Full Judgment Text
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment reserved on: 31.07.2023
% Judgment delivered on: 18.08.2023
+ LPA 28/2023
BIMLA DEVI CHURIWAL ..... Appellant
Through: Ms. Richa Kapoor, Ms. Eesha Sharma
and Ms. Tusharika Sharma,
Advocates.
versus
DELHI DEVELOPMENT AUTHORITY ..... Respondent
Through: Mr. Arjun Pant, Standing Counsel
with Ms.Latika Malhotra, Advocate.
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE SANJEEV NARULA
J U D G M E N T
SATISH CHANDRA SHARMA, C.J.
1. The instant LPA has been preferred by the appellant, challenging the
Judgment dated 17.11.2022 passed in W.P.(C) 3624/2013 titled as Bimla
Devi Churiwal v. Delhi Development Authority (“ Impugned Judgment ”),
wherein the learned Single Judge dismissed the writ petition on the ground
that the same is barred by delay and laches.
2. The facts of the case reveal, that the Respondent/Delhi Development
Authority (“ DDA ”) in 1981 had launched the Rohini Residential Scheme for
EWS/Janta, LIG and MIG category plots of land (“ the Scheme ”). The
Appellant had applied under the scheme vide application No. 45461 dated
26.03.1981 to book an LIG plot admeasuring 32 square meters after
LPA 28/2023 Page 1 of 6
Signature Not Verified
Digitaaly Signed
By:BHUPINDER SINGH
ROHELLA
Signing Date:18.08.2023
11:27:17
depositing Rs. 2,000 /- towards registration charges vide receipt No. 15202
dated 26.03.1981. Due to a large number of applicants, the DDA decided to
allot priority numbers to pending registrants by a computerised draw and the
Appellant was assigned priority no. 15452.
3. The DDA states that upon scrutinizing the application of the
Appellant, it was found that the appellant had not submitted her income
proof for the assessment year 1980-81. Therefore, the DDA vide letter dated
17.12.1982 requested her to deposit the same along with an affidavit
undertaking as required in Brochure. It is stated that though the Appellant
submitted her income proof for the assessment year 1981-1982, the said
information was incomplete and the DDA vide letter dated 21.08.1984
requested her to furnish the income proof of the assessment year 1980-81
with full details of the Appellant and her spouse along with the income tax
assessment for the assessment year 1981-82. This letter dated 21.08.1984
however was returned as undelivered with the postal authority‟s remark „not
known‟ and the DDA cancelled the Registration No. 45461 and Priority No.
15452 assigned to the Appellant vide letter dated 14.04.1986 and the
Appellant was requested to submit the FDR duly discharged so that action
for refund of earnest money deposited by her could be initiated. As the
appellant did not furnish the FDR, the DDA on 02.04.2008 again requested
the Appellant to furnish the original FDR and other requisite documents to
expedite refund of earnest money deposited. However, even this letter was
returned as undelivered.
4. The Appellant states that she had changed her residential address and
was residing in Kolkata at this point and had intimated this to DDA vide
LPA 28/2023 Page 2 of 6
Signature Not Verified
Digitaaly Signed
By:BHUPINDER SINGH
ROHELLA
Signing Date:18.08.2023
11:27:17
letter dated 09.12.2004 along with a copy of her ration card and FDR. The
Appellant visited the office of DDA in Delhi in 2012 and was informed that
the persons with priority number immediately before and after her had been
allotted a plot however she was not. The appellant filed an RTI Application
dated 01.10.2012 bearing ID No. 5476 seeking a copy of the file of the
Appellant maintained by Respondent DDA. In response to the RTI, DDA
informed that the registration of the appellant had been cancelled.
5. It is in this backdrop that the Appellant preferred the underlying writ
petition. The Learned Single Judge in the Impugned Judgment, after hearing
both the parties and taking into account the facts, submissions made and the
documents on record rejected the submissions made by the Petitioner and
dismissed writ petition on the ground that the same is barred by inexplicable
and unexplained delay. The Learned Single Judge however directed that the
Respondent refund of the earnest money deposited by the Appellant within a
period of four weeks from the date of the judgment.
6. At this juncture, it becomes apposite to summarise the law on delay
and laches in respect of a writ petition filed under Article 226 of the
Constitution of India. A Constitution Bench of the Hon‟ble Supreme Court
in the case of State of M.P. v. Bhailal Bhai, 1964 SCC OnLine SC 10, has
held as under:
“17. At the same time we cannot lose sight of the fact that the
special remedy provided in Article 226 is not intended to
supersede completely the modes of obtaining relief by an action
in a Civil Court or to deny defences legitimately open in such
actions. It has been made clear more than once that the power
to give relief under Article 226 is a discretionary power. This
is specially true in the case of power to issue writs in the
LPA 28/2023 Page 3 of 6
Signature Not Verified
Digitaaly Signed
By:BHUPINDER SINGH
ROHELLA
Signing Date:18.08.2023
11:27:17
nature of mandamus. Among the several matters which the
High Courts rightly take into consideration in the exercise of
that discretion is the delay made by the aggrieved party in
seeking this special remedy and what excuse there is for it.
Another is the nature of controversy of facts and law that may
have to be decided as regards the availability of consequential
relief. Thus, where, as in these cases, a person comes to the
court for relief under Article 226 on the allegation that he has
been assessed to tax under a void legislation and having paid it
under a mistake is entitled to get it back, the court, if it finds
that the assessment was void, being made under a void
provision of law, and the payment was made by mistake, is still
not bound to exercise its discretion directing repayment.
Whether repayment should be ordered in the exercise of this
discretion will depend in each case on its own facts and
circumstances. It is not easy nor is it desirable to lay down any
Rule for universal application. It may however be stated as a
general Rule that if there has been unreasonable delay the
court ought not ordinarily to lend its aid to a party by this
extraordinary remedy of mandamus. Again, where even if
there is no such delay the Government or the statutory
authority against whom the consequential relief is prayed for
raises a prima facie triable issue as regards the availability of
such relief on the merits on the grounds like limitation the
court should ordinarily refuse to issue the writ of mandamus
for such payment. In both these kinds of cases it will be sound
use of discretion to leave the party to seek his remedy by the
ordinary mode of action in a Civil Court and to refuse to
exercise in his favour the extraordinary remedy under Article
226 of the Constitution.
*
21. The learned Judges appear to have failed to notice that the
delay in these petitions was more than the delay in the petition
made in Bhailal Bhai case out of which Civil Appeal No. 362 of
62 has arisen. On behalf of the respondents-petitioners in these
appeals (CAs Nos. 861 to 867 of 1962) Mr Andley has argued
that the delay in these cases even is not such as would justify
refusal of the order for refund. We argued that assuming that
LPA 28/2023 Page 4 of 6
Signature Not Verified
Digitaaly Signed
By:BHUPINDER SINGH
ROHELLA
Signing Date:18.08.2023
11:27:17
the remedy of recovery by action in a Civil Court stood barred
on the date these applications were made that would be no
reason to refuse relief under Article 226 of the Constitution.
Learned counsel is right in his submission that the provisions of
the Limitation Act do not as such apply to the granting of relief
under Art 226. It appears to us however that the maximum
period fixed by the legislature as the time within which the
relief by a suit in a Civil Court must be brought may
ordinarily be taken to be a reasonable standard by which
delay in seeking remedy under Article 226 can be measured.
The court may consider the delay unreasonable even if it is
less than the period of limitation prescribed for a civil action
for the remedy but where the delay is more than this period, it
will almost always be proper for the court to hold that it is
unreasonable. The period of limitation prescribed for recovery
of money paid by mistake under the Limitation Act is three
years from the date when the mistake is known. If the mistake
was known in these cases on or shortly after January 17, 1956
the delay in making these applications should be considered
unreasonable. If, on the other hand, as Mr Andley seems to
argue, that the mistake discovered much later this would be a
controversial fact which cannot conveniently be decided in
proceedings. In either view of the matter we are of opinion the
orders for refund made by the High Court in these seven cases
cannot be sustained.”
(emphasis supplied)
7. Following the aforesaid judgment, the Apex Court in Banda
Development Authority v. Moti Lal Agarwal, (2011) 5 SCC 394, has
observed as under:
“ 17. It is true that no limitation has been prescribed for filing a
petition under Article 226 of the Constitution but one of the
several rules of self-imposed restraint evolved by the superior
courts is that the High Court will not entertain petitions filed
after long lapse of time because that may adversely affect the
settled/crystallised rights of the parties. If the writ petition is
LPA 28/2023 Page 5 of 6
Signature Not Verified
Digitaaly Signed
By:BHUPINDER SINGH
ROHELLA
Signing Date:18.08.2023
11:27:17
filed beyond the period of limitation prescribed for filing a civil
suit for similar cause, the High Court will treat the delay
unreasonable and decline to entertain the grievance of the
petitioner on merits.”
8. From a perusal of the documents on record and the submissions made
by the parties, it is clear that the writ petition preferred by the Appellant
herein is hopelessly barred by delay. The Appellant had made an application
under the Scheme in 1981 and thereafter the DDA requested the Appellant
multiple times to furnish complete details, however the Appellant failed to
do so. The DDA therefore cancelled the registration of the Appellant in 1986
and intimated the same to the Appellant however all communications made
were undelivered. It was only in 2004, after almost 18 years that the
Appellant informed DDA about the change in address, and only in 2012 did
the Appellant approach the DDA office to get information regarding the
status of her application. Such unexplained delay on the part of the
Appellant is unreasonable and cannot be condoned. In this view, this Court
finds no infirmity in the Impugned Judgment whereby the writ petition of
the appellant has been dismissed on the ground of delay and laches.
9. With these observations, the appeal is dismissed, along with pending
application(s), if any.
(SATISH CHANDRA SHARMA)
CHIEF JUSTICE
(SANJEEV NARULA)
JUDGE
AUGUST 18, 2023
LPA 28/2023 Page 6 of 6
Signature Not Verified
Digitaaly Signed
By:BHUPINDER SINGH
ROHELLA
Signing Date:18.08.2023
11:27:17