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TMI Blog2024 (5) TMI 1124X X X X Extracts X X X X X X X X Extracts X X X X ..... In the aforesaid case it has not been held that the period of limitation for filing writ petition is three years - The Hon ble Apex Court clearly held that Writ Court while deciding writ petition is required to remain alive to the nature of the claim and the unexplained delay on the part of the writ petitioner. Violation of principles of natural justice - HELD THAT:- The show cause notice dated 01.04.2023 was issued to the petitioner and the petitioner did not submit any reply. In the order of cancellation in the first sentence it shows that this has reference to your reply dated 18.04.2023 in response to the notice to show cause dated 01.04.2023 , and in the second sentence, it clearly states that no reply to notice was filed by the petitioner . The case of the petitioner is that he did not file any reply. Consequently, there is no violation of principles of natural justice since the petitioner was served with the show cause notice and he did not file any reply. Opportunity of hearing - HELD THAT:- So far as the opportunity before passing the order of suspension is concerned, the suspension was passed during the pendency of the proceedings for cancellation, the opportunity of hear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a High Court or the Supreme Court, as the ease may be, in the case of another person has made him aware of the mistake of law and therefore, he was entitled to refund of duty paid by him? The question was could he invoke Section 72 of the Contract Act in such a case and claim refund and whether in such a case and claim refund it can be said that reading Section 72 of the Contract Act along with Section 17 (1) (c) of the Limitation Act, 1963, the period of limitation for making such a claim for refund, whether by way of a suit or by way of a writ petition, is three years from the date of discovery of such mistake of law? 8. Learned counsel for the petitioner laid emphasis on this part, in para-70 but we are of the considered view that he is mistaken that was the question as was involved. 9. The Hon'ble Apex Court, held that the theory of mistake of law and the consequent period of limitation of three years from the date of discovery of such mistake of law cannot be invoked by an assessee taking advantage of the decision in another assessee's case. All claims for refund ought to be, and ought to have been, only under and in accordance with Rule 11/Section 11B and under no other pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ired to remain alive to the nature of the claim and the unexplained delay on the part of the writ petitioner. 11. In Mrinmoy Maity v. Chhanda Koley 2024 SCC OnLine SC 551, the Hon'ble Apex Court held that delay and laches is one of the factors which should be borne in mind by the High Court while exercising discretionary jurisdiction under Article 226 of Constitution of India in given case, the High Court may refuse to invoke the extraordinary power. In para Nos. 11 & 12, the Hon'ble Apex Court observes as follows: 11. For filing of a writ petition, there is no doubt that no fixed period of limitation is prescribed. However, when the extraordinary jurisdiction of the writ court is invoked, it has to be seen as to whether within a reasonable time same has been invoked and even submitting of memorials would not revive the dead cause of action or resurrect the cause of action which has had a natural death. In such circumstances on the ground of delay and latches alone, the appeal ought to be dismissed or the applicant ought to be non-suited. If it is found that the writ petitioner is guilty of delay and latches, the High Court ought to dismiss the petition on that sole ground itsel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emedy claimed are and when and how the delay arose." 12. It is apposite to take note of the dicta laid down by this Court in Karnataka Power Corporation Ltd. v. K. Thangappan, (2006) 4 SCC 322 whereunder it has been held that the High Court may refuse to exercise extraordinary jurisdiction if there is negligence or omissions on the part of the applicant to assert his right. It has been further held thereunder: "6. Delay or laches is one of the factors which is to be borne in mind by the High Court when they exercise their discretionary powers under Article 226 of the Constitution. In an appropriate case the High Court may refuse to invoke its extraordinary powers if there is such negligence or omission on the part of the applicant to assert his right as taken in conjunction with the lapse of time and other circumstances, causes prejudice to the opposite party. Even where fundamental right is involved the matter is still within the discretion of the Court as pointed out in Durga Prashad v. Chief Controller of Imports and Exports, [(1969) 1 SCC 185 : AIR 1970 SC 769]. Of course, the discretion has to be exercised judicially and reasonably. 7. What was stated in this r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he acquiescent and the lethargic. If there is inordinate delay on the part of the petitioner and such delay is not satisfactorily explained, the High Court may decline to intervene and grant relief in exercise of its writ jurisdiction. It was stated that this 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 unreasonable delay, it may have the effect of inflicting not only hardship and inconvenience but also injustice on third parties. It was pointed out that when writ jurisdiction is invoked, unexplained delay coupled with the creation of third-party rights in the meantime is an important factor which also weighs with the High Court in deciding whether or not to exercise such jurisdiction." 12. The petitioner in the Writ Petition has not explained the laches in filing the writ petition belatedly. Its true that there is no period of limitation for filing the writ petition but at the same time, the petitioner has to approach within reasonable time. In th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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