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TMI Blog2020 (2) TMI 427X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellant on oath had claimed having collected this amount from a trader in New Delhi. Amount of Rs. 4,99,900/- was seized. 4. On 22.12.1987 an order under Section 132(5) of the Act, as was then applicable, was passed by the First Income Tax Officer A-II Ward, Bombay (now Mumbai) holding, inter alia, that there were contradictions and fabrications in the appellant's version and stand on the source of Rs. 5,00,000/- and therefore the amount seized would be retained till the assessment for the Assessment Year 1988-1989 was finalised, as the estimated tax liability and penalty for concealment could exceed the seized amount. 5. The appellant had thereupon challenged the order passed under Section 132(5) of the Act in Writ Petition No. 721 of 1988 before the High Court of Judicature at Bombay. The writ was partly allowed vide the judgment dated 25.03.2008 with the order under challenge being set aside as it was passed without following the principles of natural justice. Liberty was granted to the authorities to pass a fresh order after issuing a show-cause notice under Rule 112-A of the Income Tax Rules, 1962 ("the Rules", for short) alongwith the copy of statements relied upon. Furt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Reference was also made to the letter dated 19.09.2009 by which the appellant was informed that cash seized as per the order under Section 132(5) was not required to be retained and had to be refunded. The assessment order possibly had not accounted for the seized cash as the order under Section 132(5) of the Act had directed for refund of Rs. 4,99,900/-. 8. It is the case of the appellant, which we have to observe has not been disputed and denied by the respondents, that the assessing officer had thereupon required the appellant to furnish the indemnity bond which was furnished on or about 22.09.2010, thereby indemnifying the respondents against any loss caused by the grant of refund of Rs. 4,99,900/- plus interest. The appellant had certified that he had not obtained the seized cash, and neither would he claim nor obtain the aforesaid refund in any other manner. It is an undisputed position that the respondents did not refund Rs. 4,99,900/-. 9. After having waited for some time, the appellant had sent written communication dated 05.07.2017 which was received by the office of Deputy Commissioner of Income Tax 1(2)(1) on 17.07.2017 whereby he had sought refund of the seized am ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n execution application or could have given liberty to the appellant to file an execution application which as per the law of limitation can be filed within 12 years. This aspect has been completely over-looked and not been given due consideration. 13. The second reason is also without merit, as we would elucidate. Remedies by way of writ under Article 226 of the Constitution of India are extraordinary remedies exercised under the plenary jurisdiction conferred by the Constitution on the superior courts. The Constitution does not prescribe any limitation period for invoking writ jurisdiction, as by very nature this atypical extraordinary jurisdiction is discretionary and equitable, which puts it on a different footing from ordinary civil proceedings. This astir flexibility is required to ward off unfairness and clear the way to render equitable justice, which might not be achievable on strict application of the law on limitation. This would be true in matters with unusual circumstances, as writ jurisdiction offers a designed and venerate remedy against violations and for protecting and enforcing fundamental rights and also statutory rights under Article 226 of the Constitution. L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y his conduct and neglect, though not waiving the remedy, he has put the other party in a position in which it would not be reasonable to place him if the remedy were afterwards to be asserted. In such cases lapse of time and delay are most material. Upon these considerations rests the doctrine of laches.'" Laches emphasises on prejudice caused by delay and also by negligence whereby a third party could be affected or the position of parties has undergone a change or a parallel right has been created. In Maharashtra State Road Transport Corporation v. Balwant Regular Motor Service, AIR 1969 SC 329 this Court had referred to Lindsay Petroleum Co. v. Hurd (1874) LR 5 PC 221 in which Sir Bens Peacock had elucidated: "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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not dispute that they have to refund the seized amount. Further, considerable delay and failure to make the payment constitutes and is inseparable from the cause of action as the delay and negligence is on the part of the authorities. The appellant does not seek setting-aside or quashing of an adverse order, no third-party rights are involved and the respondents' exfacie would not suffer due to a change of position. Prayer for compliance of a valid and legal order passed cannot be equated with prayers made in repeated representations seeking a change of position. Acquiescence is not apposite to patience as acquiescence is not just standing-by, and refers to assent on being aware of the violation or reflects conduct showing waiver. Laches is this case would require sheer negligence of the nature and type which would render it unjust and unfair to grant relief. When, the liability to pay Rs. 4,99,900/- is acknowledged and accepted, then to deny relief by directing payment in terms of the order under Section 132(5) of the Act would be unjust, unfair and inequitable. Statute mandates the respondents to make payment. To be fair to the counsel for the respondents, it was conceded that an ..... 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