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Rajasthan High Court · body

1997 DIGILAW 1006 (RAJ)

Laxman Singh Kavadia v. State of Rajasthan

1997-08-19

B.S.CHAUHAN

body1997
Honble CHAUHAN, J. – The instant petition has been filed claiming the benefit of pension. Petitioner claims that he was appointed as Sanitary Inspector on 10.7.1941 in the erstwhile State of Mewar in the then Udaipur Municipality. After the re- organisation of the States and commencement of the Rajasthan Service Rules 1951, the services of the petitioner were governed by the said rules. Petitioner retired long back and claimed the benefit of pension. Vide order dt. 10.3.76 contained in Annex. 9 to this writ petition, petitioner was informed that he was not entitled for pension. Petitioner filed the instant petition in 1988 for seeking relief ofpension. (2). Learned counsel for the respondents has raised the plea of delay and laches on the part of the petitioner as a preliminary objection. (3). Learned counsel for the petitioner contended that the law of limitation does not apply in writ jurisdiction and even if it applies the petitioner was makingrepeated representations before the respondents, which furnish the explanation of delay and laches. The matter is heard only on preliminary objection. The instant petition raises three main questions: i. Whether a writ court should entertain a stale claim? ii. Whether repeated representations, inspite of rejection of the similar representation earlier, furnish explanation for delay and laches? iii. Whether the law of limitation is attracted in writ jurisdiction? (4). So far as the first issue is concerned, in Aflatoon vs. Lt. Governor of Delhi (1), the Constitution Bench of the Apex Court has observed that a stale claim cannot be entertained in writ jurisdiction. A similar view was taken by the Supreme Courtin State of Mysore vs. V.K. Kangan (2), wherein it was held that the party must approach the Court within reasonable time. Another Constitution Bench of the Apex Court considered this aspect in M/s. Tilok Chand Moti Chand and Others vs. H.B. Munshi (3), and held that the petition filed at a belated stage cannot and should not be entertained otherwise it would harm the innocent parties, whose rights haveemerged because of delay on the part of the person approaching the court. Another Constitution Bench of the Apex Court considered this aspect in M/s. Tilok Chand Moti Chand and Others vs. H.B. Munshi (3), and held that the petition filed at a belated stage cannot and should not be entertained otherwise it would harm the innocent parties, whose rights haveemerged because of delay on the part of the person approaching the court. In the case of R.S. Deodhar vs. State of Maharashtra (4), the Constitution Bench of the Supreme Court observed as under : ``It may also be noted that the principle on which the courts proceed in refusing relief to the petitioner on grounds of laches or delay is that the rights which have accrued to others by reason of the delay in filing the position should not be allowed to be disturbed unless there a reasonable explanation for the delay. (5). Similarly, in K.R. Mudgal vs. R.P. Singh (5), the Apex Court followed its earlier judgment in R.S. Maxhi vs. L.M. Menan (6), wherein the Court held that thepetition should be rejected on preliminary ground of delay and laches, inasmuch as it seeks to disrupt the vested rights, accrued to a large number of persons during the intervening period. Thus, in view of the above, my conclusion is that court should not entertain a stale claim. (6). On the second issue, the Constitution Bench of the Supreme Court in Ravi-ndra Nath Bose vs. Union of India (7), observed as under : ``It could not have been the intention that this Court would go into stale demands after a lapse of years........But there is a limit to the time which can be considered reasonable for making representation.....If the government has turned down one representation, the making of another representation on similar lines would not unable the petitioners to explain the delay. (7). The aforesaid judgment in the case of Ravindra Nath Bose was followed by the Supreme court in State of Orissa vs. Shri Pyarimohan Samontaray and Ors. (8) and G.C. Gupta vs. N.K. Pandey and Ors. (9) wherein after rejection of the claim, petitioners filed another representation, which was also rejected. Then third and fourth representations were also made and the same had also been rejected. The Honble Apex Court rejected the contention that as the concerned authorities were entertaining representations, there was no delay on the part of the employee to approach the court for redressal of his grievances. Then third and fourth representations were also made and the same had also been rejected. The Honble Apex Court rejected the contention that as the concerned authorities were entertaining representations, there was no delay on the part of the employee to approach the court for redressal of his grievances. Once a representation was rejected, there was no occasion for the petitioner therein to move another representation before the same Authority and, thus, all the representations and the orders passed therein cannot furnish explanation for delay and laches. (8). The issue of applicability of the provisions of the Indian Limitation Act, 1963 in the writ jurisdiction was considered by a Full Bench of the Kerala High Court in M.P. Raghavan Nair vs. State Insurance Officer and others (10), and it observed as under : ``The principles underlying statutory provision lies the Limitation Act .....or .........applicable to petitions are not to be regarded as embodying technical rules of procedure. They are based upon principles of public policy aiming at justice, the securing of which is the very object of Article 226. The principles are principles of repose and peace. `Long dormant claims have often more of cruelty than of justice in them, said Best C.J. in A. Court vs. Cross, (1825) 130 ER 540. (9). In Union of India & Ors. vs. Athos LJP Fernandes and others (11), it was held that the period of limitation prescribed by the Limitation Act, is not strictly applicable in cases of writ jurisdiction. The Full Bench of Punjab and Haryana High Court in the case of Teja Singh vs. Union Territory of Chandigarh and Ors. (12) hastaken the view that the provisions of Code of Civil Procedure etc. may be made applicable in the writ jurisdiction. On the issue of applicability of the provisions of Limitation Act. Privy Council in General Accident Fire and Life Assurance Corporation Ltd. vs. Janmahomed Abdul Rahim (13), relied upon the writings of Mr. Mitra in Tagore Law Lectures 1932 wherein it has been said that ``a law of limitation andprescription may appear to operate harshly and unjustly in a particular case, but if the law provides for a limitation, it is to be enforced even at the risk of hardship to a particular party as the Judge cannot, on applicable grounds, enlarge the time allowed by the law, postpone its operation, or introduce exceptions not recognised by law. In Rajendra Singh and Ors. vs. Santa Singh and Ors. (14), the SupremeCourt observed that ``the object of the law of limitation is to prevent disturbance or deprevation of what may have been acquired in equity and justice by long enjoyment or what may have been lost by a partys own inaction, negligence or laches. While deciding this case, the court placed reliance upon the Halsburys Laws of England (Vol. 24) 181 which is as under : ``The policy of Limitation Acts. The Courts have expressed atleast three different reasons supporting the existence of statutes of limitation, namely (1) that long dorement claims have more of cruelty than justice in them, (2) that a defendant might have lost the evidence to disprove a stale claim, and (3) that persons of good causes of actions should peruse them with reasonable deligence. (10). In Smt. Sudama Devi vs. Commissioner & Ors. (15), the Supreme Court has observed as under : ``There is no period of limitation prescribed by any law for filing a writ petition under Article 226 of the Constitution of India. It is infact doubt- ful whether any such period of limitation can be prescribed by law. In any event one thing is clear and beyond doubt that no such period of limitation can be laid down either by rules made by the High Court or by practice. In every case it would have to be decided on the facts and circumstances whether the petitioner is guilty of laches and that would have to be done without taking into account any specific period as a period of limitation. There may be cases where even short delay may be evidenced of laches on the part of the petitioner. (11). In view of the above, I reach the unescapable conclusion that the provisions of Limitation Act 1963 are not applicable in the proceedings in writ petition but unreasonable delay on the part of the petitioner does not warrant the writ Court to exercise its extraordinary discretionary jurisdiction under the provisions of Article 226 of the Constitution of India. (12). It is next submitted by Mr. Mathur that this court may pass the appropriate direction in the special facts and circumstances of this case as the equitable orders are passed every day by the Honble Supreme Court. I am afraid no such order can be passed by this Court. (13). (12). It is next submitted by Mr. Mathur that this court may pass the appropriate direction in the special facts and circumstances of this case as the equitable orders are passed every day by the Honble Supreme Court. I am afraid no such order can be passed by this Court. (13). In State of Punjab vs. Surinder Kumar (16), the Supreme Court observedas under :– ``The Constitution has, by `Article 142 empowered the Supreme Court to make such order as may be necessary for doing complete justice in any case or matter pending before it, which authority the High Court does not enjoy. The jurisdiction of the High Court while dealing with a writ petition, is circumscribed by the limitations discussed and declared by the judicial decisions and it cannot transgress the limits on the basis of whims or subjective sense of justice varying from Judge to Judge. (14). Similar view has been taken by the Apex Court in State of Haryana vs.Naresh Kumar Balil (17). In J & K Public Service Commission etc. vs. Dr. Narinder Mohan and others (18), the Apex Court has observed as under : ``Therefore, the High Court is not right in placing reliance on the judgment as a ratio to give the direction to the Public Service Commission to consider the cases of respondents. Article 142 - power is confined only to this Court. The ratio in ........is also not an authority under Article 141. (15). In B.C. Chaturvedi vs. Union of India & Ors. (19), in a separate judgment, one Honble Judge of the Apex Court has observed that the High Court in exercise of its powers under Article 226 of the Constitution has ample power to do completejustice, meaning thereby that the power which the Supreme Court can exercise under Article 142 of the Constitution can also be exercised by the High Court, but the other two Honble Judges did not express any opinion on this issue nor the Honble Judge made reference to earlier judgments of the Apex Court and I feel restrained to make any such observations. Thus, in view of the above, I find no force in this petition, and is accordingly hereby dismissed.