Sudhir Kumar vs State Of Uttarakhand And Others

Ramesh Ranganathan, CJ

This jurisdiction of this Court has invoked, allegedly in Public Interest, by a resident of the same colony where the subject plot was allotted to respondent Nos.5 & 6 on 13.12.2000.

Facts, to the limited extent necessary, are that Plot No.CP-11 was allotted to respondent Nos.5 & 6 on 27.11.1993. On the plot adjacent thereto, a transformer was located. Respondent Nos.5 & 6 appear to have made an application on 09.11.1998 seeking allotment of the adjacent plot. The U.P. Avas Vikas Nigam claims to have invited objections from the Uttarakhand Power Corporation which, in turn, is said to have informed that, if the expenditure involved in shifting the transformer was borne by respondent Nos.5 & 6, they had no objection for the transformer to be shifted.

While it is contended on behalf of the U.P. Avas Vikas Nigam, that, only after the transformer was shifted, was the subject plot allotted to the respondent Nos.5 & 6 on 13.12.2000, the petitioner contends, on the basis of a newspaper report, that the transformer, situated at Chandra Chowk, was in fact demolished only on 22.03.2013. The newspaper clipping, which the petitioner relies upon, records that the transformer was damaged by unknown persons.

Be that as it may, a sale deed was executed in the interregnum, in favour of respondent Nos.5 & 6, on 02.03.2008; and the petitioner invoked the writ jurisdiction of this Court on 31.05.2013, nearly 13 years after the subject plot was allotted in favour of the respondent Nos.5 & 6 by the U.P. Avas Vikas Nigam on 13.12.2000, and more than five years after the sale deed was executed in their favour on 02.03.2008. The affidavit, filed in support of the writ petition, does not disclose any reasons for the inordinate delay in invoking the jurisdiction of this Court.

Mr. Ankit Sah, learned counsel for the petitioner, would however place reliance of two judgements of the Supreme Court in Prem Singh and others vs. Birbal and others : 2006 (5) SCC 353, and All India Statutory Corporation and others vs. United Labour Union and others : 1997 (9) SCC 377. In Prem Singh a suit for declaration and partition was filed by the respondents, and it is in this context that the Supreme Court opined that Article 59 of the Limitation Act would apply in cases where coercion, undue influence, misappropriation or fraud arises.

In Air India Statutory Corporation, the Supreme Court held that unfettered power is conferred on the High Court under Article 226 of the Constitution of India which can be exercised by it, except on self imposed limitations. It is useful to quote the observation of the Supreme Court in this regard:-

"............The Founding Fathers placed no limitation or fetters on the power of the High Court under Article 226 of the Constitution except self-imposed limitations. The arm of the Court is long enough to reach injustice wherever it is found. The Court as sentinel on the qui vive is to mete out justice in given facts. On finding that either the workmen were engaged in violation of the provisions of the Act or were continued as contract labour, despite prohibition of the contract labour under Section 10(1), the High Court has, by judicial review as the basic structure, a constitutional duty to enforce the law by appropriate directions. The right to judicial review is now a basic structure of the Constitution by a catena of decisions of this Court starting from Indira Nehru Gandhi v. Raj Narain to Bommai case. It would, therefore, be necessary that instead of leaving the workmen in the lurch, the Court properly moulds the relief and grants the same in accordance with law.

The public law remedy given by Article 226 of the Constitution is to issue not only the prerogative writs provided therein but also any order or direction to enforce any of the fundamental rights and "for any other purpose". The distinction between public law and private law remedy by judicial adjudication gradually marginalised and became obliterated. In LIC v. Escorts Ltd. this Court (in SCC para 102, p. 344) had pointed out that the difficulty will lie in demarcating the frontiers between the public law domain and the private law field. The question must be decided in each case with reference to the particular action, the activity in which the State or the instrumentality of the State is engaged when performing the action, the public law or private law character of the question and the host of other relevant circumstances. Therein, the question was whether the management of LIC should record reasons for accepting the purchase of the shares? It was in that fact-situation that this Court held that there was no need to state reasons when the management of the shareholders by resolution reached the decision. This Court equally pointed out in other cases that when the State's power as economic power and economic entrepreneur and allocator of economic benefits is subject to the limitations of fundamental rights, a private Corporation under the functional control of the State engaged in an activity hazardous to the health and safety of the community, is imbued with public interest which the State ultimately proposes to regulate exclusively on its industrial policy. It would also be subject to the same limitations as held in M.C. Mehta v. Union of India.

.........(emphasis supplied)

While wide powers are conferred on the High Court, under Article 226 of the Constitution of India, exercise of such powers, as noted hereinabove, is subject to self imposed limitations, among which is that the High Court would refrain from exercising its discretionary jurisdiction if the petitioner has approached it after an inordinate delay.

The Supreme Court, in State of M.P. Vs. Nandlal Jaiswal: (1986) 4 SCC 566, observed:

".................Now, it is well settled that the power of the High Court to issue an appropriate writ under Article 226 of the Constitution is discretionary and the High Court in the exercise of its discretion does not ordinarily assist the tardy and the indolent of the acquiescent and the lethargic. If there is inordinate delay on the part of the petitioner in filing a writ petition and such delay is not satisfactorily explained, the High Court may decline to intervene and grant relief in the exercise of its writ jurisdiction. The evolution of this rule of laches or delay is premised upon a number of factors. The High Court does not ordinarily permit a belated resort to the extraordinary remedy under the writ jurisdiction because it is likely to cause confusion and public inconvenience and bring in its train new injustices. The rights of third parties may intervene and if the writ jurisdiction is exercised on a writ petition filed after unreasonable delay, it may have the effect of inflicting not only hardship and inconvenience but also injustice on third parties. When the writ jurisdiction of the High Court is invoked, unexplained delay coupled with the creation of third party rights in the meanwhile is an important factor which always weighs with the High Court in deciding whether or not to exercise such jurisdiction....."

(emphasis supplied)

As noted hereinabove, the petitioner has invoked the jurisdiction of this Court 13 years after the subject plot was allotted in favour of respondent Nos.5 & 6 on 13.12.2000, and more than five years after the sale deed was executed on 02.03.2008. The affidavit, filed in support of the writ petition, is silent regarding the inordinate delay and latches, on the part of the petitioner, in invoking the jurisdiction of the High Court.

We see no reason, therefore, to exercise our discretionary jurisdiction, under Article 226 of the Constitution of India, to entertain this writ petition. Suffice it, while dismissing the writ petition on the ground of inordinate delay and latches, to make it clear that we have not expressed any opinion on merits or regarding the validity or otherwise of the action of the U.P. Avas Vikas Nigam in allotting the subject plot to respondent Nos.5 & 6. No costs.