EASTERN COALFIELDS LTD. v. DUGAL KUMAR

Citation: [2008] 11 S.C.R. 369

Court: Supreme Court of India

Bench: C.K. THAKKER, LOKESHWAR SINGH PANTA

Case summary

EASTERN COALFIELDS LTD. v. DUGAL KUMAR.pdf

Judgment text

[2008] 11 S. C. R. 369 )r EASTERN COALFIELDS LTD. v. DUGAL KUMAR (Civil Appeal NO. 245 of 2004) JULY 28, 2008 ... __,, [C. K. THAKKER AND LOKESHWAR SINGH PANTA, JJ. ] Constitution of India, 1950 - Articles 226 and 32 - Coal company offered employment or coal to persons in lieu of land acquired or purchased by it- Award of 1008 MTs coal to petitioner against land purchased by Company - Writ petition filed after a decade seeking directions to the Company to release balance quantity of 1008 MTs coal-Allowed by High Court by order dated 06. 09. 1999 - Subsequently, on mere mentioning of the matter by counsel, by order dated 13. 09. 1999, High Court enhanced balance quantity of coal to 6008 MTs - Appeal thereagainst dismissed - SLP dismissed as withdrawn - Review Petition also dismissed by High Court - On appeal, held: Petitioner entitled to 1008 MTs coal awarded to him initially as a/so balance quantity of 1008 MTs coal awarded to him by order dated 06. 09.

1999 - Order was passed on basis of statement by counsel for Company that usual order may be passed - Thus, objection regarding delay in filing writ petition as also territorial jurisdiction of High Court cannot be upheld - However, High Court not justified in .... passing order dated 13. 09. 1999 on mere mentioning of mat- I ter without any application for modification/clarification of order dated 06. 09. 99 - Hence, that part of the order set aside. Appellant-Company formulated a Scheme whereby it offered employment to a person whose one acre of land was acquired, purchased or used by the Company. Subsequently, the policy was changed and 800 Metric Tons (MTs) of coal was offered in lieu of employment of a fam- ily member. In 1996, the policy was again modified and the entitlement was increased to 1600 MTs. Appellant- Company purchased the land of the respondent measuring 1. 26 acres and executed a registered' sale deed at Dhanbad.

As per the policy, the Company offered 1008 MTs of coal to the respondent. The respondent accepted the same and the coal was released. After a period of ten years, the respondent filed a writ petition before the Calcutta High Court seeking directions to the Company to release additional quantity of 1008 MTs coal to the respondent. The writ petition was placed for 'first' hearing on 6. 09. 1999, and in view of the statement of the counsel for the Company that 'usual order' be passed in the matter, the petition was disposed of.. The Single Judge of High Court directed the Company to allot "balance quantity of 1008 MTs" of coal to the writ-petitioner. Thereafter, on 0 13. 09. 1999, the respondent mentioned the matter without filing any application and the High Court enhanced the balance quantity of coal to 6800. MTs. The Company filed appeal challenging the order of the Single Judge of High Court. The Division Bench of the High . Court dismissed the appeal.

Aggrieved, appellant filed SLP which was subsequently withdrawn as the Company wanted to file 'Review Petition' in the High Court. Thereafter, the appellant filed Review Petition. The Division Benc. h of the H. igh Court dismissed the same. Hence the present appeaJ. Partly allowing the appeal, the Court HELD: 1. 1 With regard to the technical objection raised by the Company as to territorial jurisdiction of the High Court of Calcutta it would not be appropriate to set aside the order passed in favour of the writ petitioner on that ground. It is clear from the record that the writ petition came up for admission hearing on September 6, 1999 and the counsel for the appellant-Company was. present. Not only that he did not raise any objection as to territorial jurisdiction of the Court, he expressly made a state- KUMAR . , ment before the Court to pass "usual order".

Accordingly, an order was passed directing the Company to allot "balanee quantity of 1008 MTs" of coal to the writ petitioner. Therefore, it cannot be said that the High Court of Calcutta had no territorial jurisdiction to entertain the writ petition. [Para 13] [380-C-F] . .... - 1. 2 The submission that the appeal is not maintainable since the Company had challenged the orqer passed in Review Petition dated January 28, 2002 and not the main order dated February 17, 2000 dismissing intra-Court appeal. cannot be accepted. It was submitted that when Review Petition was dismissed, the order passed by the Division Bench in intra-Court appeal got merged in the order of Review Petition. But even otherwise, when the order passed in the Review Petition is challenged, itwould . not be proper to dismiss this appeal particularly when leave was granted in SLP after hearing the parties. [Para ~ 14] [380-F, 381-A] 1.

3 It is well-settled that under Article 226 of the Constitution, the power of a High Court to issue an appropriate writ, order or direction is discretionary. One of the grounds to refuse relief by a writ Court is that the petitioner is guilty of delay and laches. It is imperative, where the petitioner invokes extra-ordinary remedy under Article 226 of the Constitution that he should come to the Court at the earliest reason~bly possible opportunity. Inordinate delay in making the motion for a writ is indeed an adequate ground for refusing to exercise discretion in favour of the applicant. [Para 15] (381 B-D] Tilokchand Motichand v. H. B. Munshi 1969 (2) SCR 824; Rabindra Nath Bose v. Union of/ndia 1970 (1) SCR 697, Express Publications v. Union of India 2004 (11) SCC 526; Ramchandra Deodhar v. State of Maharashtra 1974 (1) SCC 317 - relied on. R. v. Essex Country Council 1993 COD 344; R. v. Dairy Produce Quota Tribunal 1990 (2) AC 738 Lindsay Petroleum Co. v.

Prosper Armstrong 1874 (5) PC 221 - referred to. 1. 4 The Single Judge should not have entertained a writ petition in 1999 and directed the Company to release balance quantity of 1008 MTs of coal to the writ petitioner. The order was passed in view of the statement of the coun- 'j.. - · by the learned single Judge and even at that stage, no reply was filed. According to the Court, therefore, there was no reason to interfere with the order of the single Judge and the appeal was dismissed. 8. The Company challenged the order passed by the Division Bench of the High Court by filing Special Leave Petition No. 8238 of 2000. When the matter came up for admission hearing, it was withdrawn on May 12. 2000. The said order mentioned that the learned counsel for the Company stated that the Company would file 'Review Petition' in t~e High Court The >--special leave petition was accordingly 'dismissed as withdrawn'.

Thereafter Review Petition was filed by the Company in the High Court and as stated above, the Review Petition was also dismissed by the Court observing that there was "no apparent error to review the order". The said order is challenged in the present appeal. 9. Initially when the matter was placed for admission hearing, notice was issued on August 12, 2002. It appears that the ~ Special Leave Petition was dismissed on February 12, 2003, but the said order was recalled by the Court on September 12, 2003. On January 12, 2004, leave was granted, printing was dispensed with and the appeal was ordered to be heard on SLP paper books. Parties were granted liberty to file additional documents. Original record was requisitioned. Interim stay ......... :;( against the order passed by the High Court was also granted .

On March 7, 2008, a Bench of this Court presided over by Hon'ble the Chief Justice of India directed final hearing of the matter during summer vacation and accordingly the matter was placed before us for final disposal on May 27, 2008. 10. We have heard the learned counsel for the parties. 11. The learned counsel for the appellant-Company contended that tne orders passed by the High Court are liable to be set aside. It was submitted that admittedly, the transaction of sale took place in Dhanbad. Both the parties -the appellant J .. as well as respondent - were residing at Dhanbad The entire \ "" cause of action thus arose within the territorial jurisdiction in the State of Bihar (now within Jharkhand area). The High Court of Calcutta, therefore, had no territorial jurisdiction to entertain, deal with and decide the writ petition. On that ground alone, the orders passed by the High Court of Calcutta are liable to be set aside.

It was also submitted that admittedly sale deed was executed in February, 1989 by the respondent. The Company paid the amount of consideration and offered 1008 MTs coal under the policy then in force over and above the amount of consider- ·~ ation of property. The writ- petitioner accepted the offer, release order was issued and the goods had been delivered to him which the writ petitioner accepted without any protest or objection. It was after' about 10 years that a writ petition was filed which was entertained and orders were passed by the High Court. According to the appellant, there was gross delay and laches on the part of the writ petitioner in approaching the Court )' and on that ground also, no order could have been passed granting relief in favour of the writ petitioner. Moreover, there was no right-duty relationship between the writ petitioner and the Com- ~ ·A pany. The right of the writ petitioner was limited to consideration in lieu of land sold to the Company.

The said amount had already been paid to the writ petitioner. It was only on the basis of the policy'that coal was offered to the writ-petitioner. Even if it is assumed that the writ petitioner had right to get coal as per the policy adopted by the Company, the quantity to which the )( --;;,... respondent was entitled was given to· him. Thereafter there was no cause for making grievance against the Company. It is only on the basis of 1996 Policy that additional quantity was de- .. rnanded by the writ-petitioner by filing writ petition in 1999 to which there was no entitlement on the part of the writ petitioner. Even on that ground, therefore, the petition was liable to be dismissed. The counsel also argued that when the writ petitioner was paid consideration for land as also coal under the policy in force and when it was accepted without any protest, the writ petitioner was estopped under the doctrine of equitable estoppel to challenge the said decision.

By his conduct, writ peti- :tioner made it abundantly ·clear that he was satisfied as to the )quantity which was offered to him and after acceptance thereof, it was notopen to challenge the said decision. It was also urged that the learned single Judge was not right in observing that the writ-petitioner was entitled to relief as prayed in the writ petition on the ground that no counter affidavit was filed by the Company. The record reflects that writ petition was filed by the writ petitioner on February 18, 1999. It was placed for 'first' hearing on September 6, 1999 and on the same day, the matter was disposed of. It was, therefore, not proper for the Court to observe that since no affidavit was filed by the Company, the prayer )>.. of the petitioner should be granted.

A grievance was also made that even after the decision on September 6, 1999, without there being any application, the order was modified on mentioning ·the matter and the quantity was enhanced from additional 1008 MTs to 6800 MTs which was clearly illegal and without jurisdiction: In Letter Patents Appeal also, the fact of non~filing of affi- -( davit by the Company weighed with the Division Bench, but as already stated, the matter was taken up and disposed of on one and the same day at the 'first' hearing by the learned single Judge and there was no default on the part of the Company. It was submitted by the counsel that when the grievance was made against the order passed by the Division Bench of the High Court in the Special Leave Petition, this Court had observed that the counsel for the Company wanted to file Review Petition f and SLP was, therefore, dismissed as withdrawn. But even . ,...

_ )( thereafter the Division Bench dismissed the Review Petition which necessitated the Company to approach this Court again. It was, therefore, submitted that the orders passed by the High Court may be set aside by allowing the appeal and holding that the writ petitioner was not entitled to additional quantity of coal and the High Court should not have ordered the Company to supply coal. 12. The learned counsel for the respondent-writ petitioner supported the orders passed by the High Court. It was submitted that the learned single Judge was wholly right in observing that no affidavit was filed by the Company. Moreover, the learned ~ counsel for the Company appeared in the Court and made a statement that 'usual order' be passed. Accordingly, the order was passed and thereafter it was not open to the Company to raise an objection against such order.

An objection as to territorial jurisdiction of the Court also looses its significance in the light of the statement made by the counsel appearing for the Company. In the affidavit-in-reply, it was stated by the writ petitioner that several similarly situated persons were granted the benefit and additional quantity of coal was given to them. Copies of the orders in favour of all those persons were placed on record in the counter-affidavit. It was further stated that the policy was modified in 1996 and additional quantity of coal was given to land losers. Such benefit was also granted to other persons. Refusal to grant similar benefit to the writ petitioner was violative ofArticle 14 of the Constitution. The counsel submitted that in the circumstances, the Division Bench was right in not enterr taining intra-court appeal on the ground that if counter was not filed by the Company, the Company had to thank itself.

Again, it is not true to say that liberty was granted by this Court to file ~ Review Petition. Special Leave Petition was dismissed as withdrawn but this Court did not grant liberty to file Review Petition. Hence, the Review Petition itself was not maintainable. The counsel also contended that even in the present proce_edings, the prayer is only to set aside an order pass~d in Review on January 28, 2002. The'main order passed in intra-court appeal t- )(---- (dismissing the appeal) has not been challenged. It was, therefore, submitted that on all these grounds~no interference is called for and the appeal deserves to be dismissed. 13;. Having heard the learned counsel for the parties, in ~ our opinion, the appeal deserves to be partly allowed.

So far as the technical objection raised by the Company with regard to territorial jurisdiction of the High Court of Calcutta is concerned, in our opinion, it would not be appropriate to set aside the order passed in favour·of the writ petitioner on that ground. It is D . clear from the record that the writ petition came up for admis- .. ,. , sion hearing on September 6, 1999 and the counsel for the appellant-Company was present. Not only that he did not raise ·:any objection as to territorial jurisdiction of the Court, he expressly made a statement before the Court to pass "usual order''. Accordingly, an order was passed directing the Company to allot "balance quantity of 1008 MTs" of coal to the writ petitioner. We are, therefore, unable to uphold the contention of the learned counsel for the appellant-Company that the High Court of Calcutta had no territorial jurisdiction to entertain the writ petition. )... _ 14.

But we are also unable to uphold the contention of the writ petitioner that the appeal is not maintainable since the Company had challenged the order passed in Review Petition dated January 28, 2002 and not the main order dated February ;G 17, 2000 dismissing intra-Court appeal. It was submitted by the learned counsel for the appellant that when Review Petition was dismissed, the order passed by the Division Bench in in- --( tra-Court appeal got merged in the order of Review Petition. But even otherwise, when the order passed in the Review Petition is challenged, it would not be proper to dismiss this appeal 1! EASTERN COALFIELDS LTD. v. DUGAi 381 particularly when leave was granted in SLP after hearing the parties. We, therefore, reject the objection raised by the writ petitioner. 15. As to delay and ! aches on the part of the writ petitioner, there is substance in the argument of learned counsel for the + j appellant-Company.

It is well-settled that under Article 226 of the Constitution, the power of a High Court to issue an appropriate writ, order or direction is discretionary. One of the grounds to refuse relief by a writ Court is that the petitioner is guilty of delay and ! aches. It is imperative, where the petitioner invokes extra-ordinary remedy under Article 226 of the Constitution, that r he should come to the Court at the earliest reasonably possible opportunity. Inordinate delay in making the motion for a writ is indeed an adequate ground for refusing to exercise discretion in favour of the applicant. ~ 16. Under the English law, an application for leave for judicial review should be made "promptly". If it is made tardily, it may be rejected. The fact that there is breach of public law duty does not necessarily make it irrelevant to consider delay or laches on the part of the applicant.

Even if leave is granted, the question can be considered at the time of final hearing whether relief should be granted in favour of such applicant or not. (Vide R. v Essex Country Council, 1993 COD 344). 17. In R. v Dairy Produce Quota Tribun;:il, (1990) 2 AC 738, 749: (1990) 2All ER 434: (1990) 2 WLR 1302, the House ~ of Lords stated; "The public interest in good administration requires that public authorities and third parties should not'be kept in suspense as to the legal validity of a decision the authority has reached in purported exercise of decision making powers for any longer period than is absolutely necessary ""')in fairness to the persons affected by the decision". 18. The underlying object of refusing to issue a writ has been succinctly explained by Sir Barnes Peacock in Lindsay L Petroleum Co. v. Prosper Armstrong, (1874) 5 PC 221 : 22 WR492 thus; "Now the doctrine of ! aches 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 8 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, la. pse 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 amounting to a bar by any statute or limitations, 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. " (emphasis supplied) 19. This Court has accepted the above principles of English law. In Tilokchand Motichand v. H. B. Munshi, (1969) 2 SCR 824 and Rabindra Nath Bose v. Union of India, (1970) 1 SCR 697, this Court ruled that even in cases of violation or infringement of Fundamental Rights, a writ Court may take into account delay and laches on the part of the petitioner in approachjng the Court. And if there is gross or unexplained delay, the Court may refu,se to grant relief in favour of such petitioner. 20. It is not necessary for us to refer to several decisions on this point wherein a similar view has been taken by this Court. Suffice it to say that in Express Publications v.

Union of India, (2004) 11 SCC 526, this Court ~eferring to Tilokchand ~ Motichand, Rabindranath Bose and Ramchandra Deodhar v. State of Maharashtra, (1974) 1 SCC 317, explained the principle thus; "No hard and fast principle can be laid down that under no circumstances delay would be a relevant consideration in judging constitutional validity of a provision. It has to be :-... 'f remembered that the constitutional remedy under Article 32 is discretionary. In one case, this Court may decline discretionary relief if person aggrieved has slept over for long number of years. In another case, depending upon the nature of violation, court may ignore delay and pronounce upon the invalidity of a provision. It will depend from case to case. " (emphasis supplied) 21. Prima facie, we are satisfied that the learned single Judge should not have entertained a writ petition in 1999 and in directing the Company to release balance quantity of 1008 MTs of coal to the writ petitioner.

But as observed earlier, the order was passed in view of the statement of learned counsel appearing for the Company that the Court could pass "usual order" and accordingly the order was passed. It was also stated by the writ petitioner in the counter-affidavit that similar orders were passed in several matters. It would, therefore, be appropriate if we extend the benefit to the writ petitioner of the order passed by the learned single Judge to the extent of "balance quantity of 1008 MTs of coal", which was _based on the 'statement' by the counsel for the Company. 22.

In our view, however, the learned counsel for the appellant-Company is right that after the writ petition was disposed of on September 6, 1999 wherein balance quantity of 1008 MTs of coal was directed to be allotted to the writ petitioner, the learned single Judge was not justified in passing an order on r September 13, 1999 on mentioning of the matter without there being any application for modification/clarification of the order dated September 6, 1999. I ' 23. On September 13, 1999, the following order was ~ passed by the learned single. Judge; "Mr. D. P. Majumdar, Adv. Mentions and submits. Mr. A. K. Mitra, Adv. Appears and submits. The Court: The last but third paragraph of the order dated 6. 9. 99 is corrected in the manner as follows:- ¥ •• The respondents are directed to allot balance quantity_ of 6800 M. T. of Steam Coke, Grade-D quality of Coal t6 the petitioner in terms of the release order dated 25. 5. 1989 from Nayandanga Colliery, Mugma Area in terms of Annexure 'C'.

The supply is to be effected within a period of eight weeks from the date of communication of this order. This order is incorporating into the earlier order dated 6. '9. 99. .. All parties are to act on a signed copy of the minutes of this order. " 24. We are also of the view that in the light of the above. order, the Division Bench ought to haye interfered with the di- . rection of the learned single Judge in the order dated September 13, 1999 and intra-Court. appeal ought to have been allowed. When the intra-Court appeal was dismissed, the appellant approached this Court by filing Special Leave Petition. It was dismissed as withdrawn as the Company wanted to move the Division Bench in Review Petition. To us, on the facts and in ~the circumstances of the case, the Division Bench ought to have considered the aforesaid aspect and passed an appropriate order in accordance with law. 25.

From the totality of circumstances, we are of the considered view that the respondent-writ petitioner was entitled to the price (consideration) for the land sold by him by registered -r sale deed to the Company which has already been paid to him. ! He was also entitled to 1008 MTs of coal which was given to him as per the Policy. He was further entitled to 1008 MTs which has been ordered to be given to him towards "balance quantity" on the basis of statement made by the Counsel for the Company and in terms of 'usual order' dated September 6, 1999 passed by the learned single Judge. We are, however, convinced that the learned single Judge was not justified in granting prayer on mentioning the matter on September 13, 1999 without any application for modification of earlier order and direction to the Company to allot to the writ petitioner balance quantity of 6800 MTs of steak coal Grade-D quality. To that extent, therefore, the appeal filed by the Company deserves to be allowed. 26.

For the foregoing reasons, the appeal is partly allowed and the writ petitioner is held entitled to 1008 MTs as initially awarded to him as also 1008 MTs of coal towards "balance quantity" as per the order dated September 6, 1999. The writ petitioner will not be entitled to anything more. If the said quantity of coal has already been allotted, the Company has discharged its liability and nothing more is required to be done. But if it has not released the said quantity, the writ petitioner would be entitled to coal to the above extent. On the facts and in the circumstances of the case, there will be no order as to costs. N. J. Appeal partly allowed.