High Court Of Delhi
Malook Chand & Sons & Anr. vs. Union Of India & Ors.
Section 243, ART. 226
Markandeya Katju, C.J. & Madan B. Lokur, J.
Writ Petn. No. 3677 of 2000
21st February, 2006
Counsel Appeared
O.S. Bajpai with V.N. Jha, for the Petitioners : R.D. Jolly with Ajay Jha, for the Respondents
JUDGMENT
Markandeya Katju, C.J. :
Heard learned counsel for the parties and perused the record. This writ petition had initially been filed praying for a writ of mandamus directing the respondent, IT Department to refund Rs. 27,423 with interest.
During the pendency of the writ petition, an additional affidavit was filed by the petitioner. In para 2 of the same it is stated that respondent No. 2 passed an order under s. 132B(4) of the IT Act (for short ‘the Act’) on 6th Sept.,2001 which is Annex. P-1 to the writ petition. According to the said order, interest of Rs. 9,598 was worked out @ 15 per cent on the refund of cash of Rs. 27,423 from six months after the date of seizure i.e., 13th Nov., 1985 to the date of regular assessment under s. 143(3) of the Act, that is, 14th March, 1988. The refund amount has been paid to the petitioner on 24th July, 2001. Now the dispute survives with regard to liability of interest for the period from 15th March, 1988, i.e., from the date of regular assessment to the date of actual refund i.e., 24th July, 2001.
The facts of the case were that on 17th Jan., 1985 there was a search and seizure on the petitioner’s premises and cash amounting to Rs. 27,423 was seized and an order under s. 132(5) of the Act was passed in May, 1995 directing the retention of the cash. The finding given in the order under s. 132(5) of the Act was repeated in the regular assessments for the asst. yr. 1986-87 which was completed on 14th March, 1988. A copy of the assessment order is Annex. 1 to the writ petition.
The petitioner filed an appeal before the CIT(A), who on 27th May, 1995 allowed the appeal vide Annex. 2 to the writ petition.
The petitioner has alleged in para 11 of the writ petition that the petitioner wrote to respondent No. 4 on 25th Oct., 1999 and 19th April, 2000 for refund of the amount of Rs. 27,423 together with interest, but there was no response and hence this writ petition was filed. A counter affidavit was filed by the Department in the writ petition and we have perused the same. It has been stated in para 4 of the same that the writ petition was filed in the year 2000 and there is no explanation for the delay in filing the petition. Hence, the petition was liable to be dismissed on the ground of laches.
In the rejoinder affidavit filed by the petitioner no explanation has been given as to why the petitioner did not approach this Court from 27th May, 1995, when the CIT(A) allowed its appeal, till 25th Oct., 1999 when it appears that the petitioner for the first time asked for the refund. There is nothing on the record to show that the petitioner made any claim for refund or interest between 27th May, 1995 when the CIT(A) passed his order and 25th Oct., 1999 when the petitioner wrote to CIT (Central-I), New Delhi, to give refund with interest. Even the letter dt. 25th Oct., 1999 does not disclose that the petitioner had written any letter before 25th Oct., 1999 claiming refund with interest.
We are of the opinion, therefore, that the petitioner is himself responsible for the delay and laches in the matter.
It is well settled that writ jurisdiction is discretionary jurisdiction. Hence, if a party approaches the Court under Art. 226 of the Constitution of India after an unreasonable delay, this Court can dismiss the writ petition without going into the merits of the matter. Thus, in Raja Pratap Singh vs. CBDT AIR 1975 SC 1816 (vide para 13) the Supreme Court observed : “Article 226 is not a blanket power, regardless of temporal and discretionary restraints. If a party is inexplicably insouciant and unduly belated due to laches, the Court may ordinarily deny redress.”
In this case, we are of the opinion that in the facts and circumstances of the case the petitioner has approached this Court after unreasonable delay without any proper explanation for the delay.
11. In Durga Prasad vs. Chief Controller of Imports & Exports & Ors. AIR 1970 SC 769 (vide para 3) the Supreme Court observed : “It is well settled that the relief under Art. 226 is discretionary, and one ground for refusing relief under Art. 226 is that the petitioner has filed the petition after delay for which there is no satisfactory explanation.”
12. In State of Maharashtra vs. Digambar AIR 1995 SC 1991 the Supreme Court observed (vide para 12) that it is well settled by the decisions of the Court that no person is entitled to obtain equitable relief under Art. 226 of the Constitution of India if his conduct is blame-worthy because of laches, undue delay, acquiescence, waiver and the like.
13. Similarly in Municipal Council, Ahmednagar vs. Shah Hyder Beig AIR 2000 SC 671 (vide paras 17 and 18) it was held that when there is inordinate delay in filing a writ petition, the High Court in its discretionary powers under Art. 226 of the Constitution of India can dismiss it on this ground without going into the merits.
14. In J.N. Maltiar vs. State of Bihar AIR 1973 SC 1343, it was held that where the petitioner, a dismissed Government servant, after being informed that his services were terminated for misconduct, spent about three years in sending memorials to the Government, a remedy not provided by law, the High Court was justified in rejecting the petition on the ground of delay.
15. In Rajalakshmiah vs. State of Mysore AIR 1967 SC 993 : (1967) 2 SCJ 464 (vide para 13) the Supreme Court held that the appellants were guilty of laches because after the impugned order was passed in 1950, they should have filed a writ petition within a reasonable time thereafter. Merely because the chief engineer had espoused their cause and was writing letters from time to time to the State Government to do something for them did not mean that they could rest upon their oars if they really had grievance.
16. Thus, it is well settled that writ jurisdiction being discretionary jurisdiction cannot be invoked by a party who approaches the High Court after unreasonable delay [vide : S.A. Rasheed vs. Director of Mines & Geology AIR 1995 SC 1739].
17. No doubt there is no specific limitation provided for under Art. 226 for filing a writ petition. However, the principle of laches i.e., undue delay certainly applies to writ jurisdiction. The High Court has to exercise its writ jurisdiction on settled legal principles, and one of these legal principles is that a writ petition is liable to be dismissed if the petitioner has come to the High Court after undue delay, as has happened in this case.
18. We may also clarify that the pursuit of a Departmental representation or correspondence is no ground for condoning the delay in approaching the High Court [vide Rajalakshmiah vs. State of Mysore (supra), J.N. Maltiar vs. State of Bihar (supra), Gian Singh Mann vs. P&H High Court (supra) (sic), etc.]. It is only when the representation is a statutory representation that the time spent in pursuing it can be taken into consideration in deciding whether the petitioner has approached the High Court after undue delay.
19. It is well settled that writ jurisdiction is discretionary jurisdiction. Hence, even if there is violation of law, the High Court is not bound to interfere. The Supreme Court in Chandra Singh vs. State of Rajasthan & Anr. 2003 (6) SCC 20 held as under : “Issuance of a writ of certiorari is a discretionary remedy [see Champalal Binani vs. CIT AIR 1970 SC 645]. The High Court and consequently this Court while exercising its extraordinary jurisdiction under Art. 226 or 32 of the Constitution of India may not strike down an illegal order although it would be lawful to do so. In a given case, the High Court or this Court may refuse to extend the benefit of a discretionary relief to the applicant.” In our opinion, this was not a fit case for exercise of discretion under Art. 226 of the Constitution.
20. Hence, without going into the merits of the controversy, we are dismissing this writ petition on the ground of laches.
[Citation : 288 ITR 111]
