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CASE NO.: Appeal (civil)  274 of 2007

PETITIONER: Shiv Dass

RESPONDENT: Union of India and Ors

DATE OF JUDGMENT: 18/01/2007

BENCH: Dr. ARIJIT PASAYAT & S.H. KAPADIA

JUDGMENT:

J U D G M E N T (Arising out of S.L.P. (C) No. 881 of 2006)

Dr. ARIJIT PASAYAT, J.

       Leave granted.

       Appellant 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.   

Appellant’s case in a nutshell is as follows:

Appellant 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.   Since 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.   

In 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.

Learned 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

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appeal.  He cannot take advantage of his own lapses and  laches.

Normally, 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.   

       What 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:         

"Now the doctrine of laches in Courts of Equity  is not an arbitrary or 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, 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.  (AIR 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.   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

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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.  

       It has 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.  Arun Kumar (AIR 1976 SC 1639 also).          In the 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.

       In the 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 petition.  

       The appeal is disposed of accordingly without any order  as to costs.