1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 11.08.2011 CORAM: THE HONOURABLE MR.JUSTICE S.MANIKUMAR W.P.(MD).No.9051 of 2011 P.Thandeeswaran ... Petitioner -Vs- 1. The Secretary to the Government Revenue Department St. George Fort Chennai - 600 009 2. The Special Commissioner / Commissioner for Revenue Administration Chepauk Chennai - 600 005 3. The Collector Madurai District Collectorate Madurai - 20 ... Respondents PRAYER: Petition filed under Article 226 of the Constitution of India, praying for the issuance of Writ of Mandamus directing the first respondent to consider the petitioner's representation, dated 14.09.2010 and its remainders dated 02.02.2011, 15.03.2011 and the first respondent, direct to the third respondent to give monetary benefits to the petitioner from 01.11.1984 to till the date of retirement on the basis of G.O.Ms.No. 400 Revenue (E2) Department dated 15.05.1995. For Petitioner : Mr.B.Bommayan For Respondents: Mr.B.Pugalenthi Special Government Pleader O R D E R The Writ Petition has been filed by a Retired Deputy Tahsildar, aged about 63 years, after 8 years of his retirement. Accoring to him, he was appointed as Record Clerk in the office of the Special Deputy Collector (Kallar Reclamation), Madurai and retired as Deputy Tahsildar, on 31.05.2003. 2. It is the grievance of the petitioner that his service in the post of Record Clerk ought to have been regularised from the date of initial appointment and consequently, he should have been considered for promotion to higher post. He has further submitted that as the respondents failed to regularise the services of 17 individuals and they were constrained to file Writ Petition in W.P.(MD).Nos. 6493 and 5284 of 1987 before the Principal Bench of this Court to quash G.O.Ms.No. 733, Revenue Department, dated 05.05.1987, which deprived the period of service rendered by the petitioner and others. As per the abovesaid Government Order, the date of regularisation was given effect from the https://hcservices.ecourts.gov.in/hcservices/ 2 date of issuance of the said Government Order. The Writ Petitions were transferred by the Tribunal to the Tamil Nadu Administrative Tribunal and numbered as T.A.Nos. 739 and 741 of 1991. The Tribunal after considering the rival claims allowed the abovesaid transferred applications directing the respondents therein to regularise the services of the applicants from the date of their initial appointment as Record Clerk and also ordered future service. 3. It is the case of the petitioner that pursuant to the orders stated supra, the Government issued G.O.Ms.No. 400, Revenue (E2) Department, dated 15.05.1995, regularising the services of the petitioner and 15 other persons from the date of their entry into service as Record Clerk with effect from the date of first appointment with consequential benefits. 4. Material on record further shows that subsequently Government have issued orders in G.O.Ms.No. 278, (Permanent) Revenue Department Services 3(1) Department, dated 27.08.2002, including the name of the petitioner in the list of Deputy Tahsildar for the year 1997 after relaxing Rule 7(a) of the Revenue Sub-ordinate Services Rules. Material on record also shows that the District Collector, Madurai, while considering the representation of the writ petitioner, dated 27.09.2006, in R.C.No. 99972/2006/E2, dated 26.11.2006, ordered fixation of pay at Rs.8100/- with effect from 01.07.2005 in the cadre of Tahsildar, in the time scale of pay of Rs.6500-200-10500 under Fundamental Rule 22 (B). 5. Perusal of the said order shows that with reference to the orders made by this Court in W.P.(MD).Nos. 4312 and 4428 of 2006, dated 01.09.2006 and 03.04.2006 respectively, directions have been issued to the Collector, Madurai, to include the name of the petitioner in the approved list of Tahsildar for Madurai District for the year 2004, taking into consideration the relaxation given under G.O.Ms.No. 212, Revenue Department, dated 15.04.2005, with effect from 04.05.2005 and also of the directions by this Court that the petitioner would be entitled to all other consequential benefits and consquently orders have been issued fixing the pay of the petitioner in the post of Tahsildar. 6. Not satisfied with the above, the petitioner has once again, sent representations, to the Secretary to Government, Revenue Department, Chennai, stating that the benefits of arrears of difference of pay etc from 1984 till the revised pay fixation, in the cadre of Assistant and Deputy Tahsildar, has not been granted. It is his further submission in the representation that pay should be fixed with effect from the date of joining of the junior with effect from 01.11.1984 in the cadre of Assistant and Deputy Tahsildar. As already stated, the petitioner has retired from service on 31.05.2003. After a lapse of 8 years, he has filed the present Writ Petition with an inordinate delay and without any reasonable explanation. 7. It is well settled that though no specific time limit has been prescribed under Article 226 of the Constitution of India, to prefer the Writ Petitions, if there is any infringement of the constitutional/statutory/legal right, the aggrieved person should approach the Court within a reasonable time. Latches or reasonable time are not defined under any Statute or Rules. "Latches" or "Lashes" is an old french word https://hcservices.ecourts.gov.in/hcservices/ 3 for slackness or negligence or not doing. In general sense, it means neglect to do what in the law should have been done for an unreasonable or unexplained length of time. What could be the latches in one case might not constitute in another. The latches to non-suit, an aggrieved person person from challenging the acquisition proceedings should be inferred from the conduct of the land owner or an interested person and that there should be a passive inaction for a reasonable length of time. What is reasonable time has not been explained in any of the enactment. Reasonable time depends upon the facts and circumstances of each case. 8. The words "reasonable time", as explained in Veerayeeammal v. Seeniammal reported in 2002 (1) SCC 134, at Paragraph 13, is as follows: "13. The word “reasonable” has in law prima facie meaning of reasonable in regard to those circumstances of which the person concerned is called upon to act reasonably knows or ought to know as to what was reasonable. It may be unreasonable to give an exact definition of the word “reasonable”. The reason varies in its conclusion according to idiosyncrasy of the individual and the time and circumstances in which he thinks. The dictionary meaning of the “reasonable time” is to be so much time as is necessary, under the circumstances, to do conveniently what the contract or duty requires should be done in a particular case. In other words it means, as soon as circumstances permit. In P. Ramanatha Aiyar’s The Law Lexicon it is defined to mean: “A reasonable time, looking at all the circumstances of the case; a reasonable time under ordinary circumstances; as soon as circumstances will permit; so much time as is necessary under the circumstances, conveniently to do what the contract requires should be done; some more protracted space than ‘directly’; such length of time as may fairly, and properly, and reasonably be allowed or required, having regard to the nature of the act or duty and to the attending circumstances; all these convey more or less the same idea.” 9. The statement of law has also been summarized in Halsbury's Laws of England, Para 911 , pg. 395 as follows: "In determining whether there has been such delay as to amount to laches, the chief points to be considered are: (i) acquiescence on the claimant's part; and ii) any change of position that has occurred on the defendant's part. Acquiescence in this sense does not mean standing by while the violation of a right is in progress, but assent after the violation has been completed and the claimant has become aware of it. It is unjust to give the claimant a remedy where, by his conduct, he has done that which might fairly be regarded as equivalent to a waiver of it; or where by his conduct and neglect, though not waiving the remedy, he has put the other party in a position in which it would not be reasonable to place him if the remedy were afterwards to be asserted. In such cases lapse of time and delay are most material. Upon these considerations rests the doctrine of laches." https://hcservices.ecourts.gov.in/hcservices/ 4 10. In State of M.P. v. Bhailal Bhai reported in AIR 1964 SC 1006, the Supreme Court held that it is not either unreasonable delay denies to the petitioner the discretionary extraordinary remedy of mandamus, certiorari or any other relief. 11. In State of M.P., v. Nandlal Jaismal reported in 1986 (4) SCC 566, the Supreme Court, at Paragraph 24, held as follows: "24. Now, it is well settled that the power of the High Court to issue an appropriate writ under Article 226 of the Constitution is discretionary and the High Court in the 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 in filing a writ petition and such delay is not satisfactorily explained, the High Court may decline to intervene and grant relief in the exercise of its writ jurisdiction. The evolution of this rule of laches or delay is premised upon a number of factors. The High Court does not ordinarily permit a belated resort to the extraordinary remedy under the writ jurisdiction because it is likely to cause confusion and public inconvenience and bring in its train new injustices. The rights of third parties may intervene and if the writ jurisdiction is exercised on a writ petition filed after unreasonable delay, it may have the effect of inflicting not only hardship and inconvenience but also injustice on third parties. When the writ jurisdiction of the High Court is invoked, unexplained delay coupled with the creation of third party rights in the meanwhile is an important factor which always weighs the High Court in deciding whether or not to exercise such jurisdiction. We do not think it necessary to burden this judgment with reference to various decisions of this Court where it has been emphasised time and again that where there is inordinate and unexplained delay and third party rights are created in the intervening period, the High Court would decline to interfere, even if the State action complained of is unconstitutional or illegal. .........Of course, this rule of laches or delay is not a rigid rule which can be cast in a strait jacket formula, for there may be cases where despite delay and creation of third party rights the High Court may still in the exercise of its discretion interfere and grant relief to the petitioner. But, such cases where the demand of justice is so compelling that the High Court would be inclined to interfere in spite of delay or creation of third party rights would by their very nature be few and far between. Ultimately it would be a matter within the discretion of the court; ex hypothesi every discretion must be exercised fairly and justly so as to promote justice and not to defeat it." (emphasis supplied) 12. M/s.Rup Diamonds and Ors. v. Union of India and Ors., reported in (1989) 2 SCC 356, wherein their Lordships observed that those people who were https://hcservices.ecourts.gov.in/hcservices/ 5 sitting on the fence till somebody else took up the matter to the court for refund of duty, cannot be given the benefit. In that context, Their Lordships held as follows: "Petitioners are re-agitating claims which they had not pursued for several years. Petitioners were not vigilant but were content to be dormant and chose to sit on the fence till somebody else's case came to be decided. Their case cannot be considered on the analogy of one where a law had been declared unconstitutional and void by a court, so as to enable persons to recover monies paid under the compulsion of a law later so declared void. There is also an unexplained, inordinate delay in preferring the present writ petition which is brought after a year after the first rejection. As observed by the Court in Durga Prashad case, the exchange position of this country and the policy of the government regarding international trade varies from year to year. In these matters it is essential that persons who are aggrieved by orders of the government should approach the High Court after exhausting the remedies provided by law, rule or order with utmost expedition. Therefore, these delays are sufficient to persuade the Court to decline to interfere. If a right of appeal is available, this order rejecting the writ petition shall not prejudice petitioners' case in any such appeal." 13. In State of Maharastra v. Digambar reported in AIR 1995 SC 1991, the Supreme Court, considered a case, where compensation for the acquired land was claimed belatedly and at Paragraphs 12, 18 and 21, held as follows: "12. How a person who alleges against the State of deprivation of his legal right, can get relief of compensation from the State invoking writ jurisdiction of the High Court under article 226 of the Constitution even though, he is guilty of laches or undue delay is difficult to comprehend, when it is well settled by decision of this Court that no person, be he a citizen or otherwise, is entitled to obtain the equitable relief under Article 226 of the Constitution if his conduct is blame- worthy because of laches, undue delay, acquiescence, waiver and the like. Moreover, how a citizen claiming discretionary relief under Article 226 of the Constitution against a State, could be relieved of his obligation to establish his unblameworthy conduct for getting such relief, where the State against which relief is sought is a welfare State, is also difficult to comprehend. Where the relief sought under Article 226 of the Constitution by a person against the welfare State is founded on its alleged illegal or wrongful executive action, the need to explain laches or undue delay on his part to obtain such relief, should, if anything, be more stringent than in other cases, for the reason that the State due to laches or undue delay on the part of the person seeking relief, may not be able to show that the executive action complained of was legal or correct for want of records pertaining to the action or for the officers who were responsible for such action not being available later on. Further, where granting of relief is claimed against the State https://hcservices.ecourts.gov.in/hcservices/ 6 on alleged unwarranted executive action, is bound to result in loss to the public exchequer of the State or in damage to other public interest, the High Court before granting such relief is required to satisfy itself that the delay or laches on the part of a citizen or any other person in approaching for relief under Article 226 of the Constitution on the alleged violation of his legal right, was wholly justified in the facts and circumstances, instead of ignoring the same or leniently considering it. Thus, in our view, persons seeking relief against the State under Article 226 of the Constitution, be they citizens or otherwise, cannot get discretionary relief obtainable thereunder unless they fully satisfy the High Court that the facts and circumstances of the case clearly justified the laches or undue delay on their part in approaching the Court for grant of such discretionary relief. Therefore, where a High Court grants relief to a citizen or any other person under Article 226 of the Constitution against any person including the State without considering his blame-worthy conduct, such as laches or undue delay, acquiescence or waiver, the relief so granted becomes unsustainable even if the relief was granted in respect of alleged deprivation of his legal right by the State. 14. Laches or undue delay, the blame-worthy conduct of a person in approaching a Court of Equity in England for obtaining discretionary relief which disentitled for grant of such relief was explained succinctly by Sir Barnes Peacock, long ago, in Lindsay Petroleum Co. v. Prosper Armstrong (1874) 5 PC 221) thus : "Now the doctrine of latches 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 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." 21. Therefore, where a High Court in exercise of its power vested under Article 226 of the Constitution issues a direction, order or writ for granting relief to a person including a citizen without considering his disentitlement of such relief due to his blameworthy conduct of undue delay or laches in claiming the same, such a direction, order or writ becomes unsustainable as that not made judiciously and https://hcservices.ecourts.gov.in/hcservices/ 7 reasonably in exercise of its sound judicial discretion, but as that made arbitrarily." 15. In State of Rajasthan v. D.R.Laxmi reported in 1996 (6) SCC 445, the Supreme Court observed that though the order may be void, if the party does not approach the Court within a reasonable time, which is always a question of fact and have the order invalidated or acquiesced or waived, the discretion of the Court has to be exercised in a reasonable manner. 16. In Jagdish Lal and Ors.,v. State of Haryana and Ors., reported in (1997) 6 SCC 538 : AIR 1997 SC 2366, this Court reaffirmed the rule if a person choses 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: "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 Vir Pal Singh Chauhan case. The appellants' desperate attempt to redo the seniority is not amenable to judicial review at this belated stage." 17. In Larsen and Toubro Ltd., v. State of Gujarat reported in 1998 (4) SCC 387, the Supreme Court held that a writ petition challenging the notifications issued under Sections 4 and 6 of the Central Act is liable to be dismissed on the ground of delay and laches, if the challenge is not made within a reasonable time. 18. In the case of Government of W.B., v. Tarun K.Roy and Ors., reported in (2004) 1 SCC 347, Their Lordships considered delay as serious factor and have not granted relief. It was observed as follows: "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. 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 entitled to so as to deprive others there from who may be found to be entitled thereto by a court of law." 19. In Chairman, U.P. Jal Nigam and another v. Jaswant Singh reported in AIR 2007 SC 924, the Supreme Court, after considering a https://hcservices.ecourts.gov.in/hcservices/ 8 catena of decisions on the aspect of delay, at Paragraph 13, held as follows: "13. .......Therefore, whenever it appears that the claimants lost time or while away and did not rise to the occasion in time for filing the writ petitions, then in such cases, the Court should be very slow in granting the relief to the incumbent. Secondly, it has also to be taken into consideration the question of acquiescence or waiver on the part of the incumbent whether other parties are going to be prejudiced if the relief is granted." 20. In the case on hand, from the material available on record, it could be deduced that when the services of the petitioner and others were not regularised from the date of their initial appointment as Record Clerk, the Tribunal had come to their rescue and consequently, orders have been issued in G.O.Ms.No. 400, Revenue (E2) Department, dated 15.05.1995, regularising the petitioner in the post of Assistant from 01.11.984 to 12.11.2002. Subsequently, after relaxation of the required rules, the petitioner has also been considered notionally for promotion to the post of Tahsildar and his pay has also been fixed. Everything has come to an end in the year 2006. Now after a lapse of 5 years, the petitioner has again started sending representations stating that he is entitled to pay on par with that of his junior, who came to be promoted much earlier than him. 21. The Writ Petition is hit by delay and laches and therefore, dismissed. No costs. vsg Sd/- Assistant Registrar /True copy/ Sub Assistant Registrar To 1. The Secretary to the Government Revenue Department St. George Fort, Chennai - 600 009 2. The Special Commissioner/Commissioner for Revenue Administration Chepauk Chennai - 600 005 3. The Collector Madurai District Collectorate, Madurai - 20 +1 cc to the Special Government Pleader, SR.No.27448. +1 cc to Mr.B.Bommayan, Advocate SR.No.27673. W.P.(MD).No.9051 of 2011 Dated:11.08.2011 8P/6C RPB 29/08/2011 https://hcservices.ecourts.gov.in/hcservices/