Syead Mohsina Mohammedi vs Mysore Urban Development Authority

B.V. Nagarathna, J.—Petitioner has assailed order of cancellation bearing No. PUTA 64/PU181, dated 8-6-2005 issued by the respondent-Mysore Urban Development Authority (''MUDA'' for short) (Annexure-A to the writ petition). The relevant facts of the case are that petitioner had made an application for allotment of site measuring 40 x 60 feet by the respondent-authority by making requisite deposit. That application was made on 14-9-1988 (Annexure-D). Subsequently, the respondent issued a communication dated 16-11-2000 to the petitioner stating that she has been allotted a site in the reserved category and that she must produce the relevant documents in support of her entitlement to the site in the reserved category. A copy of that communication dated 16-11-2000 is at Annexure-F. Thereafter, petitioner has made a representation to the respondent stating that she did not seek allotment of site under scheduled caste category and that a site may be allotted to her in a general category. Those representations were made in the year 2000-2001.

When the matter stood thus, the impugned order dated 8-6-2005 cancelling the allotment of site in the name of the petitioner was issued. That order is assailed in this writ petition filed in the year 2015.

I have heard learned Counsel for petitioner. He has drawn my attention to the documents annexed to the writ petition and contended that petitioner has never sought allotment of site in the scheduled caste category and she has sought for allotment of site in general category and that in column (10) she has stated as category No. 7, but it has been wrongly entered as category No. 2. Therefore there was no question of the petitioner producing any document in support of her category as scheduled caste, as she did not belong to scheduled caste and therefore, the allotment made to her in the schedule caste category was not right. He also contended that when this fact was brought to the notice of the respondent-authority, they did not allot any site in the general category and thereafter in the year 2005 they cancelled the allotment.

Having heard the learned Counsel for petitioner and on perusal of the material on record, it is noted that in column (10) of Annexure-D, which is a copy of the application reads as "category in which the application is being submitted" and the figure ''2'' has been written. According to the petitioner, she had written it as category No. 7, but it has been construed as category No. 2.

Be that as it may. When the petitioner received communication dated 16-11-2000 with regard to production of document in support of her allotment in the reserved category, she became aware of the fact that she has not been allotted site in general category. Thereafter, she made a representation stating that she does not belong to scheduled caste. No further steps were taken by her with regard to seeking allotment of site or with regard to rectification of her application for allotment of site in general category. Having regard to these facts and circumstances, the respondent has rightly cancelled the site allotted to the petitioner in the Scheduled Caste category, as the petitioner admittedly does not belong to that category. Therefore, the petitioner cannot have any grievance with regard to allotment of site to her in the Scheduled Caste Category. The cancellation is dated 8-6-2005. Since then the petitioner has not challenged that order nor has taken any further steps with regard to allotment of site to her. The filing of this writ petition in the year 2015 is highly belated and the writ petition has to be dismissed on the ground of delay and laches by placing reliance on the judgments of the Hon''ble Supreme Court.

In this context, a plethora of decisions of the Hon''ble Supreme Court on the issue regarding delay and as to how a Court of equity exercising jurisdiction under Article 226 of the Constitution of India cannot extend its hands to such persons who approach the Court after several years can be relied upon. In fact, the Apex Court has held in several decisions that stale claims ought not to be entertained by High Courts exercising writ jurisdiction under Article 226 of the Constitution of India. The recent decisions in that regard are as follows:

(a) In a recent decision of the Apex Court in State of Orissa and Another Vs. Mamata Mohanty, (2011) 112 CLT 46 : (2011) 2 SCALE 377 : (2011) 3 SCC 436 : (2011) 2 SCC(L&S) 83 : (2011) 2 SCR 704 : (2011) AIRSCW 1992 : (2011) AIRSCW 1332 , the consideration of an application where delay and laches could be attributed against a person who approaches in a writ petition is discussed by stating that though the Limitation Act, 1963 does not apply to writ jurisdiction, however, the Doctrine of Limitation being based on public policy, the principles enshrined therein are applicable and writ petitions could be dismissed at the initial stage on the ground of delay and laches.

(b) In the case of Shankara Co-op Housing Society Ltd. Vs. M. Prabhakar and Others, AIR 2011 SC 2161 : (2011) 5 SCALE 423 : (2011) 5 SCC 607 : (2011) 7 SCR 468 : (2011) 4 UJ 2475 : (2011) AIRSCW 3033 : (2011) 3 Supreme 569 , the Apex Court at para 53 has given the relevant considerations, in determining whether delay or laches in approaching the Writ Court under Article 226 of the Constitution of India. The same reads as follows:

"53. The relevant considerations, in determining whether delay or laches should be put against a person who approaches the Writ Court under Article 226 of the Constitution is now well-settled. They are: (1) there is no inviolable rule of law that whenever there is a delay, the Court must necessarily refuse to entertain the petition; it is a rule of practice based on sound and proper exercise of discretion, and each case must be dealt with on its owns facts. (2) The principle on which the Court refuses relief on the ground of laches or delay is that the rights accrued to others by the delay in filing the petition should not be disturbed, unless there is a reasonable explanation for the delay, because Court should not harm innocent parties if their rights had emerged by the delay on the part of the petitioners. (3) The satisfactory way of explaining delay in making an application under Article 226 is for the petitioner to show that he had been seeking relief elsewhere in a manner provided by law. If he runs after a remedy not provided in the Statute or the statutory rules, it is not desirable for the High Court to condone the delay. It is immaterial what the petitioner chooses to believe in regard to the remedy. (4) No hard and fast rule, can be laid down in this regard. Every case shall have to be decided on its own facts. (5) That representations would not be adequate explanation to take care of the delay".

(c) Similarly, the Apex Court in the case of Sawaran Lata etc. Vs. State of Haryana and Others, AIR 2010 SC 1664 : (2010) 3 JT 602 : (2010) 4 SCC 532 : (2010) 4 SCR 40 , has held that when the notification under Section 4 of the Land Acquisition Act, 1894 was issued in the year 2001 and the award was passed in the year 2004, writ petitions filed for quashing of the notification in the year 2009 have to be dismissed on the ground of delay as the litigants who dare to abuse the process of the Court in disregard of the law of limitation, delay and laches should not be encouraged.

(d) In Tamil Nadu Housing Board, Chennai Vs. M. Meiyappan and Others, (2011) 1 CTC 714 : (2010) 12 JT 29 : (2011) 1 RCR(Civil) 12 : (2010) 11 SCALE 411 : (2010) AIRSCW 7130 : (2010) 7 Supreme 441 , when the acquisition proceedings were challenged 10 years after notifications were issued, the Apex Court held that the High Courts should not have entertained the writ petition particularly after passing of the award and that the High Court should have dismissed the writ petition at the threshold on the ground of delay and laches.

(e) In Swaika Properties Pvt. Ltd. and Another Vs. State of Rajasthan and Others, AIR 2008 SC 1494 : (2008) 3 CLT 40 : (2008) 2 JT 280 : (2008) 2 SCALE 271 : (2008) 4 SCC 695 : (2008) AIRSCW 1574 : (2008) 1 Supreme 646 , the Apex Court has followed its earlier decisions in the case of Municipal Corporation of Greater Bombay Vs. The Industrial Development Investment Co. Pvt Ltd., and others, (1996) 6 AD 761 : AIR 1997 SC 482 : (1996) 8 JT 16 : (1996) 6 SCALE 379 : (1996) 11 SCC 501 : (1996) 5 SCR 551 Supp : (1996) AIRSCW 3871 : (1996) 7 Supreme 26 by observing as follows:

"After the award under Section 11 of the Act was made by the Collector he is empowered under Section 16 to take possession of the land, if the possession was not already taken, exercising power under Section 17(4). Thereupon, the land shall vest absolutely in the Government free from all encumbrances. It is well-settled law that taking possession of the land is by means of a memorandum (panchnama) prepared by the Land Acquisition Officer and signed by panch witnesses called for the purpose. Subsequently, the collector hands over the same to the beneficiary by means of another memorandum or panchnama, as the case may be. But in this case Section 91 of the BMC Act statutorily comes into play which would indicate that the Land Acquisition Officer while making award should intimate to the Commissioner, Municipal Corporation of the amount of compensation determined and all other expenses. The Corporation shall pay over the same to the Land Acquisition Officer".

It was held that the writ petition had been filed after possession was taken over and the award had become final and therefore, the writ petition had to be dismissed on the ground of delay and laches.

(f) The order of the High Court dismissing the writ petition was confirmed by the Apex Court in Banda Development Authority, Banda Vs. Moti Lal Agarwal and Others, (2011) 5 JT 106 : (2011) 3 RCR(Civil) 530 : (2011) 5 SCALE 173 : (2011) 5 SCC 394 : (2011) 4 UJ 2109 : (2011) AIRSCW 2835 : (2011) 3 Supreme 473 as the filing of the writ petition was 9 years after the declaration was issued under Section 6(1) of the Act and the delay of 6 years after passing of the award and the delayed filing of the writ petition was a reason for refusing to entertain the prayer made in the writ petition. It was held that in a challenge made to the acquisition of land for the purpose of public purpose Courts have consistently held that the delay in filing the writ petition should be viewed seriously, if the petitioner fails to offer plausible explanation for the delay.

(g) Reference can also be made to another decision of the Apex Court in the case of State of Rajasthan and Others Vs. D.R. Laxmi and Others, (1996) 7 AD 562 : (1996) 9 JT 327 : (1996) 7 SCALE 316 : (1996) 6 SCC 445 : (1996) 6 SCR 221 Supp : (1997) 1 UJ 445 , wherein it has cautioned the High Court not to entertain the writ petitions where there is inordinate delay while exercising jurisdiction under Article 226 of the Constitution of India.

(h) Similarly, in the case of The Municipal Council, Ahmednagar and Another Vs. Shah Hyder Beig and Others, AIR 2000 SC 671 : (1999) 10 JT 336 : (2000) 1 SCALE 124 : (2000) 2 SCC 48 : (1999) 5 SCR 197 Supp : (2000) AIRSCW 197 : (2000) 1 Supreme 146 , it has been opined thus:

"The real test for sound exercise of discretion by the High Court in this regard is not the physical running of time such but the test is whether by reason of delay, there is such negligence on the part of the petitioner so as to infer that he has given up his claim or where the petitioner has moved the Writ Court, the rights of the third parties have come into being which should not be allowed to disturb unless there is reasonable explanation for the delay".

(i) In fact in S.S. Balu and Another Vs. State of Kerala and Others, AIR 2009 SC 1994 : (2009) 122 FLR 54 : (2009) 2 JT 26 : (2009) 1 SCALE 723 : (2009) 2 SCC 479 : (2009) 1 SCC(L&S) 388 : (2009) 1 SCR 196 : (2009) 2 SLJ 480 : (2009) AIRSCW 1644 , it has been held that delay defeats equity and that relief can be denied on the ground of delay alone even though relief is granted to other similarly situated persons who approach the Courts in time.

(j) To a similar effect is the decision of the Hon''ble Supreme Court in A.P. Industrial Infrastructure Corporation Ltd. Vs. Chinthamaneni Narasimha Rao and Others, (2011) 4 RCR(Civil) 831 : (2011) 10 SCALE 460 : (2012) AIRSCW 651 : (2011) AIRSCW 5047

The said decisions are squarely applicable to the facts of the present case. In the circumstances, the impugned order of cancellation does not call for any interference, as Annexure-A is in accordance with law. There is no merit in the writ petition. Writ petition is dismissed.