Allahabad High Court
Santosh Kumar vs Rent Control And Eviction ... on 13 July, 2012
Bench: Sudhir Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD
Court No. - 7
Case :- WRIT - A No. - 21646 of 2012
Petitioner :- Santosh Kumar
Respondent :- Rent Control And Eviction Officer/A.D.M. And Others
Petitioner Counsel :- Santosh Kumar Shukla
Hon'ble Sudhir Agarwal, J.
1. Heard Sri Santosh Kumar Shukla, counsel for petitioner and perused the record.
2. This writ petition under Article 226 has been filed on 1.5.2012 challenging the orders dated 9.5.2011 and 17.8.2012. The extraordinary delay and laches has been sought to be explained in para 32 of writ petition stating that petitioner's counsel in the Court below died in October 2011 after long illness and petitioner thereafter had no knowledge of the orders passed by respondent no. 1. He came to know about the said order through a "rumour in the village" that some orders have been passed. This explanation ex facie is/was found unsatisfactory. Thereafter petitioner sought accommodation initially on 3.5.2013 and then on 8.5.2012, 15.5.2012, 24.5.2012, 29.5.2012 and 6.7.2012. In the meantime he filed another affidavit sworn on 7.5.2012 virtually reiterating what was stated in para 32 of writ petition that he heard the "rumour in village" that some orders have been passed against him and thereafter came to know about the death of his counsel and also the impugned orders and could obtain certified copy of the orders on 21.3.2012.
3. Another supplementary affidavit has been filed today appending copy of questioner which shows that Sri Atik Mirza, Advocate was engaged to contest his matter in the Court below on 16.8.2010.
4. When the matter was taken up the counsel for petitioner was inquired whether petitioner is residing in a village or in a Metropolitan city, Sri Shukla, Advocate admitted that petitioner is residing in Kanpur Nagar. In the circumstance, the statement in the affidavit that petitioner heard "rumour in the village" is apparently a false averment. When drew attention to the aforesaid fact, counsel for petitioner admitted that this is an incorrect affidavit and also admitted before the Court that the aforesaid false averment made on affidavit is attributable to counsel and not to petitioner since the counsel has drafted the writ petition. He also then requested that writ petition may be dismissed as not pressed. He has filed a written apology that he shall not commit such mistake in future.
5. Sri Shukla, during oral submission admitted that alleged mistake is not a mistake but a purgery by filing a false affidavit in this Court to explain a particular aspect of the matter which is relevant for entertaining a writ petition filed after extraordinary delay and laches. This Court was initially inclined to take a strict view of the matter but since counsel has tendered his apology in writing and also undertakes not to commit such mistakes in future, I find it appropriate to take a lenient view.
6. However, the fact remains that delay and laches could not be explained at all. Delay and laches constitute substantial reason for disentitling relief in equitable jurisdiction under Article 226 of the Constitution of India. In New Delhi Municipal Council Vs. Pan Singh and others J.T.2007(4) SC 253, the Apex Court observed that after a long time the writ petition should not have been entertained even if the petitioners are similarly situated and discretionary jurisdiction may not be exercised in favour of those who approached the Court after a long time. It was held that delay and laches were relevant factors for exercise of equitable jurisdiction. In M/S Lipton India Ltd. And others vs. Union of India and others, J.T. 1994(6) SC 71 and M.R. Gupta Vs. Union of India and others 1995(5) SCC 628 it was held that though there was no period of limitation provided for filing a petition under Article 226 of Constitution of India, ordinarily a writ petition should be filed within reasonable time. In K.V. Rajalakshmiah Setty Vs. State of Mysore, AIR 1961 SC 993, it was said that representation would not be adequate explanation to take care of delay. Same view was reiterated in State of Orissa Vs. Pyari Mohan Samantaray and others AIR 1976 SC 2617 and State of Orissa and others Vs. Arun Kumar Patnaik and others 1976(3) SCC 579 and the said view has also been followed recently in Shiv Dass Vs. Union of India and others AIR 2007 SC 1330= 2007(1) Supreme 455 and New Delhi Municipal Council (supra). The aforesaid authorities of the Apex Court has also been followed by this Court in Chunvad Pandey Vs. State of U.P. and others, 2008(4) ESC 2423. This has been followed in Virender Chaudhary Vs. Bharat Petroleum Corporation & Ors., 2009(1) SCC 297. In S.S. Balu and another Vs. State of Kerala and others, 2009(2) SCC 479 the Apex Court held that it is well settled principle of law that delay defeats equity. It is now a trite law that where the writ petitioners approaches the High Court after a long delay, reliefs prayed for may be denied to them on account of delay and laches irrespective of the fact that they are similarly situated to other candidates who have got the benefit. In Yunus Vs. State of Maharashtra and others, 2009 (3) SCC 281 the Court referred to the observations of Sir Barnesdelay Peacock in Lindsay Petroleum Company Vs. Prosper Armstrong Hurde etc. (1874) 5 PC 239 and held as under:
"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. . . . . . . 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."
7. Moreover, even otherwise having gone through impugned orders I do not find any error apparent on the face of record inasmuch petitioner occupied the premises in question as tenant in 1979 without there being any order of allotment under U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Rules, 1972 (hereinafter referred to as "1972 Rules") and therefore the aforesaid occupation was patently illegal. The Court below having found the possession of petitioner over premises in question illegal and unauthorized has declared the vacancy and released the same in favour of landlord. No factual or legal error in the impugned orders could not be pointed out. Therefore even on merits there is no error apparent on face of record warranting interference.
8. Dismissed.
Dt. 13.7.2012
PS
