommend the appropriate course of action to be taken by the University. The Committees report furnished 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 intra¬Court Appeal in the High Court8. While the above deliberations were on, accessibility concern to the Universitys 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 appeal9. 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(i) Non¬convening of Executive Council and delay occasioned due to non-availability of ViceChancellor. The case in the present LPA is different from other routine litigation preferred or contested by the appellant. It is the only case where, the approval from the Executive Council of the University of Delhi was required to be taken and before such approval, various deliberations preceded so as to appraise the Executive Council of the different shades of the subject matter. Being a statutory body, an adherence to the just method of decision making requires consultations with affected departments of the University itself and therefore, the final say in the matter rests with the Executive Council which is constituted under Section 21 of the Delhi University Act, 1922. The Council includes the senior most Deans, democratically elected representatives of teachers, the Visitors nominee, the Registrar, and the Vice¬Chancellor(ii) The judgment of learned Single Judge was sent by the Counsel representing the University quite late and it was, then, place before the Legal Cell of the University for examining the matter. After going through the voluminous paper book, it was opined that the matter be referred to the ViceChancellor for consideration and pursuant thereto, a meeting was held, wherein it was decided that the matter needs to be dealt with holistically, having regard to all the issues decided and connotations thereof. The issue could not be taken up for consideration as the post of ViceChancellor had fallen vacant w.e.f. 28.10.2015 and could be considered only after the new Vice Chancellor had assumed office and taken stock of things. On 10.03.2016, the new Vice¬Chancellor joined the office and in order to ensure democratic functioning of the University, he decided to constitute a Committee comprising of senior faculty persons representing different sections of the University. The terms of reference of the Fivemember Committee were, to recommend the course of action to the University in the light of the dismissal of the Writ Petition filed by the University in the DMRC matter(iii) On 11.11.2016, the above constituted Committee gave its Report. Based on the Report of the five¬member Committee, it was decided by the Competent Authority that the subject matter of the present case be referred to the Executive Council of the University for its final decision. In the Executive Council meeting held on 28.02.2017, the matter was discussed. The item was again discussed in the Executive Council 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 various levels of the University including the Office of the Dean, Student Welfare, the Department of legal affairs, the Office of the Proctor, the Engineering Department, and the Department of Environmental Studies. Holding discussions and deliberations among these bodies and considering their inputs involved further time and it involved co-ordination and interaction with various authorities and stake holders. All this exercise involved a further period of five to six months before a considered opinion could be generated by the University of Delhi. Hence the representations and the Report of the Equal Opportunity Cell could be finally considered by the University of Delhi around the end of year 2017(v) In the interregnum, the accidents occurred at Chhatra Marg in December 2017 led to the need for the preparation of a Report by the Office of the Proctor of the University dated 05.02.2018 wherein the Proctor recommended the area to be declared as accident prone. Both the Reports ¬ one by the Equal Opportunity Cell and the other by the Office of Proctor ¬- were sent to the Counsel concerned who was holding the brief for the preparation of the Appeal memorandumSubsequently legal opinion was sought and the draft appeal and petition was prepared which was thereafter got vetted and settled by the Senior Counsel. The finalized Appeal was thereafter again considered at the highest level at the University to take the final decision, which entailed some time. On 01.03.2018, the LPA was filed before the Delhi High Court10. The above explanation for the delayed filing was however not accepted and the Division Bench of the High Court on 29.10.2018 dismissed the LPA on the ground of delay without considering the merits of the appeal. Thus, aggrieved the appellant-University has filed this appeal.

Reasoning: 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 of delay. The consideration for condonation of delay would not depend on the status of the party namely the Government or the public bodies so as to apply a different yardstick but the ultimate consideration should be to render even¬ handed justice to the parties. Even in such case the condonation of long delay should not be automatic since the accrued right or the adverse consequence to the opposite party is also to be kept in perspective. In that background while considering condonation of delay, the routine explanation would not be enough but it should be in the nature of indicating sufficient cause to justify the delay which will depend on the backdrop of each case and will have to be weighed carefully by the Courts based on the fact situation. In the case of Katiji (Supra) the entire conspectus relating to condonation of delay has been kept in focus. However, what cannot also be lost sight is that the consideration therein was in the background of dismissal of the application seeking condonation of delay in a case where there was delay of four days pitted against the consideration that was required to be made on merits regarding the upward revision of compensation amounting to 800 per cent21. As against the same, the delay in the instant facts in filing the LPA is 916 days and as such the consideration to condone can be made only if there is reasonable explanation and the condonation cannot be merely because the appellant is public body. The entire explanation noticed above, depicts the casual approach unmindful of the law of limitation despite being aware of the position of law. That apart when there is such a long delay and there is no proper explanation, laches would also come into play while noticing as to the manner in which a party has proceeded before filing an appeal. In addition in the instant facts not only the delay and laches in filing the appeal is contended on behalf of the respondents seeking dismissal of the instant appeal but it is also contended that there was delay and laches in filing the writ petition itself at the first instance from which the present appeal had arisen. In that view, it would be necessary for us to advert to those aspects of the matter and notice the nature of consideration made in the writ petition as well as the LPA to arrive at a conclusion as to whether the High Court was justified22. The entire explanation for the inordinate delay of 916 days is twofold, i.e. the non-availability of the ViceChancellor 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. Secondly, the reason sought to be put forth about the decision required to be taken by the Executive Council is also not acceptable when it was just the matter of filing the appeal. In fact, in the writ petition an affidavit was filed referring to Resolution No.56 and 173 of Academic Council and Executive Council authorising for filing writ petition. When the writ petition was filed based on such authorisation and the stand of the appellant, as the writ petitioner was put forth and had failed in the writ petition, it cannot be accepted that the appellant with all the wherewithal was unable to file the appeal, that too when the same Vice¬Chancellor was available for six months after dismissal of the writ petition. Hence the reasons put forth cannot in our opinion constitute sufficient cause23. That apart, as rightly noticed by the Division Bench in the LPA, the approval from the Executive Council was obtained on 28.02.2017 / 07.03.2017, the appeal was ultimately filed on 01.03.2018 after an year from the said date which only indicates the casual approach which is now sought to be overcome with the plea of public interest despite there being no explanation for the delay at every stage. It is true that as held in the case of Mst. Katiji (supra) that every days delay need not be explained with such precision but the fact remains that a reasonable and acceptable explanation is very much necessary. The Division Bench apart from noticing these aspects had also noted that the learned Single Judge too found the writ petition to be hit by delay and laches24. In that backdrop, a perusal of the order dated 27.04.2015 passed by the learned Single Judge would indicate that the learned Single Judge in para – 65 of the order with reference to his earlier observation has arrived at the categorical conclusion that the petition suffers from laches and has been filed with delay of 7¬8 years. The learned Senior Counsel for the appellant while seeking to dispel such conclusion by the learned Single Judge contended that the respondent No. 13 themselves had filed a writ petition being aggrieved by the restricted FAR and the said writ petition was disposed only on 18.05.2011 and the need for the appellant herein to file the writ petition arose only thereafter. The said contention is also not acceptable if the entire sequence is noticed25. In that regard there can be no 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 Judge26. 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 earlier petition bearing W.P (C) No.8675/2011 filed by the Association of Metro Commuters wherein also the residential development was an issue, which came to be dismissed by order dated 14.02.2011. Similarly, another petition in W.P(C) No.6624¬6625/2012, though challenging the acquisition was filed, the same was also dismissed. Thereafter the writ petition of the appellant filed in the year 2012 was pending till it was disposed on 27.04.201527. Despite the writ petition having been filed belatedly in respect of certain actions which had commenced in the year 2005 and even though the writ petition was filed after obtaining approval of the Executive Council, no steps were taken to file the writ appeal for 916 days after disposal of the writ petition. In such circumstance, the cumulative effect of the delay and laches cannot be ignored. The decisions referred by the learned Senior Counsel for the appellant noted Supra cannot, therefore, be applied in the present facts and circumstance inasmuch as the consideration hereunder was not merely the explanation for the delay of few days in filing the appeal. Though contention is put forth that the delay is required to be condoned since public interest is involved, the nature of the proceedings that have taken place thus far would indicate that the matter has been examined at different stages in the earlier litigations and if the grounds on which the appellant was assailing the action of the respondents were to be examined on merits, they ought to have been more diligent in prosecuting the matter before the Court28. In the matter of condonation of delay and laches, the well accepted position is also that the accrued right of the opposite party cannot be lightly dealt with. In that regard, rather than taking note of the hardship that would be caused to the respondent No.13 as contended by the learned Senior Counsel, what is necessary to be taken note is the manner in which the respondent No.11 – DMRC has proceeded in the matter. The respondent No.11- DMRC is engaged in providing the public transport and for the said purpose the Government through policy decision has granted approval to generate resources through property development and in that regard the development as earlier indicated, is taken up. Pursuant thereto the respondent No.11 has received a sum of Rs.218.20 crores from respondent No.13 as far back as in the year 2008. The said amount as indicated is used for its projects providing metro rail service to the commuting public. In such circumstance, if at this stage the inordinate delay is condoned unmindful of the lackadaisical manner in which the appellant has proceeded in the matter, it would also be contrary to public interest29. Therefore, taking into consideration all these aspects of the matter, we are of the opinion that not only the learned Single Judge was justified in holding that the writ petition inter alia is hit by delay and laches but the decision of the Division Bench in dismissing the LPA on the ground of delay of 916 days is also justified and the orders do not call for interference.