2008 Supreme(SC) 1685

2008(7) Supreme 741
SUPREME COURT OF INDIA
S.H. Kapadia and B. Sudershan Reddy, JJ.
City and Industrial Development Corporation — Appellant
versus
Dosu Aardeshir Bhiwandiwala & Ors. — Respondent
Civil Appeal No. 6652 of 2008
(Arising out of SLP(c) No. 23385 of 2007)
Decided on : 14-11-08

IMPORTANT POINTS
1. Inordinate delay in moving the court for a Writ is an adequate ground for refusing a Writ. The principle is that courts exercising public law jurisdiction do not encourage agitation of stale claims and exhuming matters where the rights of third parties may have accrued in the interregnum.
2. No relief can be granted in a public law remedy as a matter of course only on the ground that the State did not file its counter affidavit opposing the writ petition.

Headnote:Constitution of India, 1950 – Article 226 – Writ petition by respondent 1 one of the Trustees of Sir Khan Bahadur Hormasji Bhiwandiwala Trust alleging that appellant CIDCO had been illegally and unauthorisedly using Suit land of trust without acquiring the same or without paying any compensation thereof – High Court disposed of Writ Petition directing Collector, Raigad to take steps to acquire land by following due procedure and complete acquisition proceedings within one year of receiving requisition from appellant – Special leave Petition – Dismissed as withdrawn – Review petition – Dismissed – Appeals – Plea of appellant that since number of disputed questions concerning the title of land in question arose for consideration it could not be decided in a proceeding under Article 226 of Constitution – Held High Court in its decision mostly relying upon oral statement made through A.G.P. and also some vague averments made by appellant in its reply affidavit disposed of the Writ Petition directing acquisition of the land – Failure on part of High Court to consider as to what was effect of said oral statement and averments made by appellant in its reply affidavit – No whisper in impugned order that Trust continued to be true and absolute owner of land possessing valid and subsisting title as on date of the filing of writ petition – Nor was there any finding by High Court as regards nature of land – Again, no finding that writ petitioner who filed Writ Petition as an individual was the trustee of said trust and thus entitled to prosecute litigation on behalf of trust – High Court also did not consider as to what was the effect of filing of the Writ Petition claiming to be a trustee without impleading the trust as the petitioner – High Court even did not consider whether reliefs claimed could at all be granted in a public law remedy under Article 226 of the Constitution – Having regard to magnitude and complexity of case High Court in all fairness ought to have directed official respondents to file their detailed counter affidavits and produce entire material and records in their possession for its consideration – None of said parameters had been kept in view by High Court while disposing of Writ Petition and Review Petition – Hence Impugned orders set aside and matter remitted for fresh consideration by High Court on merits. (Paras 13 to 17, 23 to 29)

        Constitution of India, 1950 – Article 226 – High Court while exercising its extraordinary jurisdiction under Article 226 of Constitution is duty bound to take all relevant facts and circumstances into consideration and decide for itself even in the absence of proper affidavits from State and its instrumentalities as to whether any case at all is made out requiring its interference on the basis of the material made available on record – There is nothing like issuing an ex-parte writ of Mandamus, order or direction in a public law remedy – Further, while considering validity of impugned action or inaction the court will not consider itself restricted to the pleadings of the State but would be free to satisfy itself whether any case as such is made out by a person invoking its extra ordinary jurisdiction under Article 226 of the Constitution. (Para 22)

        Constitution of India, 1950 – Article 226 – The court while exercising its jurisdiction under Article 226 is duty bound to consider whether; adjudication of writ petition involves any complex and disputed questions of facts and whether they can be satisfactorily resolved; petition reveals all material facts; petitioner has any alternative or effective remedy for resolution of the dispute; person invoking the jurisdiction is guilty of unexplained delay and laches; ex facie barred by any laws of Limitation; grant of relief is against public policy or barred by any valid law; and host of other factors. (Para 22)

        Constitution of India, 1950 – Article 226 – The court in appropriate cases in its discretion may direct the State or its instrumentalities as the case may be to file proper affidavits placing all the relevant facts truly and accurately for the consideration of the court and particularly in cases where public revenue and public interest are involved – Such directions always are required to be complied with by the State – No relief can be granted in a public law remedy as a matter of course only on the ground that the State did not file its counter affidavit opposing the writ petition – Again, empty and self-defeating affidavits or statements of Government spokesmen by themselves do not form basis to grant any relief to a person in a public remedy to which he is not otherwise entitled to in law. (Para 22)

        Constitution of India, 1950 – Article 226 – Writ petition – Writ petitioner approaching court after a period of more than 35 years of loosing possession of land – Held it is well settled and needs no restatement that under Article 226 of Constitution, jurisdiction of a High Court to issue appropriate writs particularly a writ of Mandamus is highly discretionary – The relief cannot be claimed as of right – One of the grounds for refusing relief is that person approaching High Court is guilty of unexplained delay and laches- Inordinate delay in moving the court for a Writ is an adequate ground for refusing a Writ – The principle is that courts exercising public law jurisdiction do not encourage agitation of stale claims and exhuming matters where the rights of third parties may have accrued in the interregnum. (Para 19)

       Facts of the Case :

        1. Writ petition was filed by respondent 1 one of the Trustees of Sir Khan Bahadur Hormasji Bhiwandiwala Trust alleging that appellant CIDCO had been illegally and unauthorisedly using Suit land of trust without acquiring the same or without paying any compensation thereof. High Court disposed of Writ Petition directing Collector, Raigad to take steps to acquire land by following due procedure and complete acquisition proceedings within one year of receiving requisition from appellant. Special leave Petition was dismissed as withdrawn. Review petition thereagainst was also dismissed.

        2. Present appeal has been filed against said order of High Court.

       Findings of the Court :

        Held High Court in its decision mostly relying upon oral statement made through A.G.P. and also some vague averments made by appellant in its reply affidavit disposed of the Writ Petition directing acquisition of the land . High Court failed to consider as to what was effect of said oral statement and averments made by appellant in its reply affidavit. No whisper in impugned order that Trust continued to be true and absolute owner of land possessing valid and subsisting title as on date of the filing of writ petition. Nor was there any finding by High Court as regards nature of land. Again, there was no finding that writ petitioner who filed Writ Petition as an individual was the trustee of said trust and thus was entitled to prosecute litigation on behalf of trust. High Court also did not consider as to what was the effect of filing of the Writ Petition claiming to be a trustee without impleading the trust as the petitioner. High Court even did not consider whether reliefs claimed could at all be granted in a public law remedy under Article 226 of the Constitution. Having regard to magnitude and complexity of case High Court in all fairness ought to have directed official respondents to file their detailed counter affidavits and produce entire material and records in their possession for its consideration. None of said parameters had been kept in view by High Court while disposing of Writ Petition and Review Petition. Hence Impugned orders were set aside and matter was remitted for fresh consideration by High Court on merits.

       Result : Appeal allowed.