Eastern Coalfields Ltd vs Dugal Kumar

land owner was not interested in getting 3

employment and he would be thankful if 1008 MTs

of coal would be given to him. The Authorities

accepted the request and the appellant Company

vide a letter dated May 22, 1989, passed an

order to release 1008 MTs of steam Coal,

Grade-D. It was stated that the coal would be

released on fulfilling the terms and conditions

mentioned in the said communication. According

to the Company, everything was over and nothing

further was required to be done in the matter.

The respondent-writ-petitioner was paid

consideration for land which was sold by

registered sale deed. Over and above

compensation, as per the policy in force, they

offered 1008 MTs of coal which was accepted by

the respondent and quantity was also released.

It was accepted by the respondent without any

protest, objection or reservation and the

matter ended there.

4. After considerable delay of about a

decade, a petition came to be filed being Writ

Petition No. 770 of 1999 contending therein 4

that writ petitioner (respondent herein) was

entitled to additional quantity of 1008 MTs of

coal and an appropriate direction be issued to

the Company to release the goods. The writ

petition was placed for `first' hearing on

September 6, 1999, and on the same day, it was

disposed of by the Court observing inter alia

that "no affidavit in opposition has been

filed", and the learned counsel for the Company

submitted that `usual order' be passed in the

matter. Accordingly, the Company was directed

to allot "balance quantity of 1008 MTs" of coal

to the writ-petitioner.

5. The said order read as under;

"Mr. D.P. Majumdar, Adv. with Mr. G. Patra, Adv. appears and submits.

Mr. A.K. Mitra, Adv. with Md. Iairsh, Adv. appears and submits.

The Court : No affidavit-in- opposition has been filed. The Learned Lawyer for the respondent submits that usual order may be passed in this matter.

Accordingly, I passed the following order:- 5

The respondents are directed to allot balance quantity of 1008 M.T. to the petitioner in terms of the release order dated 25.5.1989 from Nayandanga Coliery, Mugma Area.

The writ petition is disposed of.

All parties are to act on a signed copy of the minutes of this order on the usual undertaking."

6. It is stated by the appellant-Company

that after the order dated September 6, 1999,

on September 13, 1999, again the matter was

mentioned by the writ-petitioner without filing

any application and the High Court modified its

earlier order dated September 6, 1999 and the

balance quantity which was mentioned in the

earlier order of September 6, 1999 as 1008 MTs

was enhanced to 6800 MTs. Again, the matter was

mentioned on September 15, 1999 and the order

was corrected.

7. The Company, being aggrieved by the

order passed by the learned Single Judge,

preferred an appeal being APOT No. 94 of 2004 6

challenging the orders passed by the learned

single Judge. The Division Bench of the High

Court, however, dismissed the appeal on

February 17, 2000 observing that when the order

was passed by the learned single Judge on

September 6, 1999, the counsel for the Company

appeared and no reply was filed by the Company.

In the circumstances, the Company had "to blame

itself". The matter was thereafter taken up by

the learned single Judge and even at that

stage, no reply was filed. According to the

Court, therefore, there was no reason to

interfere with the order of the single Judge

and the appeal was dismissed.

8. The Company challenged the order

passed by the Division Bench of the High Court

by filing Special Leave Petition No. 8238 of

2000. When the matter came up for admission

hearing, it was withdrawn on May 12, 2000. The

said order mentioned that the learned counsel

for the Company stated that the Company would

file `Review Petition' in the High Court. The 7

special leave petition was accordingly

`dismissed as withdrawn'. Thereafter Review

Petition was filed by the Company in the High

Court and as stated above, the Review Petition

was also dismissed by the Court observing that

there was "no apparent error to review the

order". The said order is challenged in the

present appeal.

9. Initially when the matter was placed

for admission hearing, notice was issued on

August 12, 2002. It appears that the Special

Leave Petition was dismissed on February 12,

2003, but the said order was recalled by the

Court on September 12, 2003. On January 12,

2004, leave was granted, printing was dispensed

with and the appeal was ordered to be heard on

SLP paper books. Parties were granted liberty

to file additional documents. Original record

was requisitioned. Interim stay against the

order passed by the High Court was also

granted. On March 7, 2008, a Bench of this

Court presided over by Hon'ble the Chief 8

Justice of India directed final hearing of the

matter during summer vacation and accordingly

the matter was placed before us for final

disposal on May 27, 2008.

10. We have heard the learned counsel for

the parties.

11. The learned counsel for the appellant-

Company contended that the orders passed by the

High Court are liable to be set aside. It was

submitted that admittedly, the transaction of

sale took place in Dhanbad. Both the parties

-the appellant as well as respondent - were

residing at Dhanbad. The entire cause of action

thus arose within the territorial jurisdiction

in the State of Bihar (now within Jharkhand

area). The High Court of Calcutta, therefore,

had no territorial jurisdiction to entertain,

deal with and decide the writ petition. On that

ground alone, the orders passed by the High

Court of Calcutta are liable to be set aside.

It was also submitted that admittedly sale deed

was executed in February, 1989 by the 9

respondent. The Company paid the amount of

consideration and offered 1008 MTs coal under

the policy then in force over and above the

amount of consideration of property. The writ-

petitioner accepted the offer, release order

was issued and the goods had been delivered to

him which the writ petitioner accepted without

any protest or objection. It was after about 10

years that a writ petition was filed which was

entertained and orders were passed by the High

Court. According to the appellant, there was

gross delay and laches on the part of the writ

petitioner in approaching the Court and on that

ground also, no order could have been passed

granting relief in favour of the writ

petitioner. Moreover, there was no right-duty

relationship between the writ petitioner and

the Company. The right of the writ petitioner

was limited to consideration in lieu of land

sold to the Company. The said amount had

already been paid to the writ petitioner. It

was only on the basis of the policy that coal 1

was offered to the writ-petitioner. Even if it

is assumed that the writ petitioner had right

to get coal as per the policy adopted by the

Company, the quantity to which the respondent

was entitled was given to him. Thereafter there

was no cause for making grievance against the

Company. It is only on the basis of 1996 Policy

that additional quantity was demanded by the

writ-petitioner by filing writ petition in 1999

to which there was no entitlement on the part

of the writ petitioner. Even on that ground,

therefore, the petition was liable to be

dismissed. The counsel also argued that when

the writ petitioner was paid consideration for

land as also coal under the policy in force and

when it was accepted without any protest, the

writ petitioner was estopped under the doctrine

of equitable estoppel to challenge the said

decision. By his conduct, writ petitioner made

it abundantly clear that he was satisfied as to

the quantity which was offered to him and after

acceptance thereof, it was not open to 1

challenge the said decision. It was also urged

that the learned single Judge was not right in

observing that the writ petitioner was entitled

to relief as prayed in the writ petition on the

ground that no counter affidavit was filed by

the Company. The record reflects that writ

petition was filed by the writ petitioner on

February 18, 1999. It was placed for `first'

hearing on September 6, 1999 and on the same

day, the matter was disposed of. It was,

therefore, not proper for the Court to observe

that since no affidavit was filed by the

Company, the prayer of the petitioner should be

granted. A grievance was also made that even

after the decision on September 6, 1999,

without there being any application, the order

was modified on mentioning the matter and the

quantity was enhanced from additional 1008 MTs

to 6800 MTs which was clearly illegal and

without jurisdiction. In Letter Patents Appeal

also, the fact of non-filing of affidavit by

the Company weighed with the Division Bench, 1

but as already stated, the matter was taken up

and disposed of on one and the same day at the

`first' hearing by the learned single Judge and

there was no default on the part of the

Company. It was submitted by the counsel that

when the grievance was made against the order

passed by the Division Bench of the High Court

in the Special Leave Petition, this Court had

observed that the counsel for the Company

wanted to file Review Petition and SLP was,

therefore, dismissed as withdrawn. But even

thereafter the Division Bench dismissed the

Review Petition which necessitated the Company

to approach this Court again. It was,

therefore, submitted that the orders passed by

the High Court may be set aside by allowing the

appeal and holding that the writ petitioner was

not entitled to additional quantity of coal and

the High Court should not have ordered the

Company to supply coal.

12. The learned counsel for the

respondent-writ petitioner supported the orders 1

passed by the High Court. It was submitted that

the learned single Judge was wholly right in

observing that no affidavit was filed by the

Company. Moreover, the learned counsel for the

Company appeared in the Court and made a

statement that `usual order' be passed.

Accordingly, the order was passed and

thereafter it was not open to the Company to

raise an objection against such order. An

objection as to territorial jurisdiction of the

Court also looses its significance in the light

of the statement made by the counsel appearing

for the Company. In the affidavit-in-reply, it

was stated by the writ petitioner that several

similarly situated persons were granted the

benefit and additional quantity of coal was

given to them. Copies of the orders in favour

of all those persons were placed on record in

the counter-affidavit. It was further stated

that the policy was modified in 1996 and

additional quantity of coal was given to land

losers. Such benefit was also granted to other 1

persons. Refusal to grant similar benefit to

the writ petitioner was violative of Article 14

of the Constitution. The counsel submitted that

in the circumstances, the Division Bench was

right in not entertaining intra-court appeal on

the ground that if counter was not filed by the

Company, the Company had to thank itself.

Again, it is not true to say that liberty was

granted by this Court to file Review Petition.

Special Leave Petition was dismissed as

withdrawn but this Court did not grant liberty

to file Review Petition. Hence, the Review

Petition itself was not maintainable. The

counsel also contended that even in the present

proceedings, the prayer is only to set aside an

order passed in Review on January 28, 2002. The

main order passed in intra-court appeal

(dismissing the appeal) has not been

challenged. It was, therefore, submitted that

on all these grounds, no interference is called

for and the appeal deserves to be dismissed. 1

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 was

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 1

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- 1

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.

16. Under the English law, an application

for leave for judicial review should be made

"promptly". If it is made tardily, it may be

rejected. The fact that there is breach of

public law duty does not necessarily make it

irrelevant to consider delay or laches on the

part of the applicant. Even if leave is

granted, the question can be considered at the 1

time of final hearing whether relief should be

granted in favour of such applicant or not.

(Vide R. v. Essex Country Council, 1993 COD

344).

17. In R. v. Dairy Produce Quota Tribunal,

(1990) 2 AC 738, 749 : (1990) 2 All ER 434 :

(1990) 2 WLR 1302, the House of Lords stated;

"The public interest in good administration requires that public authorities and third parties should not be kept in suspense as to the legal validity of a decision the authority has reached in purported exercise of decision making powers for any longer period than is absolutely necessary in fairness to the persons affected by the decision".

18. The underlying object of refusing to

issue a writ has been succinctly explained by

Sir Barnes Peacock in Lindsay Petroleum Co. v.

Prosper Armstrong, (1874) 5 PC 221 : 22 WR 492

thus;

"Now the doctrine of laches in Courts of Equity is not an arbitrary or a 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 1

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, 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 2

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) 2

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 2

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.

2

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 2

(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.

26. For the foregoing reasons, the appeal

is partly allowed and the writ petitioner is

held entitled to 1008 MTs as initially awarded 2

to him as also 1008 MTs of coal towards

"balance quantity" as per the order dated

September 6, 1999. The writ petitioner will

not be entitled to anything more. If the said

quantity of coal has already been allotted, the

Company has discharged its liability and

nothing more is required to be done. But if it

has not released the said quantity, the writ

petitioner would be entitled to coal to the

above extent. On the facts and in the

circumstances of the case, there will be no

order as to costs.

............................................................J. (C.K. THAKKER)

NEW DELHI, ............................................................J. JULY 28, 2008. (LOKESHWAR SINGH PANTA)