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FACULTY OF LAW

JAMIA MILLIA ISLAMIA

CODE OF CIVIL PROCEDURE- II


CLASS ASSIGNMENT

ON

LACHES IN WRIT PROCEEDINGS

Presented By:
SHOAIB KHAN
Roll no. – 34, Section B,
8th SEMESTER; 4th Year
BA.LLB. (Hons.)
ACKNOWLEDGEMENT

First and foremost, I would like to express my deepest gratitude to Mr.


Rishikesh Singh Fauzdar, our teacher, for helping me with the basics and
technicalities of the subject Code of Civil Procedure. He has been very inspiring
and always willing to extend his helping hand for the students.

After him, I take this opportunity to thank my parents, who have constantly
supported me with my efforts.

I hope you will enjoy going through this assignment.

Regards
Shoaib Khan
BA.LLB. (Hons.)

TABLE OF CONTENTS

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Introduction ........................................................................................................... 3

Writ Petitions ........................................................................................................ 4

Article 32: Enforcement of Fundamental Rights .................................................. 5

Doctrine of laches ................................................................................................. 6

Laches in Writ Proceedings .................................................................................. 8

Bibliography........................................................................................................ 16

INTRODUCTION

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It is a fundamental principle of administration of justice, that the courts will aid those who are
vigilant and who do not sleep on their rights. In other words, the courts would refuse to
exercise their jurisdiction in favour of a party who moves them after considerable delay and
is otherwise guilty of laches. For that the Limitation Act has been prescribed period of
limitation to 90 days. This principle embodied in the equity maxim “Delay defeats equity"'
and in the statutes of limitations is intended to discourage unreasonable delay in presentation
of claims and enforcement of rights. Claims which have been delayed unreasonably in being
brought forward may be rejected. However, this rule is not absolute. The laches which will
disqualify for relief must be "unreasonable11 under the particular circumstances. Delays
which have caused no harm to the other party to the proceedings may not be considered such
"unreasonable” delays. Only if the delay has changed the situation so that such late enforce-
ment of rights will be unfair, will it disentitle the party to relief. This, of course, requires
exercise of sound judicial discretion. It is proposed to examine the approach of our higher
judiciary, the Supreme Court and the High Courts towards the problem of laches in the
exercise of their writ jurisdiction under articles 32 and 226 respectively.

WRIT PETITIONS

Articles 32 and 226 are the provisions of the Constitution that together provide an effective
guarantee that every person has a fundamental right of access to courts. Article 32 confers
power on the Supreme Court to enforce the fundamental rights. It provides a guaranteed,
quick and summary remedy for enforcing the Fundamental Rights because a person can go
straight to the Supreme Court without having to go undergo the dilatory process of
proceeding from the lower to higher court as he has to do in other ordinary litigation. The
Supreme Court is thus constitution the protector and guarantor of the fundamental rights.

The High courts have a parallel power under Article 226 to enforce the fundamental rights.
Article 226 differs from Article 32 in that whereas Article 32 can be invoked only for the
enforcement of Fundamental Rights, Article 226 can be invoked not only for the enforcement
of Fundamental Rights but for any other purpose as well. This means that the Supreme Courts
power under Article 32 is restricted as compared with the power of a High Court under
Article 226, for, if an administrative action does not affect a Fundamental Right, then it can
be challenged only in the High Court under Article 226, and not in the Supreme Court under

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Article 32. Another corollary to this difference is that a PIL (Public Interest Litigation) writ
petition can be filed in Supreme Court under Article 32 only if a question concerning the
enforcement of a fundamental right is involved. Under Article 226, a writ petition can be
filed in a High court whether or not a Fundamental Right is involved.

The provision of legal aid is fundamental to promoting access to courts. The Supreme Court
of India has taken imaginative measures to promote access to justice when people would
otherwise be denied their fundamental rights. It has done this by the twin strategy of
loosening the traditional rules of locus standi, and relaxing procedural rules in such cases.
Thus where it receives a letter addressed to it by an individual acting pro bono publico, it may
treat the letter as a writ initiating legal proceedings. In appropriate cases it has appointed
commissioners or expert bodies to undertake fact-finding investigations. Thus, the
mechanism of PIL now serves a much broader function that merely espousal of the
grievances of the weak and the disadvantaged persons. It is now being used to ventilate
public grievances where the society as a whole, rather than a specific individual, feels
aggrieved.

ARTICLE 32: ENFORCEMENT OF FUNDAMENTAL RIGHTS

Article 32 empowers the Supreme Court to issue directions or orders or writs in the nature of
habeas corpus, mandamus, prohibition, quo warranto and certiorari for the enforcement of
fundamental rights. Further, the right to move the Supreme Court for enforcement of
fundamental rights has been made a guaranteed right. Article 32 provides a guaranteed, quick
and summary remedy for enforcing the fundamental rights because a person can go straight to
the Supreme Court without having to undergo the dilatory processes of proceeding from the
lower to the higher court as he has to do in other ordinary litigation. The Supreme Court has
thus been constituted into the protector and guarantor of the fundamental rights. Under
Article 32, the court enjoys a broad discretion in the matter of framing the writs to suit the
exigencies of the particular case and it would not throw out the application of the petitioner
simply on the ground that the proper writ or direction has not been prayed for. 1 The Court’s
power is not confined to issuing writs only; it can make any order including even a
declaratory order, or give any direction, as may appear to it to be necessary to give proper

1
Chiranjit Lat v. India, AIR 1951 SC 41.

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relief to the petitioner. The Court would not refuse to entertain any petition filed under
Article 32 of the Constitution merely on the ground that it involved the determination of
disputed question of fact.

DOCTRINE OF LACHES

The doctrine of laches is based upon maxim that ‘equity aids the vigilant and not those who
slumber on their rights’. It is defined as neglect to assert a right or claim which, taken
together with the lapse of time and other circumstances causing prejudice to adverse party,
operates as bar in Court of equity.

The elements of laches are-

(i) unreasonable lapse of time,


(ii) neglect to assert a right or claim,
(iii) to the detriment of another.

If these three elements are met, then the doctrine of laches will act as a bar in Court.

Laches is, therefore, considered as an unreasonable delay in pursuing a right or claim. In a


way it prejudices the opposing party. When asserted in litigation, it is an equitable defence, or
doctrine. The person invoking laches is asserting that an opposing party has slept of on his
“right” and that as a result of this delay, circumstances have changed such that it is no longer
just to grant the petitioner’s claim.

To put in other way, failure to assert one’s right in a timely manner results in a claim being
barred by laches. Laches is a defence to a proceeding in which a petitioner seeks equitable
relief. Cases in equity are distinguished from cases at law by the type of remedy, or judicial
relief, sought by the petitioner.

Generally, law cases involve a problem that can be solved by the payment of monetary
damages. Equity cases involve remedies directed by the Court against a party. The law
encourages a speedy resolution for every dispute. Cases in law are governed by statutes of
limitation, which are lodged that determine how long a person has to file a law suit before the
right to sue expires.

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Different types of injuries have different time periods in which to file a law suit. Laches is the
equitable equivalent of statutes of limitation. However, unlike statutes of limitation, laches
leaves it up to the Court to determine, based on the unique facts of the case, whether a
petitioner has waited too long to seek the relief.

In the case of Shankara Cooperative Housing Society Limited v. M. Prabhakar & ors.2, the
Apex Court in para 46 and 47 has held as follows:-

“Delay and laches is one of the factors that requires to be borne in mind by the High Courts
when they exercise their discretionary power under Article 226 of the Constitution of India.
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 rights taken in
conjunction with the lapse of time and other circumstances.”

The Privy Council in Lindsay Petroleum Co. v. Hurd3, , which was approved by Apex Court
in Moon Mills Ltd. v. Industrial Court4, and Maharashtra SRTC v. Balwant Regular Motor
Service5 , has stated:

“Now the doctrine of laches 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 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

2
(2011) 5 SCC 607.
3
(1874) LR 5 PC 221.
4
AIR 1967 SC 1450.
5
AIR 1969 SC 329.

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balance of justice or injustice in taking the one course or the other, so far as it relates to the
remedy.6

LACHES IN WRIT PROCEEDINGS

In the context of laches vis-a-vis writ petitions under article 32, the relevant questions which
arise for consideration are:-

(i) whether any time limit at all can be imposed on article 32 petitions and
(ii) whether the Supreme Court would apply by analogy the provisions of the Indian
Limitation Act appropriate to the facts of the case or any other limit.

It can be presumed in the of statement of the Court that if the explanation given for the delay
is convincing and acceptable, the writ petition should not be dismissed on the sole ground of
delay in the case of State of U.P. v. Bahudur Singh.7

“Laches or inordinate delay on the part of the petitioner may disentitle him to move a writ
petition under Article 32 to enforce his fundamental right. The court refuses relief to the
petitioner on the ground of laches because of several considerations, e.g. it is not desirable to
allow stale claims to be canvassed before the court; that there should be finality to litigation,
that rights which have accrued to others by reason of the delay in filing the petition should
not be disturbed unless there is reasonable explanation for the delay. The aggrieved party
should therefore file the petition at the earliest possible time.”

In Trilokchand Motichand v. H.B. Munishi8 the sales tax officer sought to collect tax from
petitioner Trilokchand. He filed a writ petition in the High Court which failed. Thereupon, in
1959, he agreed to pay the tax in installments. In 1967, on some proceedings initiated by
some other party, the Supreme Court struck down the relevant provision in the law as
infringing Article 19(1) (f) of the Constitution. Thereafter, in 1968, Trilokchand moved the
Supreme Court under Article 32 praying that the order seeking to recover tax from him be
quashed as it had been issued under an unconstitutional statute. The Supreme Court rejected
the petition by a majority on the ground of laches. Some of the Judge suggested that the

6
Prasanna Hari Jamatia Vs. State of Tripura AIR 2015 SC.
7
(1983) 3 SCC 73.
8
AIR 1970 SC 898.

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Indian Limitation Act may be applied by analogy to petitions under Article 32. This meant
that a claim based on infraction of a fundamental right ought not to be entertained if made
beyond the period fixed by the Limitation Act for the enforcement of the right by way of a
suit.

However, Justice Hegde, dissenting, asserted that Laches on the part of an aggrieved party
cannot deprive him of the right to get relief from the Court under Article 32. Hidayatullah,
C.J., however felt that no hard and fast rule can be adopted in this matter. He said that the
question is one of discretion for this Court to follow from case to case. There is no lower
limit and there is no upper limit to move this court need not necessarily, give the total time to
the litigant to move this Court under Article 32. Similarly in a suitable case this Court may
entertain such a petition even after a lapse of time. It will all depend on what the breach of the
fundamental right and the remedy are and why the delay arose.

The correct approach seems to be the one adopted by Chief Justice Hidayatullah. According
to him the court would not be bound by the analogy of the statute of limitations. No upper
limit can be prescribed for petitions under Article 32. It is a matter to be left to the sound
exercise of judicial discretion. The overriding principle should be that Sate Claims should not
be allowed to be agitated to the detriment of rights, which have come into existence in the
period of interregnum when the aggrieved party slept over his right. Though Article 32 is
itself a guaranteed right, it could not be contended that the Supreme Court does not have
discretion to deny relief. Undoubtedly, Article 32 guaranteed the right to approach the
Supreme Court but that does not restrict the Court’s discretion to grant relief. One of the
considerations relevant for the exercise of such discretion is laches.9

While there may be justification for the rule that very stale claims should not be permitted to
be agitated through writ petitions under Article 32, the rule suggested in the Trilokchand case
that the measure of delay should be the period of limitation fixed by the Limitation Act for a
suit on similar fact-situation, would have been too rigid and unsupportable. Article 32 is a
fundamental right itself and its efficacy should not be unduly curtailed. The situation was
however retrieved by the Supreme Court’s decision in R.S. Deodhar v. State of
Maharashtra10. There, on the rule of laches, the Court observed that this is not a rule of law,
but a rule of practice based on sound and proper exercise of discretion, and there is no

9
Alice Jacob, Laches : Denial of Judicial relief, JILI. Vol. 16. At p 352.
10
AIR 1974 SC 259.

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inviolable rule that whenever there is delay, the Court must necessarily refuse to entertain the
petition. Each case must depend on its own facts. Further, the Court asserted that this Court
which has been assigned the role of a sentinel on qui vive for the protection of the
fundamental rights cannot easily allow itself to be persuaded to refuse relief on the jejune
ground of laches, delay or the like. It thus means that the Court will consider each case on its
facts and decide whether or not the petition should be rejected on the ground of laches. There
is no fixed period of limitation applicable to Article 32 petitions.

The Supreme Court applies the rule of laches in a flexible and not a rigid manner. The Court
may consider a delayed petition if the petitioner is able to give a reasonable explanation for
the delay. In Rabindra Nath v. Union of India11 the Court rejected a writ petition filed to
challenge the seniority rules made fifteen years earlier under Article 14 and 16. The Court
said in R.S. Mokashi v. I.M. Menon,12 that no relief could be given to the petitioner who,
without any reasonable explanation, approaches this Court under Article 32 after inordinate
delay. It would be unjust to deprive the respondents of the rights which have accrued to them.
In this case, vested rights were sought to be disrupted after eight years. In S.S. Moghe v.
Union of India13, promotions in government service were challenged on the ground of
infringement of fundamental right. No explanation was given for delay of several years in
filing the writ petition. Rejecting the petition, the Court said that a party should be diligent in
enforcing his fundamental right and he should approach the court within a reasonable time
after the cause of action had arisen. If there has been undue delay or laches on his part, the
Court has discretion to deny him relief. When the writ jurisdiction was invoked within two
months of the impugned admission to an institute, the Court held the time-gap to be
reasonable.

In R.S. Deodhar v. State of Maharastra14, a petition was filed in the Supreme Court under
Article 32 of the Constitution after about 11 years of the actual of the cause of action. A
preliminary objection was taken regarding gross delay and laches on the part of the
petitioners. The Court negative the preliminary contention inter alia on the following
grounds:

11
AIR 1970 SC 470.

12
AIR 1982 SC 101.
13
AIR 1981 SC 1495.
14
AIR 1974 SC 259.

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(i) There is no inviolable rule that whenever there is delay, the Court must necessarily
refuse to entertain a petition. It is not a rule of law but a rule of practice based on
sound and proper exercise of discretion and depends upon facts and circumstances
of each case;
(ii) In fact there was no delay since the procedure for making promotions which was
violative of the fundamental rights was still being followed and affecting the
petitioners;
(iii)All promotions were provisional and no rights can be said to have been accrued in
favour of others by reason of delay in filing the petition after gross delay which
should not be allowed to be disturbed; and
(iv) Enforcement of fundamental rights should not be refused merely on the ground of
delay.

Speaking for the Court Bhagawati, J. observed :

“It may be noticed that the claim for enforcement of the fundamental right of equal
opportunity under Article 16 is itself a fundamental right guaranteed under Article 32 and
this Court which has been assigned the role of a sentinel on the qui vive for the fundamental
rights cannot easily allow itself to be persuaded to refuse relief solely on the jejune ground
of laches, delay or the like. ”

Similarly, if an action is taken in total disregard to the statutory provisions or there is


colourable exercise of power by the authority, the Court may not refuse to grant relief. Thus,
in V o r a v . S t a t e o f M a h a r a s h t r a 15, the validity of an order requisitioning the
property of the petitioner was challenged by filling a petition in the High Court after 30
years. It was contended on behalf of the respondents that the petition was required to be
dismissed on the ground of delay and laches. Holding that an order of requisition cannot be
continued for indefinite such an order would be depriving the owner of the property of
market value and it would be ‘fraud upon the statute’.

Further, if the cause of action is continuous in nature and the injury caused to the petitioner
subsists till it is remedied or some relief is granted in his favour, the Court may entertain the

15
AIR 1984 SC 866.

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petition and decide it on merits. Thus, in P . L . S h a h v . U n i o n o f I n d i a 16 a criminal
complaint was filed against the petitioner, a clerk serving in the Railways and he was placed
under suspension in July, 1975.
In 1982, the subsistence allowance was reduced in 25 per cent from 50 per cent of the salary.
In 1988, the petitioner approached the Central Administrative Tribunal praying for restoration
of position of July, 1975 and for 50 per cent of salary as subsistence allowance. The Tribunal
dismissed the application on the ground of delay and the petitioner approached the Supreme
Court.
Allowing the appeal and reversing the decision of the Tribunal, the Court observe that the
cause of action in respect of such prayer arises every month in which the subsistence
allowance at the reduced rate is paid.
In S o l o n a t h T e a c o . v . S u p d t . O f T a x e s 17, the petitioner filed a petition in Gauhati
High Court under Article 226 of the Constitution for refund of the amount of tax paid under
coercion or by mistake and illegally and unauthorisedly collected by the Government. The
Division Bench even though delivered a judgment in favour of the assessee setting aside the
orders and demand notices, refused the relief of refund claimed by the petitioner company.
The company approached the Supreme Court.
It was contended by the Department that there was delay on the part of petitioner in
approaching the High Court under Article 226 of the constitution and an order of dismissal
of the petition by the High Court was correct. Reliance was also placed on the leading case
of T i l o k c h a n d M o t i c h a n d . Repelling the contention, the Supreme Court held that there
was no avoidable delay or laches on the part of the petitioner which indicated the
abandonment of his claim. Even though the tax was paid by the petitioner in the year 1968,
his right to claim refund occurred only in the year 1973 after the High Court pronounced
judgment in L o o n g S o o n g T e a E s t a t e 18, thereafter, immediately, the petition was filed
by the petitioner and therefore, there was no unexplained delay. Observing that the
‘discretion must be fair and reasonable’ Mukharji, J. rightly observed :
“There was no unexplained delay. There was no fact indicated to the High Court
from which it could be inferred that the appellant had either abandoned his claims or the
respondent had changed his position in such a way that granting relief of refund would cause

16
(1989) 1 SCC 546.
17
AIR 1990 SC 772.

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either injury to the respondent or anybody else. On the other hand, refunding the amount as
a consequence of declaring the assessment to be bad and recovery to be illegal will be in
consonance with justice, equity and good conscience.

In R . D . S e t t y v . I n t e r n a t i o n a l A i r p o r t A u t h o r i t y 19 even though the State


action was held to be unconstitutional, the Supreme Court refused to grant relief to the
petitioner on the ground of delay and laches on the part of the petitioner in approaching the
Court. The petitioner filed the petition after more than five months of the acceptance of the
tender of the fourth respondent and by that time, the fourth respondent had incurred
considerable expenditure of more than Rs. One Lakh. In the words of Bhagawati, J. :

“It would now be most iniquitous to set aside the contract oaf respondent no. 4 at the
instance of the appellant. The position would have been different if the appellant had filed
the writ petition immediately after the acceptance of the tender of the respondent no.4 but the
appellant allowed a period of over five months to elapse during which the respondent no. 4
altered his position ”
Similarly, in A s h o k K u m a r , v . C o l l e c t o r , R a i p u r 20 a preliminary electoral
roll was prepared on September 30, 1978. Objections were invited within a period of 20
days but the petitioner did not file objections. The final roll was also prepared on November
16, 1978. Then the election programme was published on November 25, 1978 according to
which the poll was to take place on December 31, 1978. The petitioner approached the High
Court under Article 226 of the Contitution on December 28, 1978, i.e., prior to three days of
the poll. The Court refused to interfere with the action taken by the respondent authority.

In S t a t e o f M . P . v . N a n d l a f 21 a licence was granted in favour of A to


manufacture and sell country liquor. The licensee acquired land, constructed buildings,
purchased plants and machineries, spent considerable time, manpower and huge amount for
setting up the distilleries. When the petition was filed by B against grant of licence in favour
of A, dismissing it on the ground of delay and laches, the following pertinent observations
were made by the Supreme Court :

“It is well settled that the power of the High Court to issue an appropriate writ
under article 226 of the Constitution is discretionary and the High Court in the exercise of it

19 AIR 1979 SC 1628.


20 AIR 1980 SC 112.
21 AIR 1987 SC 251.

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discretion does not ordinarily assist the tardy and the indolent or the acquiescent and the
lethargic. If there is inordinate delay on the part of the petitioner in filing a writ petition and
such delay is not satisfactorily explained, the High Court may decline to intervene and grant
relief in the exercise of its writ jurisdiction”

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BIBLIOGRAPHY

For making this project I referred to the following sources primarily:

Books referred:

1. C.K. Takwani, Civil Procedure, Sixth Edition, 2006, Eastern Book Company,
Lucknow.
2. Sarkar, The Code of Civil Procedure, Ist Volume, Lexis Nexis Butterworths Wadhwa,
Nagpur.

Articles referred:

1. http://www.lawyerscollective.org/files/High%20Court%20Writ%20Petition.pdf
(accessed on 10.04.2016 at 10:45 IST)
2. http://www.lawyerscollective.org/files/High%20Court%20Writ%20Petition.pdf
(accessed on 09.04.2016 at 09:40 IST)

Websites referred:

1. www.scconline.com
2. www.supremecourtcases.nic.in
3. www.indiankanoon.com
4. www.shodganga.com

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