HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 917 of 2009 (M/S) Dau Dayal Agarwal …. Petitioner .. Versus State of Uttarakhand & others … Respondents Mr. S.N. Babulkar, Senior Advocate assisted by Mr. Ravi Babulkar, Advocate for the petitioner. Mr. K.P. Upadhyay, learned Additional Chief Standing Counsel for the State of Uttarakhand. Ms. Bina Pande, learned Standing Counsel for the State of Uttar Pradesh. 30th June, 2009 Hon’ble Sudhanshu Dhulia, J. This writ petition has been filed by the petitioner to the following relief : “I. Issue a rule, order or direction in the nature of mandamus commanding and directing the respondents to pay the outstanding rent to the petitioner in respect of supply of articles/materials made him for the earthquake relief victims pursuant to the order of District Magistrate Haridwar dated 2nd, 3rd and 4th April, 1999 which amounts to the tune of Rs. 7,68,60,000/- II. Issue a rule, order or direction in the nature of mandamus commanding and directing the respondent no. 5 and 6 to return the relief material received by them to the petitioner forthwith or to suitably compensate the petitioner if for any reason the return is not possible. III. Issue a rule, order or direction in the nature of mandamus commanding and directing the 2 respondents to pay interest to the petitioner on the outstanding rent @ 18 % per annum from 02.04.1999 up till the payment is actually ensured. IV. Issue any writ, rule, order or direction which this Hon’ble court may deem fit and proper under the circumstances of the case. V. Award cost to the petitioner.” The petitioner claims to be a proprietor of a tent house situated in Haridwar. According to the petitioner, in March, 1999 an earthquake had struck in district Chamoli and Rudraprayag for which the District Magistrate, Haridwar directed the petitioner to provide certain relief materials to the earthquake victims of these districts. The District Magistrate, Haridwar had in fact requisitioned relief materials from various tent houses including the present petitioner. The District Magistrate had ordered the petitioner to send 6 trucks of relief materials such as E.P. Tents, Choldaries, Tripals, etc. All these materials ordered to the petitioner were duly supplied by the petitioner to the relief area, through the District Magistrate, Haridwar. The grievance of the present petitioner is that neither the said tent materials were returned to the petitioner nor any rent was paid for the use of this material as fixed by the District Magistrate, Haridwar. Hence, by means of present writ petition, the petitioner is claiming a compensation, which according to him is Rs. 7,68,60,000/-, apart from other relief already stated above. The main question before this Court apart from the maintainability of the writ petition is the apparent inordinate delay in filing the present writ petition. It is a settled principle of law that people who sleep over their rights, the Court will not come to their rescue. This is first and primarily a case of inordinate delay and delay in the matter of law is always odious. As we see, the matter pertains to the year 1999. The petitioner has approached this Court 3 after ten years, in 2009. This delay has also not been explained in the petition. Moreover, the second hurdle which the petitioner will have to cross is the nature of issue raised here. Obviously, the petitioner has not supplied the material in charity, for him it was a commercial venture! How much of material has been supplied?, whether it duly reached the place or not?, how much was the rent fixed?, etc. are the questions of fact which cannot be examined in a writ petition, that too after ten years from the date the actual cause of action, if any, arose. However the first hurdle the petitioner has to cross is of the delay! There is no averment in the writ petition whereby this apparent inordinate delay has been explained. There is no whisper in the petition nor any effort made by the petitioner for condoning this delay. All the same, the learned counsel for the petitioner has cited certain case law to get over this hurdle. He has relied upon the judgment of the Apex Court in Ram Chand and others v. Union of India and others, (1994) 1 SCC 44, wherein in para 16, the Apex Court has stated as follows : “According to us, the question of delay in invoking the writ jurisdiction of the High Court under Article 226 or of this Court under Article 32, has to be considered along with the inaction on the part of the authorities, who had to perform their statutory duties. Can the statutory authority take a plea that although it has not performed its duty within a reasonable time, but it is of no consequence because the person, who has been wronged or deprived of his right, has also not invoked the jurisdiction of the High Court or of this Court for a suitable writ or direction to grant the relief considered appropriate in the circumstances? The authorities are enjoined by the statute 4 concerned to perform their duties within a reasonable time, and as such they are answerable to the Court why such duties have not been performed by them, which has caused injury to claimants.” Firstly, there is no law laid down by the Supreme Court in the said judgment which is of universal application and moreover, the facts of the said case clearly differ from the present case. In the case referred above before the Hon’ble Supreme Court, a statutory remedy was provided to the petitioner under the Land Acquisition Act in which there was a delay on the part of the petitioner as well as on the part of the concerned authorities. Moreover, the facts of the said case were also not in dispute. In the present case, there is no statutory relief which could be granted to the petitioner and moreover, the facts of the present case are also to be examined which cannot be done in the writ petition. Therefore, the facts of the said case and the issues raised in that case are different and not applicable to the present case. The petitioner has also relied upon the judgment of Supreme Court in Shri Anadi Mukta Sadguru Shree Muktajee Vandasjiswami Suvarna Jayanti Mahotsav Smarak Trust and others v. V.R. Rudani and others, AIR 1989 SC 1607, wherein the Supreme Court has stated as follows : “19.The term “authority” used in Article 226, in the context, must receive a liberal meaning unlike the term in Article 12. Article 12 is relevant only for the purpose of enforcement of fundamental rights under Art. 32. Article 226 confers power on the High Courts to issue writs for enforcement of the fundamental rights as well as non-fundamental rights. The words “Any person or authority” used in Article 226 are, 5 therefore, not to be confined only to statutory authorities and instrumentalities of the State. They may cover any other person or body performing public duty. The form of the body concerned is not very much relevant. What is relevant is the nature of the duty imposed on the body. The duty must be judged in the light of positive obligation owed by the person or authority to the affected party. No matter by what means the duty is imposed. If a positive obligation exists mandamus cannot be denied.” 21. Here again we may point out that mandamus cannot be denied on the ground that the duty to be enforced is not imposed by the statute. Commenting on the development of this law, professor De Smith states : “To be enforceable by mandamus a public duty does not necessarily have to be one imposed by statute. It may be sufficient for the duty to have been imposed by charter, common law, custom or even contract.” (Judicial Review of Administrative Act 4th Ed. P. 540). We share this view. The judicial control over the fast expanding maze of bodies affecting the rights of the people should not be put into water-tight compartment. It should remain flexible to meet the requirements of variable circumstances. Mandamus is a very wide remedy which must be easily available ‘to reach injustice wherever it is found’. Technicalities should not come in the way of granting that relief under Article 226. We, therefore, reject the contention urged for the appellants on the maintainability of the writ petition.” 6 Undoubtedly, in case the petitioner would have approached this Court in time, it can be argued that case could have been heard on merits as it could be said that the relief was being claimed against an authority which is undoubtedly a public authority. This Court is not merely against the filing of the writ petition per se against the respondents, what the petitioner actually has to meet out here is first and foremost the inordinate delay in his filing this writ petition and the fact whether any reasonable explanation has been given by the petitioner for such an inordinate delay in the petition. Although the matter does pertain to disputed questions of fact as referred in the beginning and therefore even otherwise a proper forum for the petitioner was to file a suit, within the prescribed time of course. Yet, the petitioner has not only chosen a wrong forum but he has chosen to do so after an inordinate delay. Therefore, this writ petition is faulted twice – first for the inordinate delay and secondly the subject matter of the petition itself as it relates to an appraisal of disputed questions of fact which cannot be done in a writ petition. For this, the petitioner has also relied upon the judgement of Apex Court in Arunima Baruah v. Union of India and others, (2007) 6 SCC 120 and S.J.S. Business Enterprises (P) Ltd. v. State of Bihar and others. In both the cases, the petitioner had filed a suit as well as a writ petition for the same cause of action and though in both the cases, the suit had been withdrawn yet the writ petition had been dismissed on the ground of suppression of material fact. It was on these facts that the Hon’ble Apex Court had entertained the matter and has stated that since the suit itself has been withdrawn, there cannot be any suppression of material fact as the fact itself does not exist. Moreover, in both the cases the relief was being sought against a public authority where the writ petition itself was maintainable. There was also 7 no question of delay in those cases and, therefore, the ratio of both the cases are not applicable in the present case. Lastly, the petitioner has asserted that similarly situated persons had filed writ petition in Allahabad High Court and they have got the relief. Firstly, no order or judgment had been passed by the Allahabad High Court on that writ petition. Only a writ was filed and after filing of the writ petition, certain officers were summoned and subsequently thereafter, the relief was granted to the petitioners, not by the Court but by the concerned authority itself. Therefore, there is no judgment of Allahabad High Court on same facts on which the petitioner can rely upon. Moreover, in this case also, the writ petition was filed in the year 2002 whereas the present writ petition was filed in the year 2009. Therefore, the factor of delay is also working against the petitioner. The petitioner has also stated that since he is not claiming damages but compensation only and the compensation can be granted by this Court. The petitioner has relied upon the judgment of the Supreme Court in Nilabati Behera v. State of Orissa, JT 1993 (2) 503 and Rudal Sah v. State of Bihar, 1983 (3) SCC 746. In all these cases which the petitioner has relied upon, the Hon’ble Supreme Court has granted compensation as they were cases related to abuse of human rights, which is not the case here. The petitioner has also relied upon the judgment of Supreme Court in Consumer Education & Research Centre and others v. Union of India & others JT 1995 (1) SC 637. In that case, distinction has been made by the Apex Court between damages and compensation and it has been stated that in public law claim for compensation is a remedy available under Article 32 or 226 for the enforcement and protection of fundamental and human rights. Firstly, what human rights and fundamental rights, the petitioner is agitating is also not clear. Moreover, since the maintainability of the petition on the ground of delay is an issue which the petitioner has not been able to meet the 8 grounds being agitated by the petitioner are of no consequence. Further, no effort has been made by the petitioner in the writ petition by way of any averment to explain as to what were the compelling reasons for the petitioner for delay in filing the present writ petition. No explanation, whatsoever, has been given by the petitioner for this inordinate delay and, therefore, the delay itself remains unexplained and for this reason also, there is no good ground for interference in this matter by this Court. The remedy of writ petition under Article 226 of the Constitution of India is an extraordinary remedy. Based on sound principles of both law and equity, the Courts are slow to interfere in matters which are inordinately delayed, such as the present case. The maxim – “Lex dilationes semper exhorret” (which means that the law always abhors delay) is clearly applicable in the present case. It is a maxim which all litigants must bear in mind before they approach a Court. In view of the reasons stated above, the writ petition is inordinately belated and is therefore dismissed on the ground of latches. No order as to costs. (Sudhanshu Dhulia, J.) 30.6.2009 Avneet