Bombay High Court
Madhav Dubey And Ors vs State Of Maharashtra Through ... on 5 August, 2021
Bench: K.K. Tated, P. K. Chavan
19-WP-3611-2020.doc
Shailaja
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.3611 OF 2020
Madhav Dubey and others. ] Petitioners
Vs.
State of Maharashtra through ]
Principal Secretary Urban ]
Development Department and ]
others. ] Respondents
.....
Ms. Dhanalakshmi Iyer, for Petitioners.
Mr. S.S. Pachpor, A.G.P, for Respondents No.1, 3 to 5-State.
Mr. Saket Mone a/w Mr. Abhishek Salian i/b Vidhi Partners, for
Respondent No.6.
.....
CORAM : K.K. TATED &
PRITHVIRAJ K. CHAVAN, JJ.
DATE : 5 th AUGUST, 2021.
P.C.
1. Heard learned Counsel for the parties.
2. Learned Counsel for the respondents waive service.
Digitally signed by
SHAILAJA SHAILAJA SHRIKANT
SHRIKANT HALKUDE
Date: 2021.08.09
HALKUDE 15:41:29 +0530
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3. By this Petition under Article 226 of the Constitution of
India, the petitioners are seeking to set aside the plans sanctioned
in favour of respondent No.6 on 1 st August, 2015, to set aside the
deemed conveyance dated 19th December, 2015 and Correction
Deed dated 5th September, 2019.
4. Mr. Mone, learned Counsel appearing on behalf of
respondent No.6 submits that the petition as it is filed is not
maintainable. He submits that the same is required to be dismissed
on the ground of latches as well as alternate efficacious remedy is
available to the petitioners.
5. Mr. Mone, learned Counsel appearing for respondent No.6
submits that the present petition is filed by the petitioners on 11 th
January, 2020 for setting aside deemed conveyance dated 19 th
December, 2015 and correction deed dated 5th September, 2019.
6. Mr. Mone, learned Counsel appearing for respond No.6
submits that alternate efficacious remedy is available to file
appropriate suit for setting aside the conveyance deed. In respect
of latches, Mr. Mone, learned Counsel appearing for respondent
No.6 relies on the judgment of the Hon'ble Apex Court in case of
Chennai Metropolitan Water Supply and Sewerage Board and
others Vs. T. T. Murali Babu, 2014 (4) Supreme Court Cases 108.
He relied on paragraphs No.13 to 17 which reads thus;
"13. First, we shall deal with the facet of delay. In
Maharashtra SRTC v. Balwant Regular Motor Service,
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the Court referred to the principle that has been stated
by Sir Barnes Peacock in Lindsay Petroleum Co. v.
Prosper Armstrong Hurd, (which is as follows: -
(Balwant Regular Motor Service case, AIR pp 335-36,
para 11)
"11...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 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 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 relates to
the remedy."
14. In State of Maharashtra v. Digambar, while dealing
with exercise of power of the High Court under Article
226 of the Constitution, the Court observed that: (scc P.
692, para 19)
19. Power of the High Court to be exercised
under Article 226 of the Constitution, if is
discretionary, its exercise must be judicious
and reasonable, admits of no controversy. It is
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for that reason, a person's entitlement for
relief from a High Court under Article 226 of
the Constitution, be it against the State or
anybody else, even if is founded on the
allegation of infringement of his legal right,
has to necessarily depend upon
unblameworthy conduct of the person seeking
relief, and the court refuses to grant the
discretionary relief to such person in exercise
of such power, when he approaches it with
unclean hands or blameworthy conduct.
15. In State of M.P. and others etc. v. Nandlal Jaiswal
the Court observed that: (SCC p. 594. para 24)
"24. ...it is well settled that power of the High Court to
issue an appropriate writ under Article 226 of the
Constitution is discretionary and the High Court in
exercise of its discretion does not ordinarily assist the
tardy and the indolent or the acquiescent and the
lethargic".
It has been further stated therein that: (Nandlal Jaiswal
case, SCC p. 594, para 24)
24.....If there is inordinate delay on the part of
the petitioner in filing a petition and such delay
is not satisfactorily explained, the High Court
may decline to intervene and grant relief in the
exercise of its writ jurisdiction.
Emphasis was laid on the principle of delay and laches
stating that resort to the extraordinary remedy under the
writ jurisdiction at a belated stage is likely to cause
confusion and public inconvenience and bring in
injustice.
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
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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 scrutinize 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.
17. In the case at hand, though there has been four
years' delay in approaching the court, yet the writ court
chose not to address the same. It is the duty of the court
to scrutinize whether such enormous delay is to be
ignored without any justification. That apart, in the
present case, such belated approach gains more
significance as the respondent-employee being
absolutely careless to his duty and nurturing a
lackadaisical attitude to the responsibility had remained
unauthorisedly absent on the pretext of some kind of ill
health. We repeat at the cost of repetition that
remaining innocuously oblivious to such delay does not
foster the cause of justice. On the contrary, it brings in
injustice, for it is likely to affect others. Such delay may
have impact on others' ripened rights and may
unnecessarily drag others into litigation which in
acceptable realm of probability, may have been treated
to have attained finality. A court is not expected to give
indulgence to such indolent persons - who compete with
'Kumbhakarna' or for that matter 'Rip Van Winkle'. In
our considered opinion, such delay does not deserve
any indulgence and on the said ground alone the writ
court should have thrown the petition overboard at the
very threshold.
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7. Considering the submissions made by the learned Counsel
for the parties, petitioners have made out a case for following
order;
:ORDER:
(a) Admit;
(b) Hearing expedited.
[PRITHVIRAJ K. CHAVAN, J.] [K. K. TATED, J.]
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