Madhya Pradesh High Court
Yeshwant Rao Das vs Municipal Council on 16 February, 2024
Author: Gurpal Singh Ahluwalia
Bench: Gurpal Singh Ahluwalia
1 WP No.1586/2004
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
ON THE 16th OF FEBRUARY, 2024
WRIT PETITION No. 1586 of 2004
BETWEEN:-
YESHWANT RAO DAS, AGED ABOUT .. YEARS, S/O
SHRI BHABHOOT RAO DAS, YATI CYCLE STORES,
MAHOBE MARKET, CHHINDWARA, TAHSIL AND
DISTRICT CHHINDWARA (MADHYA PRADESH)
.....PETITIONER
(BY SHRI AJAY OJHA - ADVOCATE)
AND
MUNICIPAL COUNCIL, CHHINDWARA, THROUGH ITS
CHIEF EXECUTIVE OFFICER, TAHSIL AND DISTRICT
CHHINDWARA (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI NAVEEN DUBEY - GOVERNMENT ADVOCATE)
"Reserved on : 11.01.2024"
"Pronounced on : 16.02.2024".
This petition having been heard and reserved for orders, coming on
for pronouncement this day, the court passed the following:
ORDER
This petition under Article 226 of Constitution of India has been
filed against refusal by respondent to refund the amount of Rs.68,202/-
deposited by petitioner with the respondent towards external
development charges.
2. It is the case of petitioner that he was owner of plot No.3 area
3.32 acres situated in Village Gram Chhindwara, Tehsil and District
Chhindwara. He intended to establish a colony over the said land by the
process of colonization. He obtained the license of colonization.
Petitioner applied for and was granted permission of diversion of land.
He obtained building permission from the Municipal Council
Chhindwara. By letter dated 02.07.1990 petitioner was informed that in
terms of approval he is required to deposit external development charges
@ Rs.5/- per sq. meter which was assessed at Rs.67,200/-. Petitioner
was asked to deposit the same within seven days. However, petitioner
deposited the sum of Rs.11,202/- on 13.07.1990. Thereafter, by letter
dated 28.08.1991 he was directed to deposit the remaining amount of
Rs.57,000/- but it is the case of petitioner that he was not informed
about the basis for such levy. Since petitioner was informed that
coercive action shall be taken against him for recovery of amount,
therefore, he deposited Rs.57,000/- on 27.10.1994. The demand made
by respondent for deposit of external development charges was on the
basis of circulars dated 06.07.1978 and 28.11.1985 which was
challenged by M/s Gautam & Company by preferring M.P.474/1989
and coordinate Bench of this Court by order dated 17.03.1997 held that
direction for imposition of external charges on the basis of circular dated
06.07.1998 is arbitrary. Another writ petition filed by Hind Grah
Nirman Sahkari Sanstha was also allowed by order dated 15.12.1998
reported in (1999) 1 M.P.W.N. 74 and action of respondent in imposing
external development charges was quashed.
3. It is submitted by counsel for petitioner that since petitioner was
not aware of illegality in collecting the external development charges,
therefore, he did not take any action but later on he acquired the
knowledge of the judgments passed by the High Court and accordingly,
made an application to the respondent on 17.02.2000 for refund of
amount of Rs.68,202/-. Since no action was taken, therefore, petitioner
sent reminders and ultimately by communication dated 14.07.2003 it
was informed to petitioner that opinion of counsel for respondent was
sought and according to which amount deposited by petitioner is not
refundale. Thus, petition has been filed against refusal of respondent to
refund the amount of Rs.68,202/-.
4. Per contra, petition is vehemently opposed by counsel for State. It
is submitted that petition is highly belated. The amount was deposited
by petitioner in the years 1990 and 1994 respectively without any
objection. Merely because relief has been granted to the similarly
situated persons would not make the petitioner entitle because he was
sleeping over his rights and the petition suffers from delay and laches.
It is further submitted that in the case of Gulmohar Griha Nirman
Sahakari Sanstha Samiti, Indore v. State of M.P. and others,
reported in 1998 (2) MPLJ 370, two questions were involved i.e.
whether 15% of the property can be reserved for EWS and whether
external charges can be levied or not. It is submitted that in case of
Gulmohar Griha Nirman Sahakari Sanstha Samiti (supra), the
coordinate Bench of this Court had discussed about the direction to
reserve 15% of land for EWS and without considering the fact as to
whether external development charges can be levied or not, the entire
order was quashed. Similarly LPA No.378/1998 was also dismissed
after considering that direction to reserve 15% of land for EWS amounts
to depriving the person from enjoying his property. However, there is no
discussion with regard to imposition of charges for external
development. It is further submitted that Supreme Court in the case of
State of U.P. and others v. Malti Kaul (Smt.) and another, reported
in (1996) 10 SCC 425 has held that levy of fee is a compulsory exaction
for services rendered as quid pro quo. The Development Authority is
under obligation to carry out a planned development of the area in
accordance with the provisions of this Act. Whenever any person
undertakes to develop the land in accordance with the sanctioned plan in
which necessary conditions to safeguard providing the amenities are
required to be secured. In a development area when an owner or body or
department of the Government undertakes to develop the land, two
options are open to the development authority, namely, either it may
itself undertake to provide amenities or other means of access,
engineering corporations as provided under the Act or as a condition to
grant sanction, it can call upon the person who undertakes development
or the body of the developers who undertake development to deposit the
amount required for such development for providing amenities etc.
However, it is submitted that the coordinate Bench of this Court by
judgment dated 20.03.1997 passed in the case M/s Gautam &
Company Vs. State of M.P. and others (Indore Bench) decided on
20.03.1997 in M.P. No.474/1989 had quashed the levy of charges for
external development. It is further submitted that development charges
were deposited by petitioner in the years 1990 and 1994 respectively,
whereas the petition has been filed after 10 years, therefore, it is highly
belated and is barred by delay and laches.
4. Heard learned counsel for parties.
5. Petitioner was granted permission to develop colony subject to
deposit of charges for external development. Accordingly, petitioner had
deposited Rs.11,202/- by receipt dated 13.07.1990 and Rs.57,000/- by
receipt dated 27.10.1994. Thereafter, the present petition has been filed
on 08.04.2004 i.e. after 14 years of deposit of first installment of
charges for external development. The judgment was passed in the case
of M/s Gautam & Company (supra) on 20.03.1997. However, this
petition has been filed in the year 2004 i.e. after 7 years of passing of
judgment in the case of Gautam & Company (supra).
6. The Supreme Court in the case of Karnataka Power Corpon.
Ltd. Vs. K. Thangappan reported in (2006) 4 SCC 322 has held as
under :
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.
Of course, the discretion has to be exercised judicially
andreasonably.
7. What was stated in this regard by Sir Barnes
Peacock in Lindsay Petroleum Co. v. Prosper
Armstrong Hurd (PC at p. 239) was approved by this
Court in Moon Mills Ltd. v. M.R. Meher and
Maharashtra SRTC v. Shri Balwant Regular Motor
Service. 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 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 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
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.
7. The Supreme Court in the case of M.P. Ram Mohan Raja
Vs. State of T.N. Reported in (2007) 9 SCC 78 has held as under :
11. So far as the question of delay is concerned, no
hard-and- fast rule can be laid down and it will
depend on the facts of each case. In the present case,
the facts stare at the face of it that on 8-10-1996 an
order was passed by the Collector in pursuance of the
order passed by the High Court, rejecting the
application of the writ petitioner for consideration of
the grant of mining lease. The writ petitioner sat tight
over the matter and did not challenge the same up to
2003. This on the face of it appears to be very serious.
A person who can sit tight for such a long time for no
justifiable reason, cannot be given any benefit.
8. The Supreme Court in the case of Shiv Dass Vs. Union of
India reported in (2007) 9 SCC 274 has held as under :
6. Normally, in the case of belated approach writ
petition has to be dismissed. Delay or laches is one of
the factors to be borne in mind by the High Courts
when they exercise their discretionary powers under
Article 226 of the Constitution of India. 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. 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, PC at p. 239 was approved by this
Court in Moon Mills Ltd. v. M.R. Meher and
Maharashtra SRTC v. Balwant Regular Motor
Service. 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, 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."
8. It was stated in State of M.P. v. Nandlal Jaiswal 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.
9. The Supreme Court in the case of Nadia Distt. Primary School
Council Vs. Sristidhar Biswar reported in (2007) 12 SCC 779 has
held as under :
11. In the present case, the panel was prepared in 1980
and the petitioners approached the court in 1989 after
the decision in Dibakar Pal. Such persons should not
be given any benefit by the court when they allowed
more than nine years to elapse. Delay is very
significant in matters of granting relief and courts
cannot come to the rescue of the persons who are
not vigilant of their rights. Therefore, the view taken
by the High Court condoning the delay of nine years
cannot be countenanced.
10. The Supreme Court in the case of Jagdish Lal Vs. State of
Haryana reported in (1997) 6 SCC 538 has held as under :
18. That apart, as this Court has repeatedly held, the
delay disentitles the party to the discretionary relief
under Article 226or Article 32 of the Constitution.
11. It is true that no period of limitation applies to writ jurisdiction.
However, principles enshrined in the doctrine of limitation being based
on public policy can be treated as guiding factor and writ petition can be
dismissed at the initial stage on the ground of delay and laches.
12. The Supreme Court in the cases of Rup Diamonds and others v.
Union of India and others [(1989) 2 SCC 356], State of Karnataka
and others v. S.M. Kotrayya and others [(1996) 6 SCC 267] and
Jagdish Lal and others v. State of Haryana and others [(1997) 6
SCC 538] has held that it has consistently rejecting the contention that a
petition should be considered ignoring the delay and laches in case if
petitioner approaches the Court after coming to know about relief
granted by the Court in a similar case as the same cannot furnish a
proper explanation for delay and laches. A litigant cannot wake up from
deep slumber and claim impetus from the judgment in cases where some
diligent persons had approached the Court within a reasonable time.
This Court has already referred to the date on which the cause of action
arose.
13. Furthermore, there is no documentary evidence on record to show
that petitioner had deposited the charges for external development under
any protest. It appears that he woke up only on 17.02.2000 when he
made representation for the first time.
14. Under these circumstances, this Court is of considered opinion
that this petition suffers and delay and laches. Accordingly, the same is
dismissed.
(G.S. AHLUWALIA)
vc JUDGE
VARSHA Digitally signed by VARSHA CHOURASIYA
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Date: 2024.02.16 15:02:11 +05'30'
