Smt. Krishna Chaubey And Ors. vs The Govt. Of Nct Of Delhi And Ors.
2004 Latest Caselaw 365 Del

JUDGMENT

Sanjay Kishan Kaul, J

1. Rule.

2. With the consent of counsel for the parties, the matter is taken up for final disposal.

3. Dr.G.K.Chaubey passed away in unfortunate circumstances on 26.5.1999 while swimming in the pool of the All India Institute of Medical Sciences, managed by respondent no.4. A post-mortem was conducted finding the cause of death due to drowning and an FIR was lodged on 26.5.1999 itself. The petitioners, who are the LRs of Dr.Chaubey, have alleged negligence on parts of respondents no. 3, 4 and 6 and non-compliance of mandatory conditions required under a license, which license was not obtained by respondents no.3 and 4. The writ petition has been filed seeking compensation of Rs.57.00 lacs. Further prayer has also been made seeking directions against the statutory authorities from failure to comply with their obligations.

4. In so far as the issue of prosecution of the concerned respondents is concerned, the charge-sheet has already been filed. The real question, thus, which arises for consideration is the claim of the petitioners for damages.

5. The present writ petition was filed on 11.11.2002 though the incident of death occurred on 26.5.1999. The claim of the petitioners is that the matters of such compensation can be adjudicated in writ proceedings and the petitioners need not be relegated to the remedy of a civil suit.

6. A preliminary issue arises for consideration even before the aforesaid aspect could be examined on account of the plea of the respondents that since the deceased, Dr.Chaubey, passed away on 26.5.1999 and the writ petition was filed only on 11.11.2002, the civil suit, if it had been filed, would be barred by the Law of Limitation and the present proceedings cannot be used to avoid the Law of Limitation. Even if in proceedings under Article 226 of the Constitution of India, strictly speaking a Law of Limitation is not applicable, the same should be a guiding factor unless there are special reasons explained for the petitioners not approaching the Court at an earlier date.

7. It was considered appropriate to first examine this aspect before going into any further matter in controversy since if the petitioners fail on this account, it would be fatal to the writ petition.

8. Learned counsel for the petitioners contends that the Law of Limitation does not strictly apply to the proceedings under Article 226 of the Constitution of India and even if the civil suit is barred by time, nothing precludes this Court from exercising jurisdiction under Article 226 of the Constitution of India to provide appropriate relief to the petitioner.

9. Learned counsel referred to the judgment of the Supreme Court in K.Venkatachalam Vs. A.Swamickan and Another (1994) 4 SCC 526. The question which arose for consideration in the said case was whether a person who lacked the basic qualification for contesting an Assembly election and, thus, should not have been elected as a member could continue to be a member and be not restrained from acting as such in view of there being absence of any legal proceedings brought within time through the mode of an election petition. It was in these circumstances the Supreme Court observed that a party who has played a fraud and has impersonated itself cannot be permitted to continue as a member of the Legislative Assembly and in such a case the High Court should exercise powers under Article 226 of the Constitution of India as it would otherwise amount to be a fraud on the Constitution.

10. Learned counsel further referred to the judgment of the Supreme Court in Shri Vallabh Glass Works Ltd. and another Vs. Union of India and others which dealt with the issue of the maintainability of a writ petition for recovery of duty paid under a mistake. The excess duty was paid on the basis of assessments made by the department and the writ petition was filed as against the remedy of a suit. The remedy was held to be maintainable and while discussing the issue of delay, it was observed that the relief should be granted not from the date on which the party approached the High Court but for three years prior to filing of the writ petition. It was observed in para-9 as under:-

"Whether relief should be granted to a petitioner under Article 226 of the Constitution where the cause of action had arisen in the remote past is a matter of sound judicial discretion governed by the doctrine of laches. Where a petitioner who could have availed of the alternative remedy by way of suit approaches the High Court under Article 226 of the Constitution, it is appropriate ordinarily to construe that any unexplained delay in the filing of the writ petition after the expiry of the period of limitation prescribed for filing a suit as unreasonable. This rule, however, cannot be a rigid formula. There may be cases where even a delay of a shorter period may be considered to be sufficient to refuse relief in a petition under Article 226 of the Constitution. There may also be cases where there may be circumstances which may persuade the court to grant relief even though the petition may have been filed beyond the period of limitation prescribed for a suit. Each case has to be judged on its own facts and circumstances touching the conduct of the parties, the change in situation, the prejudice which is likely to be caused to the opposite party or to the general public etc."

11. Learned counsel, thus, submits that the rigid rule of limitation should not be made applicable in the present case especially taking into consideration the nature of relief prayed for since the claim for damages arises on account of failure of respondent authorities to perform their statutory duties. In so far as the provisions of the Limitation Act, 1963 are concerned, learned counsel states that a suit filed would have been as per Article 82 of the Schedule which would be two years from the date of the death of the person.

12. Learned counsel for the respondents, on the other hand, have referred to the aforesaid judgment of the Supreme Court in Shri Vallabh Glass Works Ltd. and another's case (supra) itself to contend that the Supreme Court had itself approved that ordinarily the period prescribed in a suit should be treated as a reasonable period of time within which a person should approach the Court for redressal of the grievances, even if it be under Article c of the Constitution of India. In the present case the delay is of more than one and a half years as per the own admission of the petitioners and there is no explanation given for the delay. In this behalf reference was made to the fact that FIR 478/99 was filed on the date of the incident itself and the petitioners even filed a private complaint on 15.11.2000. Even thereafter no action was taken for a year and a half till the legal notice was issued on 17.5.2002 and the writ petition was filed another six months later. It is contended that the petitioners were thus, obviously under legal advice throughout and considering the education level and the social strata from which the petitioners come, it can hardly be assumed that they were unaware of their legal remedies.

13. A reference was made to the judgment of the Supreme Court in Municipal Corporation of Greater Bombay Vs. Bombay Tyres International Ltd. and others where it was observed in para-9 as under:-

"In ascertaining what i the reasonable time for claiming refund, the courts have often taken note of the period of limitation prescribed under the general Law of Limitation for filing of suits for recovery of amount due to them. In the present case also that standard adopted by the High Court is the same in ascertaining whether there has been laches on the part of the appellant in seeking relief in due time or not. The finding clearly recorded is that long after the charges had been paid and law had been declared by the Court, the writ petition has been filed and, therefore, such refund should not be allowed."

14. Learned counsel also referred to the judgment of the Supreme Court in Municipal Council, Ahmednagar and another Vs. Shah Hyder Beig and others where it was observed in para-14 as under:-

"The High Court has thus misplaced the factual details and misread the same. It is now a well-settled principle of law and we need not dilate on this score to the effect that while no period of limitation is fixed but in the normal course of events, the period the party is required for filing a civil proceeding ought to be the guiding factor. While it is true that this extraordinary jurisdiction is available to mitigate the sufferings of the people in general but it is not out of place to mention that this extraordinary jurisdiction has been conferred on to the law courts under Article 226 of the Constitution on a very sound equitable principle. Hence, the equitable doctrine, namely, "delay defeats equity" has its fullest application in the matter of grant of relief under Article 226 of the Constitution. The discretionary relief can be had provided one has not by his act or conduct given a go-by to his rights. Equity favors a vigilant rather than an indolent litigant and this being the basic tenet of law, the question of grant of an order as has been passed in the matter as regards restoration of possession upon cancellation of the notification does not and cannot arise."

15. Lastly, a reference was made to the judgment of the Supreme Court in State of Madhya Pradesh Vs. Bhailal Bhai & Ors. (1964) 6 SCR 260 at page 273 where it was observed as under:-

"Mr.Andley has argued that the delay in these cases even is not such as would justify refusal of the order for refund. He argued that assuming that the remedy of recovery by action in a civil court stood barred on the date these applications were made that would be no reason to refuse relief under Article 226 of the Constitution. Learned counsel is right in his submission that the provisions of the Limitation Act do not as such apply to the granting of relief under Article 226. It appears to us however that the maximum period fixed by the legislature as the time within which the relief by a suit in a civil court must be brought may ordinarily be taken to be a reasonable standard by which delay in seeking remedy under Article 226 can be measured. The Court may consider the delay unreasonable even if it is less than the period of limitation prescribed for a civil action for the remedy but where the delay for more than this period, it will almost always be proper for he court to hold that it is unreasonable."

16. A reading of the aforesaid judgments makes it abundantly clear that though a claim which would be barred in a remedy of a civil suit on account of limitation cannot be a reason to refuse relief under Article 226 of the Constitution of India, yet the same may be ordinarily taken to be a reasonable standard by which delay in seeking remedy under Article 226 can be measured. The same is a guiding factor but the principle of delay defeating the equity has full application in matter of grant of relief under Article 226 of the Constitution of India as set out in Municipal Council, Ahmednagar and another's case (supra). It was in this context it was observed that the equity favors a vigilant rather than an indolent litigant.

17. As per the own admission of the petitioners, the suit should have been brought under Article 82 of the Limitation Act, 1963 within two years. In fact, the stand of the respondents is that it is Article 72 of the said Act which should apply where the limitation is one year. This plea is based on the fact that the averments made in the petition are for compensation for doing or for omitting to do an act in pursuance to an enactment. Articles 72 and 82 are reproduced as under:-

      "Description of suit                      Period of       Time from which period
                                             Limitation       begins to run

72.  For compensation for doing or            One year        When the act or omission
for omitting to do an act   takes place
alleged to be in pursuance of 
any enactment in force for the
time being in the territories to
which this Act extends.

82.    By executors, administrators           Two years      The date of the death of the 
or representatives under the  person killed."
Indian Fatal Accidents Act,
1855 (13 of 1855)



 

18. Since the claim made in the petition is based on the non-performance of statutory duties, really speaking the claim would fall under Article 72.  Even assuming for the sake of argument that the same falls within Article 82, the period of limitation would be two years.
 

19. It has to be noticed that the nature of the claim arises from a tortuous liability. It is the stand of the petitioners that there was a duty on the respondents to maintain the pool properly and there was negligence in performance of the said obligation resulting in the claim for the damages. In my considered view it cannot be put at a higher pedestal than this. There is no doubt that an aspect of performance of statutory duties also comes into play. Thus, these parties have been imp leaded as respondents on the ground of non-performance of their statutory obligations.

20. Thus, whichever way it be taken, the delay is about one and a half years or two and a half years from the period of limitation prescribed under the Limitation Act of 1963.

21. The earlier concept was that such claims must be adjudicated in civil proceedings. It is through the process of judicial innovation that in a writ proceedings such claims have been entertained and on that principle there can be no doubt that in appropriate cases the Writ Court would be justified in adjudicating such a claim. However, in my considered view, this cannot imply that a person claiming damages in writ proceedings can wake up any time from his / her slumber to file such a claim. The petitioners were under legal advice and in November, 2000 had even filed a private complaint. The petitioners are educated persons and are aware of their legal rights. Nothing prevented the petitioners from initiating civil proceedings within a reasonable period of time. In fact, there is no explanation at all given in the proceedings for such delay. The only answer by learned counsel for the petitioners is that since the suit was barred by time, the writ petition has been filed. This cannot be any satisfactory answer to the legal objection raised by the respondents against whom serious financial repercussions would arise in case the petitioners succeed in the present petition on merits. The valuable rights which had accrued in favor of the petitioners by lapse of time by the petitioners not agitating the claim cannot be wished away.

22. There is no doubt that there has been an unfortunate demise of Dr.Chaubey. However, sympathy alone cannot give rise to a legal right in favor of the petitioners and it would be a misplaced sympathy if that would be the only reason to entertain the petition after the inordinate and unexplained delay in filing the present writ petition.

23. I am, thus, of the considered view that there is no satisfactory explanation for the aforesaid delay nor the delay is liable to be condoned taking into consideration the time period of limitation prescribed under the Limitation Act, 1963 for such a claim.

24. Dismissed.