9911796707
TMI Blog2024 (2) TMI 97X X X X Extracts X X X X X X X X Extracts X X X X ..... ON OF RETAIL TRADERS WELFARE ASSOCIATE AND ORS VERSUS STATE OF MAHARASHTRA AND ORS [ 2022 (2) TMI 1420 - BOMBAY HIGH COURT] , the Division Bench of this Court has observed that it seems to have become a habit in this Court to seek a high prerogative remedy of a mandamus without averring that the petitioner has made a demand for justice and the same having been denied or has even not made a demand at all, let alone explaining how the case fits in the few limited and well-known exceptions to the general rule. Doctrine of Delay and Laches - HELD THAT:- In Union of India and Others Vs. N. Murugesan and Others [ 2021 (10) TMI 1375 - SUPREME COURT] the principles of delay, laches and acquiescence were succinctly explained in which the Court observed that the principles governing delay, laches, and acquiescence are overlapping and interconnected on many occasions, however, they have their distinct characters and distinct elements. It was observed that one can say that delay is the genus to which laches and acquiescence are species. It was observed that laches might be called a genus to a species by name acquiescence. However, there may be a case where acquiescence is involved, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itioner in relation to the imports of the petitioner for the period from 13 January, 2012 to 12 January, 2018. 2. The questions which would primarily arise for consideration are two fold firstly, whether a belated prayer to assail the notifications in question would be maintainable and secondly, whether under the grab of assailing such notifications, a prayer for money claim ought to be entertained. 3. The prayers in the petition are required to be noted, which reads thus: (a) that this Hon ble Court be pleased to issue a writ of Certiorari or a writ in the nature of Certiorari or any other appropriate writ under Article 226 of the Constitution of India, calling for records pertaining to the first impugned notification dated 13 January 2012, issued by the Respondent No. 1 (being Exhibit D hereto) and after going into the validity and Iegality thereof to quash the same. (b) that this Hon ble Court be pleased to issue a writ of Certiorari or a writ in the nature of Certiorari or any other appropriate writ under Article 226 of the Constitution of India, calling for records pertaining to the second impugned notification dated 19 January, 2017, issued by the Responde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otification No. 123 of 2010 - Customs, amending Notification No. 85 of 2006 by adding paragraph 3 in the said notification, stating that Notification No. 85 of 2006 shall remain in force up to and inclusive of 26 August, 2011. It is contended that on 9 August, 2011, respondent No. 1 issued Notification no. 73 of 2011- Customs, amending Notification No. 85 of 2006 by substituting para 3 in the said notification, stating that the earlier Notification No. 85 of 2006 shall remain in force up to and inclusive of 28 November, 2011. It is contended that thereafter on 19 November, 2011 the time period of sunset review had expired, by a notification no. 15/14/2010-DGAD, the Designated Authority had recommended continuation of the antidumping duty. 7. It is the petitioner s case that on 13 January, 2012, respondent no. 1 issued the first impugned notification i.e. No. 3 of 2012. By this notification, anti-dumping duty on import of said materials from the People's Republic of China, Chinese Taipei, Malaysia, Indonesia, Thailand and People s Republic of Korea was re-imposed. It is contended that as per Clause 2 of this Notification, the anti-dumping duty was imposed for a period of five ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... umho Petrochemicals Company Limited and Ors. MANU/SC/0724/2017, 9. It is contended that with such grievance the petitioner recently approached this Court in Writ Petition No. 2097 of 2022 along with other petitioners, which were joint petitions comprising of several parties, which came to be disposed of by an order dated 28 November, 2023, which reads thus: 1. We have extensively heard learned counsel for the petitioners on these petitions. We are not at all satisfied with the frame of the petitions, so as to entertain the challenge of the petitioners and the prayers they have made. We see that Writ Petition No. 2097 of 2022 has 48 petitioners. There are no pleadings on the fact as to how the petitioners are aggrieved. Similar is the position in Writ Petition No. 3798 of 2021 where, there are 171 petitioners as also in Writ Petition No. 1384 of 2021 where, there are 6 petitioners. 2. We are of the clear opinion that if the individual petitioners are aggrieved, they need to file appropriate petitions. We are accordingly not in a position to entertain these petitions. 3. We dispose of these petitions with liberty to the petitioners to take recourse to a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ainability for issuance of a writ of mandamus on the touchstone of demand for justice ; (ii) Doctrine of Delay and Laches; (iii) Whether in view of a prospective decision of the Supreme Court, a cause of action can arise to maintain a Writ Petition; and (iv) Maintainability of a money claim in a Writ Petition. 13. At the outset, we may observe that the present petition is a classic case where the petitioner completely overlooks all the basic essentials/requirements for a litigant to invoke the jurisdiction of this Court under Article 226 of the Constitution of India. This more particularly as the petitioner has made a money claim (prayer clause (c)), thus the basic desire of the petitioner is to directly make a money claim. We may observe that when the petitioner s claim is for refund of the anti dumping duty paid between the period 2012 to 2018, which being a serious prayer made in a writ petition, that too paid by the petitioner acting upon the notifications which were prevailing at that point of time before the writ Court, which needs to be considered by the Court with a grain of salt. The task to succeed in such claim when considered in law, in our opini ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s to which proceedings for prerogative writs are subject in English practice. Nevertheless, the well recognized rule that no writ or order in the nature of a mandamus would issue when there is no failure to perform a mandatory duty applies in this country as well. Even in cases of alleged breaches of mandatory duties, the salutary general rule, which is subject to certain exceptions, applied by us, as it is in England, when a writ of mandamus is asked for, could be stated as we find it set out in Halsbury s Laws of England (3rd Edn.), vol. 13, p. 106): As a general rule, the order will not be granted unless the party complained of has known what it was he was required to do, so that he had the means of considering whether or not he should comply, and it must be shown by evidence that there was a distinct demand of that which the party seeking the mandamus desires to enforce, and that demand was met by a refusal. 25. In the cases before us, there was no such demand or refusal. Thus, no ground whatsoever is shown here for the issue of any writ, order, or direction under Article 226 of the Constitution. 17. In Amrit Lal Berry vs. Collector of Central Excise, New De ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as taken in conjunction with the lapse of time and other circumstances, which would cause prejudice to the opposite party and that the discretion has to be exercised judicially and reasonably. Even when a fundamental right is involved in the matter, it is still the discretion of the Court. Referring to the decision in State of M.P. vs. Nandlal Jaiswal (1986) 4 SCC 566 , it was observed 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 an inordinate delay on the part of the petitioner and such delay is not satisfactorily explained, the High Court would decline to intervene and grant relief in exercise of its writ jurisdiction. It was also held that such 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 an unreasonable delay, it may have the effect of inflicting not only hardship and inconvenience but also injustice on third parties. Also referring to the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts of the citizens, but simultaneously 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. It was observed that delay reflects inactivity and inaction on the part of a litigant who has forgotten the basic norms, namely, procrastination is the greatest thief of time and second, the law does not permit one to sleep and rise like a phoenix. It was observed that delay does bring in hazard and causes injury to the lis. It was also observed that remaining innocuously oblivious to such delay does not foster the cause of justice, on the contrary, it brings in injustice which is likely to affect the others. It was observed that a Court is not expected to give indulgence to such indolent persons who compete with Kumbhakarna and for that matter Rip Van Winkle . In such case, a delay of four years was held to be fatal. Justice Dipak Misra, speaking for the Bench, observed thus:- 16. Thus, the doctrine of delay and laches should not be lightly brushed aside. A writ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iples in Baljeet Singh (dead) through Legal Representatives and others Vs. State of Uttar Pradesh and Others (2019) 15 Supreme Court Cases 33 and held that the matter requires examination from another aspect, namely, laches and delay. It was observed that it is a well recognised principle of jurisprudence that a right not exercised for a long time is non-existent. Even when there is no limitation period prescribed by any statute relating to certain proceedings, in such cases, courts have coined the doctrine of laches and delay as well as doctrine of acquiescence and non-suited the litigants who approached the court belatedly without any justifiable explanation for bringing the action after unreasonable delay. 22. In Union of India and Others Vs. N. Murugesan and Others (2022) 2 Supreme Court Cases 25 the principles of delay, laches and acquiescence were succinctly explained in which the Court observed that the principles governing delay, laches, and acquiescence are overlapping and interconnected on many occasions, however, they have their distinct characters and distinct elements. It was observed that one can say that delay is the genus to which laches and acquiescence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lve acquiescence on the part of the party approaching the Court apart from the change in position in the interregnum. Therefore, it would be unjustifiable for a Court of Equity to confer a remedy to a party who knocks its doors when his acts would indicate a waiver of such a right. By his conduct, he has put the other party in a particular position, and therefore, it would be unreasonable to facilitate a challenge before the Court. Thus, a man responsible for his conduct on equity is not expected to be allowed to avail a remedy. 23. A defence of laches can only be allowed when there is no statutory bar. The question as to whether there exists a clear case of laches on the part of a person seeking a remedy is one of fact and so also that of prejudice. The said principle may not have any application when the existence of fraud is pleaded and proved by the other side. To determine the difference between the concept of laches and acquiescence is that, in a case involving mere laches, the principle of estoppel would apply to all the defences that are available to a party. Therefore, a defendant can succeed on the various grounds raised by the plaintiff, while an issue concerned al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... court cannot be oblivious to such basic requirement a litigant needs to fulfill in undertaking its usual scrutiny of the proceedings. It would certainly not be swayed away or blindfolded for the fact that the party invoking the writ jurisdiction of the High Court is akin to a party in position of a plaintiff in a civil suit when the prayer is of a money claim. 26. In such context, the principles of law as laid down by the Supreme Court are well settled namely that normally a writ petition for a simplicitor money claim would not be maintainable. In Suganmal Vs. State of Madhya Pradesh Ors. AIR 1965 SC 1740 the Constitution Bench of the Supreme Court has observed that the petition under Article 226 of the Constitution solely praying for issue of a writ of mandamus directing the State to refund the money, is not ordinarily maintainable for the simple reason that a prayer for such a refund can always be made in a suit against the authority which had illegally collected money as a tax. In Union of India Vs. Orient Enterprises and Ors. (1998) 3 SCC 501, the Supreme Court considering the decision in Suganmal vs. State of Madhya Pradesh (supra) observed that at the relevant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and Ors. 1984 (16) ELT 171 SC , this Court, while examining the question as to what is the point of time from which the limitation should be deemed to commence observed that relief in respect of payments made beyond the period of three years may not be granted from the date of filing of the petition, taking into consideration the date when the mistake came to be known to the party concerned. Just as an assessee cannot be permitted to evade payment of rightful tax, the authority which recovers tax without any authority of law cannot be permitted to retain the amount, merely because the tax payer was not aware at that time that the recovery being made was without any authority of law. In such cases, there is an obligation on the part of the authority to refund the excess tax recovered to the party, subject of course to the statutory provisions dealing with the refund. 28. Certainly, even assuming that the petitioner in the present case has paid the duty under any mistake (when in fact it is not so) in the present facts, the petition would not be maintainable. 29. In the light of the aforesaid discussion, we are more than certain that the petition needs to fail. It is accord ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
