# Prakash Chand Gupta v. Chief Election Officer, U.P. & Ors

- **Citation:** (2020) 2 ILRA 351
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-09-20
- **Case number:** Writ C No. 30228 of 2019
- **Bench:** Sudhir Agarwal, Rajeev Misra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/prakash-chand-gupta-v-chief-election-officer-u-p-ors-45290
- **Pages:** 7

## Headnote

A. Constitution of India - Article 226 -
Delay and laches - Indian Limitation Act, 1963
- Applicability - Though period of limitation
prescribed under Indian Limitation Act, 1963 is
not applicable to a writ petition under Article
226 of Constitution of India, but, principle of
undue delay and laches are applicable - Writ
petition has been filed highly belated without
explaining delay and laches - Delay and laches
constitute substantial reason for disentitling
relief in equitable jurisdiction under Article 226
of the Constitution of India. (Para 13 and 14)
B. Constitution of India - Article 226 -
Second Writ - Maintainability - Abuse of
process of law - Earlier writ petition dismissed
with observation to file Suit - Second Writ
Petition after 19 years - No Disclosure of
earlier petition - Attempt of petitioner is
nothing but gross abuse of process of law.
(Para 15 and 16)
C. Constitution of India - Article 226 -
Writ - Scope - Entitlement for payment of
money pursuant to alleged work - Is an issue
which needs evidence, which cannot be
decided in a writ petition under Article 226 but
can be a subject matter of civil suit -
Unfortunately petitioner has allowed the same
to become barred by limitation. (Para 17)
Writ Petition dismissed. (E-1)
List of cases cited:-

## Text

2 All. Prakash Chand Gupta Vs. Chief Election Officer, U.P. & Ors.
351
and rehabilitation programme in the
University, as is deemed appropriate in
light of this judgment and as per law.

VI.
The
reform,
self
development
and
rehabilitation
programmes shall be processed as per law
and
integrated
into
the
existing
legal/statutory
framework
of
the
University dealing with deviant conduct
and punishments.

VII. The petitioner shall be
given the benefit of the reform, self
development
and
rehabilitation
programme. After the creation of the self
development
and
rehabilitation
programme,
the
petitioner
shall
be
reinstated as a student. The petitioner shall
be permitted to continue his studies in any
course which he is eligible to pursue along
with the reform, self development and
rehabilitation programme.

VIII.
Attendance
of
the
petitioner in the said programme shall be
compulsory. An evaluation sheet of the
petitioner's performance in the programme
shall also be prepared.

IX. It shall be open to the AMU
to impose necessary restraints, as it deems
fit, upon the petitioner even as he pursues
his academic course along with the reform,
self
development
and
rehabilitation
programme. These restraints may include a
campus entry ban upon the petitioner, if
the university deems it necessary. It is
emphasized that the authority of the
University to impose such restraints is
open in all cases, especially, in the instant
case where the misconduct appears to be
of a particularly serious nature. (This
observation shall, however, not influence
the University while deciding the appeal
on its merits). The University shall take an
independent decision in that regard.

X. The exercise shall be
completed,
preferably,
within
six
months, but not later than 12 months.
At all times the respondents keeping in
mind the best interests of the students
and the society, shall make all efforts
to expedite the compliance of the
directions.

XI. It shall be open to the
respondents to create a scheme for
reform,
self
development
and
rehabilitation for convicts in criminal
cases who wish to pursue further
higher
studies
in
the
respondent
University.

XII.
The
counsels
for
the
respondents shall provide certified copy of
this judgment along with Writ C No.
13214 of 2019 (Anant Narayan Mishra Vs.
The Union of India and Others) to the
Registrar, Aligarh Muslim University,
Aligarh; the Secretary, Ministry of Human
Resource Development, Union of India,
New Delhi and the Chairman, University
Grants Commission, New Delhi, for
necessary compliances.

203. The writ petition is finally
disposed of.
----------
(2020)02ILR A351

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 20.09.2019

BEFORE

THE HON'BLE SUDHIR AGARWAL, J.
THE HON'BLE RAJEEV MISRA, J.

Writ C No. 30228 of 2019

Prakash Chand Gupta ...Petitioner
Versus
Chief Election Officer, U.P. & Ors.
 ...Respondents

Counsel for the Petitioner:
Sri Vijay Kumar Dwivedi
352 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Respondents:
C.S.C.

A. Constitution of India - Article 226 -
Delay and laches - Indian Limitation Act, 1963
- Applicability - Though period of limitation
prescribed under Indian Limitation Act, 1963 is
not applicable to a writ petition under Article
226 of Constitution of India, but, principle of
undue delay and laches are applicable - Writ
petition has been filed highly belated without
explaining delay and laches - Delay and laches
constitute substantial reason for disentitling
relief in equitable jurisdiction under Article 226
of the Constitution of India. (Para 13 and 14)
B. Constitution of India - Article 226 -
Second Writ - Maintainability - Abuse of
process of law - Earlier writ petition dismissed
with observation to file Suit - Second Writ
Petition after 19 years - No Disclosure of
earlier petition - Attempt of petitioner is
nothing but gross abuse of process of law.
(Para 15 and 16)
C. Constitution of India - Article 226 -
Writ - Scope - Entitlement for payment of
money pursuant to alleged work - Is an issue
which needs evidence, which cannot be
decided in a writ petition under Article 226 but
can be a subject matter of civil suit -
Unfortunately petitioner has allowed the same
to become barred by limitation. (Para 17)
Writ Petition dismissed. (E-1)
List of cases cited:-
1.
Hindustan
Petroleum
Corporation
Limited and another Vs. Dolly Das 1999
(4) SCC 450

2. Kerala State Electricity Board and
another Vs. Kurien E. Kalathil and others
2000 (6) SCC 293

3. M/S Prabhu Construction Company
through its Proprietor Vs. State of U.P.
and another (Writ C No. 25075 of 2014)
decided on 05.05.2014

4. M/s R.S. Associate Vs. State of U.P. and
others (Writ-C No. 11544 of 2014) decided on
24.02.2014.
5. Alaska Tech Vs. State of U.P. 2014 (6) ADJ
591

6. M/S Goyal Stationary Mart through its
Proprietor State of U.P. (Misc. Bench No. 10971
of 2015) decided on 27.11.2015

7. Budh Gramin Sansthan Vs. State of U.P.
2014 (7) ADJ 29

8. Kaka Advertising Agency Vs. U.P. Technical
University and others 2014 (11) ADJ 227

9. M/s A.K. Constructions Vs. State of U.P. and
others (Misc. Bench No. 1909 of 2014) decided
on 07.03.2014

10. Major Travels through Proprietor Vs. State
of U.P. and others (Misc. Bench No. 3472 of
2014) decided on 25.04.2014

11.
Uttaranchal
Paper
Converters
and
Publishers through Proprietor Vs. State of U.P.
and others (Misc. Bench No. 3898 of 2015)
decided on 13.05.2014

12. Writ Petition (Writ-C) No. 42697 of 2002
(M/S Jai Goswami Electric Works Alld. Vs.
Union Of India through' D.R.M. and Others)
decided on 19.05.2016.

13. New Delhi Municipal Council Vs. Pan Singh
and others J.T.2007(4) SC 253

14. M/S Lipton India Ltd. And others vs. Union
of India and others, J.T. 1994(6) SC 71

15. M.R. Gupta Vs. Union of India and others
1995(5) SCC 628

16. K.V. Rajalakshmiah Setty Vs. State of
Mysore, AIR 1961 SC 993

17.
State
of
Orissa
Vs.
Pyari
Mohan
Samantaray and others AIR 1976 SC 2617

18. State of Orissa and others Vs. Arun Kumar
Patnaik and others 1976(3) SCC 579
2 All. Prakash Chand Gupta Vs. Chief Election Officer, U.P. & Ors.
353
19. Shiv Dass Vs. Union of India and others
AIR 2007 SC 1330= 2007(1) Supreme 455

20. Chunvad Pandey Vs. State of U.P. and
others, 2008(4) ESC 2423

21. Virender Chaudhary Vs. Bharat Petroleum
Corporation & Ors., 2009(1) SCC 297

22. S.S. Balu and another Vs. State of Kerala
and others, 2009(2) SCC 479

23. Yunus Vs. State of Maharashtra and others,
2009(3) SCC 281

24. Lindsay Petroleum Company Vs. Prosper
Armstrong Hurde etc. (1874) 5 PC 239

(Delivered by Hon'ble SudhirAgarwal, J.
Hon'ble Rajeev Misra, J.)

1. Heard Sri Vijay Kumar Dwivedi,
learned counsel for petitioner, learned
Standing Counsel for respondent and
perused the record.

2. Petitioner's claim is that in respect of
work performed by him, he is entitled for
recovery of Rs.2,29,765.16 but his claim
has been rejected by respondent-1 vide
order dated 31.7.2000.

3. Basically writ petition is for recovery of
money therefore, in effect, it is a suit for
recovery of money and since claim of
petitioner is not an admitted claim as it has
already been rejected by respondent-1 vide
order dated 31.7.2000, we do not find that
writ
petition
is
maintainable
hence
petitioner has remedy in common law.

4. It is true that writ petition for
enforcement of contractual matter is not
absolutely barred but when petitioner
seeks recovery of money claiming to have
fallen due as a result of performance of a
contract and claim is not admitted by
respondents, matter requires evidence for
adjudication and hence remedy in common
law by filing suit for recovery of money
must be filed and writ petition under
Article 226 of Constitution should not be
entertained.

5. The question, whether for the purpose
of recovery of money pursuant to contract,
writ petition under Article 226 would be
maintainable has been considered in
Hindustan Petroleum Corporation Limited
and another Vs. Dolly Das 1999 (4) SCC
450 wherein Court said that in absence of
any constitutional or statutory rights being
involved, a writ proceeding would not lie
to enforce contractual obligations even if it
is sought to be enforced against State or to
avoid contractual liability arising thereto.
In the absence of any statutory right,
Article 226 cannot be availed to claim any
money in respect of breach of contract or
tort or otherwise.

6. In Kerala State Electricity Board and
another Vs. Kurien E. Kalathil and others
2000 (6) SCC 293, Court said that
interpretation and implementation of a
clause in a contract cannot be subjectmatter of a writ petition. Whether a
contract envisages actual payment or not is
a question of construction of contract. If a
term of contract is violated, ordinarily
remedy is not the writ petition under
Article 226. A contract would not become
statutory
simply
because
it
is
for
construction of a public utility and it has
been awarded by a statutory body. A
statute may expressly or impliedly confer
power on a statutory body to enter into
contracts in order to enable it to discharge
its functions. Disputes arising out of the
terms of such contracts or alleged breaches
have to be settled by the ordinary
principles of law of contract. The fact that
one of the parties to the agreement is a
354 INDIAN LAW REPORTS ALLAHABAD SERIES
statutory or public body will not by itself
affect the principles to be applied. The
disputes about the meaning of a covenant
in a contract or its enforceability have to
be determined according to the usual
principles of the Contract Act. Every act of
a statutory body need not necessarily
involve an exercise of statutory power.
Statutory bodies have power to contract or
deal with property like private parties.
Such activities may not raise any issue of
public law. When it is not shown that
contract is statutory and parties are within
the realm of their authority, contract
between the parties is in the realm of
private law. The disputes relating to
interpretation of terms and conditions of
such contract cannot be agitated in a
petition
under
Article
226
of
the
Constitution. The Court further said:

"That is a matter for adjudication by a civil
court or in arbitration if provided for in the
contract. Whether any amount is due and if
so, how much and refusal of the appellant
to pay it is justified or not, are not the
matters which could have been agitated
and decided in a writ petition."

7. Following the above authorities, a
Division Bench of this Court in M/S
Prabhu Construction Company through its
Proprietor Vs. State of U.P. and another
(Writ C No. 25075 of 2014) decided on
05.05.2014 said as under:

"In the present case, there is nothing on
the record which may persuade us to
hold that the contract is a statutory
contract. The remedy of the contractor, if
he is aggrieved by non-payment, would
be to either file an ordinary civil suit or
if there is an arbitration agreement
between the parties, to invoke the terms
of the agreement."
8. Court also relied on its earlier decision
in M/s R.S. Associate Vs. State of U.P.
and others (Writ-C No. 11544 of 2014)
decided on 24.02.2014.

9. Again in Alaska Tech Vs. State of U.P.
2014 (6) ADJ 591, a Division Bench of
this Court observed as under:

"2. We are of the view that, in a matter of
this nature which pertains to alleged
nonpayment of dues under a contract for
supply of goods, it would neither be
prudent nor judicious for this Court, in
exercise of its jurisdiction under Article
226 of the Constitution, to grant relief,
which is in substance, is a prayer for a
money decree. These matters, it must be
emphasized, are not those relating to
statutory contracts but are purely nonstatutory contracts. Whether work has
been satisfactorily performed, whether the
rates which had been quoted are in
accordance with the terms of the contract,
whether the goods were of a quality as
mandated, and above all, whether the
claim is within limitation or otherwise, are
issues which cannot appropriately be
adjudicated upon under Article 226 of the
Constitution."

10. The same view has been reiterated in
M/S Goyal Stationary Mart through its
Proprietor State of U.P. (Misc. Bench No.
10971 of 2015) decided on 27.11.2015,
Budh Gramin Sansthan Vs. State of U.P.
2014 (7) ADJ 29, Kaka Advertising
Agency Vs. U.P. Technical University and
others 2014 (11) ADJ 227, M/s A.K.
Constructions Vs. State of U.P. and others
(Misc. Bench No. 1909 of 2014) decided
on 07.03.2014, Major Travels through
Proprietor Vs. State of U.P. and others
(Misc. Bench No. 3472 of 2014) decided
2 All. Prakash Chand Gupta Vs. Chief Election Officer, U.P. & Ors.
355
on 25.04.2014 and Uttaranchal Paper
Converters
and
Publishers
through
Proprietor Vs. State of U.P. and others
(Misc. Bench No. 3898 of 2015) decided
on 13.05.2014.

11. Following the above authorities, a
Division Bench of this Court has also
taken same view in Writ Petition (Writ-C)
No. 42697 of 2002 (M/S Jai Goswami
Electric Works Alld. Vs. Union Of India
through' D.R.M. and Others) decided on
19.05.2016.

12. Further, it appears that writ petition
has been filed in a circuitous way for the
reason that the amount, petitioner is
claiming, relates to the period of 1998, and
his claim was rejected as long back on
31.7.2000 (Annexure 12 to the writ
petition). A suit for recovery of the same
has become barred by limitation therefore,
in order to avoid legal obstruction, this
writ petition has been filed since claim has
become barred by limitation long back and
cannot be claimed by filing a suit.

13. Though period of limitation prescribed
under
Indian
Limitation
Act,
1963
(hereinafter referred to as "Act, 1963) as
such is not applicable to a writ petition
under Article 226 of Constitution of India,
but, principle of undue delay and laches
are applicable. In the present case, claim
relates to the period of 1998 and order
rejecting claim was passed in July, 2000,
but, this writ petition has been filed in
September, 2019 without explaining delay
and laches. The only explanation is that
petitioner had filed Writ Petition No.8202
of 2000, which was disposed of vide
judgment
dated
16.02.2000
directing
respondents-Competent Authority to pass
a reasoned order and thereafter order dated
31.07.2000 was passed. How aforesaid
order can give rise to a fresh cause of
action of filing writ petition in 2019
without explaining laches is not stated
anywhere.

14. Delay and laches constitute substantial
reason for disentitling relief in equitable
jurisdiction under Article 226 of the
Constitution of India. In New Delhi
Municipal Council Vs. Pan Singh and
others J.T.2007(4) SC 253, the Apex Court
observed that after a long time the writ
petition should not have been entertained
even if the petitioners are similarly
situated and discretionary jurisdiction may
not be exercised in favour of those who
approached the Court after a long time. It
was held that delay and laches were
relevant factors for exercise of equitable
jurisdiction. In M/S Lipton India Ltd. And
others vs. Union of India and others, J.T.
1994(6) SC 71 and M.R. Gupta Vs. Union
of India and others 1995(5) SCC 628 it
was held that though there was no period
of limitation provided for filing a petition
under Article 226 of Constitution of India,
ordinarily a writ petition should be filed
within
reasonable
time.
In
K.V.
Rajalakshmiah Setty Vs. State of Mysore,
AIR 1961 SC 993, it was said that
representation would not be adequate
explanation to take care of delay. Same
view was reiterated in State of Orissa Vs.
Pyari Mohan Samantaray and others AIR
1976 SC 2617 and State of Orissa and
others Vs. Arun Kumar Patnaik and others
1976(3) SCC 579 and the said view has
also been followed in Shiv Dass Vs. Union
of India and others AIR 2007 SC 1330=
2007(1) Supreme 455 and New Delhi
Municipal Council (supra). The aforesaid
authorities of the Apex Court has also
been followed by this Court in Chunvad
Pandey Vs. State of U.P. and others,
2008(4) ESC 2423. This has been
356 INDIAN LAW REPORTS ALLAHABAD SERIES
followed in Virender Chaudhary Vs.
Bharat Petroleum Corporation & Ors.,
2009(1) SCC 297. In S.S. Balu and
another Vs. State of Kerala and others,
2009(2) SCC 479 the Apex Court held that
it is well settled principle of law that delay
defeats equity. It is now a trite law that
where the writ petitioners approaches the
High Court after a long delay, reliefs
prayed for may be denied to them on
account of delay and laches irrespective of
the fact that they are similarly situated to
other candidates who have got the benefit.
In Yunus Vs. State of Maharashtra and
others, 2009(3) SCC 281 the Court
referred to the observations of Sir
Barnesdelay
Peacock
in
Lindsay
Petroleum
Company
Vs.
Prosper
Armstrong Hurde etc. (1874) 5 PC 239
and held as under:

"Now the doctrine of laches in Courts of
Equity is not an arbitrary or 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. . . . . . . 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 relates to the
remedy."

15. The third obstruction is that in fact
petitioner has already failed, inasmuch as,
after order dated 31.07.2000 petitioner
filed Writ Petition No.4134 of 2003, and
the same was dismissed on 28.08.2008.
The order reads as under :

"1. This is a writ petition for direction to
respondents to pay the money.
2. We have heard counsel for the petitioner
and Standing Counsel for the respondents.
3. Petitioner may if he is so advised file a
suit.
4. With this observation the writ petition is
dismissed."

16. After dismissal of above writ petition,
no writ petition afresh was maintainable
still present writ petition has been filed
without stating fact of dismissal of writ
petition in para 1 of writ petition though
for the same claim, writ petition was
already dismissed.

17. Last but not the least, obstruction
before petitioner is that his claim has
been
rejected
by
respondent-1,
meaning thereby, claim of payment of
petitioner is not an admitted claim.
Whether rejection is justified and
petitioner is entitled for payment of
money
pursuant
to
alleged
work
performed by him and that too to the
satisfaction and in terms of contract, is
an issue which needs evidence, which
cannot be decided in a writ petition
under Article 226 of Constitution but
can be a subject matter of civil suit,
but,
unfortunately
petitioner
has
allowed the same to become barred by
limitation.

18. What the petitioner has already
lost, cannot be restored or revived by
filing fresh writ petition. In fact this
attempt of petitioner is nothing but
gross
abuse
of
process
of
law.
2 All. Pankaj Kumar Yadav Vs. The State of U.P. & Ors.
357
19. In view thereof, writ petition is
dismissed.
----------
(2020)02ILR A357

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.12.2019

BEFORE
THE HON'BLE ABHINAVA UPADHYA, J.
THE HON'BLE PANKAJ BHATIA, J.

Writ C No. 31081 of 2018

Pankaj Kumar Yadav ...Petitioner
Versus
The State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Radha Kant Ojha, Shivendu Ojha

Counsel for the Respondents:
C.S.C., Sri M.P. Yadav, Sri Mahendra
Pratap

A. Constitution of India - Article 226 -
Restitutionary Relief - Reshuffle and Allotment
of Seat - Arbitrary action of authority -
Wherever Court finds that the action of the
authorities has been arbitrary and in breach of
the rules and regulations or the prospectus
affecting the rights of the students and that a
candidate is found to be meritorious and such
candidate/student has approached the court at
the earliest and without any delay - The court
can mould the relief and direct the admission
to be granted to such a candidate in the next
academic year by issuing appropriate directions
by directing to increase in the number of seats.
(Para 17)

Held -

18. The admission was denied to the petitioner
on account of totally arbitrary consideration by
the respondent authorities and coupled with
the fact that the seats are vacant in the
Medical Colleges as are indicated in the chart
filed by Sri Mahendra Pratap Singh, we hold
that the petitioner being a meritorious student
is entitled to a restitutionary relief and entitled
to be admitted in the College where the seats
are vacant.

Writ Petition allowed. (E-1)
List of cases cited :-

1. S. Krishna Sradha v. The State of Andhra Pradesh
& Others decided on 13.12.2019

2. Asha v. Pt. B.D. Sharma UHS; (2012) 7 SCC 389

3. Chandigarh Administration v. Jasmine Kaur; (2014)
10 SCC 521

(Delivered by Hon'ble Pankaj Bhatia, J.)

1. Heard Sri Radha Kant Ojha, learned
Senior Advocate assisted by Sri Shivendu Ojha,
learned counsel for the petitioner, Sri Mahendra
Pratap, learned counsel for the respondent no. 2
and learned Standing Counsel for the Staterespondent.

2. In the present petition, it has been
alleged that for conducting National Eligibilitycum-Entrance Test (NEET) UG-2018, a
brochure was published by the Director
General, Medical Health and Training. The
petitioner applied and appeared in the NEET
UG-2018 and the Roll Number 513812113 was
allotted to the petitioner. It is said that in the said
test conducted by CBSE, the petitioner's all
India ranking was 10092 and the State rank was
1195. It is stated that the petitioner appeared in
the first counselling and an allotment letter was
issued to the petitioner by the Chairman,
counselling Board (Annexure-2 to the petition),
whereby the petitioner was kept in the category
BCOP
and
was
allotted
the
Institute
Government
Medical
College,
Azamgarh for the course of MBBS.
The petitioner in terms of the said
letter appeared before the Principal,
Government Medical College, Azamgarh
on 10.7.2018 and submitted his papers as