CANTONMENT BOARD Vs. LACHHMAN DAS-HARI RAM

JUDGEMENT

(1.) This writ petition has since been amended as per order passed by me on 12th October, 1961, which may be read as part of this order. The counsel for the respondents has, however, submitted that inspite of the amendment, his preliminary objection based on delay and laches still subsists. By means of this amendment, all that the petitioner has done is to add Article 227 of the Constitution in the heading of the petition and to pray for revision of the impugned order, and this, according to the respondents' counsel makes no difference so far as the preliminary objection goes. Unexplained delay and laches is as much objectionable in invoking this Court's jurisdiction under Article 226 of the Constitution as it is in seeking relief under Article 227. On behalf of the petitioner, it is urged, in reply, that though unexplained delay and laches may be an equally strong factor in both the aforesaid Articles, under Article 227, this Court is competent also to exercise its powers suo motu with the result that whereas undue delay in case of a petition under Article 226 may, comparatively speaking, be more serious, in the case of Article 227, the Court may, ignoring the applicant's prayer, suo motu consider the merits of the controversy, the delay on the part of the petitioner in approaching the Court notwithstanding.

(2.) In my opinion, the distinction sought by the petitioner's counsel is without substance because delay as such has seldom been considered to be an absolute bar in granting relief to a suitor under either of the two articles mentioned above. It is only one of the circumstances to be taken into consideration in determining whether or not to exercise the discretionary power vested in this Court under the said Articles. Though under Article 227, this Court can exercise its power of judicial super-intendence suo motu, it is indisputable that while doing so the Court is expected to bear in mind the factor of delay, for, the power vested in the Court is not completely absolute or arbitrary. In this view of the matter, I do not think it is necessary to consider the various authorities cited at the bar, for, in matters of discretion other decided cases can scarcely constitute binding precedents; they can only serve as helpful illustrations. From its very nature, discretion has to be exercised after weighing all the circumstances of the particular case and it is seldom that one can come across exactly similar facts in two cases. The well-recognised rules discernible from decided cases are, however, by now fairly settled and there has been no serious dispute about them. In this Court also, there is no fixed period of time after which, as a matter of settled practice the writ petitions or petitions under Article 227 of the Constitution must be dismissed on the ground of delay; it being a question to be considered on the facts and circumstances of each case.

(3.) The impugned order is dated 4th September 1959, and the writ petition was filed in this Court on 4th May, 1960, without impleading the Additional District Magistrate whose order was impugned under Article 226 of the Constitution. This delay has been sought to be justified on the ground that the Cantonment Board had to consult its legal adviser and then decide whether or not to assail the order in this Court. It has been stated that the Cantonment Board passed the necessary resolution only on 30th March, 1960, and that within one month and 5 days the writ petition was actually presented in this Court. In so far as the failure to implead the Additional District Magistrate is concerned, it has been submitted that an application for impleading him was also actually filed on 6th February, 1961, and that the delay of about 9 months after the presentation of the writ petition should not be considered to be fatal as it was due merely to inadvertence.