Case: Eastern Coalfields Ltd Vs. Dugai Kumar

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 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) 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 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.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 (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.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]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 as 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 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-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.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 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.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 (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.