# Tulsi Ram v. The State of U.P. & Ors

- **Citation:** (2020) 9 ILRA 288
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2018-04-19
- **Case number:** Misc Single No. 2773 of 2014
- **Bench:** Rakesh Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/tulsi-ram-v-the-state-of-u-p-ors-44362
- **Pages:** 5

## Headnote

Order of Cancellation dated 07.04.2006 -
appeal rejected on 22.02.2007-W.P. filed
on 05.05.2014-no satisfactory explanation
for inordinate delay.

Writ Petition dismissed. (E-9)

Cases referred: -

1.City and Industrial Development Corpn. Vs
Dosu Aardeshir Bhiwandiwala, (2009) 1 SCC 168

2.Chennai Metropolitan Water Supply & Sewerage
Board Vs T.T. Murali Babu, (2014) 4 SCC 108

## Text

288 INDIAN LAW REPORTS ALLAHABAD SERIES

12. The petition is devoid of merit and
is accordingly dismissed.
----------
(2020)09ILR A288
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 19.04.2018

BEFORE

THE HON'BLE RAKESH SRIVASTAVA, J.

Misc Single No. 2773 of 2014

Tulsi Ram ...Petitioner
Versus
The State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sunil Kumar Singh

Counsel for the Respondents:
C.S.C.

Order of Cancellation dated 07.04.2006 -
appeal rejected on 22.02.2007-W.P. filed
on 05.05.2014-no satisfactory explanation
for inordinate delay.

Writ Petition dismissed. (E-9)

Cases referred: -

1.City and Industrial Development Corpn. Vs
Dosu Aardeshir Bhiwandiwala, (2009) 1 SCC 168

2.Chennai Metropolitan Water Supply & Sewerage
Board Vs T.T. Murali Babu, (2014) 4 SCC 108

3. State of J&K Vs R.K. Zalpuri, (2015) 15 SCC 602

4.Smt. Urmila Jaiswal Vs St. Of U.P. Thru Secy.
& ors., 2013 (4) ALJ 388

(Delivered by Hon'ble Rakesh Srivastava, J.)

1. By this petition under Article 226
of the Constitution of India, the petitioner
assails the validity of the order dated
07.04.2006
of
the
Sub
Divisional
Magistrate, Sadar, Hardoi cancelling the
fair price shop agreement of the petitioner
and also the order dated 22.02.2007 of the
Appellate Authority, whereby the appeal
preferred by the petitioner against the
cancellation order has been rejected.

2. The petitioner was a licensee of a
fair price shop situated in village Lilawal,
Tehsil and District Hardoi. By an order
dated 22.12.2005 passed by the Sub
Divisional
Magistrate,
the
license
/
agreement of the shop in question was
suspended and the petitioner was required
to submit his explanation. The petitioner on
31.03.2006 submitted his reply. After
taking into account the reply submitted by
the
petitioner,
the
Sub
Divisional
Magistrate, by his order dated 07.04.2006,
cancelled the fair price agreement of the
petitioner. The appeal preferred by the
petitioner against the said order was
dismissed by the Appellate Authority vide
order dated 22.02.2007. On 14.03.2012 the
petitioner
moved
an
application
for
restoration/recall
of
the
said
order,
alongwith an application for condonation of
delay. The Appellate Authority, by the order
dated 12.02.2014, refused to condone the
delay and accordingly dismissed the recall
application as time barred. Notably, the
order dated 12.02.2014 has not been
assailed by the petitioner. Only the orders
dated 07.04.2006 and 22.02.2007 are under
challenge in this writ petition.

3. In their counter affidavit, the
respondents have not only supported the
orders under challenge, but have also raised
a preliminary objection regarding the
maintainability of the writ petition on the
ground of delay and laches.

4. Heard Shri Sunil Kumar Singh, the
learned counsel for the petitioner and the
9 All. Tulsi Ram Vs. The State of U.P. & Ors.
289
learned Standing Counsel appearing on
behalf of the State-respondents.

5. It is well settled that the power of the
High Court to issue an appropriate writ under
Article 226 of the Constitution of India is
discretionary and the High Court in the
exercise of its discretion does not ordinarily
assist the tardy and the indolent or the
acquiescent and the lethargic. If there is an
inordinate delay on the part of the petitioner in
filing a writ petition, and such delay is not
satisfactorily explained, the High Court may
decline to intervene and grant relief in the
exercise of its writ jurisdiction.

6. In City and Industrial Development
Corpn. v. Dosu Aardeshir Bhiwandiwala,
(2009) 1 SCC 168, the Apex Court while
dwelling upon the jurisdiction under Article
226 of the Constitution, has held that the
Court, while exercising its jurisdiction
under the said Article, is duty-bound to
consider whether:

(a) adjudication of writ petition
involves
any
complex
and
disputed
questions of facts and whether they can be
satisfactorily resolved;

(b)
the
petition
reveals
all
material facts;

(c)
the
petitioner
has
any
alternative or effective remedy for the
resolution of the dispute;

(d)
person
invoking
the
jurisdiction is guilty of unexplained delay
and laches;

(e) ex facie barred by any laws of
limitation;

(f) grant of relief is against public
policy or barred by any valid law; and host
of other factors.
 (emphasis supplied)

7. In Chennai Metropolitan Water
Supply & Sewerage Board v. T.T. Murali
Babu, (2014) 4 SCC 108 the Apex Court
opined as under:

"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."
 (emphasis supplied)

8. In State of J&K v. R.K. Zalpuri,
(2015) 15 SCC 602 the Apex Court held
that:

"26. In the case at hand, the
employee was dismissed from service in
the year 1999, but he chose not to avail any
departmental remedy. He woke up from his
slumber to knock at the doors of the High
Court after a lapse of five years. The
staleness of the claim remained stale and it
could not have been allowed to rise like a
phoenix by the writ court.
290 INDIAN LAW REPORTS ALLAHABAD SERIES

27. The grievance agitated by the
respondent did not deserve to be addressed
on merits, for doctrine of delay and laches
had already visited his claim like the chill
of death which does not spare anyone even
the one who fosters the idea and nurtures
the attitude that he can sleep to avoid death
and eventually proclaim "deo gratias"--
"thanks to God".

28. Another aspect needs to be
stated. A writ court while deciding a writ
petition is required to remain alive to the
nature of the claim and the unexplained
delay on the part of the writ petitioner.
Stale claims are not to be adjudicated
unless non-interference would cause grave
injustice. The present case, needless to
emphasise, did not justify adjudication. It
deserved to be thrown overboard at the
very threshold, for the writ petitioner had
accepted the order of dismissal for half a
decade and cultivated the feeling that he
could freeze time and forever remain in the
realm of constant present."

(emphasis supplied)

9. Here, in the present case, the appeal
preferred by the petitioner against the order
of cancellation dated 07.04.2006 was
rejected by the Appellate Authority on
22.02.2007. The present writ petition has
been filed by the petitioner on 05.05.2014.
Thus, there is considerable delay on the
part of the petitioner in filing the writ
petition. The petitioner, however, contends
that he was not aware of the order dated
22.02.2007. In paragraph 22 of the writ
petition the petitioner has attempted to
explain the delay in the following words -

"the petitioner has filed this
appeal at this very late stage because when
case was decided by the opposite party no.2
he has no knowledge about the same
thereafter when the petitioner inquired the
matter in February, 2012 it was found that
the case has been decided in the year
2007."

10. The counsel for the petitioner
submits that immediately on coming to
know about the order dated 22.02.2007, the
petitioner filed an application for recall,
alongwith an application for condonation of
delay which came to be dismissed on
12.02.2014. It is alleged that soon after the
dismissal of the recall application the
petitioner has approached this Court
without any further delay. In these
circumstances, it is contended that the
delay may be condoned and the case be
decided on merits.

11. The application dated 14.03.2012
moved by the petitioner for recall of the order
dated 22.02.2007 is not on record. As would
be evident from the order dated 12.02.2014,
the petitioner had moved an application for
recall on the ground that the order dated
22.02.2007 was an ex parte order. The fact
that the order dated 22.02.2007 was passed
after hearing the counsel for the petitioner is
not in dispute. The order dated 22.02.2007,
not being an ex parte order, the application
for recall as such was not maintainable and as
per the settled law, a quasi-judicial body such
as the Appellate Authority in the present
matter, could not review its own order in the
absence of any specific provision giving such
a power to it. Reference may be made to a
Division Bench judgment of this Court in
Smt. Urmila Jaiswal v. State Of U.P. Thru
Secy. and others, 2013 (4) ALJ 388, wherein
it was held, in the context of cancellation of
fair price shop licenses, as follows:

"21. From the proposition of law
as laid down in the above cases, it is well
established that unless the Statute/Rule
9 All. Tulsi Ram Vs. The State of U.P. & Ors.
291
permit, the review application is not
maintainable in case of judicial/quasi
judicial orders. In Order 2004, no power of
review has been expressly provided nor
such power can be read by implication."

12. Furthermore, the petitioner has
not even challenged the order dated
12.02.2014 by which the application for
condonation of delay, filed along with the
application for recall, has been dismissed.
As stated above, the petitioner has come to
this Court challenging only the orders dated
07.04.2006 and 22.02.2007 passed by the
Sub Divisional Magistrate, Sadar, Hardoi
and the Appellate Authority, respectively.
In such a scenario, the petitioner does not
derive any benefit from the fact that the
application for recall moved by the
petitioner on 14.03.2012 came to be
dismissed on 12.02.2014.

13. In any case, the fair price shop
agreement of the petitioner was cancelled
after taking into account the explanation
submitted by the petitioner to the show
cause notice issued to him in this regard.
The appeal filed by the petitioner against
the order of cancellation was rejected by
the Appellate Authority vide order dated
22.02.2007 after hearing the counsel for the
petitioner. It is not the case of the petitioner
that on the date of hearing the petitioner
was not present in Court. Neither in the
writ petition nor in the rejoinder affidavit
has the petitioner averred that the order
dated 22.02.2007 was never communicated
to him by his counsel immediately after the
same was passed or soon thereafter. In the
circumstances, it would be naive to believe
that the petitioner was not aware of the
order dated 22.02.2007.

14. In fact, the petitioner has made a
contradictory statement in the writ petition
regarding the delay in approaching this
Court which was not the reason given by
him in the application for condonation of
delay moved by him alongwith the
application
for
restoration
dated
14.03.2012. As is apparent from the order
12.02.2014, before the Appellate Authority
the petitioner had contended that because
of the death of his parents in the year 2008
he was quite disturbed and as such he could
not pursue his case, which is not his case in
the present writ petition. The relevant part
of the order dated 12.02.2014 is extracted
below:

ÞmHk;i{k ds fo}ku vf/koDrkvksa dh
cgl lquus ,oa i=koyh dk voyksdu djus ls
Li"V gS fd xq.knks"k ds vk/kkj ij ikfjr vihyh;
vkns'k fnukad 22&2&2007 dks okil fy;s tkus
ds lEcU/k esa oktnk;j izkFkZuk i= yxHkx 6 o"kZ
ckn izLrqr fd;k x;k gS tks dkyckf/kr gSA
izkFkZuk i= nkf[ky djus esa gq;s foyEc dks {kek
fd;s tkus gsrq Hkkjrh; fe;kn vf/kfu;e dh
/kkjk&5 ds vUrxZr izkFkZuk i= fn;k x;k gS fdUrq
izkFkZuk i= esa fuR;&izfrfnu ds foyEc dk
Li"Vhdj.k ugha fn;k x;k gSA izkFkZuk i= ds lkFk
izLrqr fd;s x;s 'kiFk i= esa dgk x;k gS fd o"kZ
2008 esa ekrk ,oa firk ds LoxZokl gks tkus ds
dkj.k dkQh ijs'kku Fkk ftl dkj.k iSjoh ugha
dj ldk fdUrq ekrk&firk dh e`R;q ds lEcU/k esa
dksbZ vfHkys[kh; izek.k izLrqr ugha fd;k x;k gSA
izkFkZuk i= yXkHkx 6 o"kZ ls Hkh vf/kd dkyckf/kr
gSA vRk% ,slh fLFkfr esa izkFkZuk i= nkf[ky djus
esa gqvk foyEc {kek fd;s tkus ;ksX; izrhr ugha
gksrk gSA

oktnk;j izkFkZuk i= dkyckf/kr gksus
ds dkj.k fujLr fd;k tkrk gSA vkns'k dh ,d
izfr voj U;k;ky; dks Hksth tk;sA ckn vko';d
dk;Zokgh bl U;k;ky; dh i=koyh nkf[ky
nQrj gksAß
 (emphasis supplied)

15. From the above, it is apparent that
the petitioner was very much aware of the
order dated 22.02.2007. The averment
292 INDIAN LAW REPORTS ALLAHABAD SERIES
made by the petitioner in paragraph 22 of
the writ petition that he was not aware of
the said order and he came to know about it
only in February, 2012 is not only incorrect
but is also palpably false. There is, thus, no
satisfactory explanation for the inordinate
delay in filing the writ petition.

16. The writ petition is, accordingly,
dismissed on the ground of delay and laches.
----------
(2020)09ILR A292
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 18.02.2020

BEFORE

THE HON'BLE RAKESH SRIVASTAVA, J.

Misc Single No. 4053 of 2018

Sanjay Singh ...Petitioner
Versus
Civil Judge J.D. Kadipur Sultanpur & Anr.
 ...Respondents

Counsel for the Petitioner:
Sunil Kumar Singh

Counsel for the Respondents:

Amendment
Application-filed
for
amending order and some time limit be
fixed to civil Judge to decide the suit-no
amendment
application
touching
the
merit is maintainable.

Writ Petition dismissed. (E-9)

Cases referred: -

1.Bharat
Amratlal
Kothari
Vs
Dosukhan
Samadkhan Sindhi, (2010) 1 SCC 234

2. State of Punjab Vs Darshan Singh, (2004) 1
SCC 328

3. Bijay Kumar Saraogi Vs St. of Jharkhand,
(2005) 7 SCC 748
4.State of Haryana & ors. Vs M.P. Mohla, (2007)
1 SCC 457

5. Ram Chandra Singh Vs Savitri Devi & ors.
(2004) 12 SCC 713

6.Ram Jethmalani & ors. Vs U.O.I. & ors.(2011)
9 SCC 751

7.Delhi Administration Vs Gurdip Singh Urban &
ors. (2000) 7 SCC 296

(Delivered by Hon'ble Rakesh Srivastava, J.)

(In Re:- C.M. Application No. 57454 of 2019)

1. Heard Sri Sunil Kumar Singh,
learned counsel for the petitioner.

2. This is an application by the
petitioner-applicant for amendment of the
judgment and order dated 12.02.2018
passed by this Court in the above
mentioned writ petition.

3. It appears that the petitioner had
filed a Regular Suit No. 85 of 2007 for
permanent injunction against the private
respondent before the Court of Civil Judge
(Junior
Division),
Kadipur,
District
Sultanpur.

4. On 31.10.2018, the petitioner had
filed the above mentioned writ petition
praying inter alia the following prayer:-

"Wherefore,
it
is
most
respectfully prayed that this Hon'ble Court
may kindly be pleased to direct/command
the opposite party no. 1 to decide the Suit
No. 85 of 2007 in case of Prahlad Singh
Vs. Land Management Committee and
others which is still pending since very
long time before the opposite party no. 1
within a stipulated time as contemplated in
Annexure
No.
1
to
this
petition."