Yunus (Baboobhai) A. Hamid Padvekar vs State Of Maharashtra & Ors

Yunus (Baboobhai) A Hamid Padvekar ...Appellant

Versus

State of Maharashtra Through its Secretary and Ors. ...Respondents

JUDGMENT

Dr. ARIJIT PASAYAT, J.

1. Leave granted.

2. Challenge in this appeal is to the order passed by a Division Bench of

the Bombay High Court dismissing the Writ Petition filed by the appellant

on the ground that it was highly belated. It also noted that the appellant had

received compensation in respect of the land which was acquired.

3. Background facts in a nutshell are as follows:

In the year 1971 Maharashtra Industrial Development Corporation (in

short `MIDC') acquired about 1250 acres of agricultural land situated at

four villages in Ratnagiri district of Maharashtra. Thirty eight acres of land

belonging to the appellant were acquired. It is the stand of the appellant that

out of the acquired area, about 50% was under paddy cultivation and 25%

was under cultivation of mango crops. In the appellant's land about 175

mango trees were there. In the year 1973, the Revenue and Forest

Department of the Maharashtra Government passed a resolution inter-alia

deciding to take steps in respect of surplus acquired land which remained

unutilized for a period of three years from the date of taking over possession

for resumption of such lands in accordance with the applicable rules and

orders. In 1974, a Writ Petition was filed by the appellant challenging the

Notification for acquisition and an arrangement was worked out in which 20

acres of appellant's land out of 38 acres were released. The lands were

acquired for a Govt. company-Balco for setting up a manufacturing unit.

Since Balco did not set up any unit, license issued to it was cancelled. In the

year 1982, appellant claims to have made representations alongwith

similarly situated land owners for restoration of the acquired land to the

2 original owners. In the year 1983, compensation was paid to 686 land

owners. In 1984, again the appellant made a representation to the Collector

of Ratnagiri for release of the land. On 20.7.1989 a Committee was

appointed by the Legislative Assembly for consideration of the proposal for

handing back the acquired land to the original owners. Certain

recommendations were made by the said Committee. On 20.8.1992 the land

acquired for Balco was allotted to another industrial group. Subsequently,

the State Government asked the industrial group not to continue the

construction activities in view of pendency of cases. On 12.11.2002,

representations were again made to hand back the land not utilized. It was

the specific stand of the appellant that in view of Section 39(2a) of the

Maharashtra Industrial Development Act, 1961 (in short the `Act') the land

should be restored. The High Court dismissed the writ petition on the

ground that it was highly belated.

4. In support of the appeal, learned counsel for the appellant stated that

the appellant was all through representing to the authorities and because of

the recommendations by the Committee, the appellant waited for some time

and ultimately when no worthwhile action was taken, he filed the writ

petition.

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5. Learned counsel for the respondent on the other hand supported the

judgment of the High Court.

6. It is pointed out that the recommendations made in terms of the

resolution were not accepted by the Government. It was decided that since

definite policy has been formulated the land is to be utilized for the

industrial development, the same cannot be surrendered to the original

owners for cultivation purposes. It is also pointed out that the so called

representations do not in any way assist the appellant to explain the long

delay in filing the writ petition.

7. It is also pointed out that Section 39(2a) is applicable only in respect

of the undeveloped land, and in the instant case the land in question is

developed land.

8. Delay or laches is one of the factors which is 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

4 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 (AIR 1970 SC 769). Of course, the discretion has to be exercised

judicially and reasonably.

9. What was stated in this regard by Sir Barnes Peacock in Lindsay

Petroleum Company v. Prosper Armstrong Hurde etc. (1874) 5 PC 221 at

page 239 was approved by this Court in Moon Mills Ltd. v. Industrial

Courts (AIR 1967 SC 1450) and Maharashtra State Transport Corporation

v. Balwant Regular Motor Service (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,

5 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 the remedy."

10. It would be appropriate to note certain decisions of this Court in

which this aspect has been dealt with in relation with Article 32 of the

Constitution. It is apparent that what has been stated as regards that Article

would apply, a fortiori, to Article 226. It was observed in R.N Bose v.

Union of India (AIR 1970 SC 470) that no relief can be given to the

petitioner who without any reasonable explanation approaches this Court

under Article 32 after inordinate delay. It was stated that though Article 32

is itself a guaranteed right, it does not follow from this that it was the

intention of the Constitution makers that this Court should disregard all

principles and grant relief in petitions filed after inordinate delay.

11. It was stated in State of M.P. v. Nandlal (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

6 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 trail 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.

12. In view of the aforesaid position we are not inclined to interfere in

this appeal which is dismissed accordingly.

.....................................J. (Dr. ARIJIT PASAYAT)

.....................................J. (ASOK KUMAR GANGULY) New Delhi, January 28, 2009

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