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Gourendra Pratap Singh Deo Vs. the State of Orissa - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtOrissa High Court
Decided On
Case NumberOriginal Jur. Case No. 1482 of 1975
Judge
Reported inAIR1978Ori94; 44(1977)CLT389
ActsConstitution of India - Article 226
AppellantGourendra Pratap Singh Deo
RespondentThe State of Orissa
Appellant AdvocateC.K. Ghose, ;P.C. Deb and ;C.S. Rath, Advs.
Respondent AdvocateAddl. Standing Counsel
DispositionApplication dismissed
Cases ReferredS. N. Karkhanis v. Union of India
Excerpt:
.....alleged that the order of discontinuance is unconstitutional and has prayed for a direction for payment of the said monthly allowance as well as for payment of his kharposh allowance. he also relies on the fact that the petitioner had made several representations asking for continuing the payment and his last representation of february 1975 (annexure 3) has not, like its predecessors, brought any response. again, where even if there is no such delay the government or the statutory authority against whom the consequential relief is prayed for raises a prima facie triable issue as regards the availability of such relief on the merits on the grounds like limitation the court should ordinarily refuse to issue the writ of mandamus for such payment. a number of supreme court decisions as..........case.in durga prasad v. chief controller of imports and exports, air 1970 sc 769, the applicant claimed relief in 1964 when the cause of action arose in 1959. the supreme court held that if the party chooses to wait and comes to court at a late stage and after a considerable lapse of time requesting for a writ of mandamus, even if his fundamental rights are involved, the high court can refuse the issue of a writ because of the laches of the applicant. similarly in rabindra nath bose v. union of india, air 1970 sc 470, it was held that no relief should be given to the petitioner who without any reasonable explanation approaches the court after inordinate delay and it could not have been the intention that the court would go into stale demands after a lapse of years. in har swarup v......
Judgment:

Das, J.

1. Petitioner is a descendant of the family of the Ruler of the erstwhile State of Dhenkanal which merged in the State of Orissa. He was getting maintenance allowance from the State Government which has been discontinued. He has alleged that the order of discontinuance is unconstitutional and has prayed for a direction for payment of the said monthly allowance as well as for payment of his Kharposh allowance. This application has been heard on the preliminary point of delay and laches.

2. The case of the petitioner is that he happens to be the great grandson of Raja Bhagirathi Mahendra Bahadur, one of the ex-Rulers of the Dhenkanal State and an uncle of the present Raja. He was in receipt of maintenance and khar-posh allowances under the Darbar administration until merger on 1-1-1948. After merger with the State of Orissa, he was also being paid the aforesaid allowances. Since 1949, payment of the said allowances has been stopped. He has now claimed for payment of the aforesaid allowances.

Admittedly, payment of allowances has been discontinued since 1949. The present writ petition has been filed in June, 1975. The learned Advocate-General contends that apart from any other question on merits, the application is liable to be dismissed on the ground of delay. It is contended by Mr. Ghosh, the learned counsel for the petitioner, that the question of delay should not be considered against him, inasmuch as the petitioner is an old man aged about 60 years and the right asked to be enforced being a fundamental right to property, the provisions of the Limitation Act are not attracted and, in equity, he is entitled to get the allowance. He also relies on the fact that the petitioner had made several representations asking for continuing the payment and his last representation of February 1975 (Annexure 3) has not, like its predecessors, brought any response.

3. On the aforesaid circumstances, the petitioner has come forward with his claim about twentysix years after payment was stopped. The claim is a money claim. Undisputedly, the petitioner belongs to the family of Rulers of the erstwhile State of Dhenkanal. It is not his case that he is either illiterate or ignorant. On the other hand, it is admitted by the learned counsel for the petitioner that such a claim as now laid was made previously by a brother of the Ruler and the matter went up to Supreme Court which was finally decided in March, 1964. The said case has also been reported in AIR 1964 SC 1793 (Raj Kumar Narsing Pratap Singh Deo v. The State of Orissa). Therefore, it cannot be said that the petitioner had no knowledge about the legal position.

In State of Madhya Pradesh v. Bhailal Bhai, AIR 1964 SC 1006, a Bench of five Judges has observed (at p. 1011):--

'at the same time the special remedy provided in Article 226 is not intended to supersede completely the modes of obtaining relief by an action in a civil court or to deny defence legitimately open in such actions. The power to give relief under Article 226 is a discretionary power. This is specially true in the case of power to issue writs in the nature of mandamus. Among the several matters which the High Courts rightly take into consideration in the exercise of that discretion the delay made by the aggrieved party in seeking this special remedy and what excuse there is for it. Another is the nature of controversy of facts and law that may have to be decided as regards the availability of consequential relief, xx xx xx. It is not easy nor is it desirable to lay down any rule for universal application. It may, however, be stated as a general rule that if there has been unreasonable delay the Court ought not ordinarily to lend its aid to a party by this extraordinary remedy of mandamus. Again, where even if there is no such delay the Government or the statutory authority against whom the consequential relief is prayed for raises a prima facie triable issue as regards the availability of such relief on the merits on the grounds like limitation the Court should ordinarily refuse to issue the writ of mandamus for such payment. In both these kinds of cases it will be sound use of discretion to leave the party to seek his remedy by the ordinary mode of action in a civil court and to refuse to exercise in his favour the extraordinary remedy under Article 226 of the Constitution.

The provisions of the Limitation Act do not as such apply to the granting of relief under Article 226. However, the maximum period fixed by the legislature as the time within which the relief by a suit in a civil court must be brought may ordinarily be taken to be a reasonable standard by which delay in seeking remedy under Article 226 can be measured. The Court may consider the delay unreasonable even if it is less than the period of limitation prescribed for a civil action for the remedy but where the delay is more than this period, it will almost always be proper for the Court to hold that it is unreasonable.' (Underlining are ours).

4. The aforesaid decision was also considered by a Bench of five Judges of the Supreme Court in Tilokchand Motichand v. H.B. Munshi, AIR 1970 SC 898. It was held therein (at pp. 901, 902):--

'The court will not inquire into belated and stale claims or take note of evidence of neglect of one's own rights for a long time, xx xx Utmost expedition is the sine qua non for such claims. The party aggrieved must explain satisfactorily all semblance of delay xx xx'.

It was also held in that decision that the matter is one of discretion depending on the facts of a given case.

In Durga Prasad v. Chief Controller of Imports and Exports, AIR 1970 SC 769, the applicant claimed relief in 1964 when the cause of action arose in 1959. The Supreme Court held that if the party chooses to wait and comes to Court at a late stage and after a considerable lapse of time requesting for a writ of mandamus, even if his fundamental rights are involved, the High Court can refuse the issue of a writ because of the laches of the applicant. Similarly in Rabindra Nath Bose v. Union of India, AIR 1970 SC 470, it was held that no relief should be given to the petitioner who without any reasonable explanation approaches the Court after inordinate delay and it could not have been the intention that the Court would go into stale demands after a lapse of years. In Har Swarup v. General Manager, Central Railway, AIR 1975 SC 202, it has been observed that the Court cannot examine the claim after delay of about a decade or two.

This Court in Bishnu Charan Mohanty v. State of Orissa, (1973) 1 Cut WR 469 : (AIR 1973 Orissa 199), laid down guiding principles about delay and laches and held that where a suit for identical relief would toe barred by the law of limitation, the Court would ordinarily refuse to exercise discretion to grant relief under Article 226, It was further held that two important circumstances to be borne in mind in all 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 to tilt the balance of justice or injustice in taking the one course or the Other so far as relates to the remedy. Where by the conduct of the party, the delay might fairly be regarded as equivalent to a waiver of the remedy, the relief under Article 226 would be refused. A number of Supreme Court decisions as well as decisions of this Court were considered in the aforesaid case.

5. Reliance has been placed on behalf of the petitioner on Ramchandra Shankar Deodhar v. State of Maharash-tra, AIR 1974 SC 259. But the facts of the case disclose very different circumstance and in paragraph 9 of the judgment, the distinctive features have been noticed. This was a case of provisional promotion on ad hoc basis which had not prejudiced the applicant and no right had accrued in favour of other parties. Reliance has also been placed on Haryana State Electricity Board v. State of Punjab and Haryana, AIR 1974 SC 1806. This was a petition by a Government servant in connection with fixation of his seniority. Meeting the contention of delay the Court said (at p. 1809):

'From the re'sume' of the various dates which have already been given it is apparent that he kept on making representations and moving the appropriate authorities at all stages...... There are several distinguishing features in this case from the connected appeal for not applying the rule in S. G Jaisinghani v. Union of India (AIR 1967 SC 1427) about not disturbing the seniority of those Executive Engineers who were confirmed by orders made some years prior to the filing of the writ petition by B. K. Puri.'

The decision must be confined to its own facts. So also is the case of S. N. Karkhanis v. Union of India, AIR 1974 SC 2302, which is relied upon by the petitioner. As would appear from paragraph 3 of the judgment, the facts and circumstances of the case were completely different and the decision was given according to the peculiar circumstances arising in that case. Cases of seniority, promotion or representations in respect of these aspects have been considered by the Supreme Court on a footing different from matters relating to civil rights as in this case. These decisions do not help the petitioner in any way.

6. In view of the consistent view of the Supreme Court as discussed above and in view of the fact that even though the allowances were discontinued in 1949, the petitioner was silent till the year 1975, when for the first time he made a representation to the Government and the claim being a money claim and the inordinate delay of twentysix years having not been explained, there is no ground for excuse of such delay so as to entertain the writ petition. In fact petitioner has not pleaded in justification of the delay in coming to Court and his counsel seems to be of the view that a representation made a few months before coming to Court and after 26 years after payment stopped gave a fresh cause of action. In these circumstances, we hold that the prayer of the petitioner for issue of mandamus after such inordinate delay should not be allowed while exercising extraordinary jurisdiction under Article 226 of the Constitution. Consequently, this application cannot be entertained and the contentions raised in the application do not arise for consideration.

7. The application is accordingly dismissed. We make no order as to costs.

R.N. Misra, J.

I agree.


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