Madras High Court
M.Natarajan vs The Director General Of Police on 20 December, 2018
Author: S. Manikumar
Bench: S.Manikumar, Subramonium Prasad
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 20.12.2018
CORAM:
THE HON'BLE MR.JUSTICE S.MANIKUMAR
AND
THE HON'BLE MR.JUSTICE SUBRAMONIUM PRASAD
W.A.No.2801 of 2018
M.Natarajan ... Appellant
Vs.
1. The Director General of Police,
Chennai - 600 004.
2. The Additional Director General of Police (Admin)
Chennai - 600 004. ... Respondents
Writ Appeal filed under Clause 15 of the Letters Patent against the Order
dated 24.03.2017 made in W.P.No.34073 of 2014.
For Appellant : Mr.G.Gopinath
For Respondents : Mr.P.S.Sivashanmugasundaram
Special Government Pleader
JUDGEMENT
(Order of the Court was delivered by S.MANIKUMAR, J) Appellant, a Deputy Superintendent of Police, has claimed that he made representations dated 14.12.1987 and 03.03.1999, respectively to the respondents to alter his Date of Birth from 10.08.1957 to 10.07.1959 and contending http://www.judis.nic.in further that the said representations remained unanswered, filed 2 W.P.No.34073 of 2014, for a writ of mandamus, directing the respondents to consider the representation dated 12.06.2014 and to dispose of the same.
2. After taking note of the objection raised by the learned Special Government Pleader not to entertain the writ petition, on the ground that the appellant entered police department, as Sub Inspector of Police in 1987 and thereafter promoted to the post of Inspector of Police in 1988 and further promoted to the post of Deputy Superintendent of Police in the year 2010, did not submit any representation within five years, from the date of entry into service and taking note of the fact that the abovesaid representations said to have been made were not proved by submission of any acknowledgment, writ Court by order dated 24.03.2017 in W.P.No.34073 of 2014, dismissed the writ petition as hereunder.
"4. In that view of the matter, considering the bar imposed by Old Rule 49 (b) Tamil Nadu State and Subordinate Service Rules and Section 59 of the Tamil Nadu Government Service (Conditions of Service) Act, 2016, this Court is nt inclined to entertain the writ petition. Therefore, the writ petition fails and the same is dismissed. No Costs."
Being aggrieved, instant writ appeal is filed.
3. Inviting the attention of this Court to the proceedings No.Lr.A/1430/13422/87 of DIG (Trg), Mr.G.Gopinath, learned counsel for the appellant http://www.judis.nic.in submitted that representation dated 14.12.1987 submitted to the 3 Director General of Police, has been accepted and thus, referred to, in the abovesaid number. Learned counsel for the appellant further submitted that when there is proof of submission of the representation, respondents have failed to discharge their duty and thus, a mandamus ought to have been issued.
4. Heard Mr.G.Gopinath, learned counsel for the appellant and perused the materials available on record.
5. The appellant is stated to have entered police department in the year 1987 as Sub Inspector of Police and thereafter promoted to higher positions. As per Rule 49(b) of the then Tamil Nadu Subordinate Service Rules and Section 59 (2) of the Tamil Nadu Government Servants (Condition of Service) Act, 2016, application for alteration of date of birth has to be submitted within five years from the date of entry into service. Except Ref.No.Lr.A/1430/13422/87 of DIG (Trg), stated supra, there is no other proof for submission of a representation within five years from the date of entry into service.
6. Even taking for granted that the appellant did submit an application within five years from the date of entry into service, said representation has not been pursued from 1987 till 2014, for nearly 17 years. Courts have consistently held that even repeated representations would not condone the delay / laches on the part of the litigant to approach the Court for relief. http://www.judis.nic.in 4
7. In the absence of any concrete evidence to prove the submission of application within five years from the date of entry into service, there is no duty, cast on the respondents to consider such representation.
8. Courts have also held that application submitted beyond five years from the date of entry into service need not be considered in view of the limitation provided therefor. Laches or reasonable time are not defined under any Statute or Rules. "Laches" or "Lashes" is an old french word for slackness or negligence or not doing. In general sense, it means neglect to do what in the law should have been done for an unreasonable or unexplained length of time. What could be the laches in one case might not constitute in another.
9. What is reasonable time has not been explained in any of the enactment. Reasonable time depends upon the facts and circumstances of each case.
(i) The words "reasonable time", as explained in Veerayeeammal v. Seeniammal reported in 2002 (1) SCC 134, at Paragraph 13, is as follows:
"13. The word “reasonable” has in law prima facie meaning of reasonable in regard to those circumstances of which the person concerned is called upon to act reasonably knows or ought to know as to what was reasonable. It may be unreasonable to give an exact definition of the word http://www.judis.nic.in “reasonable”. The reason varies in its conclusion according to 5 idiosyncrasy of the individual and the time and circumstances in which he thinks. The dictionary meaning of the “reasonable time” is to be so much time as is necessary, under the circumstances, to do conveniently what the contract or duty requires should be done in a particular case. In other words it means, as soon as circumstances permit. In P. Ramanatha Aiyar’s The Law Lexicon it is defined to mean:
“A reasonable time, looking at all the circumstances of the case; a reasonable time under ordinary circumstances; as soon as circumstances will permit; so much time as is necessary under the circumstances, conveniently to do what the contract requires should be done; some more protracted space than ‘directly’; such length of time as may fairly, and properly, and reasonably be allowed or required, having regard to the nature of the act or duty and to the attending circumstances; all these convey more or less the same idea.”
10. Reference can also be made to few decisions of the Supreme Court, where inordinate delay and laches, on the part of the litigant in approaching the Court has been disapproved:
(i) In State of M.P. v. Bhailal Bhai reported in AIR 1964 SC 1006, the Hon'ble Supreme Court held that unreasonable delay denies to the petitioner the discretionary extraordinary remedy of mandamus, certiorari or any other relief.
(ii) In State of M.P., v. Nandlal Jaismal reported in 1986 (4) SCC 566, the Hon'ble Supreme Court, at Paragraph 24, held as follows:
http://www.judis.nic.in "24. Now, it is well settled that the power of the High 6 Court to issue an appropriate writ under Article 226 of the Constitution is discretionary and the High Court in the exercise of its discretion does not ordinarily assist the tardy and the indolent or the acquiescent and the lethargic. If there is inordinate delay on the part of the petitioner in filing a writ petition and such delay is not satisfactorily explained, the High Court may decline to intervene and grant relief in the exercise of its writ jurisdiction. The evolution of this rule of laches or delay is premised upon a number of factors. The High Court does not ordinarily permit a belated resort to the extraordinary remedy under the writ jurisdiction because it is likely to cause confusion and public inconvenience and bring in its train new injustices. The rights of third parties may intervene and if the writ jurisdiction is exercised on a writ petition filed after unreasonable delay, it may have the effect of inflicting not only hardship and inconvenience but also injustice on third parties. When the writ jurisdiction of the High Court is invoked, unexplained delay coupled with the creation of third party rights in the meanwhile is an important factor which always weighs the High Court in deciding whether or not to exercise such jurisdiction. We do not think it necessary to burden this judgment with reference to various decisions of this Court where it has been emphasised time and again that where there is inordinate and unexplained delay and third party rights are created in the intervening period, the High Court would decline to interfere, even if the State action complained of is unconstitutional or illegal. .........Of course, this rule of laches or delay is not a rigid rule which can be cast in a strait jacket formula, for there may be cases http://www.judis.nic.in where despite delay and creation of third party rights the High 7 Court may still in the exercise of its discretion interfere and grant relief to the petitioner. But, such cases where the demand of justice is so compelling that the High Court would be inclined to interfere in spite of delay or creation of third party rights would by their very nature be few and far between. Ultimately it would be a matter within the discretion of the court; ex hypothesi every discretion must be exercised fairly and justly so as to promote justice and not to defeat it."
(iii) In State of Maharastra v. Digambar reported in AIR 1995 SC 1991, the Hon'ble Supreme Court, considered a case, where compensation for the acquired land was claimed belatedly and at Paragraphs 12, 18 and 21, held as follows:
"12. How a person who alleges against the State of deprivation of his legal right, can get relief of compensation from the State invoking writ jurisdiction of the High Court under article 226 of the Constitution even though, he is guilty of laches or undue delay is difficult to comprehend, when it is well settled by decision of this Court that no person, be he a citizen or otherwise, is entitled to obtain the equitable relief under Article 226 of the Constitution if his conduct is blame- worthy because of laches, undue delay, acquiescence, waiver and the like. Moreover, how a citizen claiming discretionary relief under Article 226 of the Constitution against a State, could be relieved of his obligation to establish his unblameworthy conduct for getting such relief, where the State against which relief is sought is a welfare State, is also difficult http://www.judis.nic.in to comprehend. Where the relief sought under Article 226 of 8 the Constitution by a person against the welfare State is founded on its alleged illegal or wrongful executive action, the need to explain laches or undue delay on his part to obtain such relief, should, if anything, be more stringent than in other cases, for the reason that the State due to laches or undue delay on the part of the person seeking relief, may not be able to show that the executive action complained of was legal or correct for want of records pertaining to the action or for the officers who were responsible for such action not being available later on. Further, where granting of relief is claimed against the State on alleged unwarranted executive action, is bound to result in loss to the public exchequer of the State or in damage to other public interest, the High Court before granting such relief is required to satisfy itself that the delay or laches on the part of a citizen or any other person in approaching for relief under Article 226 of the Constitution on the alleged violation of his legal right, was wholly justified in the facts and circumstances, instead of ignoring the same or leniently considering it. Thus, in our view, persons seeking relief against the State under Article 226 of the Constitution, be they citizens or otherwise, cannot get discretionary relief obtainable thereunder unless they fully satisfy the High Court that the facts and circumstances of the case clearly justified the laches or undue delay on their part in approaching the Court for grant of such discretionary relief. Therefore, where a High Court grants relief to a citizen or any other person under Article 226 of the Constitution against any person including the State without considering his blame-worthy conduct, such as laches or undue delay, acquiescence or waiver, the relief so granted http://www.judis.nic.in becomes unsustainable even if the relief was granted in respect 9 of alleged deprivation of his legal right by the State.
18.Laches or undue delay, the blame-worthy conduct of a person in approaching a Court of Equity in England for obtaining discretionary relief which disentitled for grant of such relief was explained succinctly by Sir Barnes Peacock, long ago, in Lindsay Petroleum Co. v. Prosper Armstrong (1874) 5 PC 221) thus :
"Now the doctrine of laches in Courts of Equity is not an arbitrary or a technical doctrine. Where it would be practically unjust to give a remedy, either because the party has, by his conduct, done that which might fairly be regarded as equivalent to a waiver of it, or where by his conduct and neglect he has, though perhaps not waiving that remedy, yet put the other party in a situation, in which it would not be reasonable to place him if the remedy were afterwards to be asserted, in either of these cases, lapse of time and delay are most material. But in every case, if an argument against relief, which otherwise would be just, is founded upon mere delay, that delay of course not amounting to a bar by any statute or limitations, the validity of that defence must be tried upon principles substantially equitable. Two circumstances, always important in such cases, are, the length of the delay and the nature of the acts done during the interval, which might affect either party and cause a balance of Justice or injustice in taking the one course or the other, so http://www.judis.nic.in far as it relates to the remedy."10
21.Therefore, where a High Court in exercise of its power vested under Article 226 of the Constitution issues a direction, order or writ for granting relief to a person including a citizen without considering his disentitlement of such relief due to his blameworthy conduct of undue delay or laches in claiming the same, such a direction, order or writ becomes unsustainable as that not made judiciously and reasonably in exercise of its sound judicial discretion, but as that made arbitrarily."
(iv) In State of Rajasthan v. D.R.Laxmi reported in 1996 (6) SCC 445, the Hon'ble Supreme Court observed that though the order may be void, if the party does not approach the Court within a reasonable time, which is always a question of fact and have the order invalidated or acquiesced or waived, the discretion of the Court has to be exercised in a reasonable manner.
(v) In Chairman, U.P. Jal Nigam and another v. Jaswant Singh reported in AIR 2007 SC 924, the Hon'ble Supreme Court, after considering a catena of decisions on the aspect of delay, at Paragraph 13, held as follows:
"13........Therefore, whenever it appears that the claimants lost time or while away and did not rise to the occasion in time for filing the writ petitions, then in such cases, the Court should be very slow in granting the relief to the incumbent. Secondly, it has also to be taken into consideration the question of acquiescence or waiver on the part of the incumbent whether other parties are going to be prejudiced if the relief is granted."
http://www.judis.nic.in 11
(vi) In S.S. Balu v. State of Kerala, (2009) 2 SCC 479, wherein at paragraph No.17, the Hon'ble Supreme Court held as follows:
"17. It is also well-settled principle of law that “delay defeats equity”. The Government Order was issued on 15-1-2002. The appellants did not file any writ application questioning the legality and validity thereof. Only after the writ petitions filed by others were allowed and the State of Kerala preferred an appeal thereagainst, they impleaded themselves as party-respondents. It is now a trite law that where the writ petitioner approaches the High Court after a long delay, reliefs prayed for may be denied to them on the ground of delay and laches irrespective of the fact that they are similarly situated to the other candidates who obtain the benefit of the judgment. It is, thus, not possible for us to issue any direction to the State of Kerala or the Commission to appoint the appellants at this stage. In NDMC v. Pan Singh this Court held: (SCC p. 283, para 16) “16. There is another aspect of the matter which cannot be lost sight of. The respondents herein filed a writ petition after 17 years. They did not agitate their grievances for a long time. They, as noticed herein, did not claim parity with the 17 workmen at the earliest possible opportunity. They did not implead themselves as parties even in the reference made by the State before the Industrial Tribunal. It is not their case that after 1982, those employees who were http://www.judis.nic.in employed or who were recruited after the cut-off 12 date have been granted the said scale of pay. After such a long time, therefore, the writ petitions could not have been entertained even if they are similarly situated. It is trite that the discretionary jurisdiction may not be exercised in favour of those who approach the court after a long time. Delay and laches are relevant factors for exercise of equitable jurisdiction.”
11. Mere filing of repeated representations, cannot be a valid ground to condone delay and laches, in approaching the Court. Such an explanation, cannot be a ground for exercise of the extraordinary jurisdiction of this Court.
12. In K.V.Rajalakshmiah Setty and others v. State of Mysore and others reported in A.I.R. 1967 S.C. 993, the Hon'ble Apex Court, on the facts and circumstances of the said case, held that, "There is also a good deal of force behind the 'contention that the appellants are guilty of laches. After the passing of the order of May 17, 1950, they should have made an application within a reasonable time thereafter. Merely because the Chief Engineer had espoused their cause and was writing letters from time to time to the State Government to do something for them did not mean ;that they could rest upon their oars if they were really being discriminated against. As we cannot hold that the appellants were entitled to any particular indulgence or concession, the only way, of meting out equality to all surveyors http://www.judis.nic.in who had been promoted to the cadre of Assistant Engineers 13 would be to say that promotions, should in all cases be effective from the date of the notification."
13. In Gian Singh v. the State of Punjab and Haryana, reported in AIR 1980 SC 1894, the Hon'ble Apex Court, held as follows:-
"The writ petition was filed in this Court in 1978, about eleven years after the dates from which the promotions are claimed. There is no valid explanation for the delay. That the petitioner was making successive representations during this period can hardly justify our overlooking the inordinate delay."
14. In Karnataka Power Corporation Ltd vs. K.Thangappan and Another reported in 2006 (4) SCC 322, the Hon'ble Supreme Court at paragraph Nos.6 to 10 held thus:-
"6. Delay or laches is one of the factors which is to be borne in mind by the High Court when they exercise their discretionary powers under Article 226 of the Constitution. In an appropriate case the High Court may refuse to invoke its extraordinary powers if there is such negligence or omission on the part of the applicant to assert his right as taken in conjunction with the lapse of time and other circumstances, causes prejudice to the opposite party. Even where fundamental right is involved the matter is still within the discretion of the Court as pointed out in Durga Prasad v. Chief Controller of Imports and Exports (AIR 1970 SC 769). Of course, the discretion has to be exercised judicially and reasonably.
7. What was stated in this regard by Sir Barnes Peacock in http://www.judis.nic.in Lindsay Petroleum Company v. Prosper Armstrong Hurd etc. 14 (1874 (5) P.C. 221 at page 239) was approved by this Court in Moon Mills Ltd., v. Industrial Courts (AIR 1967 SC 1450) and Maharashtra State Road Transport Corporation v. Balwant Regular Motor Service (AIR 1969 SC 329). Sir Barnes had stated:
"Now, the doctrine of laches in Courts of Equity is not an arbitrary or technical doctrine. Where it would be practically unjust to give a remedy either because the party has, by his conduct done that which might fairly be regarded as equivalent to a waiver of it, or where by his conduct and neglect he has though perhaps not waiving that remedy, yet put the other party in a situation in which it would not be reasonable to place him if the remedy were afterwards to be asserted, in either of these cases, lapse of time and delay are most material. But in every case, if an argument against relief, which otherwise would be just, if founded upon mere delay, that delay of course not amounting to a bar by any statute of limitation, the validity of that defence must be tried upon principles substantially equitable. Two circumstances always important in such cases are, the length of the delay and the nature of the acts done during the interval which might affect either party and cause a balance of justice or injustice in taking the one course or the other, so far as relates to the remedy."
8. It would be appropriate to note certain decisions of this Court in which this aspect has been dealt with in relation with Article 32 of the Constitution. It is apparent that what has been stated as regards that Article would apply, a fortiori, to Article
226. It was observed in R.N.Bose v. Union of India (AIR 1970 SC
470) that no relief can be given to the petitioner who without any reasonable explanation approaches this Court under Article http://www.judis.nic.in 32 after inordinate delay. It was stated that though Article 32 is 15 itself a guaranteed right, it does not follow from this that it was the intention of the Constitution makers that this Court should disregard all principles and grant relief in petitions filed after inordinate delay.
9. It was stated in State of M.P. v. Nandlal (AIR 1987 SC
251), that the High Court in exercise of its discretion does not ordinarily assist the tardy and the indolent or the acquiescent and the lethargic. If there is inordinate delay on the part of the petitioner and such delay is not satisfactorily explained, the High Court may decline to intervene and grant relief in exercise of its writ jurisdiction. It was stated that this rule is premised on a number of factors. The High Court does not ordinarily permit a belated resort to the extraordinary remedy because it is likely to cause confusion and public inconvenience and bring, in its train new injustices, and if writ jurisdiction is exercised after unreasonable delay, it may have the effect of inflicting not only hardship and inconvenience but also injustice on third parties. It was pointed out that when writ jurisdiction is invoked, unexplained delay coupled with the creation of third party rights in the meantime is an important factor which also weighs with the High Court in deciding whether or not to exercise such jurisdiction.
10. It has been pointed out by this Court in a number of cases that representations would not be adequate explanation to take care of delay. This was first stated in K.V. Raja Lakshmiah v. State of Mysore (AIR 1967 SC 973). This was re- iterated in R.N. Bose's case (supra) by stating that there is a limit to the time which can be considered reasonable for making representations and if the Government had turned down one representation the http://www.judis.nic.in making of another representation on similar lines will not explain 16 the delay. In State of Orissa v. P.Samantraj (AIR 1976 SC 1617) making of repeated representations was not regarded as satisfactory explanation of the delay. In that case the petition had been dismissed for delay alone. (See State of Orissa v. Arun Kumar (AIR 1976 SC 1639 also)."
15. In State Of Orissa and Another vs Mamata Mohanty, reported in 2011 3 SCC 436 at paragraph No.53, the Hon'ble Apex Court held thus:-
"53. Needless to say that Limitation Act, 1963 does not apply in writ jurisdiction. However, the doctrine of limitation being based on public policy, the principles enshrined therein are applicable and writ petitions are dismissed at initial stage on the ground of delay and laches. In a case like at hand, getting a particular pay scale may give rise to a recurring cause of action. In such an eventuality, the petition may be dismissed on the ground of delay and laches and the court may refuse to grant relief for the initial period in case of an unexplained and inordinate delay."
16. In the light of the above, we do not find any infirmity in the order of the writ Court warranting interference. Hence, instant writ appeal is dismissed. No Costs.
[S.M.K., J.] [S.P., J.]
20.12.2018
Index : Yes/No.
Internet : Yes
Speaking/Non-speaking order
ars
http://www.judis.nic.in
17
To
1. The Director General of Police,
Chennai - 600 004.
2. The Additional Director General of Police (Admin) Chennai - 600 004.
http://www.judis.nic.in 18 S. MANIKUMAR, J.
AND SUBRAMONIUM PRASAD, J.
ars W.A.No.2801 of 2018 20.12.2018 http://www.judis.nic.in