@ 9 I'N THE HIGH COURT OF CHHATTISGARH AT BILASPUR {CHHATTISGARH} WRIT-PETITIOMS) No.a\l91§’ [20.10. , $l¢NGLE BENCH. We?” ,‘ PETITIONER: ’ Dhunde Ram Bhagat, son of Late * — LwAu-Am Pam/Bhgaged about 74"“ ’l years, residenlce of village Makarchuwa, Post Baghbahar, Tahsii Patthélgaon, §District Jashpur, Chhattisgarhj t _ i I 1 ‘ VBI‘SHS Espondents ' 1. ’/State of Chhaittisgarh; Through Secretary, Department of Education, Dau Kalyan Singh'Bhawan, Raipur, Chhattisgarh. 2 The Joint Directer Accounts Treasuxy and Pensmn Bilaspur Chhathsgarh / 3 Dlstnct Treasury, Account R$1purgaW -D1stnct Jashpur, Chhattlsgarh. WRIT PETITION UNDER ARTICLE 226 OF THE RONSTITUTION OF INDIA R HIGH COURT OF CI-IHAI ILSGARH AT BILASPUR WRIT PETITION (S) lNo. 215 of2010 ‘ \ PETITIONER : Dhunde Ram Bha‘gat. \ VERS RESPONDENTS : State ofChhaitiséath & Othcrs. SB: Hon’hle Shri Satis K. Agnihotri, J. \ 1 Shn M P S Bhatia, Deputy Gave I ent Advocate mwe State ORAL ORDER (Passed on 18w day of January, 20 10) ’ 1. Challenge in this petition is to tile order dawd 1110.396 (AnnexQre P/l) whereby recovery of an amount of Rs. 11,937l- was ordemed &om {he petitioner holding it to be excess payment made to him during his gserviee period. The petitioner, after reeoveiy of the said amount waited for about 14 years to raise the issue before this Court without having Saigaetory explanation for me inordinate delay and laches. 2. Shri Rao, learned counsel appealing for the petitioner submits that the grounds for laches and delay have been expldned in para 7 ef the writ petition, 3. Shri Bhatia, learned Government Advocate appearing for the State vehemently submits that there is m inordinate delay and laches m tiling this petition, andthus, the same cannot be entertained atter aperiod ofabout 14 year . s. i \ X:WRIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA . Present: Shn C J K Rao Advocate for the petitioner f» A €4.1haveheardleamedcounselappe 'gfortheparties,pemwdthe pleadings and docmnents appended th eto. 5. Law on the point of laches and delay filing writ petition is well settled that if a party has acquiesced and waived his right for a 199g period md mere is no explanation £or inordinate delay, then ale earlier order passed‘m the similar issue may not be a precedent for the case. W 6. In thecase on hand, there is one mote difficulty, the petitioner retired and the excess payment was recovered dunng existence of undivided State of Madhya Pradesh. The'Madhya Pradesh Reorganiwion Act, 2000 came into force w.e.f l“ November, 2000. Pursuant to the provisions ofthe Act, 2000, new State of Chhattisgarh was carved out. 0n bifurcation of the State of Madhya Pradesh, even the assets and liabilities have been appmimea the assets and liabilities were decided under pan Iv ofihe Act, 2000. Thus, ’s part ofthe liability seems to be ofthe present State of Madhya Pradesh‘. The 3i : petitioner slept over his right, if any, till rehef was gained to some of the W i petihoneis in siniuariy situated memes. The petitioner has even not i impleaned the smear Mndhya Pradesh as party-respondent in this writ petition. 7. Shri Rao relies on a decision of this Court in case of Slunkar SaiBaj v. State ofChhattisgarh & Others (W.P.(S) No. 5823/2008) where it appeats that the impugied order ofrecovery was passed on 28.04.1997. This Court allowed the petition on reserving liberty to the Stateli‘espondents to take recourse re Ruie 65 or the cmnmsgarh Civil Services (Pension) Ruies, K 976. The issue with’regard to laches and delay was ne‘nher raised nor 1 a i i ere a a l precedent in similarly situated matters, med thereaftet. 8. The Supreme Court; in Union of] dia & Others v. Mitmlidhara Manon & Others' , while considering the similar issue, observea as undér: “13. Article 14 ofthe Constitution oflndia providing for equality clause i a positive concept in terms: t0 wherof, be treated the equals, equally‘Lnd s bject unequals to certain cannot exceptions, be treatedi are: equally. If a relaxation has been granted in case of: one employee on the {basis ofthe materials available before reated the to be Board, a binding the prewdem same by so itself as to may enable not the be] 2 ribunal or the HighlCoun to issue a writ or in met nature ofmandamus” E 9. A Constitution Bench of the Supieme Court in Chandra Bhushan and another vs. Yhe Deputy Director ¢ Consolidation, Uttar P:radesh megional) Lucknow and Othersz, observedthat “normnly the qTvuestion l whether a petition underArt. 226 ofthe Constantion for the ism we writ of certiorari had been presented'without undue delay or hohes is a question nr the High Court to decide and this Court wouM not interfere § with the exercise ofthe discretion ofthe High Court.” I 10.Further, other Constitution Bench of the Supreme Court in Rabindranaih Bose and Others vs. The Union oflndia and Otherf, observed as under: l “31. Butin so far as the attack is basedonthe 1952 Seniority Rules, it must fail on another ground. The * gound beingthatthis petition under Article 32 ofthe Constitution has been brought about fifteen years atter the B52 Rules were promulgamd and effect ; given‘to them in the Seniority List prepared on ' August l, 1953. Learned counsel for the petitionem i says that this Court has no discretion and cannot “(2009) 9 sec 304 2 AIR (1967) so 1272 1 u ~ 3 (1970) y 1 sccs4 _ 7 (y , considd in Shankr Sai Bj (su ra): Thus, the 3mm cannot be hed as t T \ ma; it has been brou ‘aaerinordinate deiay. We are unable to aecept this icontention. . 32. The leamed counscl for the petitioners strongly utgesthat the cbcision ,ofthis Court in M/s. Tilokchand Motichand’f case (sum) needs review. But aim carefully cons dering the mauer, wearg of the View that no relief ould be g‘ven to petitioners who, without any reasonable explanation, approach this Court under Aniclé 32 ome common aaer inordinm delayf The higlest Court in this land has been g'ven' original jurisdiction m entertain petitions under Article 32 ofmfe consuumon It couid not have been the mtemlonlthat this Court would go into stale ‘demandswaiier a l§apse of years. It issaid that Article 32 is itselfa gulhranteed right. So it is, but it V does not follown'om this that it Was the intention of i the Cbnstitlnion makers that this Court should : discard all principles iand grant relief in petitions ; tiled aner inordirwte delay.” ‘ ‘ ’ mime, a common Bench ofme sixpneme Com in Ramahandm shankar Deodhdr and others vs. The State ofMaharnshtra and others? (Bhugiaveti, iJ. in para 10) observed as iunder dismiss the [petition 13$ Article 32 on the ground / "10....’..It may also be nowd that the principle on; which the court proceeds in refusing relief to the petitioneron gonad of latches: and delayfis that the ights which have accrued to omershy reason ofthe delay in filingthe petition should not he lallotv’ed to be disturbed unless there is reasonableexplanationé for the delay. This principle was stated in the following terms by Hidayatnllah, CJ. in Tz’lok Chand'i vs. H.B. Munshvir(snpra) : _ “The party. v claiming Ftmdamental: Rights must move the Court befot‘e other{ rights ceme into exiStenceg' The action ofi .eourts cannot harm mnoeent parties if theirg p 'ghis emerge by reason ofdelay on thepert‘of i the personimOVingth'e Co ." r ' K 12.1n State ofMiv; vs. Nandlaz’; a was observed that that the High Com in exercise ofits discretion does not ordinarily assist the tardy andtheiindolent r (1974) 1 soc 317 I ‘ ‘ .: : , s 1. > : r r ‘ O/Gp : * or the acquiescent and the lethargic. Ifihere is inordinate delay on the pazt ' of the petitioner and such delay is not satisfactoxy explained, the Hig1 Court may decline to intervene and grant relief in exercise of its writ jurisdiction. It was also observed that if writ judsdietim is exercised ailer unreasonable delay, it may have the elTect of inflicting not only hardship and inconvenience but also injustice on third panics. When vwit jurisdiction is invoked, unexplained delay coupled with the creau’on ofthird partyrights in the memiim is an hnpomm ra‘itor which also weighs with thc‘ High ~ Court in deciding whether or not to eirercise such jurisdiction. i 13.Tl_ie Supreme Court in U.P. JalNigaén and anodzer vs. Jashwant Singh and anothef, observed as under: i “nae question ordeiay and iaches has been emined : by this Court in a sen'es of decisions and laeheshas I been considered to be an importam factor in exercise of the discretionary relief under Article 226 of the Constitution.” 14.0n laches and delay in agitating the grievances beibre the Court, the l ii - " Hon’ble Supreme Court in State of Hmjab and another vs. Balkaran Singh7, observed as under: “22 According to us, the suit is also barred by ix acquiesoenoe and estoppel No one in a servtce can » ~ sleep overthe question ofsenionty for morethan 12 g years and men come to court seeking a relief which Will upset the seniority of a number of pemons who had been shown as seniors in the respective semorrty ‘ lists Therefore, on the face of it, a declaratory relief 3 that Will have the eifect of altering a twelve-year—old v and a mne—year-old semonty hst could not have been ‘ granted by the courts below.” s AIR (1987) SC 251 (2006) 11 SCC 434 i \\ . (2006) 12 SOC 709 L \ 15.111 Yunus $abaobkai) A HamidLVPa r v. State ofMaharashtrf, the_ Supreme Court observed as under: “Delay or laches is one, afthe factars which isto be borne in mind by the Hléh Court when tliéy; exerm‘se their dlscretlonary power's. In an appropri‘tgcase the High Court may re&sé to invokc' its eamamtnar . powers ifthere js such négigence or omission on th panofthe applicant to when ms right as taken in circumstances, causes Prejudice to the opposite r conjunction with the lapse of time and other paw-’1’ I g 16.Tlie Supreme Court in Tridip Kumr§&ngal and others vs. State, of: West Bengal and others9 where the appellaints took 559 days’m approaching the Court, causing unexplained and inordinate delay, observed as under : . i “We are tunable tofuphiold‘the contention. . It is no doubt true that there can .be’ no waiver of i fundamental 'rigit; Eut ‘ while exercising l t - discretionary jiniSdietion under Anicles .32, 226, 227 or 136 of the Constimhomthis Coutt takes into l‘ account certain W5 and ' one of , such g considerations is delay andlachos on the part ofthe 1 § applicant in approaching c writ court; Itis well l : settled thatpower. to; issue a, writ isdiscneticnary. ; One of the grounds forrefusing reliefs under Article 7 ' 32 or 226 ofthe Constitution is thatthe petitioner is guilty ofdelay andlach‘es. ' 57. _Ifthe petitioner wants to invoke Jurisdiction of a § writ court, he should come to the court at the earliest. reasonably possible opportunity. Inordinate delay'in I makingthe motion fora writ will indeed be a good ' ground for'reihsinghto exercise such discretionary ,; ’ jurisdiction. The underlying ohiec’tofthis principh is j . ot to‘encourage agitation of stale claims and exhume matters'which have bem'disposed of or: g v settledorwhetitherightsofthird-partieehave; accrued in the meantime (vide State of M.P. v. ' Bhailal Bhai, Moon Mills Ltd. v. Indunrial Court, r; _ and Bho0p Singi v. Union of India). This principle jr applies even in case of an infi’ingement of i fundamental right (vide‘ Tilokchan tic v Mums) ssc487\ 9'(2oos)1scc768 . 7 / y “ o ‘ ‘ n d Mohand . _ ‘\ ¥ \ ‘H.B. Munshi, .Durga’ asad v. Chief Controller of Imports & Exports and Rabindranath Bose v. Union ‘ oflndia).” Further, ‘Them 1s no upper hmrt and titre 1s no lowet 1mm asto when aperson can approach aoomt The questlon 1s one of discre non and has to be demdedon the basis of facts before the oomt dapending‘on'and ’ varymg horn case to case It W111 depend upon what, . the breach of iimdamental nght and the remedy claimed are and when mlid how the delay arose ' 17.This Court m Smt. Shashlbala Gandhrala vs. State of Chham'sgarh & Others” on 3-1-2007 observed that “ihe cause ofaciion arose an 6-6-1995, when the communication was sent by the State Gavemment to the audwriiies fbr grant ofrevisedpay-seale. 21m petitioner has not takenany steps ever since n11 these petitionsi were filed in December, 2006 and ‘ remained tardy and indolent. Yhis béiated approach would eer‘tainlycause hardship and inconvenience to other'side.” Amit 18 Applymg we1l settled pnnciples of law to the facts ofthe case on hand, the pentlonet has not offered any explananon a1 all for condonatton of inordinate delay and laches. The pettitoner, for about ‘14 years kegt qutet and has not taken any steps for redressal ofthe grievancosought foréin this petition. 19 For the reasons mentioned horemabove, the petition ts llable to be and ts aocordmgly dtsnnssed at the motton stage Itself ’ ’ ' sal— SATISH K~ AGN‘HO Judge \ 1o WP (S) No.722 of 2006 K