MRINMOY MAITYversusCHHANDA KOLEY AND OTHERS

                  [2024] 4 S.C.R. 506 : 2024 INSC 314

                            Mrinmoy Maity
                                  v.
                       Chhanda Koley and Others
                       (Civil Appeal No. 5027 of 2024)
                                  18 April 2024
  [Pamidighantam Sri Narasimha and Aravind Kumar,* JJ.]

                            Issue for Consideration
       Writ court, if justified in entertaining the writ petition filed by the
       respondent No.1 challenging the approval granted in favour of the
       appellant for starting LPG distributorship.

                                    Headnotes
       Constitution of India – Art 226 – Exercise of discretionary
       powers under – Delay or laches, effect – On facts, four years
       after the allotment of LPG distributorship in favour of the
       appellant, and on acceptance of the alternate land offered
       by the appellant and permitting him to construct the godown
       and the showroom, the unsuccessful bidder challenged the
       decision of the Corporation – High Court dismissed the writ
       petition, however, in appeal the allotment made in favour of
       the appellant was set aside – Correctness:
       Held: Delay defeats equity – Delay or laches is one of the factors
       which should be born in mind by the High Court while exercising
       discretionary powers u/Art. 226 – Applicant who approaches the
       court belatedly ought not to be granted the extraordinary relief
       by the writ courts – In a given case, the High Court may refuse
       to invoke its extraordinary powers if laxity on the part of the
       applicant to assert his right has allowed the cause of action to
       drift away and attempts are made subsequently to rekindle the
       lapsed cause of action – Discretion to be exercised would be
       with care and caution, depending upon the facts of the case –
       Though, for filing of a writ petition, no fixed period of limitation
       is prescribed, however, it has to be filed within a reasonable
       time – If it is found that the writ petitioner is guilty of delay and
       laches, the High Court ought to dismiss the petition on that sole
       ground itself, in as much as the writ courts are not to indulge
       in permitting such indolent litigant to take advantage of his own

* Author
[2024] 4 S.C.R.                                                            507

              Mrinmoy Maity v. Chhanda Koley and Others


     wrong – On facts, writ petition ought to have been dismissed
     on the ground of delay and laches itself – Writ petitioner was
     aware of all the developments including that of the allotment of
     distributorship having been made in favour of the appellant way
     back in 2014, yet did not challenge and only on acceptance of
     the alternate land offered by the appellant in 2017 and permitting
     him to construct the godown and the showroom, the same was
     challenged and thereby the writ petitioner had allowed his right
     if at all if any to be drifted away or acquiesced in the acts of the
     Corporation – Also, the appropriate government felt the need of
     permitting the Oil Marketing Companies to be more flexible and
     as such modification to the guidelines had been brought about
     whereby the applicants were permitted to offer alternate land
     where the land initially offered by them was found deficient or
     not suitable or change of the land, subject to specifications laid
     down in the advertisement being met – Thus, the order of the
     Division Bench of the High Court is set aside, and that of the
     Single Judge is restored. [Para 15]

                               Case Law Cited
           Tridip Kumar Dingal and others v. State of W.B and
           others. [2008] 15 SCR 194 : (2009) 1 SCC 768;
           Karnataka Power Corportion Ltd. and another v. K.
           Thangappan and another [2006] 3 SCR 783 : (2006)
           4 SCC 322; Chennai Metropolitan Water Supply &
           Sewerage Board and others v. T.T. Murali Babu [2014]
           1 SCR 987 : (2014) 4 SCC 108 – referred to.

                                 List of Acts
     Constitution of India.

                              List of Keywords
     LPG distributorship; Exercise of discretionary powers; Delay or
     laches; Extraordinary relief; Cause of action; Period of limitation;
     Acquiescence.

                              Case Arising From
     CIVIL APPELLATE JURISDICTION : Civil Appeal No. 5027 of 2024
     From the Judgment and Order dated 13.09.2018 of the High Court
     at Calcutta in CAN No. 809 of 2018
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                          Appearances for Parties
       Pijush K. Roy, Sr. Adv., Pritthish Roy, Ms. Kakali Roy, Asit Roy, Rajan
       K. Chourasia, Advs. for the Appellant.
       Shekhar Naphade, Sr. Adv., Zoheb Hossain, Ms. Asha Gopalan
       Nair, Sandeep Narain, Ms. Nivedita Nair, Advs. for the Respondents.
                  Judgment / Order of the Supreme Court

                                  Judgment
       Aravind Kumar, J.
1.     Leave granted.
2.     The short point that arises for consideration in this appeal is:
            “Whether the writ court was justified in entertaining the writ
            petition filed by the respondent No.1 herein challenging
            the approval dated 03.06.2014 granted in favour of
            the appellant herein for starting LPG distributorship at
            Jamalpur, District Burdwan?”
3.     The facts in brief which has led to filing of the present appeal are
       as under:
4.     An advertisement came to be issued on 09.09.2012 calling for
       application for distributors to grant LPG distributorship under
       GP Category at Jamalpur, District Burdwan. From amongst the
       applications so received, the application submitted by the appellant
       as well as respondent No.1 were found to be in order. Since both
       the appellant and the respondent No.1 were held to be eligible from
       amongst the six (6) candidates, draw of lots was held on 11.05.2013
       and appellant was found successful candidate and was selected
       for verification of the documents. A letter of intent was issued to
       the appellant on 24.02.2014 and on 03.06.2014 the approval was
       granted by the BPCL in favour of the appellant for starting LPG
       distributorship at the notified place.
5.     After a lapse of 4 years, the respondent No.1 filed a complaint with
       the BPCL alleging that land offered by the appellant was a Barga land
       and same cannot be considered. Subsequently application having
       been filed by the appellant offering an alternate land, the Corporation
       allowed the prayer of the appellant to construct the godown and
       showroom on the alternate land offered by the appellant.
[2024] 4 S.C.R.                                                          509

              Mrinmoy Maity v. Chhanda Koley and Others


6.   The respondent No.1 being a rival applicant for grant of distributorship,
     having participated in submitting the application and being
     unsuccessful in the draw of lots held way back in the year 2013
     and being aggrieved by the decision of the Corporation to permit the
     appellant to commence the construction of godown and showroom
     on the alternate land offered, filed a writ petition in the year 2017
     i.e., on 10.04.2017. Initially, there was an order of status quo passed
     by the Learned Single Judge and on receiving the report from
     the Corporation the writ petition came to be dismissed vide order
     dated 18.01.2018 on the ground that the writ petitioner (respondent
     No.1 herein) had no locus standi since she had participated in the
     selection process. Being aggrieved by the same the intra-court appeal
     came to be filed and the appellate court by the impugned judgment
     allowed the appeal on the ground (a) that the successful applicant
     had not offered unencumbered land for construction of godown and
     showroom; (b) the land offered by the appellant was in contravention
     of clause 7.1(vi) and (vii) of the guidelines for selection of regular
     LPG Distributors; (c) the amendment of the said guidelines brought
     about subsequently, cannot be made applicable retrospectively. The
     allotment made in favour of the (appellant herein) was set aside by
     the impugned order and as a consequence of it, the letter of intent,
     the letter of approval accepting the alternate land offered by the
     (appellant herein) and all subsequent permissions, licences and no
     objections issued in his favour were held to be of no effect. Hence,
     this appeal.
7.   We have heard Shri Pijush K. Roy, learned Senior Counsel appearing
     for the appellant and Shri Zoheb Hossain, learned counsel appearing
     for respondent No.1 and Shri Shekhar Naphade, learned Senior
     Counsel for the Corporation. Learned counsel for the appellant
     would vehemently contend that Learned Single Judge had rightly
     dismissed the writ petition on the ground of lack of locus standi of
     the writ petitioner and had dissolved the interim order granted earlier.
     It is also contended that by the time the interim order of status quo
     came to be passed by the Learned Single Judge on 20.07.2017, the
     appellant herein had already submitted an application for accepting
     the alternate land offered and which request came to be processed
     and the applicant (appellant herein) had been allowed to construct
     the godown and showroom on the alternate land so offered. These
     facts though being available, the Division Bench ignoring the same
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       had proceeded on tangent in accepting the plea of the writ petitioner
       without examining the aspect of delay and giving a complete go by
       for laches exhibited on the part of the writ petitioner and extended
       the olive branch on surmises and conjectures and as such the
       impugned order is liable to be set-aside and consequently, writ
       petition which came to be dismissed by the Learned Single Judge
       has to be upheld. Shri Shekhar Naphade, learned Senior Counsel
       appearing on behalf of the Corporation has fairly submitted that in
       the light of the appellant herein being successful in the allotment
       by draw of lots, had been issued with the letter of intent and the
       prayer for offering the alternate land was also accepted and having
       regard to the subsequent development namely the subsequent
       notification dated 30.04.2015 issued by the appropriate government
       directing the Oil Marketing Companies to provide flexibility in the
       selection guidelines by providing an “opportunity to offer alternate
       land in response to the advertisement” which clarified the position
       with regard to alternative land offered had been acted upon by the
       Corporation in the instant case and being satisfied with the bona
       fides of the applicant/appellant, the Corporation had permitted the
       construction, and accordingly the construction has been put up along
       with building, the godown and the showroom and as such he has
       prayed for suitable orders being passed.
8.     On the contrary, Shri Zoheb Hossain, learned counsel appearing for
       the respondent No.1 vehemently opposed the prayer of the appellant
       herein and supported the order passed by the Division Bench. He
       would contend that issue of delay in filing the Writ Petition has been
       rightly ignored by the Division Bench and same has to recede to
       background in the facts obtained in the present case, in as much
       as the blatant violation of the guidelines would go to the root of the
       matter and the inherent defect cannot be allowed to be rectified,
       that too by relying upon an amendment to the guidelines which has
       come into force subsequent to the advertisement in question or in
       other words rules of the game could not have been changed after
       the commencement of the game which was exactly the exercise
       undertaken by the Learned Single Judge and rightly found to be
       improper by the Division Bench. Hence, he prays for dismissal of
       the appeal.
9.     Having heard rival contentions raised and on perusal of the facts
       obtained in the present case, we are of the considered view that
[2024] 4 S.C.R.                                                           511

              Mrinmoy Maity v. Chhanda Koley and Others


     writ petitioner ought to have been non-suited or in other words writ
     petition ought to have been dismissed on the ground of delay and
     laches itself. An applicant who approaches the court belatedly or
     in other words sleeps over his rights for a considerable period of
     time, wakes up from his deep slumber ought not to be granted the
     extraordinary relief by the writ courts. This Court time and again has
     held that delay defeats equity. Delay or laches is one of the factors
     which should be born in mind by the High Court while exercising
     discretionary powers under Article 226 of the Constitution of India. In
     a given case, the High Court may refuse to invoke its extraordinary
     powers if laxity on the part of the applicant to assert his right has
     allowed the cause of action to drift away and attempts are made
     subsequently to rekindle the lapsed cause of action.
10. The discretion to be exercised would be with care and caution. If
    the delay which has occasioned in approaching the writ court is
    explained which would appeal to the conscience of the court, in
    such circumstances it cannot be gainsaid by the contesting party
    that for all times to come the delay is not to be condoned. There
    may be myriad circumstances which gives rise to the invoking of the
    extraordinary jurisdiction and it all depends on facts and circumstances
    of each case, same cannot be described in a straight jacket formula
    with mathematical precision. The ultimate discretion to be exercised
    by the writ court depends upon the facts that it has to travel or the
    terrain in which the facts have travelled.
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 laches 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 laches, the High Court ought
    to dismiss the petition on that sole ground itself, in as much as the
    writ courts are not to indulge in permitting such indolent litigant to take
    advantage of his own wrong. It is true that there cannot be any waiver
    of fundamental right but while exercising discretionary jurisdiction
    under Article 226, the High Court will have to necessarily take into
    consideration the delay and laches on the part of the applicant in
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       approaching a writ court. This Court in the case of Tridip Kumar
       Dingal and others v. State of W.B and others., (2009) 1 SCC 768
       has held to the following effect:
           “56. We are unable to uphold the contention. It is no doubt
           true that there can be no waiver of fundamental right. But
           while exercising discretionary jurisdiction under Articles 32,
           226, 227 or 136 of the Constitution, this Court takes into
           account certain factors and one of such considerations is
           delay and laches on the part of the applicant in approaching
           a writ court. It is well settled that power to issue a writ is
           discretionary. One of the grounds for refusing reliefs under
           Article 32 or 226 of the Constitution is that the petitioner
           is guilty of delay and laches.
           57. If the petitioner wants to invoke jurisdiction of a
           writ court, he should come to the Court at the earliest
           reasonably possible opportunity. Inordinate delay in making
           the motion for a writ will indeed be a good ground for
           refusing to exercise such discretionary jurisdiction. The
           underlying object of this principle is not to encourage
           agitation of stale claims and exhume matters which have
           already been disposed of or settled or where the rights of
           third parties have accrued in the meantime (vide State of
           M.P. v. Bhailal Bhai [AIR 1964 SC 1006 : (1964) 6 SCR
           261], Moon Mills Ltd. v. Industrial Court [AIR 1967 SC 1450]
           and Bhoop Singh v. Union of India [(1992) 3 SCC 136 :
           (1992) 21 ATC 675 : (1992) 2 SCR 969] ). This principle
           applies even in case of an infringement of fundamental
           right (vide Tilokchand Motichand v. H.B. Munshi [(1969) 1
           SCC 110] , Durga Prashad v. Chief Controller of Imports
           & Exports [(1969) 1 SCC 185] and Rabindranath Bose v.
           Union of India [(1970) 1 SCC 84] ).
           58. There is no upper limit and there is no lower limit as to
           when a person can approach a court. The question is one
           of discretion and has to be decided on the basis of facts
           before the court depending on and varying from case to
           case. It will depend upon what the breach of fundamental
           right and the remedy claimed are and when and how the
           delay arose.”
[2024] 4 S.C.R.                                                          513

              Mrinmoy Maity v. Chhanda Koley and Others


12. It is apposite to take note of the dicta laid down by this Court in
    Karnataka Power Corportion Ltd. and another v. K. Thangappan
    and another, (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 regard by Sir Barnes Peacock in
           Lindsay Petroleum Co. v. Prosper Armstrong Hurd [(1874)
           5 PC 221 : 22 WR 492] (PC at p. 239) was approved by
           this Court in Moon Mills Ltd. v. M.R. Meher [AIR 1967 SC
           1450] and Maharashtra SRTC v. Shri Balwant Regular
           Motor Service [(1969) 1 SCR 808 : AIR 1969 SC 329] .
           Sir Barnes had 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
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       amounting to a bar by any statute of limitation, 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 balance of justice or injustice in taking the
       one course or the other, so far as it relates to the remedy.”
       8. It would be appropriate to note certain decisions of this
       Court in which this aspect has been dealt with in relation to
       Article 32 of the Constitution. It is apparent that what has
       been stated as regards that article would apply, a fortiori,
       to Article 226. It was observed in Rabindranath Bose v.
       Union of India [(1970) 1 SCC 84 : AIR 1970 SC 470] that
       no relief can be given to the petitioner who without any
       reasonable explanation approaches this Court under Article
       32 after inordinate delay. It was stated that though Article
       32 is itself a guaranteed right, it does not follow from this
       that it was the intention of the Constitution-makers that
       this Court should disregard all principles and grant relief
       in petitions filed after inordinate delay.
       9. It was stated in State of M.P. v. Nandlal Jaiswal [(1986)
       4 SCC 566 : AIR 1987 SC 251] that the High Court in
       exercise of its 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 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.”
[2024] 4 S.C.R.                                                           515

              Mrinmoy Maity v. Chhanda Koley and Others


13. Reiterating the aspect of delay and laches would disentitle the
    discretionary relief being granted, this Court in the case of Chennai
    Metropolitan Water Supply & Sewerage Board and others v. T.T.
    Murali Babu, (2014) 4 SCC 108 has held:
           “16. Thus, the doctrine of delay and laches should not
           be lightly brushed aside. A writ court is required to weigh
           the explanation offered and the acceptability of the same.
           The court should bear in mind that it is exercising an
           extraordinary and equitable jurisdiction. As a constitutional
           court it has a duty to protect the rights of the citizens
           but simultaneously it is to keep itself alive to the primary
           principle that when an aggrieved person, without adequate
           reason, approaches the court at his own leisure or pleasure,
           the court would be under legal obligation to scrutinise
           whether the lis at a belated stage should be entertained
           or not. Be it noted, delay comes in the way of equity. In
           certain circumstances delay and laches may not be fatal
           but in most circumstances inordinate delay would only
           invite disaster for the litigant who knocks at the doors
           of the court. Delay reflects inactivity and inaction on the
           part of a litigant — a litigant who has forgotten the basic
           norms, namely, “procrastination is the greatest thief of
           time” and second, law does not permit one to sleep and
           rise like a phoenix. Delay does bring in hazard and causes
           injury to the lis.”
14. Having regard to the afore-stated principles of law enunciated
    herein above, when we turn our attention to facts on hand, it would
    not detain us for too long for accepting the plea of the appellant
    in affirming the order of the Learned Single Judge and dismissing
    the writ petition on the ground of delay and laches. We say so for
    reasons more than one, firstly, it requires to be noticed that the writ
    petitioner was a rival applicant along with the appellant herein for
    grant of LPG distributorship and she along with the appellant herein,
    were found to be eligible and the appellant herein was held to be
    successful by virtue of draw of lots. This factual aspect would reflect
    that the writ petitioner was aware of all the developments including
    that of the allotment of distributorship having been made in favour
    of the appellant herein way back in 2014, yet did not challenge and
    only on acceptance of the alternate land offered by the appellant in
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       March, 2017 and permitting him to construct the godown and the
       showroom. Same was challenged in the year 2017 and thereby the
       writ petitioner had allowed his right if at all if any to be drifted away or
       in other words acquiesced in the acts of the Corporation and as such
       on this short ground itself the appellant has to succeed. Secondly,
       another fact which has swayed in our mind to accept the plea of the
       appellant herein is that, undisputedly the appropriate government
       had felt the need of permitting the Oil Marketing Companies to be
       more flexible and as such modification to the guidelines had been
       brought about on 15.04.2015 whereby the applicants were permitted
       to offer alternate land where the land initially offered by them was
       found deficient or not suitable or change of the land, subject to
       specifications as laid down in the advertisement being met. There
       being no stiff opposition or strong resistance to the alternate land
       offered by the appellant herein not being as per the specifications
       indicated in the advertisement, we see no reason to substitute the
       court’s view to that of the experts namely, the Corporation which
       has in its wisdom has exercised its discretion as is evident from the
       report filed in the form of affidavit by the territory manager (LPG)/
       BPCL whereunder it has been stated:
            “13. On the basis of xxxxxxxxxxxxxxxxxxxxx to non-
            agricultural. In his application form the said Respondent
            no. 9 had provided the Land for godown at Plot No 3732,
            Khatian No LR 2585, 2586, 2587 JL No 34, Mouza Kolera,
            Jamalpur, Distt Burdwan admeasuring 33 decimal. The
            same was cleared based on Registered Lease Deed,
            which was found to have been genuine in all respects as
            confirmed by the ADSR Jamalpur.
            16. The land offered by the successful candidate, namely
            the Respondent no.9 was found to be eligible by relying
            on the abovementioned clauses, which determine eligibility
            of the land based on the status of ownership. The fact
            that the said land was a “Barga” land is not a material
            condition on the basis of which the Respondent no. 9’s
            candidature could be cancelled.
            24. Subsequently, FVC of the said newly offered land by
            the LOI holder, Respondent no. 9 was conducted and the
            same was found suitable for construction of LPG Godown.
[2024] 4 S.C.R.                                                           517

              Mrinmoy Maity v. Chhanda Koley and Others


           A letter being DGP:LPG OMP: Jamalpur dated 21.03.2017
           was provided to the said LOI holder informing him that
           the alternate land provided is found suitable and therefore
           his request to construct LPG Godown in the said alternate
           land has been approved. A copy of the said letter dated
           21.03.2017 is annexed hereto and is marked as “R-5”.
           25. It is therefore submitted that the steps taken by the
           Respondent no. 3 in allowing the LOI holder, Respondent
           no. 9, to provide alternate land for construction of godown,
           have been in consonance. with the change in policies and
           no favoritism or nepotism, as suggested by the petitioner
           has been in play.
           32. It is further clarified that the FVC conducted on the
           original land offered by the Respondent no. 9 was found to
           be satisfactory on all counts, and only on the basis of this,
           his request for provision of alternate land wall accepted.”
15. Hence, we are of the considered view that the order of the Learned
    Division Bench is liable to be set aside and accordingly, it is set
    aside. The order of the Learned Single Judge stands restored for the
    reasons indicated herein above and the appeal is allowed accordingly
    with no order as to costs.

     Headnotes prepared by: Nidhi Jain                     Result of the case:
                                                              Appeal allowed.