Dass Vs. Union of India & Ors  Insc 62 (18 January 2007)
Arijit Pasayat & S.H. Kapadia (Arising out of S.L.P. (C) No. 881 of 2006) Dr.
Arijit Pasayat, J.
calls in question legality of the judgment rendered by a Division Bench of the Punjab and Haryana High Court dismissing
the Writ Petition filed by the appellant on the ground that it was highly
belated. It was noted that appellant was out of service in the year 1983 and
the writ petition was filed in 2005.
case in a nutshell is as follows:
was enrolled in Army Medical Corps, Lucknow in September, 1965. In 1982 he suffered from medical problem of weak
eyesight and he became almost 80% disabled, despite being getting the
treatment. Therefore, he was placed under low medical category by the Medical
Board. He was relieved from the service being invalidated out of service. In
1983 appellant claimed disability pension for the 80% disability. It was
rejected by the Chief Controller of Defence Accounts (Pension), Allahabad. Appellant claims that he had filed
appeal before the appellate authority but there no reply was given.
there was no intimation regarding any order in the appeal, he filed the writ
petition in 2005. His prayer was for grant of disability pension. The High
Court dismissed the writ petition.
support of the appeal, learned counsel for the appellant submitted that the
High Court should have noted that the claim for pension provides for continuing
cause of action. As the appellant had not received any intimation regarding the
result of the appeal, he ultimately filed the writ petition.
counsel for the respondents on the other hand submitted that the writ petition
was highly belated. In fact, the original order itself indicated the reason for
dishonouring the claim. The appeal was dismissed in August 1985 and due
intimation was given to the appellant about rejection of his appeal. He cannot
take advantage of his own lapses and laches.
in the case of belated approach writ petition has to be dismissed. Delay or laches
is one of the factors to be borne in mind by the High Courts when they exercise
their discretionary powers under Article 226 of the Constitution of India, 1950
(in short the 'Constitution'). In an appropriate case the High Court may refuse
to invoke its extraordinary powers if there is such negligence or omission on
the part of the applicant to assert his right as taken in conjunction with the
lapse of time and other circumstances, causes prejudice to the opposite party.
Even where fundamental right is involved the matter is still within the
discretion of the Court as pointed out in Durga Prasad v. Chief Controller of
Imports and Exports and Ors. (AIR 1970 SC 769). Of course, the discretion has
to be exercised judicially and reasonably.
was stated in this regard by Sir Barnes Peacock in Lindsay Petroleum Company v.
Prosper Armstrong Hurd etc., (1874) 5 P.C. 221 at page 239 was approved by this
Court in The Moon Mills Ltd. v. M.R. Meher, President, Industrial Court, Bombay
and Ors. (AIR 1967 SC 1450) and Maharashtra State Road Transport Corporation v.
Balwant Regular Motor Service, Amravati and
Ors. (AIR 1969 SC 329), Sir Barnes had stated:
the doctrine of laches in Courts of Equity is not an arbitrary or technical
it would be practically unjust to give a remedy either because the party has,
by his conduct done that which might fairly be regarded as equivalent to a
waiver of it, or where by his conduct and neglect he has though perhaps not
waiving that remedy, yet put the other party in a situation in which it would
not be reasonable to place him if the remedy were afterwards to be asserted, in
either of these cases, lapse of time and delay are most material. But in every
case, if an argument against relief, which otherwise would be just, if founded
upon mere delay, that delay of course not amounting to a bar by any statute of
limitation, the validity of that defence must be tried upon principles
substantially equitable. Two circumstances always important in such cases are,
the length of the delay and the nature of the acts done during the interval
which might affect either party and cause a balance of justice or injustice in
taking the one course or the other, so far as relates to the remedy." It
was stated in State of M.P. v. Nandlal Jaiswal and Ors.
1987 SC 251), that the High Court in exercise of its discretion does not
ordinarily assist the tardy and the indolent or the acquiescent and the
lethargic. If there is inordinate delay on the part of the petitioner and such
delay is not satisfactorily explained, the High Court may decline to intervene
and grant relief in exercise of its writ jurisdiction. It was stated that this
rule is premised on a number of factors.
High Court does not ordinarily permit a belated resort to the extraordinary
remedy because it is likely to cause confusion and public inconvenience and
bring in its train new injustices, and if writ jurisdiction is exercised after
unreasonable delay, it may have the effect of inflicting not only hardship and
inconvenience but also injustice on third parties. It was pointed out that when
writ jurisdiction is invoked, unexplained delay coupled with the creation of
third party rights in the meantime is an important factor which also weighs
with the High Court in deciding whether or not to exercise such jurisdiction.
been pointed out by this Court in a number of cases that representations would
not be adequate explanation to take care of delay. This was first stated in
K.V. Raja Lakshmiah v. State of Mysore (AIR 1967 SC 993). There is a limit to
the time which can be considered reasonable for making representations and if
the Government had turned down one representation the making of another
representation on similar lines will not explain the delay. In State of Orissa v. Sri Pyarimohan Samantaray, (AIR
1976 SC 2617) making of repeated representations was not regarded as
satisfactory explanation of the delay. In that case the petition had been
dismissed for delay alone. (See State of Orissa v.
Kumar (AIR 1976 SC 1639 also).
case of pension the cause of action actually continues from month to month.
That, however, cannot be a ground to overlook delay in filing the petition. It
would depend upon the fact of each case. If petition is filed beyond a
reasonable period say three years normally the Court would reject the same or
restrict the relief which could be granted to a reasonable period of about
three years. The High Court did not examine whether on merit appellant had a
case. If on merits it would have found that there was no scope for
interference, it would have dismissed the writ petition on that score alone.
peculiar circumstances, we remit the matter to the High Court to hear the writ
petition on merits. If it is found that the claim for disability pension is
sustainable in law, then it would mould the relief but in no event grant any
relief for a period exceeding three years from the date of presentation of the
writ petition. We make it clear that we have not expressed any opinion on the
merits as to whether appellant's claim for disability pension is maintainable
or not. If it is sans merit, the High Court naturally would dismiss the writ
appeal is disposed of accordingly without any order as to costs.