Hemant Singh Rajput vs Municipal Council Kanker

Heard Mr. Nishant Kumar Sharma, learned counsel appearing for the appellant on I.A.No.01/2023, which is an application for condonation of delay of 1144 days in preferring the appeal.

The appellant has filed this writ appeal against an order dated 01.11.2017 passed by the learned Single Judge in WP No.3354 of 2006, by which the learned Single Judge has disposed of the writ petition filed by the respondent No. 1 herein by observing as under:-

“6. The learned Collector has clearly recorded that the land is owned by the State and the shopping complex was constructed by the Municipal Council and let out to private persons for running medical stores and further directed that the amount of rent of the said shops be deposited in the Public Works Department. Since the medical stores in question have been constructed by incurring huge money which is tax payer money and thereafter, the said medical stores are being run by private persons to whom they have been let out, it has rightly been held that demolition would not be in public interest particularly, interest of the State has been taken care of and the amount of lease rent has been directed to be deposited in the head of the Public Works Department, State of Chhattisgarh. I am also of the opinion that no useful purpose will be served by upholding the order of demolition passed by the Board of Revenue. Accordingly, the order passed by the Board of Revenue is set aside and the order of the Collector is restored. Yearly lease rent as directed by the Collector shall be continued to be deposited in the Public Works Department. However, the Collector / competent authority would do the needful to regularise the land in accordance with law within three months from the date of receipt of a copy of this order.

With the aforesaid direction, the writ petition stands finally disposed of. No order as to cost(s).”

On a pointed query being made to the learned for the appellant as to why they have approached this Court against the impugned order dated 01.11.2017, after an inordinate delay of 1809 days, he has not offered any plausible explanation for delay in filing the writ appeal. However, he has placed reliance on the judgment passed by Hon’ble Supreme Court in case of Assistant Commissioner (CT) LTU, Kakinada & Others v. M/s. Glaxo Smith Kline Consumer Health Care Limited passed in Civil Appeal No. 2413 of 2020 and Ummer v. Pottengal Subida and other reported in AIR 2018 SC 2025.

As such, the writ appeal is barred by delay and laches and is not liable to be entertained.

The Supreme Court in the matter of Union of India and others v. Tarsem Singh reported in (2008) 8 SCC 652 summarized the settled principles in the following manner:-

“7. To summarise, normally, a belated service related claim will be rejected on the ground of delay and laches (where remedy is sought by filing a writ petition) or limitation (where remedy is sought by an application to the Administrative Tribunal) . One of the exceptions to the said rule is cases relating to a continuing wrong. Where a service related claim is based on a continuing wrong, relief can be granted even if there is a long delay in seeking remedy, with reference to the date on which the continuing wrong commenced, if such continuing wrong creates a continuing source of injury. But there is an exception to the exception. If the grievance is in respect of any order or administrative decision which related to or affected several others also, and if the reopening of the issue would affect the settled rights of third parties, then the claim will not be entertained. For example, if the issue relates to payment or re fixation of pay or pension, relief may be granted in spite of delay as it does not affect the rights of third parties. But if the claim involved issues relating to seniority or promotion,etc.., affecting others, delay would render the claim stale and doctrine of laches/limitation will be applied. Insofar as the consequential relief of recovery of arrears for a past period is concerned, the principles relating to recurring/successive wrongs will apply. As a consequence, the High Courts will restrict the consequential relief relating to arrears normally to a period of three years prior to the date of filing of the writ petition.”

The Supreme Court in the matter of C. Jacob v. Director of Geology and Mining and others reported in (2008) 10 SCC 115, having found that the employee suddenly brought up a challenge to the order of termination of his services after 20 years and claimed all consequential benefits, held that the relief sought for was inadmissible. The legal position in this regard was laid out in the following terms:-

“10. Every representation of the Government for relief, may not be applied on merits. Representations relating to matters which have become stale or barred by limitation, can be rejected on that ground alone, without examining the merits of the claim. In regard to representations unrelated to the Department, the reply may be only to inform that the matter did not concern the Department or to inform the appropriate Department. Representations with incomplete particulars may be replied by seeking relevant particulars. The replies to such representations, cannot furnish a fresh cause of action or revive a stale or dead claim.

When a decision is issued by a court/tribunal to consider or deal with the representation, usually the directee (person directed) examines the matter on merits,being under the impression that failure to do so may amount to disobedience. When an order is passed considering and rejecting the claim or representation, in compliance with direction of the court or tribunal, such an order does not revive the stale claim, nor amount to some kind of “acknowledgement of a jural relationship” to give rise to a fresh cause of action.

When a government abandons service to take alternative employment or to attend to personal affairs, and does not bother to send any letter seeking leave or letter of resignation or letter of voluntary retirement, and the records do not show that he is treated as being in service, he cannot after two decades, represent that he should be taken back to duty. Nor can such employee be treated as having continued in service, thereby deeming the entire period as qualifying service for the purpose of pension. That will be a travesty of justice.

Where an employee unauthorisedly absents himself and suddenly appears after 20 years and demands that he should be taken back and approaches the court, the department naturally will not or may not have any record relating to the employee at that distance of time. In such cases, when the employer fails to produce the records of the enquiry and the order of dismissal/removal, court cannot draw an adverse inference against the employer for not producing records, nor direct reinstatement with back wages for 20 years, ignoring the cessation of service or the lucrative alternative employment of the employee. Misplaced sympathy in such matters will encourage discipline, lead to unjust enrichment of the employee at fault and result in drain of public exchequer. Many a time there is also no application of mind as to the extent of financial burden, as a result of a routine order for back wages.”

The case law relied upon by Mr. Nishant Kumar Sharma, learned counsel for the appellant is distinguishable from the facts and circumstances of the present case and hence, it is of no help to him

In the light of principle of law laid down by the Supreme Court in the above-stated judgments (supra) and considering the grounds raised in I.A.No.01 of 2023, we do not find any good ground to condone the delay of 1144 days in preferring the writ appeal. Accordingly, I.A.No.01 of 2023 is rejected and consequently thereto, the writ appeal is dismissed.