Madhya Pradesh High Court
Mukesh Kumar Gupta vs Border Security Forces on 15 July, 2019
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THE HIGH COURT OF MADHYA PRADESH
WP No. 11279 of 2019
Mukesh Kumar Gupta vs. Border Security Force and Others
Gwalior, dtd. 15/07/2019
Shri Tej Singh Mahadik, counsel for the petitioner.
This petition under Article 226 of the Constitution of India has
been filed against the order dated 04/09/2018 by which the respondent
No.2 has rejected the representation.
The facts, according to the petitioner which are necessary for
disposal of the present petition in short are that the respondent No.1 had
issued an online tender on 25/05/2018 (Annexure P2) for supply of
''Dry Hay''. The last date for submitting the bid was 21/06/2018. The
respondent No.2 issued a letter to the petitioner thereby intimating the
deficiency in tender documents and the petitioner was asked to submit
documents for curing the defects by 12 th July, 2018, however, the bid of
the respondent No.3 which was also having same deficiency, was
accepted. Thus, it is submitted that the order dated 04/09/2018, by
which the representation of the petitioner has been rejected be quashed
and the work order issued in favour of the respondent No.3 should be
quashed and the respondent No.3 should be directed to refund the
benefit which he has earned and the respondents No.1 and 2 may be
directed to decide the representation (Annexure P1) afresh by passing a
speaking order.
Challenging the order dated 4th September, 2018, it is submitted
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that the respondent No.2 has acted in a mala fide manner and the
registration certificate submitted by the respondent No.3 and the
registration certificate submitted by the petitioner were containing same
details and with mala fide intention, the respondent No.2 has held that
there is a deficiency in the registration certificate of the petitioner,
whereas in spite of the same deficiency, the registration certificate of
the respondent No.3 has been accepted.
In support of his contention, the counsel for the petitioner has
drawn the attention of this Court to the registration certificate issued in
favour of R.K.Traders under the Madhya Pradesh Shop and
Establishment Act, 1958 and submitted that according to this certificate,
the nature of the business of the respondent No.3 has been shown to be
''any other sales shop'', whereas in the registration certificate of the
petitioner issued under Madhya Pradesh Shop and Establishment Act,
the nature of shop has been shown as ''Kirana Shop'' and thus, both the
certificates are identical in nature. It is further submitted the original
certificate of registration which was issued under Madhya Pradesh Shop
and Establishment Act of respondent No.3 was interpolated and forged
and the words ''Dry Hay, gram, barley, etc.'' were written subsequently.
Thus, it is submitted that the respondent No.2 has shown undue favour
to respondent No.3 by wrongly accepting his bid on the basis of forged
certificate as well as registration certificate containing the same
deficiency.
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Heard the learned counsel for the petitioner.
It is the contention of the petitioner that the registration certificate
of the respondent No.3 as well as registration certificate of the
petitioner are identical and, thus, the respondent No.2 has wrongly
accepted the registration certificate of the petitioner under MP Shop and
Establishment Act.The above-mentioned contention cannot be accepted.
The petitioner has been registered for running ''Kirana Store'' and
it is fairly conceded by the counsel for the petitioner that ''Dry Hay''
cannot be said to be a grocery item and it is not sold in grocery shop.
However, it was submitted that once the petitioner is dealing with
grocery items, then he can supply any item to the respondents No.1 and
2 and thus, it may not be reflected from the registration certificate that
the petitioner is also dealing with ''Dry Hay'' but still they can deal with
the same. It is further submitted by the counsel for the petitioner that on
the basis of same registration certificate he had supplied ''Dry Hay'' to
the respondents on earlier occasions. When the petitioner was asked to
point out from the pleadings or from any other documents to show that
on earlier occasion also, on the basis of the same registration certificate,
the petitioner had supplied '' Dry Hay'' to the respondents, then he fairly
conceded that neither there is any pleading in the writ petition nor there
is any document to show that earlier the petitioner had ever supplied
''Dry Hay'' to the respondents. Thus, any ocular submission made during
the course of arguments which amounts to factual foundation, cannot be
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accepted. The petitioner must lay down a factual foundation in the writ
petition by making specific pleadings supported by an affidavit of the
petitioner. In absence of any pleading in this regard, his submission
cannot be accepted.
It is next contended by the counsel for the petitioner that the
original registration certificate of the respondent No.3 which has been
placed at page 51 is a forged and concocted document and the words
''Dry Hay'' apart from the other cereals were inserted later on. Once
again, the petitioner was directed to point out from the pleadings that
whether he has pleaded about the forgery in original registration
certificate which is at page 51 of the petition or not, then the counsel for
the petitioner tried to point out from the pleadings that ''the petitioner
had informed the respondents about the forgery committed by the
respondent No.3'' and submitted that the petitioner has laid the factual
foundation. It was submitted by the counsel for the petitioner that after
the registration under the GST Act, the names of the commodities are
not mentioned, whereas the registration certificate which is at page 51,
the names of the commodities are mentioned, therefore, it is a forged
document. When it was specifically asked from the counsel for the
petitioner that whether the registration certificate of the respondent
No.3 placed at Page 51 was issued after the GST Act came into force or
it is prior in time, then it was fairly conceded that it appears that the said
registration certificate was issued prior in time.
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Considered the submission made by counsel for the petitioner.
Accordingly, this Court is of the considered opinion that not only
the petitioner has failed to lay down any factual foundation in the
petition by making any specific pleadings but has also failed to make
out a case that the registration certificate of respondent No.3 at page 51
is a false document. The petitioner could have obtained the copy of the
registration certificate under the RTI Act for comparison, however, it
has not been done by him. Thus, a verbal submission regarding fraud,
without supported by any documentary evidence cannot be accepted.
Further the work order issued in favour of the respondent No.3 has not
been filed and challenged.
Further, the impugned order was passed on 4 th September, 2018
and from the relief clause, it is clear that the work order must have been
issued to the respondent No.3 and that is why, the petitioner has prayed
for refund of profit earned by the respondent No.3. No reason has been
assigned by the respondents for not challenging the order dated 04 th
September, 2018 immediately, as this petition has been filed on 17th
June, 2019 i.e. after 10 months of the impugned order. Thus, in the
considered opinion of this Court, not only the petitioner has failed to
point out any prima facie error in the impugned order dated 4th
September, 2018 but this petition also suffers from delay and laches.
The Supreme Court in the case of Karnataka Power Corpon.
Ltd. Vs. K. Thangappan, reported in (2006) 4 SCC 322 has held as
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under :-
''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 Prashad
v. Chief Controller of Imports and Exports (1969) 1 SCC
185. Of course, the discretion has to be exercised judicially
and reasonably.
7. What was stated in this regard by Sir Barnes Peacock in
Lindsay Petroleum Co. v. Prosper Armstrong Hurd (1874) 5
PC 221 (PC at p. 239) was approved by this Court in Moon
Mills Ltd. v. M.R. Meher AIR 1967 SC 1450 and
Maharashtra SRTC v. Shri 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 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 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 it 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 to
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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 Rabindranath 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 32 after inordinate delay.
It was stated that though Article 32 is 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 Jaiswal
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.''
The Supreme Court in the case of M.P. Ram Mohan Raja Vs.
State of T.N. reported in (2007) 9 SCC 78 has held as under:-
''11. So far as the question of delay is concerned, no hard-
and-fast rule can be laid down and it will depend on the
facts of each case. In the present case, the facts stare at the
face of it that on 8-10-1996 an order was passed by the
Collector in pursuance of the order passed by the High
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Court, rejecting the application of the writ petitioner for
consideration of the grant of mining lease. The writ
petitioner sat tight over the matter and did not challenge the
same up to 2003. This on the face of it appears to be very
serious. A person who can sit tight for such a long time for
no justifiable reason, cannot be given any benefit.''
The Supreme Court in the case of Shiv Dass Vs. Union of India
reported in (2007) 9 SCC 274 has held as under :
''6. Normally, in the case of belated approach writ petition
has to be dismissed. Delay or laches is one of the factors to
be borne in mind by the High Courts when they exercise
their discretionary powers under Article 226 of the
Constitution of India. 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 Prashad 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 Lindsay Petroleum Co. v. Prosper Armstrong Hurd, PC at
p. 239 was approved by this Court in Moon Mills Ltd. v.
M.R. Meher and Maharashtra SRTC v. Balwant Regular
Motor Service. 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
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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 was stated in State of M.P. v. Nandlal Jaiswal 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.''
The Supreme Court in the case of Nadia Distt. Primary School
Council Vs. Sristidhar Biswar reported in (2007) 12 SCC 779 has
held as under :-
''11. In the present case, the panel was prepared in 1980 and
the petitioners approached the court in 1989 after the
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decision in Dibakar Pal. Such persons should not be given any benefit by the court when they allowed more than nine years to elapse. Delay is very significant in matters of granting relief and courts cannot come to the rescue of the persons who are not vigilant of their rights. Therefore, the view taken by the High Court condoning the delay of nine years cannot be countenanced.'' The Supreme Court in the case of U.P. Jal Nigam Vs. Jaswant Singh reported in (2006) 11 SCC 464 has held as under:-
''12. The statement of law has also been summarised in Halsbury's Laws of England, para 911, p. 395 as follows:10
"In determining whether there has been such delay as to amount to laches, the chief points to be considered are:
(i) acquiescence on the claimant's part; and
(ii) any change of position that has occurred on the defendant's part.
Acquiescence in this sense does not mean standing by while the violation of a right is in progress, but assent after the violation has been completed and the claimant has become aware of it. It is unjust to give the claimant a remedy where, by his conduct, he has done that which might fairly be regarded as equivalent to a waiver of it; or where by his conduct and neglect, though not waiving the remedy, he has put the other party in a position in which it would not be reasonable to place him if the remedy were afterwards to be asserted. In such cases lapse of time and delay are most material. Upon these considerations rests the doctrine of laches."
The Supreme Court in the case of Jagdish Lal Vs. State of Haryana reported in (1997) 6 SCC 538 has held as under :
''18. That apart, as this Court has repeatedly held, the delay disentitles the party to the discretionary relief under Article 226 or Article 32 of the Constitution.
The Supreme Court in the case of NDMC Vs. Pan Singh reported in (2007) 9 SCC 278 has held as under :
''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 employed or who were recruited after the cut-off 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. (See Govt. of W.B. v. Tarun K. Roy, U.P. Jal Nigam v. Jaswant Singh and Karnataka Power Corpn. Ltd.11
v. K. Thangappan.)
17. Although, there is no period of limitation provided for filing a writ petition under Article 226 of the Constitution of India, ordinarily, writ petition should be filed within a reasonable time. (See Lipton India Ltd. v. Union of India and M.R. Gupta v. Union of India.)
18. In Shiv Dass v. Union of India this Court held: (SCC p. 277, paras 9-10) "9. 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. Rajalakshmiah Setty v. State of Mysore. 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 making of another representation on similar lines will not explain the delay. In State of Orissa v. Pyarimohan Samantaray 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 also State of Orissa v. Arun Kumar Patnaik.) In the case of pension the cause of action actually continues from month to month. That, however, cannot be a ground to overlook delay in filing the petition. It would depend upon the fact of each case. If petition is filed beyond a reasonable period say three years normally the Court would reject the same or restrict the relief which could be granted to a reasonable period of about three years. The High Court did not examine whether on merit the appellant had a case. If on merits it would have found that there was no scope for interference, it would have dismissed the writ petition on that score alone."
Accordingly, this petition fails and is hereby dismissed.
(G.S. Ahluwalia) Judge MKB Digitally signed by MAHENDRA KUMAR BARIK Date: 2019.07.17 15:42:00 +05'30'