Suresh Chand Uppal Vs the Dryspuhf and Another

For the Respondents: Mr. Ramesh Chand Sharma, Advocate. -----------------------------------------------------------------------------------Jyotsna Rewal Dua, Judge

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Petitioner, aged 79 years, seeks to assail order dated 19.06.2024 (Annexure P-8) passed by the respondent-Dr. Y.S. Parmar University of Horticulture and Forestry, Nauni, District Solan, rejecting his representation for switching over to pension under the GPF Scheme.

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2. Heard learned counsel for the parties and considered the case file.

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1 Whether reporters of print and electronic media may be allowed to see the order? Yes.

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3. The case

3(i). Respondent-University introduced GPF (Pension) Scheme vide notification dated 25.02.1997. Under the said notification, the University employees including the petitioner were directed to place their options for continuing under the CPF or GPF Scheme. Petitioner opted for the CPF Scheme under the notification dated 25.02.1997. He was accordingly granted the benefit of CPF Scheme. Petitioner retired voluntarily in 2004. He accepted all the benefits granted to him under the CPF Scheme.

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3(ii). On 18.07.2008, the respondent-University offered one more opportunity to all its existing employees as well as retirees to opt for pension under the GPF/CPF Scheme. A registered letter was also issued to the petitioner after his voluntary retirement, giving him the aforesaid option. It is the stand of the respondent-University that the petitioner did not reply/respond to the letter, thus, impliedly conveying that he wanted to continue under the CPF Scheme. Noteworthy, the petitioner had also not deposited the University’s share of Contributory Provident Fund, which was paid to him on his voluntary retirement into Comptroller’s Account within the stipulated period of three months.

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3(iii). 12 years after his retirement, petitioner in the year 2016, made a representation to the respondentUniversity, requesting for switching over to the GPF Pension Scheme. The respondent-University did not accept this representation. This led the petitioner to institute Suresh Chand Uppal Versus Dr. Y.S. Parmar University & Anr.² . The said writ petition was disposed of on the statement made by petitioner’s learned counsel that petitioner’s case was squarely covered by a decision rendered in Chaudhary Sarwan Kumar HP Krishi Vishvavidyalaya Palampur & Anr. Vs. Vipan Kumar Gupta³ . Learned counsel for the petitioner submitted in the said writ petition that the petitioner would be satisfied in case the respondents were directed to consider his case in light of the aforesaid judgment. Suresh Chand Uppal² was accordingly disposed of on 26.04.2024 with such direction to the respondents. Portion relevant to the context from Suresh Chand Uppal² reads as under:-

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“2. Learned counsel for the petitioner submits that the case of the petitioner is squarely covered by the judgment passed by this Court on 17.04.2023 in LPA No.46 of 2023 titled as ‘Chaudhary Sarwan Kumar HP Krishi Vishvavidyalaya Palampur & Anr. Vs. Vipan Kumar Gupta’ along with connected matters. He further

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2 CWP No.9574 of 2023, decided on 26.04.2024

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3 LPA No.46 of 2023, decided alongwith connected matters on 17.04.2023

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submits that petitioner shall be content in case the respondents are directed to consider the case of the petitioner in a time bound manner in light of judgment ibid.

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3. Accordingly, the petition is disposed of without making any comments on the merits of the case of the petitioner. It is directed that respondents shall consider the case of the petitioner in light of judgment passed by this Court on 17.04.2023 in LPA No.46 of 2023 titled as ‘Chaudhary Sarwan Kumar HP Krishi Vishvavidyalaya Palampur & Anr. Vs. Vipan Kumar Gupta’ along with connected matters, within eight weeks from today and will decide the same by passing a speaking order. In case, the petitioner is found similarly situated as petitioner(s) in the above mentioned case, they will also be granted the same benefits as granted to petitioner(s) in above referred case.”

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3(iv). Pursuant to the above order, the respondentUniversity considered the case of the petitioner in light of Vipan Kumar Gupta³ and vide speaking order dated 19.06.2024 (Annexure P-8), rejected the same. Petitioner challenges the aforesaid office order.

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4. Consideration:-

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4(i). While rejecting the case of the petitioner, the respondents in the impugned order, have elaborated that the decision rendered in Vipan Kumar Gupta³ is not attracted to the facts of the present case. In Vipan Kumar Gupta³ , CSKHPKVV Palampur had issued a notification during the year 2002, offering a second opportunity for its ‘left out existing employees’ to opt for pension scheme. It was in that background that the Hon’ble Division Bench

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interpreted the term ‘left out employees’ and held that notification dated 25.07.2002 had been issued by CSKHPKVV Palampur to provide another opportunity to the existing employees to opt for pension scheme, although they had opted for CPF Scheme at the first instance. That the words ‘left out employees’ used in notification dated 25.07.2002 would mean those who had opted for CPF Scheme and therefore, could be given benefit of notification dated 25.07.2002 to opt for GPF Pension Scheme.

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The impugned order issued by the respondentUniversity elaborates that no such notification as was issued in Vipan Kumar Gupta’s³ case on 25.07.2002, had been issued by the respondent-Dr. Yashwant Singh Parmar University. This being the admitted position, reliance placed by the petitioner upon the decision in Vipan Kumar Gupta³ is misplaced as facts of said case differ from the facts of the instant case.

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Furthermore, Vipan Kumar Gupta³ in following paragraph 9, takes cognizance of the fact that notification dated 25.07.2002 had been issued to provide another opportunity to the existing employees to opt for pension scheme:-

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“9. The Notification dated 25.07.2002 had, thus, been issued with a view to provide another opportunity to the existing employees to opt for Pension Scheme, although, they had opted for CPF Scheme at the first instance. There cannot be any other explanation to the term ‘left out employees’ except that those who had opted for CPF Scheme. Apparently, all other employees had come under the Pension Scheme either on account of their option or under the default clause of the Notification dated 01.01.1997.”

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In the instant case, the petitioner, presently

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aged 79 years, had taken voluntary retirement in the year 2004 and had accepted all benefits under the CPF Scheme. He ceased to be in service of the respondent-University thereafter.

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It has further been clarified by the respondentUniversity in the impugned order that pursuant to notification dated 18.07.2008, 14 retirees including the petitioner were issued letters via registered AD for exercising fresh option, out of which six opted for GPF Pension Scheme. They also deposited University’s share of CPF, which was paid to them on their retirement, into the Comptroller’s account within the stipulated period of three months, but the petitioner and other seven retirees neither responded to the offer nor deposited University’s share of CPF, impliedly indicating their preference to continue to be

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governed under the CPF Scheme as per their option exercised pursuant to notification dated 25.02.1997.

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4(ii). The issue raised by the petitioner in the instant petition is hopelessly barred by unexplained delay, laches and acquiescence. Petitioner had specifically opted for CPF Scheme under notification dated 25.02.1997. As noticed earlier, he thereafter retired voluntarily in the year 2004. All benefits given to him under the CPF Scheme were accepted by him at the time of his voluntary retirement. The respondent-University had given another opportunity to all its existing employees/retirees on 18.07.2008 to opt for GPF/CPF Scheme. Petitioner did not respond to the said notification within the stipulated period of three months. It was in the year 2016 that he represented for the first time for switching over to GPF Scheme and thereafter filed writ petition in 2023, which was disposed of in view of statement made for the petitioner that his case was covered by Vipan Kumar Gupta³ . The delay & laches have not been explained by the petitioner. The grounds projected now in the petition of option given in 2008 being not in knowledge of the petitioner; Petitioner having not received registered letter are all lame excuses. Petitioner has not even taken these grounds in his representations filed to the University.

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4(ii)(a). Learned counsel for the petitioner invokes

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Tukaram Kana Joshi and others Versus Maharashtra Industrial Development Corporation and others⁴ for condoning the delay and laches on the basis of following paragraphs of the judgment:-

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“12. The State, especially a welfare State which is governed by the Rule of Law, cannot arrogate itself to a status beyond one that is provided by the Constitution. Our Constitution is an organic and flexible one. Delay and laches is adopted as a mode of discretion to decline exercise of jurisdiction to grant relief. There is another facet. The Court is required to exercise judicial discretion. The said discretion is dependent on facts and circumstances of the cases. Delay and laches is one of the facets to deny exercise of discretion. It is not an absolute impediment. There can be mitigating factors, continuity of cause action, etc. That apart, if whole thing shocks the judicial conscience, then the Court should exercise the discretion more so, when no third party interest is involved. Thus analysed, the petition is not hit by the doctrine of delay and laches as the same is not a constitutional limitation, the cause of action is continuous and further the situation certainly shocks judicial conscience.

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13. The question of condonation of delay is one of discretion and has to be decided on the basis of the facts of the case at hand, as the same vary from case to case. It will depend upon what the breach of fundamental right and the remedy claimed are and when and how the delay arose. It is not that there is any period of limitation for the Courts to exercise their powers under Article 226, nor is it that there can never be a case where the Courts cannot interfere in a matter, after the passage of a certain length of time. There may be a case where the demand for justice is so compelling, that the High Court would be inclined to interfere in spite of delay. Ultimately, it would be a matter within the discretion of the Court and such discretion, must be exercised fairly and justly so as to promote justice and

4 (2013) 1 SCC 353

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not to defeat it. The validity of the party’s defence must be tried upon principles substantially equitable. (Vide P.S. Sadasivaswamy v. State of T.N.⁵ ; State of M.P. & Ors. v. Nandlal Jaiswal & Ors.⁶ ; and Tridip Kumar Dingal & Ors. v. State of W.B.⁷ )

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14. No hard and fast rule can be laid down as to when the High Court should refuse to exercise its jurisdiction in favour of a party who moves it after considerable delay and is otherwise guilty of laches. Discretion must be exercised judiciously and reasonably. In the event that the claim made by the applicant is legally sustainable, delay should be condoned. In other words, where circumstances justifying the conduct exist, the illegality which is manifest, cannot be sustained on the sole ground of laches. When substantial justice and technical considerations are pitted against each other, the cause of substantial justice deserves to be preferred, for the other side cannot claim to have a vested right in the injustice being done, because of a non-deliberate delay. The court should not harm innocent parties if their rights have in fact emerged, by delay on the part of the Petitioners. (Vide: Durga Prashad v. Chief Controller of Imports and ports⁸ , Collector (LA) v. Katiji⁹ ; Dehri Rohtas Light Railway Co. Ltd. v. District Board, Bhojpur¹⁰ ; Dayal Singh v. Union of India¹¹ ; and Shankara Coop. Housing Society Ltd. v. M. Prabhakar¹² .)

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15. In H.D Vora v. State of Maharashtra¹³ , this Court condoned a 30-year delay in approaching the court where it found violation of substantive legal rights of the applicant. In that case, the requisition of premises made by the State was assailed.”

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It is, however, to be seen that the aforesaid

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decision was rendered in a case of acquisition of the property without paying compensation and in such

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5 (1975) 1 SCC 152

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6 (1986) 4 SCC 566

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7 (2009) 1 SCC 768

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8 (1969) 1 SCC 185

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9 (1987) 2 SCC 107

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10 (1992) 2 SCC 598

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11 (2003) 2 SCC 593

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12 (2011) 5 SCC 607

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13 (1984) 2 SCC 337

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circumstances, the Hon’ble Apex Court specifically distinguished the cases where ground of delay and laches are urged for rejecting the claim falling within the realm of service jurisprudence. Paragraph 11 of the judgment reads as under:-

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“11. There are authorities which state that delay and laches extinguish the right to put forth a claim. Most of these authorities pertain to service jurisprudence, grant of compensation for a wrong done to them decades ago, recovery of statutory dues, claim for educational facilities and other categories of similar cases, etc. Though, it is true that there are a few authorities that lay down that delay and laches debar a citizen from seeking remedy, even if his fundamental right has been violated, under Article 32 or 226 of the Constitution, the case at hand deals with a different scenario altogether. Functionaries of the State took over possession of the land belonging to the appellants without any sanction of law. The appellants had asked repeatedly for grant of the benefit of compensation. The State must either comply with the procedure laid down for acquisition, or requisition, or any other permissible statutory mode. There is a distinction, a true and concrete distinction, between the principle of "eminent domain" and "police power" of the State. Under certain circumstances, the police power of the State may be used temporarily, to take possession of property but the present case clearly shows that neither of the said powers have been exercised. A question then arises with respect to the authority or power under which the State entered upon the land. It is evident that the act of the State amounts to encroachment, in exercise of "absolute power" which in common parlance is also called abuse of power or use of muscle power. To further clarify this position, it must be noted that the authorities have treated the land owner as a 'subject' of medieval India, but not as a 'citizen' under our constitution.”

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11

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4(ii)(b). Learned counsel for the petitioner then invoked

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Union of India and others Versus Tarsem Singh¹⁴ to contend that instant is a continuing wrong, therefore, even if there is a long delay in seeking remedy, the delay can be condoned. However, the said decision itself is an authority on the point that where a service related claim is based on a continuing wrong, relief can be granted even if there is a long delay in seeking remedy, with reference to the date on which the continuing wrong commenced, if such continuing wrong creates a continuing source of injury. But there is an exception to the exception. If the grievance is in respect of any order or administrative decision, which related to or affected several others also and if the reopening of the issue would affect the settled rights of third parties, then the claim will not be entertained.

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In the instant case, as submitted by learned counsel for the respondents, it is not only the petitioner, but several others, whose claim for switching over from CPF Scheme to GPF Scheme would be affected in case petitioner’s case is entertained at this belated stage. It would amount to opening of Pandora box of cases. The instances given in the writ petition are of those who

14 (2008) 8 SCC 648

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admittedly had either exercised the option for GPS Scheme in terms of notification dated 18.07.2008 or had retired subsequently & exercised option for GPF Scheme. The discrimination is not established on record.

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Reliance placed by learned counsel for the petitioner on the merits of his claim based upon the decision in University of Delhi versus Smt. Shashi Kiran & Ors. Etc.¹⁵ , therefore, is also of no assistance to the petitioner, his case being barred by delay and laches. Admittedly Shashi Kiran¹⁵ did not suffer from any delay or laches. Learned counsel for the petitioner informed that aggrieved persons therein had promptly taken recourse to the remedies for redressal of their grievances.

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4(ii)(c). At this stage, it will be appropriate to refer to Bichitrananda Behera Versus State of Orissa and others¹⁶ . In the said decision, Hon’ble Apex Court held that delay and laches are vital in service matters and can be seen as acquiescence . Belated service related claim is to be rejected on the ground of delay and laches. Laches can be based upon equitable considerations, but laches unlike acquiescence imports even simple passivity. Acquiescence

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15 SLP (Civil) Diary No.13901 of 2017, decided alongwith connected matters on 10.05.2022 16 AIR 2023 SC 5064

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implies active assent and is based upon the rule of estoppel in pais. Even indirect acquiescence implies almost active consent, which is not to be inferred by mere silence or inaction, which is involved in laches. Acquiescence in this manner is quite distinct from delay. Acquiescence virtually destroys the right of the person. Hon’ble Apex Court observed that the claimant therein had delayed pursuing his claim for over 12 years despite being aware of the appointment of another person to the same post of Physical Education Trainer (PET). This prolonged inaction was held to amount to acquiescence, which effectively bars the claim because it implies consent through silence or failure to act. Hon’ble Apex Court explained that while laches refers to an unreasonable delay without active consent, both delay and laches serve the important purpose of preventing stale claims that disrupt settled rights and administrative decisions. In service matters, these doctrines were held to play crucial roles as they protect the stability and finality of administrative decisions. Relevant portion of the judgment reads as under:-

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“21. Profitably, we may reproduce relevant passages from certain decisions of this Court:

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“(A) Union of India v Tarsem Singh, (2008) 8 SCC 648:

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“To summarise, normally, a belated service related claim will be rejected on the ground of delay and laches

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(where remedy is sought by filing a writ petition) or limitation (where remedy is sought by an application to the Administrative Tribunal). One of the exceptions to the said rule is cases relating to a continuing wrong. Where a service related claim is based on a continuing wrong, relief can be granted even if there is a long delay in seeking remedy, with reference to the date on which the continuing wrong commenced, if such continuing wrong creates a continuing source of injury. But there is an exception to the exception. If the grievance is in respect of any order or administrative decision which related to or affected several others also, and if the reopening of the issue would affect the settled rights of third parties, then the claim will not be entertained. For example, if the issue relates to payment or refixation of pay or pension, relief may be granted in spite of delay as it does not affect the rights of third parties. But if the claim involved issues relating to seniority or promotion, etc., affecting others, delay would render the claim stale and doctrine of laches/limitation will be applied. Insofar as the consequential relief of recovery of arrears for a past period is concerned, the principles relating to recurring/successive wrongs will apply. As a consequence, the High Courts will restrict the consequential relief relating to arrears normally to a period of three years prior to the date of filing of the writ petition.”

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(Emphasis supplied)

(B) ……………..

21-23.

Acquiescence

24. We have already discussed the relationship between acquiescence on the one hand and delay and laches on the other.

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25. Acquiescence would mean a tacit or passive acceptance. It is implied and reluctant consent to an act. In other words, such an action would qualify a passive assent. Thus, when acquiescence takes place, it presupposes knowledge against a particular act. From the knowledge comes passive acceptance, therefore instead of taking any action against any alleged refusal to perform the original contract, despite adequate knowledge of its terms, and instead being allowed to continue by consciously ignoring it and thereafter

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proceeding further, acquiescence does take place. As a consequence, it reintroduces a new implied agreement between the parties. Once such a situation arises, it is not open to the party that acquiesced itself to insist upon the compliance of the original terms. Hence, what is essential, is the conduct of the parties. We only dealt with the distinction involving a mere acquiescence. When acquiescence is followed by delay, it may become laches. Here again, we are inclined to hold that the concept of acquiescence is to be seen on a case-to-case basis.”

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(C) Chairman, State Bank of India v M J James, (2022) 2 SCC 301:

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36. What is a reasonable time is not to be put in a straitjacket formula or judicially codified in the form of days, etc. as it depends upon the facts and circumstances of each case. A right not exercised for a long time is non- existent. Doctrine of delay and laches as well as acquiescence are applied to non-suit the litigants who approach the court/appellate authorities belatedly without any justifiable explanation for bringing action after unreasonable delay. In the present case, challenge to the order of dismissal from service by way of appeal was after four years and five months, which is certainly highly belated and beyond justifiable time. Without satisfactory explanation justifying the delay, it is difficult to hold that the appeal was preferred within a reasonable time. Pertinently, the challenge was primarily on the ground that the respondent was not allowed to be represented by a representative of his choice. The respondent knew that even if he were to succeed on this ground, as has happened in the writ proceedings, fresh inquiry would not be prohibited as finality is not attached unless there is a legal or statutory bar, an aspect which has been also noticed in the impugned judgment. This is highlighted to show the prejudice caused to the appellants by the delayed challenge. We would, subsequently, examine the question of acquiescence and its judicial effect in the context of the present case.

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xxx

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38. In Ram Chand v. Union of India [Ram Chand v. Union of India, (1994) 1 SCC 44] and State of U.P. v. Manohar [State of U.P. v. Manohar, (2005) 2 SCC 126] this Court observed that if the statutory authority has not

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performed its duty within a reasonable time, it cannot justify the same by taking the plea that the person who has been deprived of his rights has not approached the appropriate forum for relief. If a statutory authority does not pass any orders and thereby fails to comply with the statutory mandate within reasonable time, they normally should not be permitted to take the defence of laches and delay. If at all, in such cases, the delay furnishes a cause of action, which in some cases as elucidated in Union of India v. Tarsem Singh [Union of India v. Tarsem Singh, (2008) 8 SCC 648 : (2008) 2 SCC (L&S) 765] may be continuing cause of action.

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The State being a virtuous litigant should meet the genuine claims and not deny them for want of action on their part. However, this general principle would not apply when, on consideration of the facts, the court concludes that the respondent had abandoned his rights, which may be either express or implied from his conduct. Abandonment implies intentional act to acknowledge, as has been held in para 6 of Motilal Padampat Sugar Mills Co. Ltd. v. State of U.P. [Motilal Padampat Sugar Mills Co. Ltd. v. State of U.P., (1979) 2 SCC 409 : 1979 SCC (Tax) 144] Applying this principle of acquiescence to the precept of delay and laches, this Court in U.P. Jal Nigam v. Jaswant Singh [U.P. Jal Nigam v. Jaswant Singh, (2006) 11 SCC 464 : (2007) 1 SCC (L&S) 500] after referring to several judgments, has accepted the following elucidation in Halsbury's Laws of England : (Jaswant Singh case [U.P. Jal Nigam v. Jaswant Singh, (2006) 11 SCC 464 : (2007) 1 SCC (L&S) 500] , SCC pp. 470-71, paras 1213).

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“12. The statement of law has also been summarised in Halsbury's Laws of England, Para 911, p. 395 as follows:

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‘In determining whether there has been such delay as to amount to laches, the chief points to be considered are:

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(i) acquiescence on the claimant's part; and

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(ii) any change of position that has occurred on the defendant's part.

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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

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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.’

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13. In view of the statement of law as summarised above, the respondents are guilty since the respondents have acquiesced in accepting the retirement and did not challenge the same in time. If they would have been vigilant enough, they could have filed writ petitions as others did in the matter. Therefore, whenever it appears that the claimants lost time or whiled it 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. In the present case, if the respondents would have challenged their retirement being violative of the provisions of the Act, perhaps the Nigam could have taken appropriate steps to raise funds so as to meet the liability but by not asserting their rights the respondents have allowed time to pass and after a lapse of couple of years, they have filed writ petitions claiming the benefit for two years. That will definitely require the Nigam to raise funds which is going to have serious financial repercussions on the financial management of the Nigam. Why should the court come to the rescue of such persons when they themselves are guilty of waiver and acquiescence?”

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39. Before proceeding further, it is important to clarify distinction between “acquiescence” and “delay and laches”. Doctrine of acquiescence is an equitable doctrine which applies when a party having a right stands by and sees another dealing in a manner inconsistent with that right, while the act is in progress and after violation is completed, which conduct reflects his assent or accord. He cannot afterwards complain. [See Prabhakar v. Sericulture Deptt., (2015) 15 SCC 1 : (2016) 2 SCC (L&S) 149. Also, see Gobinda Ramanuj Das Mohanta v. Ram Charan Das, 1925 SCC OnLine

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Cal 30 : AIR 1925 Cal 1107] In literal sense, the term acquiescence means silent assent, tacit consent, concurrence, or acceptance, [See Vidyavathi Kapoor Trust v. CIT, 1991 SCC OnLine Kar 331 : (1992) 194 ITR 584] which denotes conduct that is evidence of an intention of a party to abandon an equitable right and also to denote conduct from which another party will be justified in inferring such an intention. [See Krishan Dev v. Ram Piari, 1964 SCC OnLine HP 5 : AIR 1964 HP 34] Acquiescence can be either direct with full knowledge and express approbation, or indirect where a person having the right to set aside the action stands by and sees another dealing in a manner inconsistent with that right and in spite of the infringement takes no action mirroring acceptance. [See “Introduction”, U.N. Mitra, Tagore Law Lectures — Law of Limitation and Prescription, Vol. I, 14^th Edn., 2016.] However, acquiescence will not apply if lapse of time is of no importance or consequence.

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40. Laches unlike limitation is flexible. However, both limitation and laches destroy the remedy but not the right. Laches like acquiescence is based upon equitable considerations, but laches unlike acquiescence imports even simple passivity. On the other hand, acquiescence implies active assent and is based upon the rule of estoppel in pais. As a form of estoppel, it bars a party afterwards from complaining of the violation of the right. Even indirect acquiescence implies almost active consent, which is not to be inferred by mere silence or inaction which is involved in laches. Acquiescence in this manner is quite distinct from delay. Acquiescence virtually destroys the right of the person. [See Vidyavathi Kapoor Trust v. CIT, 1991 SCC OnLine Kar 331 : (1992) 194 ITR 584] Given the aforesaid legal position, inactive acquiescence on the part of the respondent can be inferred till the filing of the appeal, and not for the period post filing of the appeal. Nevertheless, this acquiescence being in the nature of estoppel bars the respondent from claiming violation of the right of fair representation.”

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4(ii)(d). In Marinmoy Maity Versus Chanda Koley &

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Ors.¹⁷ , Hon’ble Apex Court held that an applicant who approaches the Court belatedly or in other words sleeps over his rights for a considerable period of time, wakes up from deep slumber ought not to be granted the extraordinary relief by the writ Courts. Delay or laches is one of the factors, which should be born in mind by the High Court while exercising discretionary powers under Article 226 of the Constitution of India. In a given case, the High Court may refuse to invoke its extraordinary powers if laxity on the part of the applicant to assert his right has allowed the cause of action to drift away and attempts are made subsequently to rekindle the lapsed cause of action. Relevant portion from the decision is as under: -

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“9. Having heard rival contentions raised and on perusal of the facts obtained in the present case, we are of the considered view that writ petitioner ought to have been non-suited or in other words writ petition ought to have been dismissed on the ground of delay and laches itself. An applicant who approaches the court belatedly or in other words sleeps over his rights for a considerable period of time, wakes up from his deep slumber ought not to be granted the extraordinary relief by the writ courts. This Court time and again has held that delay defeats equity. Delay or laches is one of the factors which should be born in mind by the High Court while exercising discretionary powers under Article 226 of the Constitution of India. In a given case, the High Court may refuse to invoke its extraordinary powers if

17AIR 2024 SC 2717

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laxity on the part of the applicant to assert his right has allowed the cause of action to drift away and attempts are made subsequently to rekindle the lapsed cause of action.

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10. The discretion to be exercised would be with care and caution. If the delay which has occasioned in approaching the writ court is explained which would appeal to the conscience of the court, in such circumstances it cannot be gainsaid by the contesting party that for all times to come the delay is not to be condoned. There may be myriad circumstances which gives rise to the invoking of the extraordinary jurisdiction and it all depends on facts and circumstances of each case, same cannot be described in a straight jacket formula with mathematical precision. The ultimate discretion to be exercised by the writ court depends upon the facts that it has to travel or the terrain in which the facts have travelled.

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11. For filing of a writ petition, there is no doubt that no fixed period of limitation is prescribed. However, when the extraordinary jurisdiction of the writ court is invoked, it has to be seen as to whether within a reasonable time same has been invoked and even submitting of memorials would not revive the dead cause of action or resurrect the cause of action which has had a natural death. In such circumstances on the ground of delay and laches alone, the appeal ought to be dismissed or the applicant ought to be non-suited. If it is found that the writ petitioner is guilty of delay and laches, the High Court ought to dismiss the petition on that sole ground itself, in as much as the writ courts are not to indulge in permitting such indolent litigant to take advantage of his own wrong. It is true that there cannot be any waiver of fundamental right but while exercising discretionary jurisdiction under Article 226, the High Court will have to necessarily take into consideration the delay and laches on the part of the applicant in approaching a writ court. This Court in the case of Tridip Kumar Dingal and others v. State of W.B and others. (2009) 1 SCC 768, has held to the following effect:-

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“56. We are unable to uphold the contention. It is no doubt true that there can be no waiver of fundamental right. But while exercising discretionary jurisdiction under Articles 32, 226, 227 or 136 of the Constitution, this

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Court takes into account certain factors and one of such considerations is delay and laches on the part of the applicant in approaching a writ court. It is well settled that power to issue a writ is discretionary. One of the grounds for refusing reliefs under Article 32 or 226 of the Constitution is that the petitioner is guilty of delay and laches.

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57. If the petitioner wants to invoke jurisdiction of a writ court, he should come to the Court at the earliest reasonably possible opportunity. Inordinate delay in making the motion for a writ will indeed be a good ground for refusing to exercise such discretionary jurisdiction. The underlying object of this principle is not to encourage agitation of stale claims and exhume matters which have already been disposed of or settled or where the rights of third parties have accrued in the meantime (vide State of M.P. v. Bhailal Bhai [AIR 1964 SC 1006 : (1964) 6 SCR 261], Moon Mills Ltd. v. Industrial Court [AIR 1967 SC 1450] and Bhoop Singh v. Union of India [(1992) 3 SCC 136 : (1992) 21 ATC 675 : (1992) 2 SCR 969] ). This principle applies even in case of an infringement of fundamental right (vide Tilokchand Motichand v. H.B. Munshi [(1969) 1 SCC 110] , Durga Prashad v. Chief Controller of Imports & Exports [(1969) 1 SCC185] and Rabindranath Bose v. Union of India [(1970) 1 SCC 84]. 58. There is no upper limit and there is no lower limit also when a person can approach a court. The question is one of discretion and has to be decided on the basis of facts before the court depending on and varying from case to case. It will depend upon what the breach of fundamental right and the remedy claimed are and when and how the delay arose."

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The ratio of above decisions in Bichitrananda

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Behera¹⁶ and Marinmoy Maity¹⁷ apply to the facts of the instant case. The claim of the petitioner at this belated stage suffers from unexplained delay, laches and also acquiescence.

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5. For the foregoing reasons, I do not find any merit in the instant writ petition. The same is accordingly

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dismissed alongwith pending miscellaneous application(s),

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if any.

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September 08, 2025 Mukesh