Himachal Pradesh High Court
Bhim Sen Sharma vs H.P. University And Another on 2 May, 2016
Bench: Mansoor Ahmad Mir, Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA LPA No. 270 of 2010 Date of decision: 2nd May, 2016.
.
Bhim Sen Sharma .....Appellant
Versus
H.P. University and another ...Respondents.
Coram:
The Hon'ble Mr. Justice Mansoor Ahmad Mir, Chief Justice. The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
of Whether approved for reporting ?1 Yes.
For the appellant: Mr. Neel Kamal Sood with Mr.
rt Vasu Sood, Advocate.
For the respondents: Mr.J.L. Bhardwaj, Advocate.
_____________________________________________________ Mansoor Ahmad Mir, Chief Justice, (Oral).
This Letters Patent Appeal is directed against the judgment dated 3.8.2009, made by the learned Single Judge of this Court in CWP(T) No. 4740 of 2008 titled Bhim Sen Sharma, versus Himachal Pradesh University and another, whereby the writ petition filed by the petitioner/appellant herein came to be dismissed for short "the impugned judgment", on the grounds taken in the memo of appeal.
1Whether the reporters of Local Papers may be allowed to see the judgment ?.
::: Downloaded on - 15/04/2017 20:13:49 :::HCHP -2-2. We have examined the writ petition and the documents annexed therewith. We are of the considered view that the petitioner/appellant has not .
explained the delay and is caught by delay and laches.
3. The delay takes away the settings of law. A person who does not seek relief within time, his petition has to be dismissed only on the grounds of delay and of laches otherwise it would amount to gross misuse of jurisdiction and disturb the settled position.
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4. The Writ Court has rightly marshaled out the facts of the case and dismissed the writ petition on the grounds of delay and laches.
5. The apex Court in series of judgments and this Court in LPA No. 150 of 2014 titled Mr. Inderjit Kumar Dhir versus State of H.P. and others, decided on 17th September, 2014, made the detailed discussions on this aspect. It is apt to reproduce paras 5 to 10 of the said judgment herein:
"5.The Apex Court in a case titled as R & M Trust versus Koramangala Residents Vigilance Group and others, reported in (2005) 3 Supreme Court Cases 91, held that delay is a very important factor ::: Downloaded on - 15/04/2017 20:13:49 :::HCHP -3- while exercising extraordinary jurisdiction under Article 226 of the Constitution; delay defeats equity and delay cannot be brushed aside without any .
plausible explanation. It is apt to reproduce para 34 of the judgment herein:
"34. There is no doubt that delay is a very important factor while exercising extraordinary jurisdiction under Article 226 of the Constitution. We cannot disturb the third-party interest created on account of delay. Even of otherwise also why should the Court come to the rescue of a person who is not vigilant of his rights?"
6.The Apex Court in cases titled as S.D.O. Grid rt Corporation of Orissa Ltd. and others versus Timudu Oram, reported in 2005 AIR SCW 3715, and Srinivasa Bhat (Dead) by L.Rs. & Ors. versus A. Sarvothama Kini (Dead) by L.Rs. & Ors., reported in AIR 2010 Supreme Court 2106, has also discussed the same principle. It would be profitable to reproduce para 9 of the judgment in Timudu Oram's case (supra) herein:
"9. In the present case, the appellants had disputed the negligence attributed to it and no finding has been recorded by the High Court that the GRIDCO was in any way negligent in the performance of its duty. The present case is squarely covered by the decision of this Court in Chairman, Grid Corporation of Orissa Ltd. (GRIDCO) and others (supra), 1999 AIR SCW 3383 : AIR 1999 SC 3412. The High Court has also erred in awarding compensation in Civil Appeal No. .............. of 2005 (arising out of SLP (C) No. 9788 of 1998). The subsequent suit or writ petition would not be maintainable in view of the dismissal of the suit.
The writ petition was filed after a lapse of 10 years. No reasons have been given for such an inordinate ::: Downloaded on - 15/04/2017 20:13:49 :::HCHP -4- delay. The High Court erred in entertaining the writ petition after a lapse of 10 years. In such a case, awarding of compensation in exercise of its jurisdiction under Article 226 cannot be justified."
7.It would also be apt to reproduce para 39 of the .
judgment rendered by the Apex Court in Bhakra Beas Management Board versus Kirshan Kumar Vij & Anr., reported in AIR 2010 Supreme Court 3342, herein:
of "39. Yet, another question that draws our attention is with regard to delay and laches. In fact, respondent No. 1's petition deserved to be dismissed only on that ground but surprisingly the High Court overlooked that rt aspect of the mater and dealt with it in a rather casual and cursory manner. The appellant had categorically raised the ground of delay of over eight years in approaching the High Court for grant of the said relief.
But the High Court has simply brushed it aside and condoned such an inordinate, long and unexplained delay in a casual manner. Since, we have decided the matter on merits, thus it is not proper to make avoidable observations, except to say that the approach of the High Court was neither proper nor legal."
8.The Apex Court has considered the same issue and point in a case titled as Delhi Administration and Ors. versus Kaushilya Thakur and Anr., reported in AIR 2012 Supreme Court 2515. It is apt to reproduce para 10 of the judgment herein:
"10. We have heard Shri H.P. Raval, learned Additional Solicitor General and Shri Rishikesh, learned counsel for respondent No.1 and perused the record. In our view, the impugned order as also the one passed by the learned Single Judge are liable to be set aside because,
(i) While granting relief to the husband of respondent No. 1, the learned Single Judge ::: Downloaded on - 15/04/2017 20:13:49 :::HCHP -5- overlooked the fact that the writ petition had been filed after almost 4 years of the rejection of an application for allotment of 1000 sq. yards plot made by Ranjodh Kumar Thakur. The fact that the writ petitioner made further representations could not be made a ground for ignoring the delay of more than 3 .
years, more so because in the subsequent communication the concerned authorities had merely indicated that the decision contained in the first letter would stand. It is trite to say that in exercise of the power under Article 226 of the Constitution, the High Court cannot entertain belated claims unless the petitioner offers tangible explanation State of M.P. v. Bhailal Bhai (1964) 6 SCR 261.
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(ii) The claim of Ranjodh Kumar Thakur for allotment of land was clearly misconceived and was rightly rejected by the Joint Secretary (L&B), Delhi Administration on the ground that he was not the owner of land comprised in khasra No. 70/2. A bare rt reading of Sale Deed dated 12.7.1959 executed by Shri Hari Chand in favour of Ranjodh Kumar Thakur shows that the former had sold land forming part of khasra Nos. 166, 167 and 168 of village Kotla and not khasra No.70/2. This being the position, Ranjodh Kumar Thakur did not have the locus to seek allotment of land in terms of the policy framed by the Government of India. The payment of compensation to Ranjodh Kumar Thakur in terms of the award passed by the Land Acquisition Collector and the enhanced compensation determined by the Reference Court cannot lead to an inference that he was the owner of land forming part of Khasra No.70/2. In any case, before issuing a mandamus for allotment of 1000 square yards plot to the writ petitioner, the High Court should have called upon him to produce some tangible evidence to prove his ownership of land forming part of Khasra No.70/2. Unfortunately, the learned Single Judge and the Division Bench of the High Court did not pay serious attention to the stark reality that Ranjodh Kumar Thakur was not the owner of land mentioned in the application filed by him for allotment of 1000 square yards land."
9.The Apex Court in a latest case titled as Chennai Metropolitan Water Supply and Sewerage Board and others versus T.T. Murali Babu, reported in (2014) 4 Supreme Court Cases 108, has taken into ::: Downloaded on - 15/04/2017 20:13:49 :::HCHP -6- consideration all the judgments and the development of law and held that delay cannot be brushed aside without any reason. It is apt to reproduce paras 13 to .
17 of the judgment herein:
"13. First, we shall deal with the facet of delay. In Maharashtra SRTC v. Balwant Regular Motor Service,, AIR 1969 SC 329, the Court referred to the principle that has been stated by Sir Barnes Peacock in Lindsay Petroleum Co. v. Hurd, (1874) LR 5 PC 221, which is as follows: (Balwant Regular of Motor Service case, AIR 1969 SC 329, AIR pp. 335- 36, para 11) "11. .....Now the doctrine of laches in Courts of Equity is not an arbitrary or a rt 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 of 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 far as relates to the remedy.' (Lindsay Petroleum Co. case, PC pp/ 239-
40)"
14. In State of Maharashtra v. Digambar, (1995) 4 SCC 683, while dealing with exercise of power of the High Court under Article 226 of the Constitution, the Court observed that: (SCC p. 692, para 19) ::: Downloaded on - 15/04/2017 20:13:49 :::HCHP -7- "19. Power of the High Court to be exercised under Article 226 of the Constitution, if is discretionary, its exercise must be judicious and reasonable, admits of no controversy. It is for that reason, a .
person's entitlement for relief from a High Court under Article 226 of the Constitution, be it against the State or anybody else, even if is founded on the allegation of infringement of his legal right, has to necessarily depend upon unblameworthy conduct of the person seeking relief, and the court refuses to grant the discretionary relief to such person in exercise of such of power, when he approaches it with unclean hands or blameworthy conduct."
15. In State of M.P. v. Nandlal Jaiswal, (1986) 4 SCC 566 : AIR 1987 SC 251, the Court observed that rt : (SCC p. 594, para 24) " 24. .........it is well settled that power of the High Court to issue an appropriate writ under Article 226 of the Constitution is discretionary and the High Court in exercise of its discretion does not ordinarily assist the tardy and the indolent or the acquiescent and the lethargic."
It has been further stated therein that: (Nandlal Jaiswal case, (1986) 4 SCC 566 : AIR 1987 SC 251, SCC p. 594, para 24) "24. ........ If there is inordinate delay on the part of the petitioner in filing a 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."
Emphasis was laid on the principle of delay and laches stating that resort to the extraordinary remedy under the writ jurisdiction at a belated stage is likely to cause confusion and public inconvenience and bring in injustice.
16. Thus, the doctrine of delay and laches should not be lightly brushed aside. A writ court is required to weigh the explanation offered and the acceptability of the same. The court should bear in mind that it is exercising an extraordinary and ::: Downloaded on - 15/04/2017 20:13:49 :::HCHP -8- equitable jurisdiction. As a constitutional court it has a duty to protect the rights of the citizens but simultaneously it is to keep itself alive to the primary principle that when an aggrieved person, without adequate reason, approaches the court at his own leisure or pleasure, the Court would be under legal .
obligation to scrutinize whether the lis at a belated stage should be entertained or not. Be it noted, delay comes in the way of equity. In certain circumstances delay and laches may not be fatal but in most circumstances inordinate delay would only invite disaster for the litigant who knocks at the doors of the Court. Delay reflects inactivity and inaction on the part of a litigant - a litigant who has forgotten the basic norms, namely, "procrastination is the greatest of thief of time" and second, law does not permit one to sleep and rise like a phoenix. Delay does bring in hazard and causes injury to the lis.
17. In the case at hand, though there has been four rt years' delay in approaching the court, yet the writ court chose not to address the same. It is the duty of the court to scrutinize whether such enormous delay is to be ignored without any justification. That apart, in the present case, such belated approach gains more significance as the respondent-employee being absolutely careless to his duty and nurturing a lackadaisical attitude to the responsibility had remained unauthorisedly absent on the pretext of some kind of ill health. We repeat at the cost of repetition that remaining innocuously oblivious to such delay does not foster the cause of justice. On the contrary, it brings in injustice, for it is likely to affect others. Such delay may have impact on others' ripened rights and may unnecessarily drag others into litigation which in acceptable realm of probability, may have been treated to have attained finality. A court is not expected to give indulgence to such indolent persons - who compete with 'Kumbhakarna' or for that matter 'Rip Van Winkle'. In our considered opinion, such delay does not deserve any indulgence and on the said ground alone the writ court should have thrown the petition overboard at the very threshold.
10.The same principles have been laid down by this Court in LPA No. 48 of 2011 titled Shri Satija ::: Downloaded on - 15/04/2017 20:13:49 :::HCHP -9- Rajesh N. vs. State of Himachal Pradesh and others decided on 26.8.2014."
6. This Court also in a batch of LPAs lead .
case of which is LPA No. 107 of 2014 titled Amit Attri and others versus Anil Verma and others decided on 3rd December, 2014, laid down the similar principles of law.
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7. Applying the test in this case, the Writ rt Court has rightly dismissed the writ petition, needs no interference. Accordingly the LPA is dismissed along with pending applications, if any.
(Mansoor Ahmad Mir) Chief Justice.
May 02, 2016. (Tarlok Singh Chauhan) (cm Thakur) Judge.
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