Dismissed

Subhash Chandra Nayak v. State of Odisha

Orissa HC6 Nov 2024WA/812/2024

Case brief

AI extract

What is this about?

In this intra-court appeal, a two-Judge Bench of the High Court of Orissa dismissed the appellant's writ appeal challenging the dismissal of his original petition for execution of a lease deed. Upholding the Single Judge, the Court held the allotment was automatically cancelled due to failure to comply with terms and rejected the claim due to gross unexplained delay of 19 years invoking Article 22

What did the court decide?

Writ appeal dismissed upholding dismissal of original writ petition due to automatic cancellation of allotment and gross delay.

Subhash Chandra Nayak Vs State of Odisha — Property and Title | Orissa HC (2024)

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IN THE HIGH COURT OF ORISSA AT CUTTACK

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W.A. No. 812 of 2024

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Shri Subhash Chandra Nayak , S/o- (Late) Dr. Krishna Chandra Nayak, aged about 47 years, of village- Sanpur, Post- Dedhasardeuli, PS/Dist- Jagatsinghpur

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…Petitioner

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-Versus-

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1. State of Odisha , represented by its Chief Secretary to the Government of Odisha.

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2. Special Secretary to Govt. of Odisha , General Administration (GA) Department.

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3. Director of Estates and Ex-Officio , Additional Secretary to the Government of Odisha, General Administration Department.

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4. Land Officer , General Administration (GA) Department, Government of Odisha.

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All at the Odisha Secretariat, Bhubaneswar.

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…Opposite Parties

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Advocates appeared in the case:

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For the Petitioner : In-Person

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For Opposite Parties : Mr. L. Samantray, Additional Government Advocate

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W.A. No.812 of 2024 Page 1 of 13

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CORAM:

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HON’BLE THE CHIEF JUSTICE HON’BLE MISS JUSTICE SAVITRI RATHO

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JUDGMENT 06.11.2024

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Chakradhari Sharan Singh, CJ.

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In the present intra-court appeal, the appellant has put to challenge an order dated 19.03.2024 passed by a learned Single Judge of this Court in W.P.(C) No.8829 of 2012 whereby, the appellant’s writ petition filed under Article 226 of the Constitution of India has been dismissed.

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The appellant had filed the aforesaid writ petition seeking a direction to the opposite parties to execute a lease deed in respect of Plot No.154, Drawing No.B/371 in Mouza- Ghatikia, Bhubaneswar, in his favour.

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The relevant facts, which are not in dispute, are that the said piece of land was allotted to the appellant’s father, namely, Dr. Krushna Chandra Nayak, pursuant to an application made by him. By a communication dated 06.07.1993, issued by the General Administration Department, Government of Odisha, the lease deed

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W.A. No.812 of 2024 Page 2 of 13

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forms, in triplicate, and an affidavit form, for execution and registration within a stipulated time were sent to him. The appellant’s father, according to the appellant, was then serving in New Delhi and, therefore, he could not come to Bhubaneswar for execution of the lease deed.

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The appellant claimed in the writ petition that his father had already paid the entire premium and despite that, the lease deed could not be executed. The appellant further claimed that his father had submitted duly filled lease deed for execution on 04.08.1993 as is evident from a communication made in that regard. The appellant also relied on a subsequent communication made by the General Administration Department dated 19.11.2013 which provided that the delay in submission of the lease deed could also be condoned, and lease deed could be executed.

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It was the stand of the State of Odisha, on the other hand, in the writ petition that there was nothing on record to demonstrate that the appellant or his father had ever deposited the entire premium or duly filled lease deed within the time stipulated in the allotment order.

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The appellant’s father had, in fact, sent a communication to the

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W.A. No.812 of 2024 Page 3 of 13

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Department vide letter dated 05.07.1993 for deferment of the date of second installment. Later, the appellant’s father had requested for further deferment.

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Relying on the Supreme Court’s order dated 27.07.2017 passed in Civil Appeal No.9895-9896 of 2017 (The State of Odisha v. Malati Biswal) , a stand was taken on behalf of the State of Odisha that there was no requirement of passing any formal order of cancellation of the allotment of plot as the said allotment order stood automatically cancelled due to admitted non-compliance of the requirements to be performed, as stipulated in the order of allotment. Further, there was inordinate delay in filing of the writ application.

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The learned Single Judge, after having noticed the facts emerging from the pleadings and submissions, has recorded the finding in paragraph 12, which reads as under:

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“12. Taking note of the submission made by learned counsel for the parties, this Court finds that a piece of land measured 90 ft. X 60 ft. in Plot No.154 Drawing No.B/371 at mouza-Ghatikia, Bhubaneswar was allotted in favour of the Petitioner under Annexure-3. Clause-5 as quoted above clearly stipulates that lease deed form will be supplied by the Department on receipt of the bank draft and treasury challan as stated in clause 1(2) of the said allotment order for execution of lease deed and it should be submitted to the

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W.A. No.812 of 2024 Page 4 of 13

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Department within thirty days from the date of receipt of the lease deed for approval before registration. The Proviso to Caluse-5 clarifies that if the Allottee fails to execute the lease deed within thirty days from the date of receipt of the forms, he/she may execute the deed within further period of thirty days subject to payment of fine at the rate of Rs.50 per day’s delay to be deposited either in treasury challan or in bank draft. It further clarifies that if the amount is not paid or lease deed executed is not submitted by the allottee within the time stipulated as above, the allotment shall stand automatically cancelled and the allottee will be entitled to the premium only, if any paid.”

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The learned Single Judge has categorically rejected the appellant’s statement that a duly executed lease deed was submitted to the Department along with a letter dated 04.08.1993 in the absence of any record to show that the lease deed was executed and submitted in terms of Clause 5 of the Allotment Order. After having recorded his finding, the learned Single Judge has also taken into account the delay of 19 years in filing the writ petition, and has dismissed the writ petition by the impugned order.

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The appellant, appearing in-person, has submitted that he was a minor when the lease deed was deposited. He accordingly submits that only after the matter came within his knowledge, he approached the Department on several occasions for execution of the lease deed. In

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W.A. No.812 of 2024 Page 5 of 13

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such circumstances, the delay cannot be said to be inordinate, he contends.

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In our opinion, however, based on the pleadings and the materials available on record, the finding recorded by the learned Single Judge as noted above, appears to be correct. The claim of the appellant that his father had deposited the lease deed, duly filled in by him for approval of registration through a letter dated 04.08.1993 was not at all substantiated in pleadings with supportive documents.

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The learned Single Judge has rightly taken note of the proviso to Clause 5 of the conditions for allotment which stipulated that if the allottee failed to execute the lease deed within 30 days from the date of receipt of the forms, he/she might execute the deed within further period of 30 days subject to payment of fine. It further stipulated that if the amount was not paid or executed lease deed was not submitted by the allottee within the time prescribed, the allotment shall stand automatically cancelled. The learned Single Judge, noticing the said stipulations in Clause 5, has declined to grant the relief sought for by the appellant. This opinion of the learned Single Judge does not suffer from any illegality.

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W.A. No.812 of 2024 Page 6 of 13

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Further, we are also in agreement with the opinion recorded

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by the learned Single Judge that the writ petition was filed belatedly, nearly 19 years after the cause of action had arisen. In our opinion, the appellant miserably failed to explain the delay of nearly 19 years in approaching this Court by invoking writ jurisdiction.

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In case of Union of India v. N. Murugesan: (2022) 2 SCC

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25 , the Supreme Court has extensively dealt with the principles

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governing the delay and laches. Paragraph 28 of which reads thus:

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“ Article 226 of the Constitution of India

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28. We would not dwell deep into the extraordinary and discretionary nature of relief under Article 226 of the Constitution of India. This principle is to be extended much more when an element of undue delay, laches and acquiescence is involved. The following decisions of this Court would suffice:

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28.1. U.P. Jal Nigam v. Jaswant Singh [U.P. Jal Nigam v. Jaswant Singh, (2006) 11 SCC 464 : (2007) 1 SCC (L&S) 500] : (SCC pp. 469-70, paras 8-11)

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“8. Our attention was also invited to a decision of this Court in State of Karnataka v. S.M. Kotrayya [State of Karnataka v. S.M. Kotrayya, (1996) 6 SCC 267 : 1996 SCC (L&S) 1488] . In that case the respondents woke up to claim the relief which was granted to their colleagues by the Tribunal with an application to condone the delay. The Tribunal condoned the delay. Therefore, the State approached this Court and this Court after considering the matter observed as under : (SCC p. 268)

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W.A. No.812 of 2024 Page 7 of 13

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‘Although it is not necessary to give an explanation for the delay which occurred within the period mentioned in sub-section (1) or (2) of Section 21, explanation should be given for the delay which occasioned after the expiry of the aforesaid respective period applicable to the appropriate case and the Tribunal should satisfy itself whether the explanation offered was proper. In the instant case, the explanation offered was that they came to know of the relief granted by the Tribunal in August 1989 and that they filed the petition immediately thereafter. That is not a proper explanation at all. What was required of them to explain under sub-sections (1) and (2) was as to why they could not avail of the remedy of redressal of their grievances before the expiry of the period prescribed under sub-section (1) or (2). That was not the explanation given. Therefore, the Tribunal was wholly unjustified in condoning the delay.’

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9. Similarly in Jagdish Lal v. State of Haryana [Jagdish Lal v. State of Haryana, (1997) 6 SCC 538 : 1997 SCC (L&S) 1550] this Court reaffirmed the rule that if a person chose to sit over the matter and then woke up after the decision of the court, then such person cannot stand to benefit. In that case it was observed as follows : (SCC p. 542)

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‘The delay disentitles a party to discretionary relief under Article 226 or Article 32 of the Constitution. The appellants kept sleeping over their rights for long and woke up when they had the impetus from Virpal Singh Chauhan case [Union of India v. Virpal Singh Chauhan, (1995) 6 SCC 684 : 1996 SCC (L&S) 1] . The appellants' desperate attempt to redo the seniority is not amenable to judicial review at this belated stage.’

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10. In Union of India v. C.K. Dharagupta [Union of India v. C.K. Dharagupta, (1997) 3 SCC 395 : 1997 SCC (L&S) 821] it was observed as follows : (SCC p. 398, para 9)

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W.A. No.812 of 2024 Page 8 of 13

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‘9. We, however, clarify that in view of our finding that the judgment of the Tribunal in R.P. Joshi [R.P. Joshi v. Union of India, OA No. 497 of 1986, decided on 17-3-1987 (CAT)] gives relief only to Joshi, the benefit of the said judgment of the Tribunal cannot be extended to any other person. The respondent C.K. Dharagupta (since retired) is seeking benefit of Joshi case [R.P. Joshi v. Union of India, OA No. 497 of 1986, decided on 17-3-1987 (CAT)] . In view of our finding that the benefit of the judgment of the Tribunal dated 17-3-1987 could only be given to Joshi and nobody else, even Dharagupta is not entitled to any relief.’

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11. In State of W.B. v. Tarun K. Roy [State of W.B. v. Tarun K. Roy, (2004) 1 SCC 347 : 2004 SCC (L&S) 225] their Lordships considered delay as serious factor and have not granted relief. Therein it was observed as follows : (SCC pp. 359-60, para 34)

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‘34. The respondents furthermore are not even entitled to any relief on the ground of gross delay and laches on their part in filing the writ petition. The first two writ petitions were filed in the year 1976 wherein the respondents herein approached the High Court in 1992. In between 1976 and 1992 not only two writ petitions had been decided, but one way or the other, even the matter had been considered by this Court in Debdas Kumar [State of W.B. v. Debdas Kumar, 1991 Supp (1) SCC 138 : 1991 SCC (L&S) 841] . The plea of delay, which Mr Krishnamani states, should be a ground for denying the relief to the other persons similarly situated would operate against the respondents. Furthermore, the other employees not being before this Court although they are ventilating their grievances before appropriate courts of law, no order should be passed which would prejudice their cause. In such a situation, we are not prepared to make any observation only for the purpose of grant of some relief to the respondents to which they are not legally

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W.A. No.812 of 2024 Page 9 of 13

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entitled to so as to deprive others therefrom who may be found to be entitled thereto by a court of law.’ ”

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28.2. Eastern Coalfields Ltd. v. Dugal Kumar [Eastern Coalfields Ltd. v. Dugal Kumar, (2008) 14 SCC 295] : (SCC pp. 302-04, paras 24-28)

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“24. As to delay and laches on the part of the writ petitioner, there is substance in the argument of learned counsel for the appellant Company. It is well settled that under Article 226 of the Constitution, the power of a High Court to issue an appropriate writ, order or direction is discretionary. One of the grounds to refuse relief by a writ court is that the petitioner is guilty of delay and laches. It is imperative, where the petitioner invokes extraordinary remedy under Article 226 of the Constitution, that he should come to the court at the earliest reasonably possible opportunity. Inordinate delay in making the motion for a writ is indeed an adequate ground for refusing to exercise discretion in favour of the applicant.

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25. Under the English law, an application for leave for judicial review should be made “promptly”. If it is made tardily, it may be rejected. The fact that there is breach of public law duty does not necessarily make it irrelevant to consider delay or laches on the part of the applicant. Even if leave is granted, the question can be considered at the time of final hearing whether relief should be granted in favour of such applicant or not. (Vide R. v. Essex County Council [R. v. Essex County Council, 1993 COD 344] .)

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26. In R. v. Dairy Produce Quota Tribunal, ex p Caswell [R. v. Dairy Produce Quota Tribunal, ex p Caswell, (1990) 2 AC 738 at p. 749 : (1990) 2 WLR 1320 (HL)] , the House of Lords stated [Ed. : Quoting from O'Reilly v. Mackman [O'Reilly v. Mackman,

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(1983) 2 AC 237 : (1982) 3 WLR 1096 : (1982) 3 All ER 1124 at p. 1131a-b (HL)] ] : (O'Reilly case [O'Reilly v. Mackman, (1983) 2 AC 237 : (1982) 3

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W.A. No.812 of 2024 Page 10 of 13

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WLR 1096 : (1982) 3 All ER 1124 at p. 1131a-b (HL)] , AC pp. 280-81)

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“The public interest in good administration requires that public authorities and third parties should not be kept in suspense as to the legal validity of a decision the authority has reached in purported exercise of decision-making powers for any longer period than is absolutely necessary in fairness to the person affected by the decision.”

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27. The underlying object of refusing to issue a writ has been succinctly explained by Sir Barnes Peacock in Lindsay Petroleum Co. v. Prosper Armstrong Hurd [Lindsay Petroleum Co. v. Prosper Armstrong Hurd, (1874) LR 5 PC 221 : 22 WR 492] , thus : (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 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.”

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W.A. No.812 of 2024 Page 11 of 13

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28. This Court has accepted the above principles of English law. In Tilokchand Motichand v. H.B. Munshi [Tilokchand Motichand v. H.B. Munshi, (1969) 1 SCC 110] and Rabindranath Bose v. Union of India [Rabindranath Bose v. Union of India, (1970) 1 SCC 84] this Court ruled that even in cases of violation or infringement of fundamental rights, a writ court may take into account delay and laches on the part of the petitioner in approaching the court. And if there is gross or unexplained delay, the court may refuse to grant relief in favour of such petitioner.”

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The Supreme Court, in a recent decision in case of HMT

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Limited v. Rukmini: 2024 SCC OnLine SC 2614 , has reiterated the requirement of an aggrieved person approaching the High Court seeking remedy under Article 226 of the Constitution of India diligently. Paragraph 15 of the said decision reads as under:

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“15. It is in this context that this Court, in Syed Maqbool Ali v. State of Uttar Pradesh: (2011) 15 SCC 383, observed that an aggrieved person should approach the High Court diligently. Delay in filing a writ petition can result in prejudice, as parties' position and status may change. Courts do, in cases of such delay, insist that the party concerned should have a good and satisfactory explanation for it. It is only on being satisfied that other factors would not outweigh grant of relief, can the weighty objection of delay and laches be rejected. In other words, a Constitutional Court should be convinced that the case warrants exercise of jurisdiction under Article 226 of the Constitution. In State of Maharashtra v. Digambar: (1995) 4 SCC 683, a 3-Judge Bench of this Court had observed that the grant of relief by a Constitutional Court under Article 226 of the Constitution, without considering blameworthy conduct, such as delay and

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W.A. No.812 of 2024 Page 12 of 13

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laches, would be unsustainable even if such relief was granted for the alleged deprivation of a legal right. Discretionary relief, in such circumstances, can only be obtained upon fully satisfying the Court that the delay was justified and explainable.”

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It is well established principle that the doctrine of laches in the

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courts of equity is not a technical doctrine rather, it is one of the factors which is to be borne in mind, while exercising discretionary power

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under Article 226 of the Constitution of India.

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For the reasons noted above, we do not find any merit in this

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writ appeal and it is dismissed accordingly.

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(Chakradhari Sharan Singh) Chief Justice

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Savitri Ratho, J. I agree.

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(Savitri Ratho) Judge

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S. Behera

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Signature Not Verified

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Digitally Signed Signed by: SUMANTA BEHERA Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa, Cuttack Date: 26-Nov-2024 19:54:54

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W.A. No.812 of 2024 Page 13 of 13

Subhash Chandra Nayak v. State of Odisha

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Subhash Chandra Nayak v. State of Odisha

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