* Author
[2024] 4 S.C.R. 506 : 2024 INSC 314
Mrinmoy Maity
v.
Chhanda Koley and Others
(Civil Appeal No. 5027 of 2024)
18 April 2024
[Pamidighantam Sri Narasimha and Aravind Kumar,* JJ.]
Issue for Consideration
Writ court, if justified in entertaining the writ petition filed by the
respondent No.1 challenging the approval granted in favour of the
appellant for starting LPG distributorship.
Headnotes
Constitution of India – Art 226 – Exercise of discretionary
powers under – Delay or laches, effect – On facts, four years
after the allotment of LPG distributorship in favour of the
appellant, and on acceptance of the alternate land offered
by the appellant and permitting him to construct the godown
and the showroom, the unsuccessful bidder challenged the
decision of the Corporation – High Court dismissed the writ
petition, however, in appeal the allotment made in favour of
the appellant was set aside – Correctness:
Held: Delay defeats equity – Delay or laches is one of the factors
which should be born in mind by the High Court while exercising
discretionary powers u/Art. 226 – Applicant who approaches the
court belatedly ought not to be granted the extraordinary relief
by the writ courts – In a given case, the High Court may refuse
to invoke its extraordinary powers if laxity on the part of the
applicant to assert his right has allowed the cause of action to
drift away and attempts are made subsequently to rekindle the
lapsed cause of action – Discretion to be exercised would be
with care and caution, depending upon the facts of the case –
Though, for filing of a writ petition, no fixed period of limitation
is prescribed, however, it has to be filed within a reasonable
time – If it is found that the writ petitioner is guilty of delay and
laches, the High Court ought to dismiss the petition on that sole
ground itself, in as much as the writ courts are not to indulge
in permitting such indolent litigant to take advantage of his own
[2024] 4 S.C.R. 507
Mrinmoy Maity v. Chhanda Koley and Others
wrong – On facts, writ petition ought to have been dismissed
on the ground of delay and laches itself – Writ petitioner was
aware of all the developments including that of the allotment of
distributorship having been made in favour of the appellant way
back in 2014, yet did not challenge and only on acceptance of
the alternate land offered by the appellant in 2017 and permitting
him to construct the godown and the showroom, the same was
challenged and thereby the writ petitioner had allowed his right
if at all if any to be drifted away or acquiesced in the acts of the
Corporation – Also, the appropriate government felt the need of
permitting the Oil Marketing Companies to be more flexible and
as such modification to the guidelines had been brought about
whereby the applicants were permitted to offer alternate land
where the land initially offered by them was found deficient or
not suitable or change of the land, subject to specifications laid
down in the advertisement being met – Thus, the order of the
Division Bench of the High Court is set aside, and that of the
Single Judge is restored. [Para 15]
Case Law Cited
Tridip Kumar Dingal and others v. State of W.B and
others. [2008] 15 SCR 194 : (2009) 1 SCC 768;
Karnataka Power Corportion Ltd. and another v. K.
Thangappan and another [2006] 3 SCR 783 : (2006)
4 SCC 322; Chennai Metropolitan Water Supply &
Sewerage Board and others v. T.T. Murali Babu [2014]
1 SCR 987 : (2014) 4 SCC 108 – referred to.
List of Acts
Constitution of India.
List of Keywords
LPG distributorship; Exercise of discretionary powers; Delay or
laches; Extraordinary relief; Cause of action; Period of limitation;
Acquiescence.
Case Arising From
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 5027 of 2024
From the Judgment and Order dated 13.09.2018 of the High Court
at Calcutta in CAN No. 809 of 2018
508 [2024] 4 S.C.R.
Digital Supreme Court Reports
Appearances for Parties
Pijush K. Roy, Sr. Adv., Pritthish Roy, Ms. Kakali Roy, Asit Roy, Rajan
K. Chourasia, Advs. for the Appellant.
Shekhar Naphade, Sr. Adv., Zoheb Hossain, Ms. Asha Gopalan
Nair, Sandeep Narain, Ms. Nivedita Nair, Advs. for the Respondents.
Judgment / Order of the Supreme Court
Judgment
Aravind Kumar, J.
1. Leave granted.
2. The short point that arises for consideration in this appeal is:
“Whether the writ court was justified in entertaining the writ
petition filed by the respondent No.1 herein challenging
the approval dated 03.06.2014 granted in favour of
the appellant herein for starting LPG distributorship at
Jamalpur, District Burdwan?”
3. The facts in brief which has led to filing of the present appeal are
as under:
4. An advertisement came to be issued on 09.09.2012 calling for
application for distributors to grant LPG distributorship under
GP Category at Jamalpur, District Burdwan. From amongst the
applications so received, the application submitted by the appellant
as well as respondent No.1 were found to be in order. Since both
the appellant and the respondent No.1 were held to be eligible from
amongst the six (6) candidates, draw of lots was held on 11.05.2013
and appellant was found successful candidate and was selected
for verification of the documents. A letter of intent was issued to
the appellant on 24.02.2014 and on 03.06.2014 the approval was
granted by the BPCL in favour of the appellant for starting LPG
distributorship at the notified place.
5. After a lapse of 4 years, the respondent No.1 filed a complaint with
the BPCL alleging that land offered by the appellant was a Barga land
and same cannot be considered. Subsequently application having
been filed by the appellant offering an alternate land, the Corporation
allowed the prayer of the appellant to construct the godown and
showroom on the alternate land offered by the appellant.
[2024] 4 S.C.R. 509
Mrinmoy Maity v. Chhanda Koley and Others
6. The respondent No.1 being a rival applicant for grant of distributorship,
having participated in submitting the application and being
unsuccessful in the draw of lots held way back in the year 2013
and being aggrieved by the decision of the Corporation to permit the
appellant to commence the construction of godown and showroom
on the alternate land offered, filed a writ petition in the year 2017
i.e., on 10.04.2017. Initially, there was an order of status quo passed
by the Learned Single Judge and on receiving the report from
the Corporation the writ petition came to be dismissed vide order
dated 18.01.2018 on the ground that the writ petitioner (respondent
No.1 herein) had no locus standi since she had participated in the
selection process. Being aggrieved by the same the intra-court appeal
came to be filed and the appellate court by the impugned judgment
allowed the appeal on the ground (a) that the successful applicant
had not offered unencumbered land for construction of godown and
showroom; (b) the land offered by the appellant was in contravention
of clause 7.1(vi) and (vii) of the guidelines for selection of regular
LPG Distributors; (c) the amendment of the said guidelines brought
about subsequently, cannot be made applicable retrospectively. The
allotment made in favour of the (appellant herein) was set aside by
the impugned order and as a consequence of it, the letter of intent,
the letter of approval accepting the alternate land offered by the
(appellant herein) and all subsequent permissions, licences and no
objections issued in his favour were held to be of no effect. Hence,
this appeal.
7. We have heard Shri Pijush K. Roy, learned Senior Counsel appearing
for the appellant and Shri Zoheb Hossain, learned counsel appearing
for respondent No.1 and Shri Shekhar Naphade, learned Senior
Counsel for the Corporation. Learned counsel for the appellant
would vehemently contend that Learned Single Judge had rightly
dismissed the writ petition on the ground of lack of locus standi of
the writ petitioner and had dissolved the interim order granted earlier.
It is also contended that by the time the interim order of status quo
came to be passed by the Learned Single Judge on 20.07.2017, the
appellant herein had already submitted an application for accepting
the alternate land offered and which request came to be processed
and the applicant (appellant herein) had been allowed to construct
the godown and showroom on the alternate land so offered. These
facts though being available, the Division Bench ignoring the same
510 [2024] 4 S.C.R.
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had proceeded on tangent in accepting the plea of the writ petitioner
without examining the aspect of delay and giving a complete go by
for laches exhibited on the part of the writ petitioner and extended
the olive branch on surmises and conjectures and as such the
impugned order is liable to be set-aside and consequently, writ
petition which came to be dismissed by the Learned Single Judge
has to be upheld. Shri Shekhar Naphade, learned Senior Counsel
appearing on behalf of the Corporation has fairly submitted that in
the light of the appellant herein being successful in the allotment
by draw of lots, had been issued with the letter of intent and the
prayer for offering the alternate land was also accepted and having
regard to the subsequent development namely the subsequent
notification dated 30.04.2015 issued by the appropriate government
directing the Oil Marketing Companies to provide flexibility in the
selection guidelines by providing an “opportunity to offer alternate
land in response to the advertisement” which clarified the position
with regard to alternative land offered had been acted upon by the
Corporation in the instant case and being satisfied with the bona
fides of the applicant/appellant, the Corporation had permitted the
construction, and accordingly the construction has been put up along
with building, the godown and the showroom and as such he has
prayed for suitable orders being passed.
8. On the contrary, Shri Zoheb Hossain, learned counsel appearing for
the respondent No.1 vehemently opposed the prayer of the appellant
herein and supported the order passed by the Division Bench. He
would contend that issue of delay in filing the Writ Petition has been
rightly ignored by the Division Bench and same has to recede to
background in the facts obtained in the present case, in as much
as the blatant violation of the guidelines would go to the root of the
matter and the inherent defect cannot be allowed to be rectified,
that too by relying upon an amendment to the guidelines which has
come into force subsequent to the advertisement in question or in
other words rules of the game could not have been changed after
the commencement of the game which was exactly the exercise
undertaken by the Learned Single Judge and rightly found to be
improper by the Division Bench. Hence, he prays for dismissal of
the appeal.
9. Having heard rival contentions raised and on perusal of the facts
obtained in the present case, we are of the considered view that
[2024] 4 S.C.R. 511
Mrinmoy Maity v. Chhanda Koley and Others
writ petitioner ought to have been non-suited or in other words writ
petition ought to have been dismissed on the ground of delay and
laches itself. An applicant who approaches the court belatedly or
in other words sleeps over his rights for a considerable period of
time, wakes up from his deep slumber ought not to be granted the
extraordinary relief by the writ courts. This Court time and again has
held that delay defeats equity. Delay or laches is one of the factors
which should be born in mind by the High Court while exercising
discretionary powers under Article 226 of the Constitution of India. In
a given case, the High Court may refuse to invoke its extraordinary
powers if laxity on the part of the applicant to assert his right has
allowed the cause of action to drift away and attempts are made
subsequently to rekindle the lapsed cause of action.
10. The discretion to be exercised would be with care and caution. If
the delay which has occasioned in approaching the writ court is
explained which would appeal to the conscience of the court, in
such circumstances it cannot be gainsaid by the contesting party
that for all times to come the delay is not to be condoned. There
may be myriad circumstances which gives rise to the invoking of the
extraordinary jurisdiction and it all depends on facts and circumstances
of each case, same cannot be described in a straight jacket formula
with mathematical precision. The ultimate discretion to be exercised
by the writ court depends upon the facts that it has to travel or the
terrain in which the facts have travelled.
11. For filing of a writ petition, there is no doubt that no fixed period of
limitation is prescribed. However, when the extraordinary jurisdiction
of the writ court is invoked, it has to be seen as to whether within
a reasonable time same has been invoked and even submitting of
memorials would not revive the dead cause of action or resurrect the
cause of action which has had a natural death. In such circumstances
on the ground of delay and laches alone, the appeal ought to be
dismissed or the applicant ought to be non-suited. If it is found that
the writ petitioner is guilty of delay and laches, the High Court ought
to dismiss the petition on that sole ground itself, in as much as the
writ courts are not to indulge in permitting such indolent litigant to take
advantage of his own wrong. It is true that there cannot be any waiver
of fundamental right but while exercising discretionary jurisdiction
under Article 226, the High Court will have to necessarily take into
consideration the delay and laches on the part of the applicant in
512 [2024] 4 S.C.R.
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approaching a writ court. This Court in the case of Tridip Kumar
Dingal and others v. State of W.B and others., (2009) 1 SCC 768
has held to the following effect:
“56. We are unable to uphold the contention. It is no doubt
true that there can be no waiver of fundamental right. But
while exercising discretionary jurisdiction under Articles 32,
226, 227 or 136 of the Constitution, this Court takes into
account certain factors and one of such considerations is
delay and laches on the part of the applicant in approaching
a writ court. It is well settled that power to issue a writ is
discretionary. One of the grounds for refusing reliefs under
Article 32 or 226 of the Constitution is that the petitioner
is guilty of delay and laches.
57. If the petitioner wants to invoke jurisdiction of a
writ court, he should come to the Court at the earliest
reasonably possible opportunity. Inordinate delay in making
the motion for a writ will indeed be a good ground for
refusing to exercise such discretionary jurisdiction. The
underlying object of this principle is not to encourage
agitation of stale claims and exhume matters which have
already been disposed of or settled or where the rights of
third parties have accrued in the meantime (vide State of
M.P. v. Bhailal Bhai [AIR 1964 SC 1006 : (1964) 6 SCR
261], Moon Mills Ltd. v. Industrial Court [AIR 1967 SC 1450]
and Bhoop Singh v. Union of India [(1992) 3 SCC 136 :
(1992) 21 ATC 675 : (1992) 2 SCR 969] ). This principle
applies even in case of an infringement of fundamental
right (vide Tilokchand Motichand v. H.B. Munshi [(1969) 1
SCC 110] , Durga Prashad v. Chief Controller of Imports
& Exports [(1969) 1 SCC 185] and Rabindranath Bose v.
Union of India [(1970) 1 SCC 84] ).
58. There is no upper limit and there is no lower limit as to
when a person can approach a court. The question is one
of discretion and has to be decided on the basis of facts
before the court depending on and varying from case to
case. It will depend upon what the breach of fundamental
right and the remedy claimed are and when and how the
delay arose.”
[2024] 4 S.C.R. 513
Mrinmoy Maity v. Chhanda Koley and Others
12. It is apposite to take note of the dicta laid down by this Court in
Karnataka Power Corportion Ltd. and another v. K. Thangappan
and another, (2006) 4 SCC 322 whereunder it has been held that
the High Court may refuse to exercise extraordinary jurisdiction if
there is negligence or omissions on the part of the applicant to assert
his right. It has been further held thereunder:
“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
[(1969) 1 SCC 185 : AIR 1970 SC 769] . 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 [(1874)
5 PC 221 : 22 WR 492] (PC at p. 239) was approved by
this Court in Moon Mills Ltd. v. M.R. Meher [AIR 1967 SC
1450] and Maharashtra SRTC v. Shri Balwant Regular
Motor Service [(1969) 1 SCR 808 : AIR 1969 SC 329] .
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
514 [2024] 4 S.C.R.
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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 [(1970) 1 SCC 84 : AIR 1970 SC 470] 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 [(1986)
4 SCC 566 : AIR 1987 SC 251] 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.”
[2024] 4 S.C.R. 515
Mrinmoy Maity v. Chhanda Koley and Others
13. Reiterating the aspect of delay and laches would disentitle the
discretionary relief being granted, this Court in the case of Chennai
Metropolitan Water Supply & Sewerage Board and others v. T.T.
Murali Babu, (2014) 4 SCC 108 has held:
“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.”
14. Having regard to the afore-stated principles of law enunciated
herein above, when we turn our attention to facts on hand, it would
not detain us for too long for accepting the plea of the appellant
in affirming the order of the Learned Single Judge and dismissing
the writ petition on the ground of delay and laches. We say so for
reasons more than one, firstly, it requires to be noticed that the writ
petitioner was a rival applicant along with the appellant herein for
grant of LPG distributorship and she along with the appellant herein,
were found to be eligible and the appellant herein was held to be
successful by virtue of draw of lots. This factual aspect would reflect
that the writ petitioner was aware of all the developments including
that of the allotment of distributorship having been made in favour
of the appellant herein way back in 2014, yet did not challenge and
only on acceptance of the alternate land offered by the appellant in
516 [2024] 4 S.C.R.
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March, 2017 and permitting him to construct the godown and the
showroom. Same was challenged in the year 2017 and thereby the
writ petitioner had allowed his right if at all if any to be drifted away or
in other words acquiesced in the acts of the Corporation and as such
on this short ground itself the appellant has to succeed. Secondly,
another fact which has swayed in our mind to accept the plea of the
appellant herein is that, undisputedly the appropriate government
had felt the need of permitting the Oil Marketing Companies to be
more flexible and as such modification to the guidelines had been
brought about on 15.04.2015 whereby the applicants were permitted
to offer alternate land where the land initially offered by them was
found deficient or not suitable or change of the land, subject to
specifications as laid down in the advertisement being met. There
being no stiff opposition or strong resistance to the alternate land
offered by the appellant herein not being as per the specifications
indicated in the advertisement, we see no reason to substitute the
court’s view to that of the experts namely, the Corporation which
has in its wisdom has exercised its discretion as is evident from the
report filed in the form of affidavit by the territory manager (LPG)/
BPCL whereunder it has been stated:
“13. On the basis of xxxxxxxxxxxxxxxxxxxxx to nonagricultural. In his application form the said Respondent
no. 9 had provided the Land for godown at Plot No 3732,
Khatian No LR 2585, 2586, 2587 JL No 34, Mouza Kolera,
Jamalpur, Distt Burdwan admeasuring 33 decimal. The
same was cleared based on Registered Lease Deed,
which was found to have been genuine in all respects as
confirmed by the ADSR Jamalpur.
16. The land offered by the successful candidate, namely
the Respondent no.9 was found to be eligible by relying
on the abovementioned clauses, which determine eligibility
of the land based on the status of ownership. The fact
that the said land was a “Barga” land is not a material
condition on the basis of which the Respondent no. 9’s
candidature could be cancelled.
24. Subsequently, FVC of the said newly offered land by
the LOI holder, Respondent no. 9 was conducted and the
same was found suitable for construction of LPG Godown.
[2024] 4 S.C.R. 517
Mrinmoy Maity v. Chhanda Koley and Others
A letter being DGP:LPG OMP: Jamalpur dated 21.03.2017
was provided to the said LOI holder informing him that
the alternate land provided is found suitable and therefore
his request to construct LPG Godown in the said alternate
land has been approved. A copy of the said letter dated
21.03.2017 is annexed hereto and is marked as “R-5”.
25. It is therefore submitted that the steps taken by the
Respondent no. 3 in allowing the LOI holder, Respondent
no. 9, to provide alternate land for construction of godown,
have been in consonance. with the change in policies and
no favoritism or nepotism, as suggested by the petitioner
has been in play.
32. It is further clarified that the FVC conducted on the
original land offered by the Respondent no. 9 was found to
be satisfactory on all counts, and only on the basis of this,
his request for provision of alternate land wall accepted.”
15. Hence, we are of the considered view that the order of the Learned
Division Bench is liable to be set aside and accordingly, it is set
aside. The order of the Learned Single Judge stands restored for the
reasons indicated herein above and the appeal is allowed accordingly
with no order as to costs.
Headnotes prepared by: Nidhi Jain Result of the case:
Appeal allowed.
