PETITIONER: MYSORE STATE ROAD TRANSPORT CORPORATION Vs. RESPONDENT: <NAME> & ANR. DATE OF JUDGMENT01/12/1976 BENCH: <NAME>, JASWANT BENCH: <NAME>, JASWANT RAY, <NAME>, <NAME> CITATION: 1977 AIR 747 1977 SCR (2) 282 1977 SCC (2) 452 CITATOR INFO : D 1977 SC1233 (16) ACT: Service matter--Person. employed in one <ORG> trans- ferred to another on' <ORG>s' Reorganisation--No post in the new <ORG> equivalent to that of appointing authority in the old <ORG>--If Government servant could be dismissed by an officer lower in rank than the appointing authority. HEADNOTE: Under s. 115(7) of the <ORG>s Reorganisation Act, 1956, nothing contained in that section could, after the appointed day, i.e. November 1, 1956, affect the operation of the provisions of Chapter I of Part XIV of the Constitution in relation to the determination of conditions of service of persons serving in connection with the affairs of the <ORG> or any <ORG>. The proviso provides that the condition of service applicable immediately before the appointed day to any person who is allotted to another <ORG> could not be varied to his disadvantage except with the previous approval of the Central Government. The respondents, who were bus conductors in the <ORG> Road Transport Department of the former <ORG> of Hyderabad, were allotted to the <ORG> of Mysore consequent upon the reorganisation of the <ORG>s in 1956 and they continued to hold the same posts under <ORG>. They were dismissed from service by the Divisional Controller of <ORG> and the order of dismissal was affirmed by the General Manager of the Department. The orders of dismiss- al were challenged on the ground that since they were ap- pointed by the Superintendent of <ORG> of the former <ORG> of Hyderabad, who was the Head of that Department they could be dismissed only by the General Manager of the Mysore <ORG> Road Transport Department and that their dismissal by the Divisional Controller, who was not the. Head of the Department, was in violation of the right guaranteed under Art. 311 of the Constitution. <ORG> struck down the order of dismissal. On appeal by the <ORG> it was contended that (1 ) since the post of Superintendent of <ORG> did not exist in the <ORG> of Mysore and the Divisional Controller was the competent authority to appoint' and dismiss servants of the category to which the respondents belonged, their dismissal was not incompetent in view of s. 116(2) of the <ORG>s Reorganisation Act, 1956; (2) There was substantial compliance with Art. 311 because the order of dismissal was confirmed by the General Manager; (3) Since the posts were not civil posts under the <ORG>, there was no violation of Art. 311; (4) The discretionary relief of declaration of continuance in service could not have been granted in this case; and (5) the respondents were dismissed before. the establishment of the <ORG> and since they did not exercise their option to join the <ORG>, no decree could be passed against the <ORG>. Dismissing the appeals, HELD: The respondents could not have been dismissed from service by an authority lower or subordinate in rank to the General Manager of <ORG> as it would tantamount to deprivation of the guarantee in,Art. 311 of the Constitution read with s 115(7) of the <ORG> Reorgani- sation Act. That there was no post of Superintendent of Traffic under the Mysore.Government Road Transport Depart- ment is of no consequence. [291 F] 283 1 (a) The protection enjoyed by persons holding civil posts under the <ORG> like the respondents prior to the coming into force of the Act could not after the appointed day, be taken away, whittled down or impaired by any legislative enactment or rule. The broad purpose underlying the section was to ensure that the conditions of service of persons mentioned therein shall not be changed except with the prior approval of the Central Govt. [288 E;B] (b) The expression 'condition of service' is an expres- sion of wide import and the dismissal from service is a matter which falls within the conditions of service of public servants. It is not possible by means of any legis- lative provision. or rule to take away the guarantee provid- ed by Art. 311(1) and if any legislative provision or rule lays down otherwise, it will be ultra vires. [288 <CITATION> .  3 SCR 515; <CITATION>  7 SCR 549; <CITATION> 75 I.A. 343; AIR 1949 P.C. 112; <NAME> v. The Hon'ble the Chief Justice of Calcutta High Court  2 SCR 1331;-<ORG> of Madhya Pradesh & Ors. v- <NAME>  3 SCR 302; and Ranga- chari v. Secretary of <ORG> 64 I.A. 40: AIR 1937 P.C. 27, followed. (c) The expression 'competent authority' in s. 116(2) of the Act must be read in conjunction with, construed and understood as having the same meaning as the expression 'appropriate authority' contemplated by s. 116(1) and Art..311(1) which means the appointing authority or an authority equivalent to or co-ordinate in rank with the appointing authority, [289B] (d) The power to dismiss a Government servant from service can be conferred on an officer other than the 'a- ppointing authority provided he is not subordinate in rank to the appointing officer or authority. [291 <CITATION>  3 S.C.R. 173, applied. <CITATION> A.I.R. 1956 Mad. 419; <CITATION> A.I.R 1954 Raj 207, <CITATION> A.I.R. 1963 Punjab 370; <CITATION> . A.I.R. 1954 Patna 285 and <CITATION> . 1971 J & K L.R. 558. approved. In the instant case by virtue of s. 116(1) the respondents were deemed to have been appointed from November 1, 1956 in the <ORG> of Mysore by the appropriate authori- ty which could not be the authority other than the one equivalent-to or coordinate in rank with the authority which appointed them in the erstwhile <ORG> of Hyderabad. The General Manager of <ORG> could alone be considered to be the competent authority in terms of s. 116(2) . [291 D] (2) The original order of dismissal being without jurisdic- tion and as such void and inoperative, the order passed on appeal by the General Manager could not cure the initial defect. [292 A] (3) Both at the time of coming into force of the <ORG>s Reorganisation Act , 1956 and at the time of the passing of the impugned orders, the respondents were holding civil posts in connection with the affairs of the <ORG> and they could not but be treated as holding civil, posts under the <ORG>. [292 D] 4 (a) The declaration to enforce a contract of personal service 'can be granted (i) where a government servant is dismissed from service in contravention of the Art. 311; (ii) to dismissed workers under the industrial and labour law, and (iii) where a statutory body has acted in breach of a mandatory obligation imposed by a statute. [292 <CITATION>  2 S.C.R. 250 and <CITATION> .  2 S.C.R. 1006. followed. 284 (b) It is only where the discretion is not exercised by the lower court in the spirit of the statute or fairly or hon- estly or according to the rules of reason and justice that the order passed by the lower court can be reversed by the superior court. [293 A] Charles Osenton & Company v. Johnston  A.C. 130, referred to. In the instant case, it cannot be said that the discre- tion has been wrongly exercised in favour of the respond- ents. [294 C] (5) In view of the appellants' application before <ORG>, which was duly endorsed by the Government, that since the <ORG> had constituted the Road Transport Corpo- ration and transferred the rights and liabilities to it, the decree, if any, could be passed exclusively against it, the <ORG> cannot contend that no decree should have been passed against it. [294 D] JUDGMENT:

CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 1601--1609of 1968.

Appeals by Special Leave from the Judgments and Orders dated the 7th February, 1968 and 26th March, 1968 of <ORG> at Bangalore in Regular Second Appeal No. 627 of 1964 and Regular Second Appeals Nos. 117 to 120 and 881 to 884 of 1967 respectively.

Civil Appeals Nos. 2402--2405/68 Appeals by Special Leave from the Judgment and Decree dated the 26th March, 1968 of <ORG> in R.S.A. Nos. 881-884/67.

(Mrs.) Shyamla Pappu and <NAME> for the Appellant in C..As. 1601--1609/68.

<NAME> for the Appellant in CAs. 2402--2405/68. .4<NAME>, <NAME> and <NAME> for Respond- ent No. 1 in C.A. 1601/68.

<NAME>, <NAME>, <NAME>, <NAME> and <NAME> for Respondent No. 1 in C.As. 1602--1607/68.

(Mrs.) <NAME> and <NAME> for Respondents in C. As. 2402--2405/68.

The Judgment of the Court was delivered by <NAME>, J. This batch of appeals by special leave, the first one out of which is directed against the judgment and decree dated February 7, 1968, of <NAME>, J. of <ORG> in R.S.A. No. 627 of 1964, and the rest whereof are directed against the common judgment and decree dated March 26, 1968 of M. <NAME>, another learned Judge of that Court in R.S.A. Nos. 120, 881, 117 to 119 and 882 to 884- of 1967 shah be disposed of by this judgment as they raised a common question as to the validi- ty of orders of dismissal from service of persons who are arrayed as first respondents in all these appeals. The facts leading to. the appeals are: The first re- spondent in each of these appeals was working as a conduc- tor in <ORG> of the erstwhile State of Hyderabad prior to the coming into force of the States Reorganisation Act , 1956. On the reorganisation of the States with effect from Novem- ber 1, 1956, consequent upon the coming into force of the said Act, the said respondents were allotted to the new State of Mysore but their employment as conductors was continued in the Depots which became parts of <ORG>. As a result of the disciplinary proceedings taken against them for certain cash and ticket irregularities alleged to have been committed by them, they were dismissed from service by the Divisional Controller of <ORG> in December, 1960. The orders of their dismissal from service were affirmed by the General Manager of <ORG>. Thereupon they filed separate suits for declaration that the aforesaid orders of their dismissal from service passed by the Divisional Con- troller were illegal, void and inoperative and they contin- ued to be in service and were entitled to full pay. The challenge by the said respondents against their orders of dismissal from service was based on the ground that their appointments having been made by the Superintendent, Road Transport Department of the erstwhile State of Hyderabad, who was the head of that Department, their dismissal from service could only be by the head of <ORG> i.e. by the General Manager of that Department and consequently their dismissal by the Divisional Controller who was not the head of that Depart- ment but a subordinate of his was in violation of the right guaranteed to them under Article 311 (1) of the Constitu- tion. The contentions of the first respondents regarding the invalidity of their dismissal due to the contravention of Article 311 (1 ) of the Constitution having ultimately prevailed and all the suits filed by them having been de- creed in their favour, the State of Mysore and <ORG> (hereinafter referred to as 'the <ORG>) have come up in appeal to this Court.

Appearing in support of the appeals, Mrs. <NAME>, counsel for the appellants, has raised the following contentions:---

1. That as the post of the Superintend- ent of <ORG> did not exist in the new State of Mysore and the Divisional Controller of <ORG> was competent to appoint and dismiss servants of the category to which the first respondents (plaintiffs) belonged, the orders of their dismissal from service could not be held to have been passed in violation of Article 311 ( 1 ) of the Consti- tution in view of section 116(2) of the States Reorganisation Act, 1956.

2. That in any event, as the General Manager of <ORG> confirmed on appeal the order of dismissal from service of the first re- spondents, there was substantial compliance with the provisions of Article 311 of the Constitution.

3. That the posts held by the first respondents not being civil posts under the <ORG>, there could be no question of violation of Article 311(1) of the Constitution.

4. That the discretionary relief of declaration of continuance in service could not and should not have been granted on the facts of the present suits.

5. That in view of the fact that the first respondents were dismissed from service before the establishment of the <ORG> and they did not choose to become its employ- ees by exercising the option given to them to serve under it, no decree could be passed against the <ORG>.

The principal and pivotal question that arises for our consideration in those appeals is whether the impugned orders of dismissal from service were passed by the compe- tent authority ? The answer to this question depends on the answer to the questions as to who could be considered to be the appointing authority in case of the first respondents and whether they were dismissed from service by that author- ity or by an authority subordinate to it.

For a proper decision of this question, it is necessary to advert to sections 115(7) and 116 of the States Reorganisa- tion Act, 1956, Article 311 (1 ) of the Constitution as also to contention No. 4 raised by the <ORG> in the State- ment of Case filed by it before this Court and the admission made by the appellants in answer to the interrogatories served on them by the first respondent under Order 11 Rule 2 of the Code of Civil Procedure which are in these terms :--

" Section 115(7) .---"Nothing in this section shall be deemed to affect after the appoint- ed day the operation of the provisions of Chapter I of Part XIV of the Constitution in relation to the determination of the condi-

tions of service of persons serving in connection with the affairs of the Union or any State:

Provided that the conditions of service applicable immediately before the appointed day to the case of any person referred to in sub-section ( 1 ) or sub-sec- tion ( 2 ) shall not be varied to his disad- vantage except with the previous approval of <ORG>.

Section 116 .--Provision as to continu- ance of officers in the same posts. (i) Every person who immediately before the appointed day is holding or discharging duties of any post or office in connection with the affairs of the <ORG> or of an exist- ing state in any area which on that day falls within another existing <ORG> or a new <ORG> or a <ORG> territory shall, except where by virtue or a consequence of the provisions of this Act such post or office ceases to exist on that day continue to hold the Same post or office in the other existing <ORG> or new <ORG> or <ORG> territory in which such area is included on that day; and shall be deemed as from that day to have been duly appointed to such post or office by the Government of,or other appro- priate authority in such <ORG>, or by the Central Government or other appropriate au- thority in such <ORG> territory as the case may be.

(2) Nothing in this section shall be deemed to prevent a competent authority after the appointed day, from passing in relation to any such person any order affecting his con- tinuance in such post or office." Article 311 , "(1) No person who is a member of a civil service of the <ORG> or an all-India service or a civil service of a <ORG> or holds post under the <ORG> or a <ORG> shall be dismissed or removed by an authority subordinate to that by which he was appointed."

Contention No. 4.--"The High Court failed to see that the post of Superintendent was abolished and was not in existence and that, therefore, an authority of equal rank would be an authority competent to appoint and dismiss the employees."

Admission.--"On 1-11-1956, the General Manager of <ORG> was the head of <ORG> and he was subordinate to none except the Government of Mysore.

The post of Divisional Controller is subordinate in rank to that of the General Manager."

A bare perusal of sub-section (7) of section 115 of the <ORG>s Reorganisation Act, 1956, reproduced above, makes it clear that nothing contained in that section could, after the appointed day, i.e., November 1, 1956, affect the operation of the provisions of Chapter 1 of Part XIV of the Constitution which includes Article 311 thereof in relation to the determination of the conditions of service of persons serving in connection with the affairs of the <ORG> or any <ORG> and the conditions of service applicable immediately before the appointed day to any person who is allotted to another <ORG> could not be varied to his prejudice except with the previous approval of <ORG>. Reference in this connection may be made to two decisions of this Court in M.B. Shukla & Ors. v. <ORG> of Gujarat & Ors.(1) and <CITATION> .(2) In the latter case, it was held by this Court that the effect of sub-section (7) of section 115 of the <ORG>s Reorganisation Act is to preserve the power of the <ORG> to make rules under Article 309 of the Constitution but the proviso (1)  3 S.C.R. 515. (2)  7 S.C.R. 549.

imposes a limitation on the exercise of that power, the limitation being that the <ORG> cannot vary the conditions of service applicable immediately before November 1, 1956, to the disadvantage of persons mentioned in sub-sections (1) and (2) of section 115 of the Act. In the view of the Court, the broad purpose underlying the proviso to section 115(7) of the Act was to ensure that the conditions of service of the aforesaid persons shall not be changed except with the prior approval of <ORG> i.e. before embarking on varying the conditions of service, the <ORG> Governments should obtain the concurrence of <ORG>. Now as pointed out by <ORG> in <CITATION> (1) and by this Court in <NAME> v. The Hon'ble the Chief Justice of Calcutta High Court(2) and <CITATION> (3), the expression 'conditions of service' is an expression of wide import and the dismissal from service is a matter which falls within the conditions of service of public servants. It is also well settled that it is not possible by means of any legislative provision or rule to take away the guarantee provided by Article 311 (1) of the Constitution which lays down that no public servant shall be dismissed by an authority subordinate to that by which he was appointed and if any such legislative provision or rule lays down otherwise, it will clearly be ultra vires. ( <CITATION> (4)], <CITATION> (supra) and <CITATION> (5). It follows, therefore, that the protections including the constitutional protection enshrined in Article 311 (1) of the Constitution enjoyed by persons holding civil posts under the <ORG> like the first respondents prior to the coming into force of the <ORG>s Reorganisation Act , 1956 could not, after the appointed day i.e. November 1, 1956, be taken away, whittled down or impaired by any legislative enactment or rule. Sub-section (2) of section 116 of the <ORG>s Reorganisa- tion Act, 1956 which is the sheet anchor of the first con- tention raised on behalf of the appellants but on which no reliance was rightly placed on their behalf either in the court of the first instance or in the trial court is of no assistance to the appellants. As observed by the learned Chief Justice while speaking for the Constitution Bench of this Court in <CITATION> . (6), every clause of a statute is to be con- strued with reference to the context and other provisions of the Act to make a consistent and harmonious meaning of the statute relating to the subject matter. The interpretation of the words has to be by looking at the context, the collo- cation of the words and the object Of, the words relating to the matters. The words are not to be viewed (1)75 I.A. 343= A.I.R. 1949 P.C./12. (2)  2 S.C.R. 1331, (3) 3 S.C.R. 302. (4) 64 I.A. 40=A.I.R. 1937 P.C. 27, (5)  2 S.C.R. 679. (6)  1 S.C.C. 596.

detached from the context of the statute. The words are to be viewed in relation to the whole context. The expression 'competent authority' occurring in sub-section (2) of sec- tion 116 of the Act cannot, therefore, be considered in isolation apart from the rest of the provisions of the Act. It has to be read in conjunction with, construed and under- stood as having the same meaning as the expression 'appro- priate authority' contemplated by sub-section (1) of that secnon which in turn according to Article 311 (1) of the Constitution means the appointing authority or an authority equivalent to or coordinate in rank with the appointing authority. The Constitution being the transcendental law, the legislature by enacting section 115(7) of the States Reorganisation Act, 1956 took care to see that the constitutional guarantee enshrined in Article 311 (1) of the Constitution which was available to the civil servants before the States Reorganisation Act , 1956 was not de- stroyed or wiped away on their allotment to a new State. That the construction placed by us on the expression 'compe- tent authority' is in consonance with the meaning and import of the word 'subordinate' occurring in Article 311 (1) of the Constitution is apparent from a catena of decisions. <CITATION> (1) where the petitioner was appointed as Deputy Jailor by the Inspector General of Prisons but the order of his dismissal from service was made by the Superintendent of the Jail, it was observed:

"The competence of the authority to order removal or dismissal will have to be determined with reference to the requirements of Article 311 (1 ) of the Constitution; and one of the requirements is that the authority that orders the dismissal or removal should not be one subordinate in rank to that by which the civil servant in question was ap- pointed. The principle would appear to be that it is the factum of the appointment of the civil servant who claims the guarantee, that determines the scope of the guarantee con- ferred by Article 311 ( 1 ) ."

<CITATION> (2) where the applicant was in-

formed in March, 1948 by the Revenue Secretary of the former State of Jaipur that he had been appointed as Inspector in <ORG> and he was removed from service after departmental enquiry by the Commissioner, Customs and Excise, of the State of Rajasthan in July, 1952 and the order of his removal was confirmed on appeal by <ORG>, <NAME>, C.J. <NAME> holding that the order of removal could not be sustained said :--

"What Article 311 ( 1 ) provides is that the authority dismissing should not be subor- dinate in rank to that by (1) A.I.R. 1956 Mad. 419.

(2) A.I.R. 1954 Raj. 207.

20--1458SCI/76 which the appointment was made. The intention seems to be that the authority dismissing should be co-ordinate in rank to the authority appointing, and not that. in the absence of direct subordination any authority could dismiss even though the authority appointing might be a higher authority in rank. The dismissing authority should be at least coor- dinate in rank with the appointing authority and should not be subordinate in rank. Thus if a person is appointed by a Head of one department, and he is transferred to another department, he can only be dismissed or re- moved by the Head of the other department." <CITATION> (1) where the peti-

tioner was appointed as an Assistant Sub-Inspector of Police in <ORG> by the Deputy Inspector General of Police who was at the relevant time, the head of <ORG> and the post of Deputy inspector Gener- al afterwards ceased to exist and the two senior-most officers in <ORG> at the relevant period were the Inspector General and the Senior Superin- tendent of Police and the petitioner was dismissed by the order of the Senior Superintendent of Police who had been invested with the powers of Deputy Inspector General, Fal- <NAME>, C.J. accepting. the contention of the petitioner that his dismissal contravened Article 311 since the Superintend- ent of Police even where he is designated as Senior Superin- tendent is subordinate to the inspector General of Police observed:

"The word 'subordinate' in Art. 311 (1) of the Constitution means subordinate in rank and not with reference to the functions exer- cised. Consequently, when no officer of equal rank to the appointing officer is available then the order of dismissal or removal will have to be passed by an officer of superior rank. In no circumstances can such an order be passed by an officer of lesser rank. Any rule of statute which permits such an action, must be held to be ultra vires as infringing the provisions of Article 311 (1) of the Constitution."

<CITATION> .(2) where the petitioner was appointed in 1928 as lino operator in the Government Press by the Superintendent of the Press and the Government order was passed on June 20, 1952 delegating the power of appointment and dismissal to the Deputy Superin- tendent who initiated proceedings against the petitioner on a charge of theft and passed an order dismissing the peti- tioner from service on September 16, 1953, <NAME>, J. (as he then was) accepting the contention of the petitioner. that he could be dismissed only by the Superintendent of the Government Press or by any higher authority and the order passed by the Deputy Superintendent was invalid and inopera- tive observed:

(1) Aau.I.R. 1963 Punjab 370. (2) A.I.R. 1954 Patna 285, "The word 'subordinate' in Art. 311 ( 1 ) must be properly construed to mean subordi- nation in rank and not subordination of func- tion; otherwise, the protection referred to in Art. 311 would be illusory."

Similar view was expressed by a Full Bench of <ORG> in State of J & K and Anr. v. Ray Mohammad & Ors. U). <CITATION> (2), this Court held that the power can be conferred on an officer other than the appointing authority to dismiss a Government servant provided he is not subordi- nate in rank to the appointing officer or authority. In the instant cases, the first respondents were undeni- ably appointed by the Superintendent of <ORG> of the erstwhile State of Hyderabad who was the head of <ORG> of that State. On the coming into force of the States Reorganisation Act , 1956 on November 1, 1956, they were to be deemed by virtue of sub- section (1) of section 116 of the States Reorganisation Act to have been appointed with effect from that date to the posts held by them on that date by the appropriate authority in the new State of Mysore which could not in the context mean an authority other than the one equivalent to or coor- dinate in rank with the aforesaid authority in the erstwhile State of Hyderabad. The authority equivalent to or coordi- nate in rank with the aforesaid authority on the relevant date being the General Manager of <ORG> according to the appellant's own admis- sion as contained in answer to the aforesaid interrogatories served on them by the first respondents, he alone could be considered to be the 'competent authority' in terms of sub- section (2) of section 116 of the States Reorganisation Act, 1956. The fact that there was no post of Superintend- ent of the Traffic in <ORG> in the State of Mysore is of no consequence. Such being the position, the first respondents could not have been dismissed from service by an authority lower or subordinate in rank to the General Manager of <ORG> as it would tantamount to deprivation of the guarantee enshrined in Article 311 of the Constitution read with section 115(7) of the States Reorganisation Act, 1956. The first contention urged on behalf of the appellants which runs counter not only to contention No. 4 raised by the <ORG> in its Statement of Case before this Court and the admission made by it in answer to the aforesaid inter- rogatories but also to section 115(7) and section 116 of the States Reorganisation Act, 1956 is, therefore, rejected. The second contention urged on behalf of the appellants that as the General Manager of <ORG> confirmed on appeal the orders of dismissal of the first respondents that should be considered as substantial compliance with the provisions of Article 311(1) of the Constitution is, in our judg- (1) (1971) J & K.L.R. 558. (2)  3 S.C.C. 173.

ment, devoid of substance. The original order of dismissal of the first respondents being without jurisdiction and as such void and inoperative having been passed in contraven- tion of the provisions of Article 311 ( 1 ) of the Consti- tution, the order passed on appeal by the General Manager could not cure the initial defect. In similar circum- stances, the appellate order passed by the Director General of Prisons was not considered by <ORG> in <NAME> case (supra) to remedy the invalidity of the original order passed by the Superintendent of Jails. To the same effect is the decision of <ORG> in <ORG>, <ORG> v. Sham- shut Hussain Siraj Hussain.(1) Again in <NAME> v. The North-West Frontier Province(2), it was held by <ORG> that the rejection of appeal by a higher authority against dismissal is not equivalent to a dismissal by that authority itself, so as to satisfy the provisions of subsection (2) of section 240 of the Government India Act, 1935.

There is also no force in the third contention of coun- sel for the appellants that the posts held by the first respondents not being civil posts under the <ORG>, there could be no question of violation of Article 311 (1) of the Constitution. The argument seems to overlook that both at the time of coming into force of the <ORG>s Reorganisation Act , 1956 and at the time of the passing of the impugned orders, the first respondents were holding civil posts in connection with the affairs of the <ORG> and they could not but be treated as holding civil posts under the <ORG>. The fourth contention raised by counsel for <ORG> that the discretionary relief of declaration could not and should not have been granted by the lower courts on the facts of the present suits is also devoid of merit. <CITATION> (3) and <CITATION> . (4) it was clearly held by this Court that declaration to enforce a contract of personal service can be granted in the following three cases :--

(i) appropriate cases of public servants who have been dismissed from service in con- travention of Art. 311;

(ii) dismissed workers under industrial and labour law; and

(iii) when a statutory body has acted in breach of a mandatory obligation imposed by a statute This takes us to second limb of the fourth contention raised on behalf of the appellants. While it is true that the relief of declaration is discretionary, it is well settled that it is only if the dis-

(1) A.I.R. 1949 Nagpur 118. (2) [1941] F.C.R. 37. (3) [1970] 2 S.C.R. 250. (4) [1976] 2 S.C.R. 1006.

cretion is not exercised by the lower court; in the spirit of the statute or fairly or honestly or according to the rules of reason and justice, that the order passed by the lower court can be reversed by the superior court. Refer- ence in this connection may usefully be made to a decision of <ORG> in <ORG> v. John- ston(1) where the legal position was succinctly stated as follows :--

"There remains the question whether, assuming that in the circumstance of this case <NAME> had jurisdiction to make the order of reference his conclusion must stand on the ground that it was reached in the exercise of his discretion and that the exercise of such discretion should not be interfered with on appeal. So the respondent contends, while the appellants urge that, even if the discre- tion to make the order existed, it was wrongly exercised in view of the gravity of the charges made against them, of the impossibili- ty of appeal from an official referee's finding of fact, and in view of the practica- bility of the case being tried before a Judge without a jury. The law as to the reversal by a court of appeal of an order made by the judge below in the exercise of this discretion is well established and any difficulty that arises is due only to the application of well-settled principles in an individual case. The appellate tribunal is not at liberty merely to substitute its own exercise of discretion for the discretion already exercised by the judge. In other words, appellate authorities ought not to reverse the order merely because they would themselves have exercised the original discretion, had it attached to them, in a different way. But if the appellate tribunal reaches the clear conclusion that there has been a wrongful exercise of discretion in that no weight, or no sufficient weight, has been given to rele- vant considerations such as those urged before us by the appellant. then the reversal of the order on appeal may be justified. This matter was elaborately discussed in the decision of this <ORG> in <NAME> v. <NAME> (1937) A.C. 473, where the proposition was stated by my noble and learned friend, Lord <NAME>, as follows: "It is clear that <ORG> should not interfere with the discre- tion of a judge acting within his jurisdiction unless the court is clearly satisfied that he was wrong. But the court is not entitled simply to say that if the judge had jurisdic- tion and had all the facts before him, <ORG> cannot review his order unless he is shown to have applied a wrong principle. The <ORG> must if necessary examine anew the relevant facts and circumstances in order to exercise a discretion by way of review which may reverse or vary the order. Otherwise in interlocutory matters, the judge might be regarded as independent of supervision. Yet an interlocutory order of the judge may (1) [1942] A.C. 130.

often be of decisive importance on the final issue of the case, and one which requires a careful examination by <ORG>. Thus in <NAME> v. <NAME> (1885) 29 Ch. D. 50, <ORG> in discussing the discretion of the judge as regards mode of trial says: "That discretion, like other judicial discretions must be exercised according to common sense and according to justice, and if there is a miscarriage in the exercise of it, it will be reviewed."

Bearing in mind the well settled principles regarding inter- ference with the discretion and taking into consideration all the facts and circumstances of the present cases, we are unable to see how the discretion has been wrongly exercised in favour of the first respondents. The fourth contention urged on behalf of the appellants is, therefore, overruled. We are also not impressed with the last submission made on behalf of the appellants that in view of the fact that the impugned orders of dismissal from service were passed before the establishment of the <ORG>, no decree could be passed against it. The <ORG> having itself made an application on September 7, 1964 before <ORG> endorsed by the Government Pleader requesting therein that since the State of Mysore had constituted a Road Trans- port <ORG> and had transferred its rights and liabili- ties to the <ORG>, the decree, if any, be passed exclusively against it, it cannot now turn round and say that no decree should have been passed against it. All the contentions raised on behalf of the appel- lants having failed, the appeals cannot succeed. They are accordingly dismissed but in the circumstances of the case without any order as to costs.

P.B.R. Appeal dis- missed. 21--1458SCI/76


PETITIONER: STATE OF MAHARASHTRA Vs. RESPONDENT: DIGAMBAR DATE OF JUDGMENT12/05/1995 BENCH: VENKATACHALA N. (J) BENCH: VENKATACHALA N. (J) AHMADI A.M. (CJ) NANAVATI G.T. (J) CITATION: 1995 AIR 1991 1995 SCC (4) 683 JT 1995 (9) 310 1995 SCALE (4)98 ACT: HEADNOTE: JUDGMENT:

THE 12TH DAY OF MAY, 1995 Present:

Hon'ble the Chief Justice Hon'ble Mr. Justice <NAME> Mr. Justice <NAME> Mr. <NAME>, Mr. <NAME> and Dr. <NAME>, Sr. Advs., Mr. <NAME>, Mr. <NAME>, Mr. <NAME>

<NAME>, Mr. <NAME>, Mr. <NAME>, Mr. <NAME>, Mr. <NAME>, Advs. with them for the appearing Parties.

J U D G M E N T The following Judgment of the Court was delivered:

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 6066 OF 1995 (Arising out of S.L.P. (C) No. 10723 of 1993) State of Maharashtra ...Appellant Versus Digambar ...Respondent J U D G M E N T VENKATACHALA, J.

Leave granted.

During the year 1971-72 when acute scarcity conditions prevailed in nearly 23, 000 villages of the State of Maharashtra, large scale scarcity relief works had to be undertaken by <ORG> to provide employment to small agriculturists and agricultural labour of those villages for earning their livelihood. Such relief works included 38, 000 Km. of road works. As <ORG> was not in a position to divert relief funds at its disposal for payment of compensation for lands to be utilised in road works, Collectors, put in-charge of such works, were instructed not to accord sanction to them without ensuring that they did not involve any payment of compensation by the Government. Collectors, were, indeed specially instructed to impress upon the non-official and other social workers to use their good offices in ensuring that the land required for such scarcity relief works were donated to the Government without any claim for compensation.

In the year 1991, respondent, an agriculturist of Vepani village in District Nandat of Maharashtra, filed a writ petition, W. P. No. 3124/91 under Article 226 of the Constitution of India in <ORG>, Aurangabad Bench against the appellant, the <ORG> of Maharashtra. The relief sought in that writ petition was for issue of a direction to <ORG> to grant compensation to him for his land alleged to have been utilised by the <ORG> without his consent for Vepana - Gogri Road -- a road work carried out by the agencies of the <ORG> <ORG>, in the course of execution of scarcity relief works undertaken by the <ORG> <ORG> in the year 1971-72. When the said writ petition, as well as other 191 similar writ petitions, had been set down for admission before the Aurangabad Bench of <ORG>, the Hon'ble Judges constituting that Bench, called upon the concerned <ORG> Pleader to appear for the <ORG> by waiving service of notice on it. The learned <ORG> Pleader, who, accordingly, appeared on behalf of the <ORG> in those writ petitions, urged for dismissal of the writ petitions on the ground of laches on the part of writ petitioners, i.e., undue delay of 20 years, which had occured in the filing of the writ petitions. But, the Bench of <ORG> refused to entertain the ground of undue delay urged by the learned <ORG> pleader against the grant of the relief sought for in the writ petitions and allowed the writ petitions by its judgment dated October 10, 1990. The portion of the judgment which could be regarded as material, reads thus:

"Mr. <NAME>, learned Government Pleader faintly urged that assuming that the petitioner/petitioners were right, but since possession was taken sometime in the year 1972, the present Writ petition filed in the year 1991 are hopelessly time barred and this delay itself is sufficient to reject the petition. We are afraid, in a welfare state, the State Government cannot take such attitude when citizens come before the Courts and complain that they have been deprived of their property without following due process of law and without paying the compensation. It certainly affects the valuable right of the citizen to receive compensation. There is no dispute that the possesison of lands was taken sometime in 1972. There is no investigation on factual aspects by any agency so far. The question as to whether any land of the petitioner has been taken possession of in the year 1971-72 as alleged in the petition will have to be enquired into by a competent Officer. We accordingly direct the Collector or any other Officer nominated by him but not below the rank of Deputy Collector to initiate the proceedings under the Land Acquisition Act , 1894."

S.L.P.(C) No. 10723 of 1993 filed by the State of Maharashtra relates to the said judgment rendered in W.P. No. 3124 of 1991 by <ORG>. S.L.P's filed by the State of Maharashtra in respect of judgments in other 191 similar writ petitions rendered by <ORG>, following the above judgment, are not yet registered on account of non-removal of defects pointed out by <ORG> in respect of them.

When the above S.L.P. No. 10723 of 1993 had come to be listed for hearing before a two Judge Bench of this Court on 15.11.1993, an order is made by that Bench which read thus:

"The <ORG> is directed to post the matter before a three-Judge Bench as similar matters in other S.L.P.Nos. 15132-47/90 have already been dismissed on 11.12.1990 by two-Judges Bench of this Court and the matter involves a decision on merit."

Having heard the S.L.P. No. 10723 of 1993 which had come up for hearing before us, because of the said order of <ORG> of this Court, we have granted leave to appeal as sought for therein.

The main contention raised on behalf of the appellant - the State of Maharashtra against the sustainability of the judgment of <ORG> under appeal by <NAME>, its learned counsel, relates to exercise of directionary power conferred on <ORG> under Article 226 of the Constitution for grant of relief of payment of compensation to the writ petitioner (respondent here) for his land alleged to have been utilised by officers of <ORG> in the year 1971-72 for construction of a public road against his wish refusing to consider the plea of laches or undue delay of 20 years raised on behalf of <ORG> as a ground disentitling the writ petitioner for grant of such discretionary relief. According to him, <ORG> power under Article 226 of the Constitution to grant relief to a person by issue of directions, orders or writs for any other purpose' when was purely discretionary, judgment of <ORG> by which such relief is granted becomes unsustainable, if it is shown that the same has not been founded on sound discretion, that is, on consideration of recognised judicial principles governing exercise of such discretion, to wit, laches, undue delay, acquiescence, waiver or the like on the part of the person seeking relief. Further, according to him, when it is well-settled that <ORG> discretionary power under Article 226 of the Constitution could be exercised to grant relief only to a person whose conduct does not disentitle him to obtain such discretionary relief, <ORG> cannot refuse to take into consideration petitioner's conduct which disentitles him for such relief merely because it is the State against which such relief is sought. When a citizen complains against the State which is interested in protecting his legal rights, by filing a petition under Article 226 of the Constitution, of infringement of his legal right and seeks exercise of <ORG> discretionary power to grant him relief, the need for <ORG>, to look into the conduct of the citizen disentitling the discretionary relief sought is, if any thing, of great public importance for grant of such relief against the State would result in loss to the State, i.e., public money. His contention, therefore, was that impugned judgment by which relief had been granted to the writ petitioner (respondent here) refusing to consider the ground of laches - undue delay of 20 years, urged on behalf of the State against grant of such relief was liable to be interfered with and set aside as that made by <ORG> in wrong exercise of its discretionary power under Article 226 of the Constitution. The judgments of <ORG> in 191 other writ petitions rendered by following the judgment impugned in this appeal were also liable to be anulled as a consequence.

The said contentions urged against the sustainability of the judgment impugned in this appeal were sought to be refuted by Dr. <NAME>, the learned Counsel appearing for the respondent in this appeal and by learned counsel interested in supporting the judgments in other 191 similar writ petitions rendered following that judgment. Their contention was that when the State of Maharashtra had not preferred appeals to this Court against some of earlier judgments rendered in similar writ petitions filed before <ORG> in the year 1987 and when some of the S.L.P's against a few of the other judgments in similar writ petitions are rejected in limine by this Court, there can be no valid justification for the State of Maharashtra to challenge the judgment under appeal and the other 191 similar judgments in the writ petitions rendered following that judgment on the ground that <ORG> had wrongly exercised its discretion under Article 226 of the Constitution in granting relief to respondent and others similarly situated, without considering their conduct in approaching <ORG> after undue delay of about 20 years. It was also their contention that <ORG> when had not obtained gift deeds in respect of citizens' lands in relief works carried out in the drought affected areas of the State, it was not open to <ORG> to contend that the delay of 20 years on the part of citizens for seeking relief under Article 226 of the Constitution has to be regarded as that which showed that the citizens had either voluntarily given away their lands or acquiesced in the taking of such lands by State without compensation or waived their right to claim compensation for such lands.

<NAME>, in his reply to the submissions made on behalf of the respondent and others who had obtained judgments in their favour from <ORG> on the basis of the judgment impugned in this appeal, did not dispute the position that certain judgments of <ORG> in similar matters had not been appealed against by the <ORG> in this Court. But, according to him such thing had happened obviously under an impression that they were stray cases and not fit enough to be appealed against before this Court, having regard to smallness of the amounts involved. When <ORG> allowed certain other writ petitions based on its earlier judgments in similar matters, the <ORG>, according to him, inevitably filed S.L.P's in this Court in respect of latter judgments, but, unfortunately those S.L.P's had come to be dismissed. But, when <ORG> allowed the writ petition by the judgment under appeal and when that judgment was followed in allowing other 191 writ petitions and when innumerable persons were trying to take advantage of the said judgments of <ORG> to file further writ petitions which was estimated to involve an expenditure of about 400 crores of rupees for the <ORG> of Maharashtra, there was no escape from filing the Special Leave Petition out of which the present appeal has arisen and other S.L.P./S.L.P's to wriggle out of the unanticipated situation. It was his submission that in the peculiar facts and circumstances adverted to by him, the earlier non- questioning of certain judgments of <ORG> in this Court and the dismissal of S.L.P's in limine by a Division Bench of this Court filed against a few judgments of <ORG>, cannot be a bar against the <ORG> filing this appeal against the judgment concerned seeking a decision of this Court on merits, when the judgment impugned was wholly unsustainable and called for interference so that the <ORG> Government may be saved from the calamitous situation which it had to face otherwise on account of 191 judgments rendered by <ORG> by following it and when innumerable persons were waiting to take advantage of the judgment by filing fresh writ petitions in <ORG>.

When in the year 1987 some villagers of the <ORG> of Maharashtra filed writ petitions in <ORG>, Aurangabad Bench, claiming compensation for their lands alleged to have been used without acquisition for scarcity relief works got carried out by the <ORG> in the year 1971- 72, they were granted some amounts as compensation on ad hoc basis. Such grant of compensation, has not been questioned, by the filing of the appeals in this <ORG>. Non-filing of such appeals may be for the bonafide reason that being stray cases, were regarded not worth appealing as it was stated before us, or for want of proper advice or even sheer negligence of officers of Government concerned, which often would be the cause for non-filing of appeals in time. Later judgments rendered by <ORG> in some of the similar matters although have been sought to be appealed against by filing S.L.P's., such S.L.P.'s. are rejected in limine by a two-Judge Bench of this <ORG> obviously refusing to exercise its discretion under Article 136 of the Constitution. Whether the said non-filing of appeals in similar matters or rejection of S.L.P's in similar matters, could come in the way of this <ORG> entertaining the present appeal of the <ORG> under Article 136 of the Constitution even if it relates to a similar matter, is the question.

As seen from the judgment under the present appeal, when the writ petition out of which the present appeal has arisen and other 191 similar writ petitions out of which the S.L.P's, which are yet to be registered by <ORG>, have arisen, were listed before <ORG> for preliminary hearing, <ORG> has required <NAME> to appear for the <ORG> of Maharashtra - the common respondent in all of them by waiving service of notice upon it and heard learned counsel appearing for the writ petitioners and the learned counsel-<ORG>, by treating the writ petitions as listed for final hearing. As the relief claimed in the writ petitions filed under Article 226 of the Constitution in the year 1991 against the <ORG> of Maharashtra, the appellant here, was for directing it to pay compensation for writ petitioners' lands alleged to have been used without their consent by the <ORG> or its agencies for carrying out the scarcity relief works in the drought striken villages of the <ORG> of Maharashtra, during the year 1971-72, the grant of that relief by <ORG> is resisted by the learned Government Pleader on the ground of laches or undue delay of 20 years on the part of the writ petitioners in seeking such relief.

Again, as seen from the judgment, the portion of which is excerpted by us earlier, <ORG> has not chosen to consider the ground of laches or undue delay on the part of the writ petitioners as that which disentitled them to seek relief under Article 226 of the Constitution, because of its view that the ground of laches or undue delay cannot disentitle a citizen to obtain relief from <ORG> under Article 226 of the Constitution when he claims compensation from the <ORG> for his land alleged to have been taken away by the <ORG> or its agencies.

The said view taken by <ORG> that the ground of laches or undue delay on the part of a citizen does not disentitle him to obtain relief under Article 226 of the Constitution, when his claim for relief is based on deprivation of his property by the <ORG> or its agencies has since made it (<ORG>) to grant relief to the respondent in this appeal and other similarly situated, sustainability of such view requires our examination in this appeal.

How a person who alleges against the <ORG> of deprivation of his legal right, can get relief of compensation from the <ORG> by invoking writ jurisdiction of <ORG> under Article 226 of the Constitution even though, he is guilty of laches or undue delay is difficult to comprehend, when it is well settled by decisions of this <ORG> that no person, be he a citizen or otherwise, is entitled to obtain the equitable relief under Article 226 of the Constitution if his conduct is blame-worthy because of laches, undue delay, acquiescence, waiver and the like. Moreover, how a citizen claiming discretionary relief under Article 226 of the Constitution against a <ORG>, could be relieved of his obligation to establish his unblameworthy conduct for getting such relief, where the <ORG> against which relief is sought is a welfare <ORG>, is also difficult to comprehend. Where the relief sought under Article 226 of the Constitution by a person against the welfare <ORG> is founded on its alleged illegal or wrongful executive action, the need to explain laches or undue delay on his part to obtain such relief, should, if anything, be more stringent than in other cases, for the reason that the <ORG> due to laches or undue delay on the part of the person seeking relief, may not be able to show that the executive action complained of was legal or correct for want of records pertaining to the action or for the officers who were responsible for such action not being available later on. Further, where granting of relief is claimed against the <ORG> on alleged unwarranted executive action, is bound to result in loss to the public exchequer of the <ORG> or in damage to other public interest, <ORG> before granting such relief is required to satisfy itself that the delay or laches on the part of a citizen or any other person in approaching for relief under Article 226 of the Constitution on the alleged violation of his legal right, was wholly justified in the facts and circumstances, instead of ignoring the same or leniently considering it. Thus, in our view, persons seeking relief against the <ORG> under Article 226 of the Constitution, be they citizens or otherwise, cannot get discretionary relief obtainable thereunder unless they fully satisfy <ORG> that the facts and circumstances of the case clearly justified the laches or undue delay on their part in approaching the <ORG> for grant of such discretionary relief. Therefore, where a High <ORG> grants relief to a citizen or any other person under Article 226 of the Constitution against any person including the <ORG> without considering his blame-worthy conduct, such as laches or undue delay, acquiescence or waiver, the relief so granted becomes unsustainable even if the relief was granted in respect of alleged deprivation of his legal right by the <ORG>.

Learned Counsel for the respondent (writ petitioner) and others similarly situated, it must be stated to their credit, even did not choose to address any arguments before us supporting the view of <ORG> that a citizen when complains before <ORG> under Article 226 of the Constitution of the violation of his legal right by the <ORG>, <ORG> could grant relief to him without examining the question of laches or undue delay on his part in invoking the jurisdiction of the <ORG> for relief thereunder. What was contended on behalf of the respondent and persons similarly situated against whom S.L.P's filed are not yet registered, was that the <ORG> Government when had not chosen to question some judgments of <ORG> in writ petitions of the year 1987 whereunder certain ad hoc compensation had been granted on the allegation that their lands had been taken away for scarcity relief works by the agencies of the <ORG> in the year 1971-72 and further when a few S.L.P's filed in respect of some subsequent judgments of <ORG> in similar matters had been rejected in limine by a two-Judge Bench of this <ORG>, the <ORG> Government should not be allowed to pursue the present appeal or other S.L.P's filed by it in similar cases.

We are unable to appreciate the objection raised against the prosecution of this appeal by the appellant or other S.L.P's filed in similar matters. Sometimes, as it was stated on behalf of the <ORG>, the <ORG> Government may not choose to file appeals against certain judgments of <ORG> rendered in Writ petitions when they are considered as stray cases and not worthwhile invoking the discretionary jurisdiction of this <ORG> under Article 136 of the Constitution, for seeking redressal therefor. At other times, it is also possible for the <ORG>, not to file appeals before this <ORG> in some matters on account of improper advice or negligence or improper conduct of officers concerned. It is further possible, that even where S.L.P's are filed by the <ORG> against judgments of <ORG>, such S.L.P's may not be entertained by this <ORG> in exercise of its discretionary jurisdiction under Article 136 of the Constitution either because they are considered as individual cases or because they are considered as cases not involving stakes which may adversely affect the interest of the <ORG>. Therefore, the circumstance of the non-filing of the appeals by the <ORG> in some similar matters or the rejection of some S.L.P's in limine by this <ORG> in some other similar matters by itself, in our view, cannot be held as a bar against the <ORG> in filing an S.L.P. or S.L.P's in other similar matter/s where it is considered on behalf of the <ORG> that non-filing of such S.L.P. or S.L.P's and pursuing them is likely to seriously jeopardaise the interest of the <ORG> or public interest.

In any event, in our considered view, the non-filing of appeals before this <ORG> by the <ORG> in similar matters or rejection of S.L.P's by this <ORG> in limine or otherwise in similar matters, by themselves cannot operate as a bar or a fetter for this <ORG> in entertaining S.L.P's subsequently filed even if they are considered to relate to similar matters where it finds, as in this case, that the High <ORG> was wholly wrong in granting relief of compensation to a writ petitioner by the judgment under appeal by not considering his entitlement for such relief under Article 226 of the Constitution on account of laches or undue delay on his part or where such wrong judgment is followed for granting similar relief by rendering 191 judgments, which are the subject of S.L.P's in this <ORG> and where there is every possibility of the High <ORG> granting similar relief at the instance of persons who may go before it with similar complaints, which ultimately may result in the estimated loss of Rs. 400 crores to the <ORG>, as stated on behalf of the <ORG>, and cause grave injustice to the interests of the <ORG>. Hence, non-filing of appeals before this <ORG> against certain judgments of the High <ORG> or rejection of appeals filed before this <ORG> against certain judgments of the High <ORG>, cannot be held to come in the way of exercise of this <ORG>'s wide discretionary power, with which it is especially invested under Article 136 of the Constitution of entertaining an appeal or appeals against a similar judgment or judgments at the instance of an aggrieved party including the <ORG> when it is found necessary to remedy manifest injustice. Therefore, the fact that the <ORG> has failed to file appeals in similar matters or this <ORG> has rejected S.L.P's in similar matters, cannot be held to be a total bar or a fetter for this <ORG> to entertain appeals under Article 136 of the Constitution against similar judgments of High <ORG> where need to entertain such appeals is found necessary to meet the ends of justice, in that, the ambit of power invested in this <ORG> under Article 136 allows its exercise, where-ever and whenever, justice of the matter demands it for redressal of manifest injustice. When by an order, already adverted to by us, a two-Judge Bench of this <ORG>, has got referred the S.L.P out of which the present appeal has arisen for being entertained and decided on merits by a three-Judge Bench of this <ORG>, notwithstanding the rejection of S.L.P's by another two-Judge Bench of this <ORG> in similar matters, it has desired the exercise of this <ORG>'s wide power under Article 136 of the Constitution to meet the ends of justice and remdey the manifest injustice caused to the <ORG> by the judgment of the High <ORG> under Appeal, cannot be overlooked.

Coming to the exercise of power conferred upon <ORG> under Article 226 of the Constitution for issuing orders, directions or writs for `any purpose', such power is discretionary, being a matter well-settled, cannot be disputed.

Power of <ORG> to be exercised under Article 226 of the Constitution, if is discretionary, its exercise must be judicious and reasonable, admits of no controversy. It is for that reason, a person's entitlement for relief from <ORG> under Article 226 of the Constitution, be it against the <ORG> or anybody else, even if is founded on the allegation of infringement of his legal right, has to necessarily depend upon unblame-worthy conduct of the person seeking relief, and the Court refuses to grant the discretionary relief to such person in exercise of such power, when he approaches it with unclean hands or blame- worthy conduct.

Laches or undue delay, the blame-worthy conduct of a person in approaching <ORG> in England for obtaining discretionary relief which disentitled him for grant of such relief was explained succinctly by Sir <NAME>, long ago, in <ORG> v. <NAME> [(1874) 5 PC 221], thus :

" 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 be asserted, in either of these cases, lapse of time and delay are most material. But in every case, if an argument against relief, which otherwise would be just, is founded upon mere delay, that delay of course not amounting to a bar by any statute or limitations, the validity of that defence must be tried upon principles substantially equitable. 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 it relates to the remedy."

Whether the above doctrine of laches which disentitled grant of relief to a party by <ORG>, could disentitle the grant of relief to a person by <ORG> in exercise of its power under Article 226 of our Constitution, when came up for consideration before a Constitution Bench of this Court in <ORG>, Bombay and Others [AIR 1967 SC 1450], it was regarded as a principle that disentitled a party for grant of relief from <ORG> in exercise of its discretionary power under Article 226 of the Constitution.

A three-Judge Bench of this Court in <CITATION> . [1969 (1) SCR 808], reiterated the said principle of laches or undue delay as that which applied in exercise of power by <ORG> under Article 226 of the Constitution.

Therefore, where <ORG> in exercise of its power vested under Article 226 of the Constitution issues a direction, order or writ for granting relief to a person including a citizen without considering his disentitlement for such relief due to his blame-worthy conduct of undue delay or laches in claiming the same, such a direction, order or writ becomes unsustainable as that not made judiciously and reasonably in exercise of its sound judicial discretion, but as that made arbitrarily.

Since we have held earlier that the person seeking grant of relief under Article 226 of the Constitution, even if it be against the State, is required to satisfy <ORG> that he was not guilty of laches or undue delay in approaching it for relief, need arises for us to consider whether respondent in the present appeal (writ petitioner in <ORG>) who had sought for relief of compensation on the alleged infringement of his legal right, had satisfied <ORG> that he was not guilty of undue delay or laches in approaching it for relief. The allegation of the petitioner in the writ petition, as becomes clear from the judgment under appeal, was that although certain extent of his land was taken away in the year 1971-72 by the agency of the State for the scarcity relief road works undertaken by <ORG> in the year 1971-72, to find work for small agriculturists and agricultural labourers in the then prevailing severe drought conditions, without his consent, he was not compensated therefor, despite requests made to <ORG> and various agencies in that regard eversince till the date of filing of the writ petition by him.

In our view, the above allegation is in no way sufficient to hold that the writ petitioner (respondent here) has explained properly and satisfactorily the undue delay of 20 years which had occured between the alleged taking of possession of his land and the date of filing of writ petition in <ORG>. We cannot overlook the fact that it is easy to make such kind of allegations against anybody that too against the <ORG>. When such general allegation is made against a <ORG> in relation to an event said to have occured 20 years earlier, and the <ORG>'s non- compliance with petitioners' demands, <ORG> may not at all be in a position to dispute such allegation, having regard to the manner in which it is required to carry on its governmental functions. Undue delay of 20 years on the part of the writ petitioner, in invoking <ORG>'s extraordinary jurisdiction under Article 226 of the Constitution for grant of compensation to his land alleged to have been taken by the <ORG> agencies, would suggest that his land was not taken at all, or if it had been taken it could not have been taken without his consent or if it was taken against his consent he had acquiesced in such taking and waived his right to take compensation for it.

Thus, when the writ petitioner (respondent here) was guilty of laches or undue delay in approaching <ORG>, the principle of laches or undue delay adverted to above, disentitled the writ petitioner (respondent here) for discretionary relief under Article 226 of the Constitution from <ORG>, particularly, when virtually no attempt had been made by the writ petitioner to explain his blame- worthy conduct of undue delay or laches. <ORG>, therefore, was wholly wrong in granting relief in relation to inquiring into the allegation and granting compensation for his land alleged to have been used for scarcity relief road works in the year 1971-72. As seen from the judgment of <ORG>, the allegation adverted to above, appear to be the common allegation in other 191 writ petitions where judgments are rendered by <ORG> following the judgment under appeal and which are subject of S.L.P's in this Court that are yet to be registered. We have, therefore, no hesitation in holding that <ORG> had gone wholly wrong in granting the relief which it has given in the judgment under appeal, and judgments rendered following the said judgment in other 191 writ petitions, said to be the subject of S.L.P's or otherwise. All the said judgments of <ORG>, having regard to the fact that they were made in writ petitions with common allegation and seeking common relief, are liable to be interfered with and set aside in the interests of justice even though only learned counsel appearing for a few writ petitioners were heard by us.

In the result, we allow this appeal, set aside the judgment under appeal, dismiss the writ petition of the writ petitioner (respondent here) and also annual all those judgments rendered by <ORG> following the judgment under appeal, even though the S.L.P's filed in respect of them before this Court are yet to be registered or even if no S.L.P's are filed in respect of them. However, in the facts and circumstances of the present case, we make no order as to costs.


ORDER <NAME>, J.

1. This review petition is filed to review the order dated 17-1-2000 in Writ Appeal No. 2294 of 1999 passed by this Court. By that order the writ appeal was allowed setting aside the order of the learned Single Judge dated 11-11-1998 in W.P. No. 30622 of 1998, allowed the said writ petition, quashed the notification and the acquisition proceedings impugned therein only insofar as the appellants therein are concerned. The learned Single Judge dismissed the writ petition filed by respondents 1 and 2 inter alia on the ground of delay and laches. That was the subject-matter in W.A. No. 2294 of 1999, the order passed therein is sought to be reviewed as stated above.

2. The order sought to be reviewed was passed following the judgment of this Court in W.A. No, 2188 of 1998, DD: 17-1-2000. That judgment was based on another judgment in <CITATION> ., 1999(4) Kar L.J. 143 The ground sought to be made out by Sri <NAME>, learned Senior Counsel for the revision petitioner is that the observations made in paragraph 10 in W.A. No. 506 of 1996 is not followed. But, the said contention has been considered and it has been held that those observations cannot be ground for denying relief to the owners.

3. The question of delay and laches cannot be gone into and considered as this <ORG> relied upon the decision in the case of <CITATION> ., 1991 (3) Kar LJ. 545 : ILR 1991 Kar. 2248. In that case the Inquiry Report of <NAME> was taken into consideration. In that report it is stated that the present revision petitioner-House Building Co-operative <ORG> had enrolled large number of bogus and ineligible members illegally and it is a bogus society. Such being the case, this <ORG> cannot come to the aid of petitioner-<ORG>, which is held to be engaged in fraudulant acquisition of land for its bogus members. Since the <ORG> being bogus, is not entitled to acquire land. Interest of landowners cannot be thrown out on the ground of delay and laches especially when this <ORG> granted relief to similarly placed persons. There cannot be different decisions on the same subject-matter although parties approach the <ORG> belatedly.

4. Since. petitioner-Society is involved in fraudulent activities, it cannot raise hyper-technical issues like delay and laches. The effect of fraud has been considered in the leading judgment of Lord <NAME> in the case of <ORG> v. <NAME>, 1956(1) All E.R. 341 at page 345 as hereunder.--

" . . . No <ORG> in this land will allow a person to keep an advantage which he has obtained by fraud. No judgment of a <ORG>, no order of a Minister, can be allowed to stand if it has been obtained by fraud. Fraud unravels everything. The <ORG> is careful not to find fraud unless it is distinctly pleaded and proved, but once it is proved it vitiates judgments, contracts and all transactions whatever, see as to deeds, <NAME> v. <NAME>, 1976(2) (2 WilsKB.342) as to judgments, Duchess of Kingston's, (3)1776 (1 Leach 146) case and, as to contracts Master v. <NAME>, (4)1791 (4 Term Rep. 320) So here I am of opinion that if this declaration is proved to have been false and fraudulent, it is a nullity and void and .. .".

In the case of <CITATION> ., it is stated in paragraph 118 thus:

"118. Fraud on power voids the order if it is not exercised bona fide for the end design. There is a distinction between exercise of power in good faith and misuse in bad faith. The former arises when an authority misuses its power in breach of law, say, by taking into account bona fide, and with best of intentions, some extraneous matters or by ignoring relevant matters. That would render the impugned act or order ultra vires. It would be a case of fraud on powers. The misuse in bad faith arises when the power is exercised for an improper motive, say, to satisfy a private or personal grudge or for wreaking vengeance of a Minister as in <CITATION> , . A power is exercised maliciously if its repository is motivated by personal animosity towards those who are directly affected by its exercise. Use of a power for an 'alien' purpose other than the one for which the power is conferred is mala fide use of that power. Same is the position when an order is made for a purpose other than that which finds place in the order. The ulterior or alien purpose clearly speaks or the misuse of the power and it was observed as early as in 1904 by Lord <NAME> in <ORG> v. <NAME>, 1904 AC 515 : 91 LJ 394: 20 ILR 730 'that there is a condition implied in this as well as in other instruments which create powers, namely, that the powers shall be used bona fide for the purpose for which they are conferred'. It was said by <NAME>, C.J., in <NAME> v. Pools Corporation, (1926) 1 Ch 66 that:

"No public body can be regarded as having statutory authority to act in bad faith or from corrupt motives, and any action purporting to be of that body, but proved to be committed in bad faith or from corrupt motives, would certainly be held to be inoperative" ".

5. There is one more reason not to grant relief in favour of the revision petitioner. It is an admitted fact that the acquisition proceedings pertaining to some of the owners, who were the petitioners in earlier writ petitions, had been quashed thereby their lands are not available to the petitioner-<ORG>. The land involved in this case is 1 acre 25 guntas only as is clear from the averments in the writ petition out of which this revision arose. Such a small piece of land will not be useful to the <ORG> in any way. Moreover, with the sticker attached to the <ORG> that its members are bogus and the <ORG> is engaged in illegal and unlawful activities, the petitioner should have desisted itself from further litigating the matter. We feel sad that in spite of all these drawbacks and stigma the petitioner-<ORG> is still prosecuting the case.

6. There is no ground for review of the order under review. The review petition is wholly misconceived and devoid of merit.

7. Review petition stands dismissed.