REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 245 OF 2004

EASTERN COALFIELDS LTD. … APPELLANT

VERSUS

DUGAI KUMAR  … RESPONDENT

J U D G M E N T C.K. THAKKER, J.

1. This  appeal is filed by the Eastern

Coalfields Ltd. (‘Company’ for short) against

an order passed by the Division Bench of the

High  Court  of  Calcutta  on  January  28,  2002

dismissing  Review  Petition  filed  by  the

appellant herein.  

2. The  facts  of  the  case  are  that  the

appellant is ‘Government Company’ under Section

617 of the Companies Act, 1956.  A scheme was

formulated by the Company to offer employment

to a person who is a land loser for 1 acre of

land which has been acquired, purchased or used

by the Company.  Subsequently, the policy was

changed and it was also provided that those who

do not intend to get employment may be offered

800  Metric  Tons  (MTs)  of  coal  in  lieu  of

employment of a family member whose one acre of

land has been acquired, purchased or used by

the Company.  The policy was again modified in

1996 and entitlement was increased to 1600 MTs.

3. It is the case of the Company that it

purchased  land of  the respondent  admeasuring

1.26 acres and registered sale deed No. 2006,

dated  February  17,  1989  was  executed  at

Dhanbad.  In the light of the policy then in

vogue, the respondent was offered 1008 MTs of

coal on the basis of 800 MTs per acre since the

sale was for 1.26 acres of land. The respondent

accepted the said decision on February 23, 1989

and a written communication was addressed to

the General Manager stating therein that the

land  owner  was  not  interested  in  getting

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employment and he would be thankful if 1008 MTs

of coal would be given to him. The Authorities

accepted the request and the appellant Company

vide a letter dated May 22, 1989, passed an

order  to  release  1008  MTs  of  steam  Coal,

Grade-D. It was stated that the coal would be

released on fulfilling the terms and conditions

mentioned in the said communication.  According

to the Company, everything was over and nothing

further was required to be done in the matter.

The  respondent-writ-petitioner  was  paid

consideration  for  land  which  was  sold  by

registered  sale  deed.   Over  and  above

compensation, as per the policy in force, they

offered 1008 MTs of coal which was accepted by

the respondent and quantity was also released.

It was accepted by the respondent without any

protest,  objection  or  reservation  and  the

matter ended there.

4. After  considerable  delay  of  about  a

decade, a petition came to be filed being Writ

Petition  No.  770  of  1999  contending  therein

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that  writ petitioner  (respondent herein)  was

entitled to additional quantity of 1008 MTs of

coal and an appropriate direction be issued to

the  Company  to  release  the  goods.  The  writ

petition  was  placed  for  ‘first’  hearing  on

September 6, 1999, and on the same day, it was

disposed of by the Court observing inter alia

that  “no  affidavit  in  opposition  has  been

filed”, and the learned counsel for the Company

submitted that ‘usual order’ be passed in the

matter.  Accordingly, the Company was directed

to allot “balance quantity of 1008 MTs” of coal

to the writ-petitioner.

5. The said order read as under;

“Mr. D.P. Majumdar, Adv. with Mr. G.  Patra,  Adv.  appears  and submits.

Mr.  A.K.  Mitra,  Adv.  with  Md. Iairsh, Adv. appears and submits.

The  Court  :  No  affidavit-in- opposition  has  been  filed.  The Learned Lawyer for the respondent submits  that  usual  order  may  be passed  in  this  matter. Accordingly,  I  passed  the following order:-

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The  respondents  are directed to allot balance quantity of 1008 M.T. to the  petitioner  in  terms of  the  release  order dated  25.5.1989  from Nayandanga Coliery, Mugma Area.

The writ petition is disposed of.

All parties are to act on a signed copy of the minutes of this order on the usual undertaking.”

6. It is stated by the appellant-Company

that after the order dated September 6, 1999,

on September 13, 1999, again the matter was

mentioned by the writ-petitioner without filing

any application and the High Court modified its

earlier order dated September 6, 1999 and the

balance  quantity  which  was  mentioned  in  the

earlier order of September 6, 1999 as 1008 MTs

was enhanced to 6800 MTs. Again, the matter was

mentioned on September 15, 1999 and the order

was corrected.

7. The  Company,  being  aggrieved  by  the

order  passed  by  the  learned  Single  Judge,

preferred an appeal being APOT No. 94 of 2004

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challenging the orders passed by the learned

single Judge.  The Division Bench of the High

Court,  however,  dismissed  the  appeal  on

February 17, 2000 observing that when the order

was  passed  by  the  learned  single  Judge  on

September 6, 1999, the counsel for the Company

appeared and no reply was filed by the Company.

In the circumstances, the Company had “to blame

itself”.  The matter was thereafter taken up by

the  learned  single  Judge  and  even  at  that

stage, no reply was filed.  According to the

Court,  therefore,  there  was  no  reason  to

interfere with the order of the single Judge

and the appeal was dismissed.

8. The  Company  challenged  the  order

passed by the Division Bench of the High Court

by filing Special Leave Petition No. 8238 of

2000. When the matter came up for admission

hearing, it was withdrawn on May 12, 2000.  The

said order mentioned that the learned counsel

for the Company stated that the Company would

file ‘Review Petition’ in the High Court. The

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special  leave  petition  was  accordingly

‘dismissed  as  withdrawn’.  Thereafter  Review

Petition was filed by the Company in the High

Court and as stated above, the Review Petition

was also dismissed by the Court observing that

there  was  “no  apparent  error  to  review  the

order”. The said order is challenged in the

present appeal.

9. Initially when the matter was placed

for  admission  hearing,  notice  was  issued  on

August 12, 2002.  It appears that the Special

Leave Petition was dismissed on February 12,

2003, but the said order was recalled by the

Court on September 12, 2003.  On January 12,

2004, leave was granted, printing was dispensed

with and the appeal was ordered to be heard on

SLP paper books.  Parties were granted liberty

to file additional documents. Original record

was  requisitioned.  Interim  stay  against  the

order  passed  by  the  High  Court  was  also

granted.  On  March  7,  2008,  a  Bench  of  this

Court  presided  over  by  Hon’ble  the  Chief

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Justice of India directed final hearing of the

matter during summer vacation and accordingly

the  matter  was  placed  before  us  for  final

disposal on May 27, 2008.

10. We have heard the learned counsel for

the parties.

11. The learned counsel for the appellant-

Company contended that the orders passed by the

High Court are liable to be set aside.  It was

submitted that admittedly, the transaction of

sale took place in Dhanbad.  Both the parties

-the appellant as well as respondent - were

residing at Dhanbad. The entire cause of action

thus arose within the territorial jurisdiction

in the State of Bihar (now within Jharkhand

area). The High Court of Calcutta, therefore,

had no territorial jurisdiction to entertain,

deal with and decide the writ petition. On that

ground alone, the orders passed by the High

Court of Calcutta are liable to be set aside.

It was also submitted that admittedly sale deed

was  executed  in  February,  1989  by  the

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respondent.  The  Company  paid  the  amount  of

consideration and offered 1008 MTs coal under

the policy then in force over and above the

amount of consideration of property.  The writ-

petitioner  accepted the  offer, release  order

was issued and the goods had been delivered to

him which the writ petitioner accepted without

any protest or objection. It was after about 10

years that a writ petition was filed which was

entertained and orders were passed by the High

Court.  According to the appellant, there was

gross delay and laches on the part of the writ

petitioner in approaching the Court and on that

ground also, no order could have been passed

granting  relief  in  favour  of  the  writ

petitioner. Moreover, there was no right-duty

relationship  between the  writ petitioner  and

the Company. The right of the writ petitioner

was limited to consideration in lieu of land

sold  to  the  Company.   The  said  amount  had

already been paid to the writ petitioner.  It

was only on the basis of the policy that coal

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was offered to the writ-petitioner. Even if it

is assumed that the writ petitioner had right

to get coal as per the policy adopted by the

Company, the quantity to which the respondent

was entitled was given to him. Thereafter there

was no cause for making grievance against the

Company. It is only on the basis of 1996 Policy

that additional quantity was demanded by the

writ-petitioner by filing writ petition in 1999

to which there was no entitlement on the part

of the writ petitioner.  Even on that ground,

therefore,  the  petition  was  liable  to  be

dismissed.  The counsel also argued that when

the writ petitioner was paid consideration for

land as also coal under the policy in force and

when it was accepted without any protest, the

writ petitioner was estopped under the doctrine

of  equitable  estoppel  to  challenge  the  said

decision.  By his conduct, writ petitioner made

it abundantly clear that he was satisfied as to

the quantity which was offered to him and after

acceptance  thereof,  it  was  not  open  to

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challenge the said decision.  It was also urged

that the learned single Judge was not right in

observing that the writ petitioner was entitled

to relief as prayed in the writ petition on the

ground that no counter affidavit was filed by

the Company.  The record reflects that writ

petition was filed by the writ petitioner on

February 18, 1999.  It was placed for ‘first’

hearing on September 6, 1999 and on the same

day,  the  matter  was  disposed  of.   It  was,

therefore, not proper for the Court to observe

that  since  no  affidavit  was  filed  by  the

Company, the prayer of the petitioner should be

granted. A grievance was also made that even

after  the  decision  on  September  6,  1999,

without there being any application, the order

was modified on mentioning the matter and the

quantity was enhanced from additional 1008 MTs

to  6800  MTs  which  was  clearly  illegal  and

without jurisdiction.  In Letter Patents Appeal

also, the fact of non-filing of affidavit by

the Company weighed with the Division Bench,

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but as already stated, the matter was taken up

and disposed of on one and the same day at the

‘first’ hearing by the learned single Judge and

there  was  no  default  on  the  part  of  the

Company.  It was submitted by the counsel that

when the grievance was made against the order

passed by the Division Bench of the High Court

in the Special Leave Petition, this Court had

observed  that  the  counsel  for  the  Company

wanted to file Review Petition and SLP was,

therefore, dismissed as withdrawn.  But even

thereafter  the  Division  Bench  dismissed  the

Review Petition which necessitated the Company

to  approach  this  Court  again.  It  was,

therefore, submitted that the orders passed by

the High Court may be set aside by allowing the

appeal and holding that the writ petitioner was

not entitled to additional quantity of coal and

the  High  Court  should  not  have  ordered  the

Company to supply coal.

12. The  learned  counsel  for  the

respondent-writ petitioner supported the orders

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passed by the High Court. It was submitted that

the learned single Judge was wholly right in

observing that no affidavit was filed by the

Company. Moreover, the learned counsel for the

Company  appeared  in  the  Court  and  made  a

statement  that  ‘usual  order’  be  passed.

Accordingly,  the  order  was  passed  and

thereafter it was not open to the Company to

raise  an  objection  against  such  order.  An

objection as to territorial jurisdiction of the

Court also looses its significance in the light

of the statement made by the counsel appearing

for the Company.  In the affidavit-in-reply, it

was stated by the writ petitioner that several

similarly  situated  persons  were  granted  the

benefit  and  additional  quantity  of  coal  was

given to them. Copies of the orders in favour

of all those persons were placed on record in

the  counter-affidavit. It  was further  stated

that  the  policy  was  modified  in  1996  and

additional quantity of coal was given to land

losers.  Such benefit was also granted to other

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persons.  Refusal to grant similar benefit to

the writ petitioner was violative of Article 14

of the Constitution. The counsel submitted that

in the circumstances, the Division Bench was

right in not entertaining intra-court appeal on

the ground that if counter was not filed by the

Company,  the  Company  had  to  thank  itself.

Again, it is not true to say that liberty was

granted by this Court to file Review Petition.

Special  Leave  Petition  was  dismissed  as

withdrawn but this Court did not grant liberty

to file Review Petition.  Hence, the Review

Petition  itself  was  not  maintainable.  The

counsel also contended that even in the present

proceedings, the prayer is only to set aside an

order passed in Review on January 28, 2002. The

main  order  passed  in  intra-court  appeal

(dismissing  the  appeal)  has  not  been

challenged.  It was, therefore, submitted that

on all these grounds, no interference is called

for and the appeal deserves to be dismissed.

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13. Having heard the learned counsel for

the  parties,  in  our  opinion,  the  appeal

deserves to be partly allowed.  So far as the

technical objection raised by the Company with

regard to territorial jurisdiction of the High

Court of Calcutta is concerned, in our opinion,

it would not be appropriate to set aside the

order passed in favour of the writ petitioner

on that ground. It is clear from the record

that the writ petition came up for admission

hearing on September 6, 1999 and the counsel

for the appellant-Company was present. Not only

that  he  did  not  raise  any  objection  as  to

territorial  jurisdiction  of  the  Court,  he

expressly made a statement before the Court to

pass “usual order”.  Accordingly, an order was

passed directing the Company to allot “balance

quantity  of  1008  MTs”  of  coal  to  the  writ

petitioner.   We  are,  therefore,  unable  to

uphold the contention of the learned counsel

for the appellant-Company that the High Court

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of Calcutta had no territorial jurisdiction to

entertain the writ petition.

14. But we are also unable to uphold the

contention  of  the  writ  petitioner  that  the

appeal is not maintainable since the Company

had  challenged  the  order  passed  in  Review

Petition dated January 28, 2002 and not the

main order dated February 17, 2000 dismissing

intra-Court appeal.  It was submitted by the

learned  counsel  for  the  appellant  that  when

Review Petition was dismissed, the order passed

by the Division Bench in intra-Court appeal got

merged in the order of Review Petition.  But

even otherwise, when the order passed in the

Review Petition is challenged, it would not be

proper to dismiss this appeal particularly when

leave  was  granted  in  SLP  after  hearing  the

parties.  We, therefore,  reject the  objection

raised by the writ petitioner.

15. As to delay and laches on the part of

the writ petitioner, there is substance in the

argument of learned counsel for the appellant-

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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

extra-ordinary 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.

16. 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

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time of final hearing whether relief should be

granted in favour of such applicant or not.

(Vide R. v. Essex Country Council,  1993 COD

344). 17. In R. v. Dairy Produce Quota Tribunal,

(1990) 2 AC 738, 749 : (1990) 2 All ER 434 :

(1990) 2 WLR 1302, the House of Lords stated; “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 persons affected by the decision”.

  18. The underlying object of refusing to

issue a writ has been succinctly explained by

Sir Barnes Peacock in Lindsay Petroleum Co. v.

Prosper Armstrong, (1874) 5 PC 221 : 22 WR 492

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

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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 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.”

 (emphasis supplied)

19. This  Court  has  accepted  the  above

principles  of  English  law.   In  Tilokchand

Motichand v. H.B. Munshi, (1969) 2 SCR 824 and

Rabindra Nath Bose v. Union of India, (1970) 1

SCR 697, 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

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in approaching the Court. And if there is gross

or unexplained delay, the Court may refuse to

grant relief in favour of such petitioner. 20. It is not necessary for us to refer to

several  decisions  on  this  point  wherein  a

similar  view  has  been  taken  by  this  Court.

Suffice it to say that in Express Publications

v.  Union  of  India,  (2004)  11  SCC  526,  this

Court  referring  to  Tilokchand  Motichand,

Rabindranath  Bose  and  Ramchandra  Deodhar  v.

State  of  Maharashtra,  (1974)  1  SCC  317,

explained the principle thus;  “No  hard  and  fast  principle  can  be laid down that under no circumstances delay  would  be  a  relevant consideration  in  judging constitutional  validity  of  a provision.  It  has  to  be  remembered that  the  constitutional  remedy  under Article  32  is  discretionary.  In  one case,  this  Court  may  decline discretionary  relief  if  person aggrieved  has  slept  over  for  long number  of  years.  In  another  case, depending  upon  the  nature  of violation, court may ignore delay and pronounce  upon  the  invalidity  of  a provision. It will depend from case to case.”

 (emphasis supplied)

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21. Prima facie, we are satisfied that the

learned  single  Judge  should  not  have

entertained  a  writ  petition  in  1999  and  in

directing  the  Company  to  release  balance

quantity  of  1008  MTs  of  coal  to  the  writ

petitioner.  But as observed earlier, the order

was passed in view of the statement of learned

counsel  appearing  for  the  Company  that  the

Court could pass “usual order” and accordingly

the order was passed.  It was also stated by

the  writ petitioner  in the  counter-affidavit

that  similar  orders  were  passed  in  several

matters.  It would, therefore, be appropriate

if we extend the benefit to the writ petitioner

of the order passed by the learned single Judge

to the extent of “balance quantity of 1008 MTs

of coal”, which was based on the ‘statement’ by

the counsel for the Company.

22. In  our  view,  however,  the  learned

counsel for the appellant-Company is right that

after  the  writ  petition  was  disposed  of  on

September 6, 1999 wherein balance quantity of

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1008 MTs of coal was directed to be allotted to

the writ petitioner, the learned single Judge

was  not  justified  in  passing  an  order  on

September 13, 1999 on mentioning of the matter

without  there  being  any  application  for

modification/clarification of the order dated

September 6, 1999.

23. On September 13, 1999, the following

order was passed by the learned single Judge;

“Mr. D.P. Majumdar, Adv. Mentions and submits.

Mr.  A.K.  Mitra,  Adv.  Appears  and submits.

The  Court  :  The  last  but  third paragraph of the order dated 6.9.99 is corrected in the manner as follows:-

The  respondents  are  directed to allot balance quantity of 6800  M.T.  of  Steam  Coke, Grade-D  quality  of  Coal  to the  petitioner  in  terms  of the  release  order  dated 25.5.1989  from  Nayandanga Colliery, Mugma Area in terms of Annexure ‘C’.

The supply is to be effected within a period of eight weeks from the date of communication of this order.

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This order is incorporating into the earlier order dated 6.9.99.

All  parties  are  to  act  on  a  signed copy of the minutes of this order.”

24. We are also of the view that in the

light of the above order, the Division Bench

ought to have interfered with the direction of

the learned single Judge in the order dated

September 13, 1999 and intra-Court appeal ought

to have been allowed.  When the intra-Court

appeal was dismissed, the appellant approached

this Court by filing Special Leave Petition.

It was dismissed as withdrawn as the Company

wanted to move the Division Bench in Review

Petition.  To  us,  on  the  facts  and  in  the

circumstances of the case, the Division Bench

ought to have considered the aforesaid aspect

and passed an appropriate order in accordance

with law.

25. From the totality of circumstances, we

are of the considered view that the respondent-

writ  petitioner  was  entitled  to  the  price

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(consideration) for the land sold by him by

registered sale deed to the Company which has

already been paid to him. He was also entitled

to 1008 MTs of coal which was given to him as

per the Policy. He was further entitled to 1008

MTs which has been ordered to be given to him

towards  “balance  quantity”  on  the  basis  of

statement made by the Counsel for the Company

and in terms of ‘usual order’ dated September

6, 1999 passed by the learned single Judge. We

are, however, convinced that the learned single

Judge was not justified in granting prayer on

mentioning  the  matter  on  September  13,  1999

without  any  application  for  modification  of

earlier order and direction to the Company to

allot to the writ petitioner balance quantity

of 6800 MTs of steak coal Grade-D quality.  To

that extent, therefore, the appeal filed by the

Company deserves to be allowed.

26. For the foregoing reasons, the appeal

is partly allowed and the writ petitioner is

held entitled to 1008 MTs as initially awarded

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to  him  as  also  1008  MTs  of  coal  towards

“balance  quantity”  as  per  the  order  dated

September 6, 1999.  The writ petitioner will

not be entitled to anything more.  If the said

quantity of coal has already been allotted, the

Company  has  discharged  its  liability  and

nothing more is required to be done.  But if it

has not released the said quantity, the writ

petitioner would be entitled to coal to the

above  extent.  On  the  facts  and  in  the

circumstances of the case, there will be no

order as to costs.

  ……………………………………………………J.    (C.K. THAKKER)

NEW DELHI,    ……………………………………………………J. JULY 28, 2008.     (LOKESHWAR SINGH PANTA)

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