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2011 DIGILAW 717 (GAU)

Sohbar Sirdarship Elaka represented v. State of Meghalaya

2011-08-26

TINLIANTHANG VAIPHEI

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JUDGMENT T. Vaiphei, J. 1. The sole question which falls for consideration in this writ petition is, whether the writ petition is barred by the principle of laches. The undisputed facts material for the purpose of disposal of this writ petition may be recorded straightaway. The elders, Sirdars and inhabitants of the Sohbar Sirdarship had entered the agreement dated 29-10-1892 with the Agent of the erstwhile Governor General of India, who was then representing the East India Company. By this agreement, the people of the Sohbar Sirdarship divided the share of the limestone production in the Sirdarship and allowed the East India Company to receive 50% of the royalty while the remaining 50% was reserved for payment to the people of Sohbar Sirdarship itself as consideration for exploiting/extracting the limestone deposited in the Sirdarship. On 29-5-1940, the then Provincial Government of Assam entered into an agreement with the Assam Bengal Cement Company Ltd. for extraction of the limestone in the Sirdarship. This company thereafter started extraction of the limestone in the Sridarship. The Provincial Government of Assam had since then been paying 50% of the royalty to the Sohbar Sirdarship in accordance with the agreement dated 29-5-1940 till 1952 when this Provincial Government stopped the payment. In the year 1971, the State of Meghalaya came into being with the coming into force of the North Eastern Areas (Reorganization) Act, 1971. On 25-6-1973, the State of Meghalaya entered into a Mining Lease Agreement with the Komorrah Limestone Mining Company Ltd. whereby 50% royalty came to be paid to the District Council instead of paying it to the Sohbar Sirdarship. 2. Aggrieved by the non-payment of the royalty to the Sirdarship, the Petitioner filed W.P.(C) No. 42(SH) of 1991 before this Court, which by the judgment and order dated 25-5-1995 had allowed the writ petition and directed the State-Respondents to pay the royalty of 50% to the Petitioner in terms of the agreement dated 29-10-1829 read with Article 294 of the Constitution of India. Aggrieved by this judgment and order, the District Council carried the matter in appeal before the Division Bench of this Court in W.A. No. 20(SH) of 1999. Aggrieved by this judgment and order, the District Council carried the matter in appeal before the Division Bench of this Court in W.A. No. 20(SH) of 1999. According to the learned Counsel for the Petitioner, the then counsel appearing for the Petitioner, without instruction from the Sohbar Sirdarship, made a prayer before this Court for allowing him to withdraw the writ petition notwithstanding the adjudication of the writ petition by the learned Single Judge of this Court in favour of the Petitioner. In terms of this prayer, the Division Bench of this Court by the order dated 6-12-2007 dismissed the writ petition with a liberty to file a fresh case and accordingly closed the writ appeal as infructuous. It is the case of the Petitioner that as Sirdarship could not file a review petition of the order closing the appeal due to delay, he is now approaching this Court for appropriate relief under Article 226 of the Constitution. 3. Mr. HL Shangreiso, the learned Counsel for the Petitioner, submits that the writ petition does not suffer from laches inasmuch as the grievance projected by the Petitioner in this case is a continuing wrong or recurring wrong inasmuch as it creates a continuing source of injury and renders the doer of the wrong responsible and liable. According to the learned Counsel, continuing wrong is based on recurring cause of action and not one time action: the Petitioner is not aggrieved by one time action of the State-Respondents but with the continuous exploitation of its mineral resources and the continuous deprivation of the royalty legitimately due to it under the agreement dated 29-10-1829 and the provisions of the Mineral and Mines Minerals (Development and Regulation) Act, 1957. In any case, argues the learned Counsel, No. third party right has been created in the meantime, which is a valid and relevant ground for overlooking the principle of laches. He also contends that the Division Bench of this Court in the writ appeal granted the Petitioner the liberty to file a fresh case and the writ petition may not, therefore, be dismissed at the threshold and may be heard on merit in the interest of justice, equity and good conscience. He also contends that the Division Bench of this Court in the writ appeal granted the Petitioner the liberty to file a fresh case and the writ petition may not, therefore, be dismissed at the threshold and may be heard on merit in the interest of justice, equity and good conscience. To fortify his contentions, the learned Counsel relies on the following decisions of the Apex Court: (1) UOI v. Tarsem Singh (2008) 8 SCC 648 ; (2) M.R. Gupta v. UOI, (1995) 5 SCC 628 ; (3) Dehri Rohtas Lightly Company v. District Board (1992) 2 SCC 598 ; (4) H.D. Vora v. State of Maharashtra (1984) 2 SCC 337 ; (5) Ramchandra Deodhar v. State of Maharashtra (1974) 1 SCC 317 ; (6) Balkrishna v. Shree D.M. Sansthan, AIR 1959 SC 798 and (7) State of Meghalaya v. U. William Mynsong, (1987) 2 GLR 221. On the other hand, Mr. K.S. Kynjing, the learned Advocate General, submits that the writ petition is liable to be dismissed at the very threshold on the ground of laches. According to him, condoning the delay, on the facts and circumstances of this case, will be most inadvisable and will send a wrong signal to other potential litigants, who have slept over their rights for decades and will open a floodgate of litigations involving stale claims. 4. In my opinion, the writ petition is barred by the principles of laches and is covered by the decisions of the Apex Court in Syed Maqbul Ali v. Sate of U.P., AIR 2011 SCW 3195 and State of Maharashtra v. Digambar (1995) 4 SCC 683 . On the own showing of the Petitioner that the Provincial Government of Assam had stopped payment of the royalty to him since 1952, there is No. room for doubt that the Petitioner has waived his right to claim the royalty in question or has acquiesced in to the deprivation of his right to claim the royalty by the State Respondents by long passage of time. That apart, there is No. satisfactory explanation for the delay spanning over six decades in filing the writ petition. Repeated representations, it is trite, does not and cannot extend the cause of action. The principle of laches has been elaborately explained by a three-Judge Bench of the Apex Court in Digambar case (supra) at paragraph 14 of the judgment. This is what it said: 14. Repeated representations, it is trite, does not and cannot extend the cause of action. The principle of laches has been elaborately explained by a three-Judge Bench of the Apex Court in Digambar case (supra) at paragraph 14 of the judgment. This is what it said: 14. How a person who alleges against the State of deprivation of his legal right, can get relief of compensation from the State by invoking writ jurisdiction of the High Court under Article 226 of the Constitution even though, he is guilty of laches or undue delay is difficult to comprehend, when it is settled by decisions of this Court that No. person, be he a citizen or otherwise, is entitled to obtain the equitable relief under Article 226 of the Constitution if his conduct is blameworthy because of laches, undue delay, acquiescence, waiver and the like. Moreover, how a citizen claiming discretionary relief under Article 226 of the Constitution against a State, could be relieved of his obligation to establish his unblameworthy conduct for getting such relief, where the State against which relief is sought is a Welfare State, is also difficult to comprehend. Where the relief sought under Article 226 of the Constitution by a person against the Welfare State is founded on its alleged illegal or wrongful executive action, the need to explain laches or undue delay on his part to obtain such relief, should, if anything, be more stringent than in other cases, for the reason that the State due to laches or undue delay on his part to obtain such relief, may not be able to show that the executive action complained of was legal or correct for want of records pertaining to the action or for the officers who were responsible for such action not being available later on. Further, where granting of reliefs claimed against the State on alleged unwarranted executive action, is bound to result in loss to the public exchequer of the State or in damage to other public interest, the High Court before granting such relief is required to satisfy itself that the delay or laches on the part of a citizen or any other person in approaching for relief under Article 226 of the Constitution on the alleged violation of his legal right, was wholly justified in the facts and circumstances instead of ignoring the same or leniently considering it. Thus, in our view, persons seeking relief against the State under Article 226 of the Constitution, be they citizens or otherwise, cannot get discretionary relief obtainable thereunder unless they fully satisfy the High Court that the facts and circumstances of the case clearly justified the laches or undue delay on their part in approaching the Court for grant of such discretionary relief. Therefore, where a High Court grants relief to a citizen or any other person under Article 226 of the Constitution against any person including the State without considering his blameworthy conduct, such as laches or undue, acquiescence or waiver, the relief so granted becomes unsustainable even if the relief was granted in respect of alleged deprivation of his legal right by the State. 5. As for the contention of the learned Counsel for the Petitioner that the act complained of in the writ petition is a continuing wrong for which there can be No. laches, I have carefully perused the of judgments of the Apex Court in Tarsem Singh, Balkhrishna, MR Gupta cases, etc. relied upon by him, but am unable to persuade myself to hold that they have relevancy to the instant case for the simple reason that the facts of the case in the three-Judge Bench decision of Digambar case are virtually on pari materia with the facts in this case, which is about alleged deprivation of property without authority of law. It is not known at this time as to what actually prompted the learned Counsel for the Petitioner to withdraw the earlier writ petition whereupon the writ appeal had been closed by the Division Bench of this Court, but the fact remains that even then the writ petition suffered from the same defect of laches. Filing a writ petition after writ petition cannot cure the infirmity of the nature under discussion herein. Resultantly, this writ petition is barred by the principles of laches or undue delay, acquiescence or waiver. 6. For what has been stated in the foregoing discussion, this writ petition is not maintainable and is accordingly dismissed. However, on the facts and in the circumstances of the case, I direct the parties to bear their respective costs. Petition dismissed.