Madras High Court
Francis Silvester vs The Director on 1 March, 2022
W.P.No.4421 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 01.03.2022
CORAM:
THE HON'BLE MR. JUSTICE D.KRISHNAKUMAR
W.P.No.4421 of 2022
Francis Silvester .. Petitioner
vs.
1.The Director,
Directorate of Local Fund Audit,
Integrated Office Complex for
Finance Department, Nandanam,
Chennai-600 035.
2.The Commissioner of Municipal Administration,
MRC Building, Pattinampakkam,
Chennai.
3.The District Collector,
Tiruvarur District, Thiruvarur.
4.The Commissioner,
Municipal Office,
Thiruthuraipoondi,
Thiruvarur Distrit.
5.The Commissioner,
Nagapattinam Municipality,
Nagapattinam. .. Respondents
Prayer: Writ Petition filed under Article 226 of the Constitution of India
praying for issuance of a Writ of Certiorarified Mandamus to call for the
records pertaining to the impugned recovery order passed by the 5th
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W.P.No.4421 of 2022
respondent in Na.Ka.No.1301/2018/C1 dated 30.05.2015 and to quash the
same and consequently direct the first respondent to refund the sum of
Rs.56,135/- recovered from the petitioner with interest @ 18% per annum.
For Petitioner : Mr.S.T.P.Kuilmozhi
For Respondents : Mr.P.Balathandayutham
Special Government Pleader for R1 to R4
ORDER
By consent, this writ petition is taken up for final disposal. Challenge
in the writ petition is to the impugned order of recovery dated 30.05.2018
passed by the fifth respondent and for a consequential direction to the first
respondent to refund the sum of Rs.56,135/- recovered from the petitioner
with interest @ 18% per annum.
2. The case of the petitioner is that he was initially appointed as
Computer cum Assistant in the office of Tirunelveli Corporation and
thereafter, transferred to various places such as Kumbakonam, Cuddalore,
Nagapattinam, Jeyankondam and lastly to Thiruthuraipoondi. While he was
working in the office of the fourth respondent, the petitioner had submitted
request for voluntary retirement from service (VRS) with effect from
30.06.2018 due to his health and family reason. On the petitioner's request
for VRS, the fourth respondent called for no-objection from all the
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W.P.No.4421 of 2022
departments including the fifth respondent and also requested details about
the amount due from him if any, for which the fifth respondent, vide
proceedings dated 30.05.2018, has imposed recovery of Rs.56,135/- towards
share of 30% of time barred property tax for Revenue Inspector.
3. The petitioner has remitted the said amount, pursuant to which the
fifth respondent, vide proceedings dated 30.05.2018, has issued no objection
certificate for the purpose of accepting the request for VRS. After receipt of
no objection certificate from all the work place, the fourth respondent, vide
proceedings dated 31.10.2018, permitted the petitioner to retire from service
with effect from 31.10.2018, without prejudice to future audit objections, if
any and relieved him from duty.
4. It is the grievance of the petitioner that the petitioner is no way
responsible for the time barred tax during his tenure as Revenue Inspector
and his predecessors are liable for the said amount and the time barred
recovery of the property tax amount is without any proper reason and
justification. The petitioner, in this regard, has also submitted a
representation dated 04.09.2020 to the first respondent to repay the amount
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W.P.No.4421 of 2022
of Rs.56,135/- recovered from the petitioner towards time barred property tax
and since it was not considered, he has filed the present writ petition.
5. Heard the submissions of the learned counsel for the petitioner and
the learned Special Government Pleader for the respondents 1 to 4.
6. A perusal of the materials placed before this Court would disclose
that the impugned order has been passed in the year 2018 and on payment of
the disputed amount, the petitioner was also allowed to retire from service
with effect from 31.10.2018 without prejudice to the future audit objections,
if any. The petitioner has challenged the impugned order after a delay of four
years and no satisfactory explanation has been given by the petitioner for the
delay in approaching this Court.
7. At this juncture, it is useful to refer to the judgments of the Hon'ble
Apex Court and the Hon'ble Division Bench of this Court. The Hon'ble Apex
Court, in a case, reported in 1994 SCC, Supl.(2) 195 [Ex-Capt. Harish
Uppal vs. Union of India), has held as follows;
'8. The petitioner sought to contend that because of
laches on his part, no third party rights have intervened and that
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W.P.No.4421 of 2022
by granting relief to the petitioner no other person's rights are
going to be affected. He also cited certain decisions to that
effect. This plea ignores the fact that the said consideration is
only one of the considerations which the court will take into
account while determining whether a writ petition suffers from
laches. It is not the only consideration.
It is a well-settled policy of law that the parties should
pursue their rights and remedies promptly and not sleep over
their rights. That is the whole policy behind the Limitation Act
and other rules of limitation. If they choose to sleep over their
rights and remedies for an inordinately long time, the court may
well choose to decline to interfere in its discretionary
jurisdiction under Article 226 of Constitution of India and that
is what precisely the Delhi-High Court has none. We cannot say
that the High Court was not entitled to say so in its discretion.”
8. The Hon'ble Division Bench of this Court, in the case of
S.Vaidhyanathan Vs.Government of Tamil Nadu reported in 2018 SCC
OnLine, in para 14, it is held as under ;
“14. There is an inordinate delay and laches on the part of
the appellant. What is latches is as follows:
“Laches or reasonable time are not defined under any
statute or Rules. “Latches” or “Lashes” is an old french word
for slackness or negligence or not doing. In general sense, it
means neglect to do what in the law should have been done for
an unreasonable or unexplained length of time. What could be
the latches in one case might not constitute in another. The
latches to non-suit, an aggrieved person from challenging the
acquisition proceedings should be inferred from the conduct of
the land owner or an interested person and that there should be
a passive inaction for a reasonable length of time. What is
reasonable time has not been explained in any of the enactment.
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W.P.No.4421 of 2022
Reasonable time depends upon the facts and circumstances of
each case.” ......
In para 16 of the judgment cited supra, it is held as under;
16. Delay defeats discretion and loss of limitation
destroys the remedy itself. Delay amounting to laches results in
benefit of discretionary power being denied on principles of
equity. Loss of limitation resulting into depriving of the remedy,
is a principle based on public policy and utility and not equity
alone...............”
9. In Karnataka Power Corpn. Ltd. v. K.Thangappan reported in
(2006) 4 SCC 322, the Hon'ble Supreme Court, at Paragraph 6, held as
follows:
“6. Delay or latches 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'.....
16. There is another aspect of the matter which cannot be
lost sight of. The respondents herein filed a writ petition after
17 years. They did not agitate their grievances for a long time.
They, as noticed herein, did not claim parity with the 17
workmen at the earliest possible opportunity. They did not
implead themselves as parties even in the reference made by the
State before the Industrial Tribunal. It is not their case that after
1982, those employees who were employed or who were
recruited after the cut-off date have been granted the said scale
of pay. After such a long time, therefore, the writ petitions could
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W.P.No.4421 of 2022
not have been entertained even if they are similarly situated. It
is trite that the discretionary jurisdiction may not be exercised
in favour of those who approach the court after a long time
Delay and laches are relevant factors for exercise of equitable
jurisdiction.
10. In Chennai Metropolitan Water Supply and Sewerage Board v.
T.T.Murali Babu reported in (2014) 4 SCC 108, at Paragraphs 16 and 17,
the Hon'ble Supreme Court held as follows:
“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.
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W.P.No.4421 of 2022
11. In the case on hand, the petitioner has not given satisfactory
explanation / reasons in the affidavit for the delay in approaching this Court.
Keeping in mind the ratio laid down in the above cited decisions, this Court
is of the view that the present writ petition is liable to be dismissed on the
ground of delay and laches.
12. The Writ Petition stands dismissed. No costs.
01.03.2022
Index : Yes / No
Internet : Yes / No
Jvm
To
1.The Director,
Directorate of Local Fund Audit,
Integrated Office Complex for Finance Department, Nandanam,
Chennai-600 035.
2.The Commissioner of Municipal Administration,
MRC Building, Pattinampakkam, Chennai.
3.The District Collector,
Tiruvarur District, Thiruvarur.
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W.P.No.4421 of 2022
4.The Commissioner,
Municipal Office, Thiruthuraipoondi,
Thiruvarur Distrit.
5.The Commissioner,
Nagapattinam Municipality,
Nagapattinam.
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W.P.No.4421 of 2022
D.KRISHNAKUMAR. J
Jvm
W.P.No.4421 of 2022
01.03.2022
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