TMI Blog2021 (10) TMI 379X X X X Extracts X X X X X X X X Extracts X X X X ..... oner slept over its rights - Among the several matters which the High Courts rightly take into consideration in the exercise of that discretion is the delay made by the aggrieved party in seeking this special remedy and what excuse there is for it. Their Lordships thus held that as a general rule that if there has been unreasonable delay the court ought not ordinarily to lend its aid to a party by the extraordinary remedy of mandamus. Their Lordships then considered the following submission made by learned counsel that assuming that the remedy of recovery by action in a civil court stood barred on the date these applications were made that would be no reason to refuse relief under Article 226 of the Constitution . Not only, it is found that a stale claim is sought to be agitated by way of this writ petition but the petitioner also raises disputed questions of fact regarding service of the order rejecting the refund - the delay in moving the writ petition is unreasonable - petition dismissed. - WRIT PETITION NO. 1819 OF 2019 - - - Dated:- 5-10-2021 - DIPANKAR DATTA, CJ M. S. KARNIK, J. Mrs. Nikita Badheka a/w. Mr. Parth Badheka a/w. Ms. Lata Nagal for the petitioner. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt period is concerned, the petitioner has not received any assessment or refund audit notice. In the submission of learned counsel, assuming without admitting, such order was passed ex-parte, the petitioner had a legal right to appeal against such orders and the order/s, if any, ought to have been served. A letter dated October 4, 2015 was addressed by the petitioner to the respondents stating that no cognizance was taken by the department on the refund application filed by the petitioner in 2011. The petitioner then applied on April 20, 2018 under Right to Information Act seeking status of the refund application. The department replied on May 30, 2018 stating that no details were available with them. The petitioner persisted with the remedy under Right to Information Act. Ultimately a reply was received by the petitioner on October 9, 2018 from the office of the respondent No.3 wherein it is mentioned that the application for refund was rejected. It is the petitioner s grievance that the copy of the rejection order was not provided. The petitioner was therefore left with no other alternative but to approach this Court by way of the present writ petition. Learned counsel urged tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 18 of the said Act. We, therefore, do not find any substance in the contention of the petitioner that as the copy of the refund rejection order is not served the cause of action survives. There is a failure to take steps as per the requirement of Section 18 of the said Act. It is therefore not possible to ignore or brush aside the stand of the respondents that the order has been served by way of pasting as the assessee named in the application was not found at the place of business. 9. We have also perused the copy of the roznama produced by the respondents which records that on August 29, 2012 fresh notice in Form 301 is issued for the assessment of the first quarter of 2009. The report was received that the dealer was not available at the place of business. The roznama records that as the dealer is not available at the place of business and not responding for the last 2 years, the case is closed for rejection. It is stated that many opportunities were given but the dealer was not available at the place of business and there was no response and hence application was rejected. The roznama dated March 25, 2014 records that the application made by the dealer for the year 2009-2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have taken. In paragraph 15 and 16, Their Lordships have held thus :- 15. When a belated representation in regard to a stale or dead issue/dispute is considered and decided, in compliance with a direction by the court/tribunal to do so, the date of such decision cannot be considered as furnishing a fresh cause of action for reviving the dead issue or time-barred dispute. The issue of limitation or delay and laches should be considered with reference to the original cause of action and not with reference to the date on which an order is passed in compliance with a court s direction. Neither a court s direction to consider a representation issued without examining the merits, nor a decision given in compliance with such direction, will extend the limitation, or erase the delay and laches. 16. A court or tribunal, before directing consideration of a claim or representation should examine whether the claim or representation is with reference to a live issue or whether it is with reference to a dead or stale issue. If it is with reference to a dead or state issue or dispute, the court/tribunal should put an end to the matter and should not direct considerati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted stage. Their Lordships in the case of Karnataka Power Corporation Ltd. and anr. Vs. K. Thangappan and anr. AIR 2006 SC 1581 held that 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. Of course, the discretion has to be exercised judicially and reasonably. Referring to the decision in the case of State of M. P. Vs. Nandlal AIR 1987 SC 251, Their Lordships observed 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al remedy and what excuse there is for it. Their Lordships thus held that as a general rule that if there has been unreasonable delay the court ought not ordinarily to lend its aid to a party by the extraordinary remedy of mandamus. Their Lordships then considered the following submission made by learned counsel that assuming that the remedy of recovery by action in a civil court stood barred on the date these applications were made that would be no reason to refuse relief under Article 226 of the Constitution and the same is answered thus :- It is also held that learned counsel is right in his submission that the provisions of the Limitation Act do not as such apply to the granting of relief under Article 226. It appears to us however that the maximum period fixed by the legislature as the time within which the relief by a suit in a civil court must be brought may ordinarily be taken to be a reasonable standard by which delay in seeking remedy under Article 226 can be measured. The Court may consider the delay unreasonable even if it is less than the period of limitation prescribed for a civil action for the remedy but where the delay is more than this period, it will almo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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