Kerala High Court
M.Padmini vs State Of Kerala on 18 October, 2019
Equivalent citations: AIRONLINE 2019 KER 769, (2019) 4 KER LT 511
Author: S. Manikumar
Bench: S.Manikumar, C.K.Abdul Rehim
CR
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM
FRIDAY, THE 18TH DAY OF OCTOBER 2019 / 26TH ASWINA, 1941
WA.No.2097 OF 2019
AGAINST THE JUDGMENT IN WP(C) 14752/2009(L) OF HIGH COURT
OF KERALA DATED 27.5.2019
APPELLANTS/PETITIONER:
M.PADMINI,
AGED 62 YEARS, W/O. UNNIKRISHNAN,
REIDING AT 963/1, DASARAHALLI,
BANGALORE NORTH, BANGALORE,
KARNATAKA STATE.
BY ADV. SRI.V.B.RAMANUNNI MENON
RESPONDENTS/RESPONDENTS:
1 STATE OF KERALA,
REPRESENTED BY SECRETARY TO GOVERNMENT,
DEPARTMENT OF REVENUE, SECRETARIAT,
THIRUVANANTHAPURAM - 695 001.
2 THE DISTRICT COLLECTOR,
CIVIL STATION, PALAKKAD-678001.
3 THE LAND ACQUISITION OFFICER AND
SPECIAL TAHSILDAR,
LA(G) NO.1, PALAKKAD-678001.
SR.GOVERNMENT PLEASER SRI.V. TEKCHAND
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON
18.10.2019, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
W.A.2097/2019
2
CR
JUDGMENT
Dated this the 18th day of October 2019 S. Manikumar, CJ Being aggrieved by the order made in W.P(C). No.14752 of 2009 dated 27.5.2019, by which the writ court declined to refer the claim for enhanced compensation under Section 18 of the Land Acquisition Act,1894, instant appeal is filed.
2. Short facts leading to appeal are that:
Award was passed on 1.10.2000. Request for enhanced compensation was made on 1.11.2009. Before the writ court, the petitioner contended that she was residing in Banglore and no notice of award was received and therefore application for enhancement of compensation under Section 18 of the Land Acquisition Act was filed on immediately coming to know about the acquisition proceedings.
Adverting to the above submissions and pleadings, writ court by observing that the writ petitioner, in her application for enhanced compensation, had not stated about the date on which she came to know about the award and that when the other legal heirs of the owner of the property (since Mr. Narayanan Nair has deceased) have received the compensation, and taking note of the fact that names of all the legal heirs were mentioned in the Award except the one who was deceased, W.A.2097/2019 3 had received compensation, writ court held that the doctrine of constructive knowledge could be attributed to everyone, having common interest; writ petition has been filed after more than eight years and further possession was also taken and that therefore, petitioner, cannot pretend ignorance as to passing of the Award, by order dated 27.5.2019 dismissed the W.P©No.14752 of 2009. Assailing the correctness of the order made in W.P©No.14752 of 2009 dated 27.5.2019, instant writ appeal is filed.
3. Inviting attention of this Court to the decisions of the Hon'ble Supreme Court in Raja Harish Chandra Raj Singh v. The Deputy Land Acquisition Officer and Another reported in [AIR 1961 SC 1500 (V 48 C
284)] and Parsottambhai M. Patel v. State of Gujarat reported in [2005 (4) KLT (SN) 53 Case No.70], learned counsel for the appellant submitted that it is mandatory that individual notice on the claimant ought to have been served, and therefore, the observation of the writ court that there would be constructive knowledge, about the award and payment of compensation is erroneous and in the said circumstances, order of the writ court requires interference.
5. Per contra, inviting attention of this court to the Award made in Ext.P2, Mr. V. Tekchand, learned Government Pleader submitted that as per document No.1322/61 dated 11.10.1961 registered in the Sub Registrar Office, Ottappalam, the property initially belonged to one Mr. Poonkavanam Narayanan Nair, Ariyoor Thekkumuri Desom. He died on W.A.2097/2019 4 12.11.1999. Estate was passed on to Smt. Chimmu @ Ponnu Amma, Sri. Sankaranarayanan, Smt. Vilasini, Smt. Sarojini, Sri. Kumaran, Sri. Balan, Smt. Vijayalakshmi and Smt. Padmini.
6. Mr.Tekchand, learned Government Pleader, further submitted that during the Award Enquiry, the above said claimants have neither produced legal heirship certificate nor succession certificate. However, they have agreed to divide the compensation equally among the seven persons, mentioned above. He also submitted that Smt. Vilasini, one of the legal heirs (unmarried daughter of Narayanan Nair) died on 21.9.1997. All the above seven appeared in the Award Enquiry before the Land Acquisition Officer and decided to apportion the compensation.
7. Learned Government Pleader further submitted that the Award was not challenged on the ground of non-service of notice on Smt. Padmini, the appellant herein. That apart, it is also submitted that there is inordinate and unexplained delay in submitting the application under Section 18 of the Land Acquisition Act, 1894, for reference to a Civil Court.
8. The Award has been passed on 1.10.2000. Award Enquiry shows that notice as contemplated under Section 9(3) and 10 of the Land Acquisition Act, has been served on all the persons known to be interested on the land. Notice under Section 9(2) and 10 of the Land Acquisition Act was also stated to have been served on those W.A.2097/2019 5 interested, as per the rules. There is a record to the effect that before the Land Acquisition Officer, all the legal heirs including Smt. Padmini, appellant herein had appeared and agreed to divide the compensation equally among the seven persons mentioned above, except Vilasini, one of the legal heirs who died on 21.9.1997. Therefore, the contention of the appellant that she has not received any notice on Award Enquiry, that too, after nearly nine years since the date of passing of the award cannot be countenanced.
9. Further, though the appellant has contended that she has made application under Section 18 of Land Acquisition Act for reference to the Civil Court for compensation, as rightly observed by the writ court, the appellant has not mentioned even when she came to know about the payment of compensation. There is no acceptable explanation for the inordinate delay and laches offered by the appellant on the face of record on the aspect of award. On this aspect, we deem it fit to consider the following decisions :
"(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, ceriorari or 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:
"24. Now, it is well settled that the power of the High 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 W.A.2097/2019 6 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 where despite delay and creation of third party rights the High 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 W.A.2097/2019 7 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 to comprehend. Where the relief sought under Article 226 of 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 becomes unsustainable even if the relief was granted in respect 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 W.A.2097/2019 8 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 far as it relates to the remedy."
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."
(vi) In S.S.Balu v. State of Kerala reported in 2009 (2) SCC 479, at Paragraph 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 there against, they impleaded W.A.2097/2019 9 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 Singh9 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 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."
(vii) In Virender Chaudhary v. Bharat Petroleum Corporation reported in 2009 (1) SCC 297, the Hon'ble Supreme Court held as follows:
"The court exercises its jurisdiction only upon satisfying itself that it would be equitable to do so. Delay and/or latches, indisputably, are the relevant factors.
"15. The Superior Courts, times without number, applied the equitable principles for not granting a relief and/or a limited relief in favour of the applicant in a case of this nature. While doing so, the court although not oblivious of the fact that no period of limitation is provided for filing a writ petition but emphasize is laid that it should be filed within a reasonable time. A discretionary jurisdiction under Article 226 of the Constitution of India need not be exercised if the writ petitioner is guilty of delay and latches."
Some of the decisions considered by the Hon'ble Apex Court in Virender Chaudhary's case (cited supra), are reiterated as follows:
"16. In Uttaranchal Forest Development Corporation and Anr. v. Jabar Singh and Ors. [(2007) 2 SCC 112], this Court held:
"It is not in dispute that the effective alternative remedy was not availed of by many of the workmen as detailed in paragraphs supra. The termination order was W.A.2097/2019 10 made in the year 1995 and the writ petitions were admittedly field in the year 2005 after a delay of 10 years. The High Court, in our opinion, was not justified in entertaining the writ petition on the ground that the petition has been filed after a delay of 10 years and that the writ petitions should have been dismissed by the High Court on the ground of latches."
17. In New Delhi Municipal Council v. Pan Singh and Ors. [(2007) 9 SCC 278], this Court held:
"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 [(2004) 1 SCC 347], U.P. Jal Nigam v. Jaswant Singh [(2006) 11 SCC 464] and Karnataka Power Corpn. Ltd., v. K.Thangappan [(2006) 4 SCC 332])
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 [(1994) 6 SCC 524] and M.R.Gupta v. Union of India [(1995) 5 SCC 628])
(viii) In Chennai Metropolitan Water Supply and Sewerage Board v. T.T.Murali Babu reported in 2014 (4) SCC 108, at Paragraphs 16 and 17, held as follows:
"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 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 W.A.2097/2019 11 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 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 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."
In the light of the above discussion, decisions and taking note of the reasonings of the writ court, we find no merit in the appeal. The writ appeal is dismissed.
Sd/-
S. Manikumar, Chief Justice Sd/-
C.K. Abdul Rehim, Judge sou.