(Arising out of S.L.P. (C) No. 881 of 2006)
Pasayat & S.H. Kapadia,
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
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 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
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
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
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.
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