State of Hp Vs Peak View Resorts Private Limited through Shri Surinder Singh Deswal Barog

State of Himachal Pradesh feels aggrieved against the order passed by the Financial Commissioner (Appeals) H.P. on 23.12.2019 holding there being no illegality or irregularity in the order dated 07.04.2015 passed by the District Collector, Solan, as also in the order dated 26.10.2018 passed by the Divisional Commissioner, Shimla.

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2. Heard learned Deputy Advocate General and considered the case file.

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3. Proceedings under Section 118 of the H.P. Tenancy and Land Reforms Act, 1972 (hereinafter

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

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referred to as the Act) were initiated against the respondent for not utilizing the land within the permissible period for the purpose for which the land was permitted to be purchased. The case set up by the petitioner before the District Collector was that respondent had purchased land in question with permission of the State Government in February, 2002 for construction of a hotel/resort whereas the respondent had constructed only three buildings and developed the parking facility but the hotel/ resort was not in operation at the spot. The respondent had not utilized the land within the period stipulated in the permission letter/in terms of provision of Section 118 of the Act for the purpose for which it was permitted to purchase the land.

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3(i). On considering the case before it, the District Collector in his order dated 07.04.2015 returned factual findings that respondent had made constructions over the suit land; The construction map had been approved by the Competent Authority; Water and electricity connections had been installed; Public Works Department and Town and Country Planning Department had given their no objection certificates to the respondent during pendency of the proceedings under Section 118 for further construction activities of the project; The

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respondent had also projected and demonstrated certain internal difficulties faced by it for not utilizing the land within the permissible period. The District Collector found the endeavors of the respondent to complete the project, genuine. He was of the view that an opportunity had to be given to the respondent to prove his bonafide intentions. Accordingly, notice given to the respondent was discharged with the direction that resort be made operational within one year. Liberty was reserved to the concerned authority to re-institute the proceedings against the respondent on detection of new facts or events.

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3(ii). The aforesaid order passed by the District Collector on 07.04.2015 was affirmed by the Divisional Commissioner, Shimla on 26.10.2018 and by the Financial Commissioner (Appeals), H.P on 23.12.2019.

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4. More than 06 years after the passing of the impugned order, State has chosen to file this writ petition (i.e. on 17.04.2026). No reasons whatsoever are discernible from the writ petition as to what prevented the State from assailing the order passed by the Financial Commissioner (Appeals) within a reasonable period. In Mrinmoy Maity versus Chhanda Koley and others² ,

2(2024)15 SCC 215

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the Hon’ble Apex Court inter alia re-iterated that for filing of a writ petition though no fixed period of limitation is prescribed. However, when the extraordinary jurisdiction of 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 case of action which has had a natural death. In such circumstances on the ground of delay and laches alone, the applicant ought to be non-suited. The writ courts are not to indulge in permitting indolent litigant to take advantage of his own wrong. Though 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. Relevant paras from the decision are as under:-

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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 latches alone, the

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5

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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 latches, 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 latches on the part of the applicant in approaching a writ court.

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12 . This Court in the case of Tridip Kumar Dingal and others v. State of W.B .³ , has held to the following effect: (SCCp.784,paras 56-58)

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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 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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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

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3(2009) 1 SCC 768:(2009) 2 SCC (L&S) 119

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6

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parties have accrued in the meantime (vide State of M.P. v. Bhailal Bhai⁴ , Moon Mills Ltd. v. Industrial Court⁵ and Bhoop Singh v. Union of India⁶ . This principle applies even in case of an infringement of fundamental right (vide Tilokchand Motichand v. H.B. Munshi⁷ , Durga Prashad v. Chief Controller of Imports & Exports⁸ and Rabindranath Bose v. Union of India⁹ .

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There is no upper limit and there is no lower limit as to 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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13 . It is apposite to take note of the dicta laid down by this Court in Karnataka Power Corportion Ltd. and another v. K. Thangappan and another¹⁰ , whereunder it has been held that the High Court may refuse to exercise extraordinary jurisdiction if there is negligence or omissions on the part of the applicant to assert his right. It has been further held thereunder:

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“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

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4AIR 1964 SC 1006 : (1964) 6 SCR 261)

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5AIR 1967 SC 1450

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6(1992)3 SCC 136

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7(1969) 1 SCC 110: (1970) 25 STC 289

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8(1969) 1 SCC 185

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9(1970)1 SCC 84

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10(2006) 4 SCC 322: 2006 SCC (L&S) 791

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still within the discretion of the Court as pointed out in Durga Prashad v. Controller of Imports and Exports¹¹ . Of course, the discretion has to be exercised judicially and reasonably.

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What was stated in this regard by Sir Barnes Peacock in Lindsay Petroleum Co. v. Prosper Armstrong Hurd¹² (LR PC at p. 239) was approved by this Court in Moon Mills Ltd. v. Industrial Court¹³ and Maharashtra SRTC v. Shri Balwant Regular Motor Service¹⁴ .Sir Barnes had stated: (Lindsay Petroleum case¹² , LR pp.239-40)

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“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

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11(1969) 1 SCC 185

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12(1874) LR 5 PC 221: 22 WR 492

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13AIR 1967 SC 1450

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14 AIR 1969 SC 329

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in taking the one course or the other, so far as it relates to the remedy.”

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It would be appropriate to note certain decisions of this Court in which this aspect has been dealt with in relation to 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 India¹⁵ 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.

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It was stated in State of M.P. v. Nandlal Jaiswal¹⁶ 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

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15(1970) 1 SCC 84 16(1986) 4 SCC 566

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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.”

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14 . Reiterating the aspect of delay and latches would disentitle the discretionary relief being granted, this Court in the case of Chennai Metropolitan Water Supply & Sewerage Board and others v. T.T. Murali Babu¹⁷ , has held: (SCC p.117, para 16)

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“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 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.”

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17(2014) 4 SCC 108: (2014) 1 SCC (L& S) 38

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In the instant case as noticed earlier, it was on 23.12.2019 that the Financial Commissioner (Appeals), H.P. had affirmed two concurrent orders passed in favour of the respondent. Petitioner’s not assailing the order dated 23.12.2019 for more than six long years, would mean acceptance of such order rendering conclusiveness to the impugned orders. Efflux of time, in turn would create rights in and corresponding liabilities upon the parties. It is not the case of the petitioner that pursuant to liberty reserved to it by the District Collector in his order passed on 07.04.2015, any fresh proceedings had been initiated by it.

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In view of above, no case is made out by the petitioner for interference at this belated stage with the impugned order passed by the Financial Commissioner (Appeals) H.P. on 23.12.2019 affirming the concurrent orders passed by the two revenue authorities below. Accordingly, writ petition is dismissed. Pending miscellaneous application(s), if any, also stand disposed of.

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May 05, 2026 yogesh

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Jyotsna Rewal Dua Judge

State of Hp v. Peak View Resorts Private Limited through Shri Surinder Singh Deswal Barog

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State of Hp v. Peak View Resorts Private Limited through Shri Surinder Singh Deswal Barog

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