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CASE NO.:

Appeal (civil) 274 of 2007

PETITIONER:

Shiv Dass

RESPONDENT:

Union of India and Ors

DATE OF JUDGMENT: 18/01/2007

BENCH:

Dr. ARIJIT PASAYAT & S.H. KAPADIA

JUDGMENT:

J U D G M E N T

(Arising out of S.L.P. (C) No. 881 of 2006)

Dr. ARIJIT PASAYAT, J.

Leave granted.

Appellant calls in question legality of the judgment

rendered by a Division Bench of the Punjab and Haryana High

Court dismissing the Writ Petition filed by the appellant on the

ground that it was highly belated. It was noted that appellant

was out of service in the year 1983 and the writ petition was

filed in 2005.

Appellant’s case in a nutshell is as follows:

Appellant was enrolled in Army Medical Corps, Lucknow

in September, 1965. In 1982 he suffered from medical problem

of weak eyesight and he became almost 80% disabled, despite

being getting the treatment. Therefore, he was placed under

low medical category by the Medical Board. He was relieved

from the service being invalidated out of service. In 1983

appellant claimed disability pension for the 80% disability. It

was rejected by the Chief Controller of Defence Accounts

(Pension), Allahabad. Appellant claims that he had filed appeal

before the appellate authority but there no reply was given.

Since there was no intimation regarding any order in the

appeal, he filed the writ petition in 2005. His prayer was for

grant of disability pension. The High Court dismissed the writ

petition.

In support of the appeal, learned counsel for the

appellant submitted that the High Court should have noted

that the claim for pension provides for continuing cause of

action. As the appellant had not received any intimation

regarding the result of the appeal, he ultimately filed the writ

petition.

Learned counsel for the respondents on the other hand

submitted that the writ petition was highly belated. In fact, the

original order itself indicated the reason for dishonouring the

claim. The appeal was dismissed in August 1985 and due

intimation was given to the appellant about rejection of his

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appeal. He cannot take advantage of his own lapses and

laches.

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, 1950 (in short 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 Prasad v. Chief Controller of Imports and Exports

and Ors. (AIR 1970 SC 769). Of course, the discretion has to

be exercised judicially and reasonably.

What was stated in this regard by Sir Barnes Peacock in

Lindsay Petroleum Company v. Prosper Armstrong Hurd etc.,

(1874) 5 P.C. 221 at page 239 was approved by this Court in

The Moon Mills Ltd. v. M.R. Meher, President, Industrial

Court, Bombay and Ors. (AIR 1967 SC 1450) and Maharashtra

State Road Transport Corporation v. Balwant Regular Motor

Service, Amravati and Ors. (AIR 1969 SC 329), 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