Jammu & Kashmir High Court
Babu Ram vs Chief Controller Of Imports And on 14 November, 2013
Author: Hasnain Massodi
Bench: Hasnain Massodi
HIGH COURT OF JAMMU AND KASHMIR AT JAMMU. SWP No. 1469 OF 2002 Babu Ram. Petitioners UOI and ors Respondent !Mr. R. S. Thakur, Sr. Advocate with Mr. Ashwani Thakur, Advocate ^Mrs. Neeru Goswami, Sr. Panel Counsel. Honble Mr. Justice Hasnain Massodi, Judge Date: 14.11.2013 :J U D G M E N T :
1. Petitioner was enrolled in Army (Signal Corps) on 08.02.1949. He was invalided out on 14.07.1953 on medical grounds. The Medical Board, according to the petitioner, declared him as a case of Schizophrenia, assessed his disability as 100%, and placed him in a Medical Category EEE. He, immediately after was boarded out, approached respondents with an application for grant of disability pension. However, the respondents avoided to take any decision on his application and the representations filed from time to time till the petitioner was constrained to invoke through medium of petition on hand, writ jurisdiction of this Court. He seeks a Writ of Mandamus commanding respondents to grant him disability 2 pension with effect from 14.07.1953 with interest @ 24% per annum and to conduct re-survey Medical Board to assess his disability as on date.
2. Petitioners case is that he was hail and healthy, free from any disability or disease at the time of his enrolment in Army and was, therefore, placed in Category AYE by the Medical Board that examined him at the time of his enrolment. He insists that the disease Schizophrenia detected more than five years after he was enrolled, was clearly attributable to and aggravated by the Military Service. Petitioner, in the body of the petition, has referred to the Army Pension Regulations and in particular Regulation 173 to reinforce his claim for disability pension. Paras 4 to 53 refer to the representations made by the petitioner from time to time between 14.10.1953 to 15.03.2002, to the respondents requesting for grant of disability pension and highlighting the grounds in support of such claim. He has appended copies of the representations as Annexures B to A-2 with the petition.
3. The respondents oppose the writ petition on the ground of inordinate and explicable delay. It is pointed out that a cause to ask for disability pension accrued to the petitioner on 14.07.1953 and the petitioner 3 knocked at the door of justice after 50 long years. It is stated that petitioners service record has been destroyed in accordance with Regulation 595 of the Army Regulations and his claim, therefore, cannot be verified on the record. It is disputed that the petitioner rendered pensionable service within meaning of Regulation 132 of Pension Regulations for the Army 1961 (Part I).
4. Respondents deny that the petitioner, was invalided out on medical grounds or that he, submitted representations detailed in paras 4 to 53, enclosed as Annexures B to A-2. It is reiterated that in absence of the service record, the averments made in the petition cannot be responded to or replied. The respondents have disputed that the petitioner has a cause of action to maintain the petition and have sought its dismissal.
5. Petitioner in his rejoinder pleads that delay in approaching the Court cannot stand in the way of the Court to exercise writ jurisdiction. It is pleaded that the law does not prescribe any period of limitation for invoking extra ordinary writ jurisdiction of the Court. The delay, according to the petitioner, is otherwise explained by the inaction on part of the respondents to accord consideration to his successive representations.
4Petitioner denies application of Regulation 132 Pension Regulations to the facts of the case. It is pleaded that the basis for grant of invalidity pension is different from one to be considered for grant of regular pension.
6. I have gone through the pleadings, perused the record available on the file and have heard learned counsel for the parties.
7. The law, as rightly pointed out by the learned counsel for the petitioner, does not prescribe any period of limitation for invoking writ jurisdiction. It does not, however, imply that an extra ordinary and equitable jurisdiction like one under Section 226 Constitution of India read with Section 103 Constitution of Jammu and Kashmir may be invoked any time after the cause of action accrues. A person who has a cause to approach the writ Court with a petition under Section 226 Constitution of India, is duty bound to work out his remedy at an earliest. Law does not favour a person who sleeps over the matter and the Court would not look into the matter that has become stale because of long, inexplicable and inordinary delay. Delay disentitles the party to an equitable discretionary and extraordinary relief. Viewed thus, while no specific period of limitation is prescribed 5 for approaching the Court under Article 226 Constitution of India, yet relief sought is to be refused on the ground of laches. What would be a reasonable time for an aggrieved to fall back upon Article 226 Constitution of India, depends upon facts of each case. There can be no rule of universal application as regards such time or period. However, the time gap between the cause of action and recourse to law must be reasonable and not inordinate or inexplicable.
8. The rationale and logic behind a rule requiring an aggrieved to approach the Court with due dispatch and at an earliest cannot be better explained than by the facts of the present case. The delay in initiating legal proceedings to get a legal injury or infringement of rights redressed, does not extinguish a right. On the other hand, it makes it impossible or impracticable to examine the grievance or grant the relief. It is more a principle of public policy than of law. The Court called upon to examine genuineness of the grievance on the touchstone of law may not find it possible to look into the grievance, to find any merit in the claim projected, Court may have to look into the record contemporaneous with accrual of cause of action. In case, the legal remedy is worked out a long time after a 6 right to go to the Court accrues, the record that forms edifice of the right, and points to its infringement, may not be available. The Court, therefore, would not be in a position to scan the record to check the veracity of the grievance projected, before it. The aggrieved would be disentitled from the relief sought not because there is no merit in his claim but for the reason that it is impossible to examine the claim, declare it genuine and grant the relief.
9. In the case in hand, the petitioner was invalided out of the Army, according to him on medical grounds, on 14.07.1953 without disability pension. He did not take steps to agitate the matter before the Court for more than 50 years. He has filed the petition, on hand, on 24.05.2002. His service record has been destroyed in accordance with Rules. It is no more possible to examine whether he was boarded out on medical grounds and if so what was the disease detected and what was the opinion of the Medical Board as regards nature of the disease and its attributability to military service. The record sought to be pressed into service by the petitioner to plead that he had been all along insisting on redressal of his grievance through periodic representations, is unilateral and not verifiable on the 7 basis of the record. It is not possible to conclude whether such representations were addressed to the respondents, let alone opine whether filing of the representations would justify failure to have recourse to law.
10. I am of the considered opinion that long and inordinate delay stretching over a period of more than 50 years, renders the petitioners case stale and hit by laches. While holding so, I seek guidance from observations made by the Supreme Court in following reported cases:
In Amrit Lal Berry v. Collector of Central Excise, New Delhi and others, (1975) 4 SCC 714 Court observed:-
If a petitioner has been so remiss or negligent as to approach the Court for relief after an inordinate and unexplained delay, he certainly jeopardizes his claims as it may become inequitable, with circumstances altered by lapse of time and other facts, to enforce a fundamental right to the determinant of the similar claims of innocent third persons. 8 The law on the subject was reiterated in Dehri Rohtas Light Railway Co. Ltd. v. District Board, Bhojpur (1992) 2 SCC 598 in following words:- The rule which says that the Court may not enquire into belated and stale claim is not a rule of law but a rule of practice based on sound and proper exercise of discretion. Each case must depend upon its own facts. It will all depend upon what the breach of the fundamental right and the remedy claimed are and how delay arose. The principle of on which the relief to the party on the grounds of laches or delay is denied is that the rights which have accrued to others by reason of the delay in filing the petition should not be allowed to be disturbed unless there is a reasonable explanation for the delay. The real test to Determine delay in such cases is that the petitioner should come to the writ court before a parallel right is created and that the lapse of time is not attributable to any laches or negligence. The test is not as to physical running of time. Where the circumstances justifying the conduct exist, the illegality which is manifest cannot be sustained on the sole ground of laches. 9 In Shankara Cooperative Housing Society Limited v. M. Prabhakar and others (2011) 5 SCC 607, the Court again observed:- The relevant considerations, in determining whether delay or laches should be put against a person who approaches the writ court under Article 226 of the Constitution is now well settled. They are: (1) There is no inviolable rule of law that whenever there is a delay, the Court must necessarily refuse to entertain the petition; it is a rule of practice based on sound and proper exercise of discretion, and each case must be dealt with on its own facts.
(2) The principle on which the Court refuses relief on the ground of laches of delay is that the rights accrued to others by the delay in filing the petition should not be disturbed, unless there is a reasonable explanation for the delay, because Court should not harm innocent parties if their rights had emerged by the delay on the part of the petitioners.
(3) The satisfactory way of explaining delay in making an application under Article 226 is to show that he had been seeking relief elsewhere in a manner provided by law. If he runs after a statutory rules, it is not desirable for the High Court to condone the delay. It is immaterial what the petitioner chooses to believe in regard to the remedy.
(4) No hard and fast rule, can be laid down in this regard. Every case shall have to be decided on its own facts. (5) That representations would not be adequate explanation to take care of the delay. 10 I also draw support from law laid down in Durga Prashad versus Chief Controller of Imports and Exports, 1969(1) SCC 185, P.S.Sadasivaswamy versus State of Tamil Nadu, 1975 1 SCC 152, Gian Singh Mann versus High Court of Punjab and Haryana and another (1980) 4 SCC 266, State of M.P and others versus Nand Lal and others, (1986) 4 SCC 566, Dr.Kashinath G. Jalmi and another versus The Speaker and others (1993) 2 SCC 703 clubbed with Ramakanth D. Khalap versus The Speaker Legislative Assembly of Goa and others, Churchill Alemao versus The Speaker, Legislative Assembly, State of Rajasthan and others versus D.R.Laxmi and others, (1966) 6 SCC 445, B.S.Bajwa and another versus State of Punjab and others, (1998) 2 SCC 523, High Court of Judicature of Patna versus Madan Mohan Prasad and others, (2011) 9 SCC 65 and Ali Mohammad Shah and ors. v. State of J&K and ors. JKJ (1) 2013 48.
11. For the reasons discussed, the petition is dismissed.
(Hasnain Massodi) Judge Jammu 14.11.2013 Parshant