2024 INSC 314 Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOs. 5027 of 2024

(@ SPECIAL LEAVE PETITION (CIVIL) NO. 30152 OF 2018)

MRINMOY MAITY …APPELLANT(S)

VERSUS

CHHANDA KOLEY AND OTHERS …RESPONDENT(S)

J U D G E M E N T

Aravind Kumar, J.

1.Leave granted.

2.The short point that arises for consideration in this appeal is:

“Whether the writ court was justified in entertaining the writ

petition filed by the respondent No.1 herein challenging the

approval dated 03.06.2014 granted in favour of the appellant

herein for starting LPG distributorship at Jamalpur, District

Burdwan?”

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3.The facts in brief which has led to filing of the present appeal

are as under:

4.An advertisement came to be issued on 09.09.2012 calling for

application for distributors to grant LPG distributorship under GP

Category at Jamalpur, District Burdwan. From amongst the

applications so received, the application submitted by the appellant as

well as respondent No.1 were found to be in order. Since both the

appellant and the respondent No.1 were held to be eligible from

amongst the six (6) candidates, draw of lots was held on 11.05.2013

and appellant was found successful candidate and was selected for

verification of the documents. A letter of intent was issued to the

appellant on 24.02.2014 and on 03.06.2014 the approval was granted

by the BPCL in favour of the appellant for starting LPG

distributorship at the notified place.

5.After a lapse of 4 years, the respondent No.1 filed a complaint

with the BPCL alleging that land offered by the appellant was a Barga

land and same cannot be considered. Subsequently application having

been filed by the appellant offering an alternate land, the Corporation

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allowed the prayer of the appellant to construct the godown and

showroom on the alternate land offered by the appellant.

6.The respondent No.1 being a rival applicant for grant of

distributorship, having participated in submitting the application and

being unsuccessful in the draw of lots held way back in the year 2013

and being aggrieved by the decision of the Corporation to permit the

appellant to commence the construction of godown and showroom on

the alternate land offered, filed a writ petition in the year 2017 i.e., on

10.04.2017. Initially, there was an order of status quo passed by the

Learned Single Judge and on receiving the report from the

Corporation the writ petition came to be dismissed vide order dated

18.01.2018 on the ground that the writ petitioner (respondent No.1

herein) had no locus standi since she had participated in the selection

process. Being aggrieved by the same the intra-court appeal came to

be filed and the appellate court by the impugned judgment allowed

the appeal on the ground (a) that the successful applicant had not

offered unencumbered land for construction of godown and

showroom; (b) the land offered by the appellant was in contravention

of clause 7.1(vi) and (vii) of the guidelines for selection of regular

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LPG Distributors; (c) the amendment of the said guidelines brought

about subsequently, cannot be made applicable retrospectively. The

allotment made in favour of the (appellant herein) was set aside by the

impugned order and as a consequence of it, the letter of intent, the

letter of approval accepting the alternate land offered by the (appellant

herein) and all subsequent permissions, licences and no objections

issued in his favour were held to be of no effect. Hence, this appeal.

7.We have heard Shri Pijush K. Roy, learned Senior Counsel

appearing for the appellant and Shri Zoheb Hossain, learned counsel

appearing for respondent No.1 and Shri Shekhar Naphade, learned

Senior Counsel for the Corporation. Learned counsel for the appellant

would vehemently contend that Learned Single Judge had rightly

dismissed the writ petition on the ground of lack of locus standi of the

writ petitioner and had dissolved the interim order granted earlier. It is

also contended that by the time the interim order of status quo came to

be passed by the Learned Single Judge on 20.07.2017, the appellant

herein had already submitted an application for accepting the alternate

land offered and which request came to be processed and the

applicant (appellant herein) had been allowed to construct the godown

and showroom on the alternate land so offered. These facts though

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being available, the Division Bench ignoring the same had proceeded

on tangent in accepting the plea of the writ petitioner without

examining the aspect of delay and giving a complete go by for laches

exhibited on the part of the writ petitioner and extended the olive

branch on surmises and conjectures and as such the impugned order is

liable to be set-aside and consequently, writ petition which came to be

dismissed by the Learned Single Judge has to be upheld. Shri Shekhar

Naphade, learned Senior Counsel appearing on behalf of the

Corporation has fairly submitted that in the light of the appellant

herein being successful in the allotment by draw of lots, had been

issued with the letter of intent and the prayer for offering the alternate

land was also accepted and having regard to the subsequent

development namely the subsequent notification dated 30.04.2015

issued by the appropriate government directing the Oil Marketing

Companies to provide flexibility in the selection guidelines by

providing an “opportunity to offer alternate land in response to the

advertisement” which clarified the position with regard to alternative

land offered had been acted upon by the Corporation in the instant

case and being satisfied with the bona fides of the applicant/appellant,

the Corporation had permitted the construction, and accordingly the

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construction has been put up along with building, the godown and the

showroom and as such he has prayed for suitable orders being passed.

8.On the contrary, Shri Zoheb Hossain, learned counsel

appearing for the respondent No.1 vehemently opposed the prayer of

the appellant herein and supported the order passed by the Division

Bench. He would contend that issue of delay in filing the Writ Petition

has been rightly ignored by the Division Bench and same has to

recede to background in the facts obtained in the present case, in as

much as the blatant violation of the guidelines would go to the root of

the matter and the inherent defect cannot be allowed to be rectified,

that too by relying upon an amendment to the guidelines which has

come into force subsequent to the advertisement in question or in

other words rules of the game could not have been changed after the

commencement of the game which was exactly the exercise

undertaken by the Learned Single Judge and rightly found to be

improper by the Division Bench. Hence, he prays for dismissal of the

appeal.

9.Having heard rival contentions raised and on perusal of the

facts obtained in the present case, we are of the considered view that

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writ petitioner ought to have been non-suited or in other words writ

petition ought to have been dismissed on the ground of delay and

laches itself. An applicant who approaches the court belatedly or in

other words sleeps over his rights for a considerable period of time,

wakes up from his deep slumber ought not to be granted the

extraordinary relief by the writ courts. This Court time and again has

held that delay defeats equity. Delay or laches is one of the factors

which should be born in mind by the High Court while exercising

discretionary powers under Article 226 of the Constitution of India. In

a given case, the High Court may refuse to invoke its extraordinary

powers if laxity on the part of the applicant to assert his right has

allowed the cause of action to drift away and attempts are made

subsequently to rekindle the lapsed cause of action.

10.The discretion to be exercised would be with care and caution.

If the delay which has occasioned in approaching the writ court is

explained which would appeal to the conscience of the court, in such

circumstances it cannot be gainsaid by the contesting party that for all

times to come the delay is not to be condoned. There may be myriad

circumstances which gives rise to the invoking of the extraordinary

jurisdiction and it all depends on facts and circumstances of each

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case, same cannot be described in a straight jacket formula with

mathematical precision. The ultimate discretion to be exercised by the

writ court depends upon the facts that it has to travel or the terrain in

which the facts have travelled.

11.For filing of a writ petition, there is no doubt that no fixed

period of limitation is prescribed. However, when the extraordinary

jurisdiction of the writ court is invoked, it has to be seen as to whether

within a reasonable time same has been invoked and even submitting

of memorials would not revive the dead cause of action or resurrect

the cause of action which has had a natural death. In such

circumstances on the ground of delay and laches alone, the appeal

ought to be dismissed or the applicant ought to be non-suited. If it is

found that the writ petitioner is guilty of delay and laches, the High

Court ought to dismiss the petition on that sole ground itself, in as

much as the writ courts are not to indulge in permitting such indolent

litigant to take advantage of his own wrong. It is true that there cannot

be any waiver of fundamental right but while exercising discretionary

jurisdiction under Article 226, the High Court will have to necessarily

take into consideration the delay and laches on the part of the

applicant in approaching a writ court. This Court in the case of Tridip

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Kumar Dingal and others v. State of W.B and others., (2009) 1

SCC 768 has held to the following effect:

“56. We are unable to uphold the contention. It is no doubt

true that there can be no waiver of fundamental right. But

while exercising discretionary jurisdiction under Articles

32, 226, 227 or 136 of the Constitution, this Court takes

into account certain factors and one of such considerations

is delay and laches on the part of the applicant in

approaching a writ court. It is well settled that power to

issue a writ is discretionary. One of the grounds for

refusing reliefs under Article 32 or 226 of the Constitution

is that the petitioner is guilty of delay and laches.

57. If the petitioner wants to invoke jurisdiction of a writ

court, he should come to the Court at the earliest

reasonably possible opportunity. Inordinate delay in

making the motion for a writ will indeed be a good ground

for refusing to exercise such discretionary jurisdiction. The

underlying object of this principle is not to encourage

agitation of stale claims and exhume matters which have

already been disposed of or settled or where the rights of

third parties have accrued in the meantime (vide State of

M.P. v. Bhailal Bhai [AIR 1964 SC 1006 : (1964) 6 SCR

261] , Moon Mills Ltd. v. Industrial Court [AIR 1967 SC

1450] and Bhoop Singh v. Union of India [(1992) 3 SCC

136 : (1992) 21 ATC 675 : (1992) 2 SCR 969] ). This

principle applies even in case of an infringement of

fundamental right (vide Tilokchand Motichand v. H.B.

Munshi [(1969) 1 SCC 110] , Durga Prashad v. Chief

Controller of Imports & Exports [(1969) 1 SCC 185]

and Rabindranath Bose v. Union of India [(1970) 1 SCC

84] ).

58. There is no upper limit and there is no lower limit as

to when a person can approach a court. The question is one

of discretion and has to be decided on the basis of facts

before the court depending on and varying from case to

case. It will depend upon what the breach of fundamental

right and the remedy claimed are and when and how the

delay arose.”

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12.It is apposite to take note of the dicta laid down by this Court

in Karnataka Power Corportion Ltd. and another v. K.

Thangappan and another, (2006) 4 SCC 322 whereunder it has

been held that the High Court may refuse to exercise extraordinary

jurisdiction if there is negligence or omissions on the part of the

applicant to assert his right. It has been further held thereunder:

“6. Delay or laches is one of the factors which is to be

borne in mind by the High Court when they exercise their

discretionary powers under Article 226 of the Constitution.

In an appropriate case the High Court may refuse to invoke

its extraordinary 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

Prashad v. Chief Controller of Imports and Exports [(1969)

1 SCC 185 : AIR 1970 SC 769] . Of course, the discretion

has to be exercised judicially and reasonably.

7. What was stated in this regard by Sir Barnes Peacock

in Lindsay Petroleum Co. v. Prosper Armstrong

Hurd [(1874) 5 PC 221 : 22 WR 492] (PC at p. 239) was

approved by this Court in Moon Mills Ltd. v. M.R.

Meher [AIR 1967 SC 1450] and Maharashtra SRTC v. Shri

Balwant Regular Motor Service [(1969) 1 SCR 808 : AIR

1969 SC 329] . Sir Barnes had stated:

“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 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

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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 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 it relates to the remedy.”

8. It would be appropriate to note certain decisions of this

Court in which this aspect has been dealt with in relation to

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 Rabindranath

Bose v. Union of India [(1970) 1 SCC 84 : 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.

9. It was stated in State of M.P. v. Nandlal Jaiswal [(1986)

4 SCC 566 : 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 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 train 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.”

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13.Reiterating the aspect of delay and laches would disentitle the

discretionary relief being granted, this Court in the case of Chennai

Metropolitan Water Supply & Sewerage Board and others v. T.T.

Murali Babu, (2014) 4 SCC 108 has held:

“16. Thus, the doctrine of delay and laches should not be

lightly brushed aside. A writ court is required to weigh the

explanation offered and the acceptability of the same. The

court should bear in mind that it is exercising an

extraordinary and equitable jurisdiction. As a constitutional

court it has a duty to protect the rights of the citizens but

simultaneously it is to keep itself alive to the primary

principle that when an aggrieved person, without adequate

reason, approaches the court at his own leisure or pleasure,

the court would be under legal obligation to scrutinise

whether the lis at a belated stage should be entertained or

not. Be it noted, delay comes in the way of equity. In

certain circumstances delay and laches may not be fatal but

in most circumstances inordinate delay would only invite

disaster for the litigant who knocks at the doors of the

court. Delay reflects inactivity and inaction on the part of a

litigant — a litigant who has forgotten the basic norms,

namely, “procrastination is the greatest thief of time” and

second, law does not permit one to sleep and rise like a

phoenix. Delay does bring in hazard and causes injury to

the lis.”

14.Having regard to the afore-stated principles of law enunciated

herein above, when we turn our attention to facts on hand, it would

not detain us for too long for accepting the plea of the appellant in

affirming the order of the Learned Single Judge and dismissing the

writ petition on the ground of delay and laches. We say so for reasons

more than one, firstly, it requires to be noticed that the writ petitioner

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was a rival applicant along with the appellant herein for grant of LPG

distributorship and she along with the appellant herein, were found to

be eligible and the appellant herein was held to be successful by

virtue of draw of lots. This factual aspect would reflect that the writ

petitioner was aware of all the developments including that of the

allotment of distributorship having been made in favour of the

appellant herein way back in 2014, yet did not challenge and only on

acceptance of the alternate land offered by the appellant in March,

2017 and permitting him to construct the godown and the showroom.

Same was challenged in the year 2017 and thereby the writ petitioner

had allowed his right if at all if any to be drifted away or in other

words acquiesced in the acts of the Corporation and as such on this

short ground itself the appellant has to succeed. Secondly, another fact

which has swayed in our mind to accept the plea of the appellant

herein is that, undisputedly the appropriate government had felt the

need of permitting the Oil Marketing Companies to be more flexible

and as such modification to the guidelines had been brought about on

15.04.2015 whereby the applicants were permitted to offer alternate

land where the land initially offered by them was found deficient or

not suitable or change of the land, subject to specifications as laid

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down in the advertisement being met. There being no stiff opposition

or strong resistance to the alternate land offered by the appellant

herein not being as per the specifications indicated in the

advertisement, we see no reason to substitute the court’s view to that

of the experts namely, the Corporation which has in its wisdom has

exercised its discretion as is evident from the report filed in the form

of affidavit by the territory manager (LPG)/ BPCL whereunder it has

been stated:

“13. On the basis of xxxxxxxxxxxxxxxxxxxxx to non-

agricultural. In his application form the said Respondent

no. 9 had provided the Land for godown at Plot No 3732,

Khatian No LR 2585, 2586, 2587 JL No 34, Mouza Kolera,

Jamalpur, Distt Burdwan admeasuring 33 decimal. The

same was cleared based on Registered Lease Deed, which

was found to have been genuine in all respects as

confirmed by the ADSR Jamalpur.

16. The land offered by the successful candidate, namely

the Respondent no.9 was found to be eligible by relying on

the abovementioned clauses, which determine eligibility of

the land based on the status of ownership. The fact that the

said land was a "Barga" land is not a material condition on

the basis of which the Respondent no. 9's candidature could

be cancelled.

24. Subsequently, FVC of the said newly offered land by

the LOI holder, Respondent no. 9 was conducted and the

same was found suitable for construction of LPG Godown.

A letter being DGP:LPG OMP: Jamalpur dated 21.03.2017

was provided to the said LOI holder informing him that the

alternate land provided is found suitable and therefore his

request to construct LPG Godown in the said alternate land

has been approved. A copy of the said letter dated

21.03.2017 is annexed hereto and is marked as "R-5".

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25. It is therefore submitted that the steps taken by the

Respondent no. 3 in allowing the LOI holder, Respondent

no. 9, to provide alternate land for construction of godown,

have been in consonance. with the change in policies and

no favoritism or nepotism, as suggested by the petitioner

has been in play.

32. It is further clarified that the FVC conducted on the

original land offered by the Respondent no. 9 was found to

be satisfactory on all counts, and only on the basis of this,

his request for provision of alternate land wall accepted.”

15. Hence, we are of the considered view that the order of the

Learned Division Bench is liable to be set aside and accordingly, it is

set aside. The order of the Learned Single Judge stands restored for

the reasons indicated herein above and the appeal is allowed

accordingly with no order as to costs.

…...........….………………….J.

(Pamidighantam Sri Narasimha)

…...........….………………….J.

(Aravind Kumar)

New Delhi,

April 18, 2024

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