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TMI Blog2014 (9) TMI 378X X X X Extracts X X X X X X X X Extracts X X X X ..... d vide letters dated 4-6-1992 and 24-3-1993. Despite the rejection of the case of the petitioner, then chose to sit over the matter and let considerable time run by. The explanation that the petitioner was making representation is not an explanation which can be considered as a sufficient explanation for this inordinate delay of about five years in approaching this Court. In the normal course of things limitation to file a suit for recovery or to agitate a claim against the Government for refund of any amount wrongfully claimed or paid would be three years. - writ petition dismissed - Decided against the assessee. - W.P. (C) No. 497 of 1996 - - - Dated:- 22-8-2013 - Sanjiv Khanna and Sanjeev Sachdeva, JJ. Shri Ankur Mittal, Advocate, for the Petitioner. Ms. Meera Bhatia, S/Shri Kamal Nijhawan and Sumit Gaur, Advocates, for the Respondent. JUDGMENT The petitioner has filed the present petition seeking setting aside of letter/order dated 24-3-1993 passed by the Respondent No. 2 and the letters/order dated 15-9-1991 passed by Respondent No. 3. 2. The petitioner on 9-2-1990 procured orders for export of 40 units of ultrasound scanners from a company in Mosco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) and requested for re-examination of the claim for drawback and for refund of the customs duty. 8. On 24-3-1993 the Senior Analyst (DBK) referring to the letter of the petitioner dated 20-11-1992 informed the petitioner that its case had been reconsidered and found that the petitioner had not filed any application in the prescribed proforma enclosing the DBK statements and the export documents for fixation of brand rate within the time period prescribed under Rule 6(1) of Drawback Rules, 1971. Accordingly the petitioner was informed that the case had been once again rejected as time-barred. 9. The petitioner thereafter represented to the Senior Analyst vide letter dated 25-9-1993 and 16-6-1994 and to the Collector of Customs on 25-4-1995. 10. Being aggrieved by the rejection of the claim for refund of duty or drawback the petitioner filed the present writ petition on 18-1-1996 impugning the letters/orders dated 15-9-1991 and 24-3-1993. 11. The case of the petitioner is that the petitioner paid the customs duty under protest and the petitioner had on 24-10-1990 fulfilled the export obligations and as such was entitled to the drawback. The petitioner filed a claim for dr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt. All that the petitioner continued to do was to write letters and representation to the respondents. Even if assuming that the respondents had not passed an appropriate order and had merely rejected the claim of the petitioner by way of a mere letter or the order was erroneous, the remedy of the petitioner was to promptly assail the letter or the order before an appropriate forum or by way of a petition to this Court and not sleep over the matter and let the matter lie for years. 15. The petitioner filed the present petition after a lapse of over 5 years from the alleged entitlement on 24-10-1990 and nearly five years from the first rejection of the claim of the petitioner on 15-9-1991. 16. Clearly the petitioner let the time to run by without availing of the appropriate remedies available to the petitioner. No doubt, no time-limit has been prescribed for filing a petition under Article 226 of the Constitution of India, but still judicial discipline demands that a party seeking to avail remedies under Article 226 should not be permitted to sleep over the matter and be permitted to rake up issues long after the said issues have been closed by the authorities. 17. In the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty 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 amounting to a bar by any statute of 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. 48. In Amrit Lal Berry v. CCE, this Court took the view that : (SCC p. 726, para 16) 16. ... if a petitioner has been so remiss or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a rigid rule which can be cast in a straitjacket formula, for there may be cases where despite delay and creation of third-party rights the High Court may still in the exercise of its discretion interfere and grant relief to the petitioner. But, such cases where the demand of justice is so compelling that the High Court would be inclined to interfere in spite of delay or creation of third-party rights would by their very nature be few and far between. Ultimately it would be a matter within the discretion of the Court; ex-hypothesi every discretion must be exercised fairly and justly so as to promote justice and not to defeat it. 53. Reliance is also placed on the observations made by this Court in Dehri Rohtas Light Railway Co. Ltd. v. District Board, Bhojpur, wherein it is observed : (SCC pp. 602-03, para 13) 13. The rule which says that the Court may not enquire into belated and stale claim is not a rule of law but a rule of practice based on sound and proper exercise of discretion. Each case must depend upon its own facts. It will all depend on what the breach of the fundamental right and the remedy claimed are and how delay arose. The principle on which the relief to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dinate and unexplained delay in approaching the Court in a writ, is indeed an adequate ground for refusing to exercise discretion in favour of the petitioners therein. The unexplained delay on the part of the petitioner in approaching the High Court for re-dressal of their grievances under Article 226 of the Constitution was sufficient to justify rejection of the petition. 20. The Supreme Court has thus laid down that High Court cannot entertain belated claims unless the petitioner offers tangible explanation for approaching the Court belatedly. Delay and laches is one of the factors that is required to be borne in mind by the High Court while exercising the discretionary power under Article 226 of the Constitution of India. 21. Where, by his conduct or neglect, a party has permitted time to lapse, such default may even tantamount to a waiver of the rights of the party. The jurisdiction of a High Court to issue an appropriate writ is discretionary. Relief cannot be claimed as of a due course. One of the grounds for refusing relief is unexplained delay and laches on behalf of the party in approaching the Court. It has consistently been held that inordinate delay in moving the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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