CASE COMMENTS

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Case Comment (No. 2) Messrs Trilokchand and Motichand etc. Versus
H. B. Munshi and another, 1969(1) SCC 110
by Editor

Cite as : (1969) 2 SCC (Jour) 21

Is article 32 a discretionary remedy subject to the doctrine of laches?

1. We had appended an editor's note to the report of the above case in 1969 (1) SCC 110 at pp. 113, 114. The subject traversed by this decision of the Supreme Court is of such prime importance to the citizen or the litigant that there is clear need for the judiciary and the legal profession to give their best consideration to the pros and cons of the issues involved in the said judgment. A thought provoking case comment has been penned by Shri H. M. Seervai.1 It was, therefore, considered useful and necessary to have a detailed case comment in our journal on this much controverted decision.

2. The board issues arising from the said decision are :

1. Can the right vouchsafed in Article 32 be equated with ordinary rights ?

2. Has the writ court acting under Article 32 any discretionary powers in disposing of the application ?

3. Is the remedy under Article 32 subject to the law of limitation ?

4. Is Article 32 subject to the doctrine of delay or laches ? If so, what is the yardstick to measure such laches ?

5. Can the Court fix laches with its own yardstick of reasonableness in the absence of statutory provision or a rule?

6. Can principles analogous to the provisions of the Limitation Act be invoked to strike down an application ?

7. Can Parliament enact a law which fixes the period of limitation vis-a-vis a right vouchsafed in Part III of the Constitution ?

8. Can reliance be placed on principles of Equity Law or on principles governing the application of Article 226 with regard to the fundamental remedy guaranteed under Article 32 ?

3. We may now broadly state the facts of the case under discussion:—

The petitioner Trilokchand was faced with an order of the Sales Tax Officer, dated 17-3-1958, which forfeited a sum of Rs. 26,563.50 under Section 21(4) of the Bombay Sales Tax Act (Bombay Act III of 1953) which provision is similar to Section 12-A(4) of the Bombay Sales Tax Act, 1946. The petitioner promptly filed a writ petition in the Bombay High Court challenging this order. His petition was dismissed on 28-11-1958. He also filed a petition of appeal before the division Bench on 7-7-1959. An order of attachment followed and so the petitioner paid the sum of Rs. 26,563.50 in various instalments from 3-10-1959 to 3-8-1960. By letter, dated 9-1-1962, the petitioner was called upon to pay a penalty amounting to Rs. 12,517.68 on account of late payment of sales tax dues, but this order of penalty was ultimately cancelled.

In 1963 on December 2, the Gujarat High Court in Kantilal Babulal v. M.G. Patel, Sales Tax Officer2 held that Section 12-A(4) of the Bombay Sales Tax Act was valid and did not violate Article 19(1)(f) as it was saved by Article 19(5). On 29-9-1967 this Court in appeal in Kantilal Babulal v. H.G. Patel, Sales Tax Officer3 struck down this provision as it infringed Article 19(1)(f). On 9-2-1968, the petitioner filed this writ petition under Article 32 praying that the order, dated 17-3-1958 and the notice and order, dated 18-12-1958 and 24-12-58 be quashed.

4. On the aforesaid facts the majority opinion4 dismissed the writ petition. Of the minority Sikri, J., allowed the petition on the ground that the payment by the petitioner was under a mistake of law discovered on 29-9-1967, the date on which the Supreme Court struck down Section 12-A(4) as infringing Article 19(1)(f) and that the petitioner had rushed to the court under Article 32 within six months thereof. Hegde, J., in his dissenting judgment held the petition was maintainable and that Article 32 being a fundamental right there was no scope for exercise of any discretion on the score of laches or any principles analogous to those laid in the provisions of the Limitation Act.

5. We may now briefly analyse the findings of the Judges. There were five separate judgments : (1) by the Chief Justice; (2) Sikri, J. ; (3) Bachawat, J.; (4) Mitter, J. and (5) Hegde, J).

(i)Chief Justice M. Hidayatullah was of the opinion :—

(a) The petition deserves to be dismissed on the ground of delay (agreeing with Bachawat and Mitter, JJ.).

(b) There is no law which prescribes a period of limitation for such petitions. The Limitation Act cannot apply to writ petitions under Article 32.

(c) To put curbs on the enforcement of Fundamental Rights by enacting a law of limitation might well be questioned under Article 13(3).

(d) The guarantee in Article 32 extends only to the filing of the writ petition. Having reached this court, the extent or manner of interference is for the court to decide, e.g., on the score of alternate remedies, res judicata, (in cases where there is a prior order on merits under Article 226 from which no appeal has been preferred), or delay.

In matters of delay the analogy of the law of limitation followed by courts of equity can be adopted.

(e) Where there is no analogous provision in Limitation Law to be invoked on the score of delay, it is left to the Court's discretion to fix what is reasonable delay and what is not. There is no lower limit nor an upper limit. In suitable cases, the court may even allow a petition after a lapse of time. It all depends upon on what the breach of the Fundamental Right and the remedy claimed are and when and how the delay arose.

In England, a period of six months has been provided statutorily (in the case of writs) but that could be so there since in England there is no guaranteed remedy and the matter is one entirely of discretion.

In India each case has to be judged on its own facts. If there is an avoidable delay, which affects the merits of the claim, in a proper case, the court may refuse the extraordinary jurisdiction under Article 32.

(f) In the instant case there is no question of mistake of law, as the party was aware of the law or is presumed to know it even in 1958, when he moved the first writ.

It is a case of payment under coercion (agreeing with Mitter and Bachawat, JJ.). The petitioner cannot invoke the ground of mistake of law and analogous principles in the law of limitation, as he failed to prefer an appeal on the dismissal of the first writ petition.

(h) So this is a case of gross delay from 1958 to 1968, a period of ten years which the court cannot condone.

(ii) The Judgment of the court as delivered by Sikri, J., postulated :—

(a) Article 32(2) confers a judicial power on the court. This power, unless there is an express provision to the contrary must be exercised in accordance with fundamental principles of administration of justice e.g., res judicata5 a fundamental principle of public policy.

(b) State claims should not be given effect to by courts. This is also a fundamental principle of administration of justice as administered by courts6 in England and America. What is a State claim?

But equitable principles may not apply to petitions under Article 32. A delay of 12 years or 6 years would be a strange bed fellow with a writ order. If the law of limitation would bar a suit, the same cause of action would be state for a writ. Even if there is no bar of limitation unreasonable delay cannot be excused under Article 32.

(c) The guarantee in Article 32 is only to the entertainment of the petition by the court. But if it is a state claim, the party having slept over his rights for an inordinate time, the court may be invited to refuse the remedy under Article 32 analogous to the position under Article 226.7 But actually these cases8 arising under Article 226 cannot directly apply to petitions under Article 32.

(d) In my opinion the petitioner was clearly under a mistake of law when he paid up, the mistake being that he thought Section 12-A(4) was a valid provision in spite of its imposing unreasonable restrictions. This mistake he later discovered when this court struck down Section 12-A(4) on 29-9-1967. The petitioner has come to this court under Article 32 within six months thereof.

(iii) The Judgment of Bachawat, J., Postulates:

(a) Money paid under mistake of law under Section 72 of the Indian Contract Act can be recovered only subject to questions of limitation, waiver and estoppel. But actually in the instant case money was not paid under mistake of law. It was paid under coercion by the order of attachment secured by the State against the petitioner. In such a case, Article 24 of the Limitation Act of 1963, prescribes a period of three years. The payments after attachment extended up to 8-8-1960. The present writ petition filed on 2-9-1968, is barred by time on the analogous principle that a suit for recovery will be barred under the Limitation Act.

(b) The right to move this court for enforcement of fundamental right is alone guaranteed under Article 32. But this does not mean that in giving the relief under Article 32, the Court must ignore and trample under foot all laws of procedure, limitation res judicata9 and the like.

(c) Under Article 145(1)(c) rules may be framed by the Supreme Court for regulating the practice and procedure in proceedings under Article 32. In the absence of such rules the court may adopt any reasonable rule of procedure.

The court can dismiss a writ application under Article 32 for containing misleading and inaccurate statements10, on the grounds of public policy. That is equally so in cases of res judicata or limitation. State claims barred by time cannot be made under Article 32. Courts of Chancery acted on the analogy of Statutes of limitation in disposing of State Claims.11 Likewise the High Courts act under Article 226 though the statute of limitation does not as such apply to writ proceedings.12

(d) Similarly even for proceedings under Article 32 the analogy of limitation law can be applied, e.g., where right to property is extinguished under Section 27 of the 1963 Limitation Act, there can be no subsisting right to be enforced under Article 32.13 In other cases where the remedy only and not the right is extinguished by limitation, it is on the ground of public policy that the court refuses to entertain State claims under Article 32. Whitney stokes14 says "The Law is founded on public policy, its aim being to secure the quiet of the community, to suppress fraud and perjury, to quicken diligence and to prevent oppression."

(iv) Mitter, J's Judgment, Postulated:

(a) The payments made by the petitioners were not under mistake of law but made under coercive action of attachment by the State.15 Though the Limitation Act does not in terms apply in the instant case, Courts have refused to give relief in cases of long or unreasonable delay.16 Articles 16, 63 and 120 of the Limitation Act of 1908, fix periods of limitation to 1, 3 and 6 years respectively. As payment was made 10 years ago, on any court there is inordinate delay not approved under the Law of Limitation.

(b) That the petitioner did not appeal from the order under Article 226 does not operate as res judicata as that order was not on merits.17

(c) The petition is liable to be dismissed on the ground of undue delay.

It is an unreasonable long delay, as the court can judge the delay by comparing it to the period fixed in the Limitation Act for suits.

(v) Hegde, J., in his dissenting judgment was of the view :

(a) I agree with Mitter, J., that to the facts of the case the Rule layed down in Daryao case is inapplicable.

(b) The impugned collection was without authority of law and consequently the same is an exaction resulting in the infringement of the proprietary right guaranteed in Article 19(1)(f). Therefore, the petitioner has a fundamental right to approach this court under Article 32 and this Court has the duty to afford him appropriate relief.18

(c) The right under Article 32 is fundamental and cannot be circumscribed or curtailed except as provided in the Constitution. Vide clause (4) of Article 32.

(d) It is the mandatory duty of the court to grant the relief under Article 32. The power under Article 32 is not a discretionary power, as the power vouchsafed under Article 226. Where the power is discretionary, the question of delay does arise.

(e) Even under Article 226 where a Constitutional objection to the validity of a legislation is taken, the question of mere delay will not affect the maintainability of the petition.19

(f) Law Reports do not show a single instance where this court had refused relief to a petitioner under Article 32 on the ground of delay.

(g) There can be no waiver of fundamental right.20 All these (c to g) aspects show how jealously this court has been resisting every attempt to narrow down the scope of the rights guaranteed under Part III of the Constitution.

(h) Admittedly, the provisions contained in the Limitation Act do not apply to proceedings under Articles 226 or 32. "The Constitution makers wisely excluded the application of those provisions to proceedings under Articles 226, 227 and 32 lest the efficacy of the Constitutional remedies should be left to the tender mercies of the Legislatures."21

(j) I.C. Golaknath v. The State of Punjab22 has laid down that the Parliament cannot by amending the Constitution abridge the fundamental rights conferred under Part III of the Constitution. If we are to bring the provisions of Limitation Act by an indirect process to control the remedies conferred by the Constitution, it would mean that what Parliament cannot do directly, it can do indirectly by curtailing the period of limitation against the Government.23

(k) The argument of State claims has no basis. A party can enforce only an existing right.24 The right may be lost due to various reasons e.g., adverse possession.

(l) The decision of Bachawat and Mitter, JJ., lead to startling results e.g., a person is convicted for a long term on the basis of a statute which had been repealed long before the offence was committed. The period for filing the appeal is over. Can he not move this court for a writ of habeas corpus despite all the delay ? He can.25

(m) While the power under Article 226 is discretionary, the court's power under Article 32 is absolute. This power cannot be narrowed down. The relief under Article 32 cannot be refused on the score of laches. All the decisions cited by Bachawat and Mitter, JJ., refer only to Article 226.26

(n) Even if principles of limitation Law are invoked the instant case is only a case of mistake of law.

A mere impression of a party that a provision of law may be ultra vires of the Constitution cannot be equated to knowledge that the provisions is invalid. Hope and desire are not the same things as knowledge. A law is presumed to be valid until it is struck down by a competent court. The fact that after a futile attempt to get the provision declared invalid, the petitioners gave up their fight and submitted to the law which was apparently valid is no proof of the fact that they knew that the provision in question is invalid.27 Knowledge could be attributed only from the date 29-9-67, when in Kantilal Babulal case the Supreme Court struck down Section 12-A(4) of the Bombay Sales Tax Act.

(o) For all the aforesaid reasons the petition under Article 32 should be allowed.

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6. We have analysed in Para 5 above the findings of the five Judges who wrote five separate judgments. This fact coupled with the lack of unanimity in the findings demonstratly show divergence of judicial opinion in respect of the cardinal issues involved in the case. It is, therefore, clear that the law is yet to be made clear by a Fuller Bench as to the main questions:

(i) Is the judicial power under Article 32 discretionary?

(ii) Is the right to remedy under Article 32 subject to the doctrine of laches or principles analogous to those embedded in Limitation Law?

Let us analyse the approach of the five judges on the main issues involved in the case. We have already pointed out the nine issues arising in the case, in the second para of this comment.

As to the first issue "can the right vouchsafed in Article 32 be equated with ordinary rights?" Hegde, J., is clearly of the opinion that it cannot be so equated, that the right in Article 32 is in itself a fundamental right which cannot be circumscribed or diluted in any manner, that clause (4) of Article 32 does not permit the right to be suspended in any manner except as provided by the Constitution.

While all the other four judges grant that the right is fundamental in so far as it is placed in Part III of the Constitution, they nevertheless opine that the right is subject to the general principles of administration of justice such as res judicata absence of fraud practised on the court, staleness of claim occasioned by undue delay etc.

That the rights in Part III have to be equated with ordinary rights is a proposition spelt out by Shri H. M. Seervai28 of which we shall discuss later.

(2) All the five Judges agree that the Statute of Limitation as such are inapplicable to proceedings under Articles 226 and 32.

(3) But except Hegde, J., the other four Judges opine that the Court has discretionary power in disposing of the writ application under Article 32 e.g., on the ground of laches or delay. Hegde, J., is firmly of the opinion that such discretionary powers exist only under Article 226 and not under Article 32.

Hidayatullah, C. J., is of the view that the guarantee in Article 32 extends only to the filing of writ petition but the extent and manner of interference is for the court to decide e.g., alternate relief, delay or res judicata. Sikri, J., opines that the judicial power under Article 32 must be exercised in accordance with the fundamental principles of administration of justice e. g., res judicata, staleness of claims, etc. Bachawat, J., specifically says the right under Article 32 does not mean that the court must ignore and trample under foot all laws of procedure, limitation, res judicata and the like. But Hegde, J., held that the Article 32 is mandatory and there is no discretionary power at all.

(4) On the question of laches or delay Hegde, J., finds that this doctrine cannot apply where the article is mandatory. It can arise only where the judicial power is discretionary as under Article 226 and that even under Article 226 if the objection is as to the constitutional validity of a statute, the question of laches is of no relevance. Further, law reports do not show so far a single instance where the relief under Article 32 was refused on the score of delay.

Hidayatullah, C. J., is of the opinion that in matters of delay the anology of limitation followed by courts of equity can be adopted ; that it is for the court to fix what is reasonable delay and what is not ; Sikri, J., is however, of the opinion that equitable principles as to delay may not apply to petitions under Article 32 but unreasonable delay cannot be however excused. Bachawat, J., observes that in the absence of rules under Article 145(1)(c) regulating the proceedings under Article 32, the Court can adopt any reasonable rule of procedure. It can dismiss an application on the ground of public policy e.g., misleading statements, staleness of claim, etc. Mitter, J., is of the view that unreasonable delay can be measured in terms of the period fixed in the Limitation Act. Hegde, J., opined that a party can exercise only an existing right, i.e., a right which is enforceable e.g., he cannot enforce a right lost by adverse possession. In the absence of any statutory bar, a right is presumed to be existing. Staleness of a claim creeps in only when a statutory provision or rule bars the remedy.

(5) It is conceded by all the five Judges that there can be no waiver of fundamental right.

(6) Sikri, J., would concede that cases under Article 226 which invoke the doctrine of laches have no application to petitions under Article 32. Hidayatullah, C. J., would admit that since in England there is no fundamental remedy guaranteed, and the matter is one of discretion, a period of six months was fixed as the upper limit for seeking the writ remedy. It is therefore obvious that the chancery cases based on equity cannot apply to writ remedy which is a guaranteed right in India under Article 32. There is no upper or lower limit for filing of petitions under Article 32. We submit that the Supreme Court could have fixed it by rules made under Article 145(1)(c). In the absence of such rule, the court cannot invoke on unknown principles of administration of justice based on equitable doctrines said to be followed in England.

(7) Sikri, J., after conceding that delay in the abstract based on equity cannot be invoked, is of the opinion that there is a definite provision in the Limitation Act fixing a period of three years for remedy as to mistake of law e.g., Article 24; that as the petitioner discovered the mistake only when a writ order struck down Section 12-A(4), on 29-9-67 and the present writ is filed on 2-9-68, the claim should be deemed quite within time.

Hidayatullah, J., would however, opine that there was no question of mistake of law as the party must be deemed to have known even in 1958 that Section 12-A(4) was ultra vires ; that the instant case was one of coercion by the State; consequently payments made under coercion must be claimed within one year of the date of coercion. Bachawat and Mitter, JJ., agreed in this view. Hegde, J., was of the view that granting the law of limitation applied, it could only be a mistake of law and so the writ was within time on the reasoning advanced by Sikri, J.

(8) Hegde, J., pointed out that after Golaknath case there can be no amendment as to the rights in Part III and so no law of limitation could be enacted fixing any time limit for the writ application. It follows that if the Legislature cannot make such a law, the Judiciary cannot resort to any indirect legislation by postulating the doctrine of delay and prescribing the yardstick for such delay. Hidayatullah, C. J., also grants that 'to put curbs on the enforcement of fundamental rights by enacting a law of limitation may well be questioned under Article 13(3). Bachawat, J., would postulate that for proceedings under Article 32, the analogy of limitation law can be applied on the ground of public policy. On grounds of public policy courts should refuse to entertain State claims.

7. We have thus far attempted an analysis of the various view points of the five judges who wrote five separate judgments in the instant Trilock Chand case. We wish to emphasise that the background and character of the rights vouchsafed in Part III of the Constitution should not be forgotten. When the late Prime Minister, Shri Jawaharlal Nehru, proposed in the Constituent Assembly on 30-4-1947, the interim report on Fundamental Rights, he made a significant statement :

"A fundamental right should be looked upon not from the point of view of any particular difficulty of the moment but as something that you want permanent in the Constitution."

So the rights vouchsafed in the Part III are not only fundamental but were conceived as permanent in the Constitution, not to be amended or reduced in its character. That is why we have in Article 32(4) the provision that the remedy in Article 32 cannot be denuded or suspended except by the provisions present in the Constitution. The Golaknath29 decision clearly posits that there can be no curtailment of the rights in Part III by the amending process postulated in Article 368.

The assurance of Chief Justice Patanjali Sastry in State of Madras v. V. G. Rao30 and Romesh Thapper v. State of Madras31 is very aposite. His Lordship said that the citizen may be assured that the Supreme Court as the Sentinel on the quivive will safeguard the rights guaranteed in Part III of the Constitution from the onslaughts of the Executive or the Legislature.32 He also said "The Court has thus constituted the protector and guarantor of Fundamental Rights ; and it cannot consistently with the responsibilities so laid upon it refuse to entertain an application seeking protection against the infringement of such rights."33 Chief Justice, Subba Rao, declared in Golaknath case34 that the Constitution was supreme and that Parliament cannot interfere with the rights in Part III.

If we go back prior to 1947, as early as in 1928, in the Madras Congress, Pandit Motilal Nehru, the President of the Congress (a leading lawyer) declared: "It is obvious that our first case should be to have our fundamental rights guaranteed in a manner which will not permit their withdrawal under any circumstances".

All these declarations by the founding fathers of the Constitution, pronouncement by a former Chief Justice assuring the guarantee, and the guarantee itself in Article 32, cannot contemptuously "trampled under foot" to use the phrase of Bachawat, J., under the guise of some (yet not established) principle of laches to safeguard the interests of the Administration of Justice. His Lordship's duty is to safeguard the remedy assured in Article as a first charge on the very Administration of Justice of which His Lordship speaks so fervently.

So it is very pertinent to urge that the rights in Part III cannot be whittled down by any substantive or procedural law. There can be no higher public policy than the declaration of the rights in Part III. To say that there is a higher public policy in safeguarding administration of justice by resort to principles of limitation law, etc., appear ridiculous. It is in this context we were much astonished when Shri H. M. Seervai in his comments35 observed: "Trilokchand v. B. H. Munshi36 is a refreshing decision for it shows that the words 'fundamental rights' are no longer a magic spell in Court of justice and that all considerations relevant to the administration of justice apply to the enforcement of fundamental rights as they apply to enforcement of other rights". In other words Shri H. M. Seervai would equate all rights with the rights in Part III, ignoring the fact that they are so fundamental that a breach of any one of them can invite a guaranteed remedy under Article 32. Article 32 cannot be invoked in respect of any other right outside Part III. There are number of rights in Part IV (Directive Principles) but they are not justiciable.

Shri H. M. Seervai in his treaties on "Constitutional Law of India"37 would state "The proposition that no limitation on a constitutional right can be permitted except that which is expressly contained in the Constitution is correct if rightly understood,38 but is wholly incorrect if laws of procedure, evidence, limitation, and res judicata, to mention only a few are treated as importing limitations on fundamental rights".39 The learned author cannot find support for this wide statement in R. v. Burah which he cites. He gives the proposition the go by when he states in footnote 7 at p. 176 "In conceivable circumstances, a rule of evidence procedure or limitation may unreasonably burden a fundamental right and may then be struck down as void. But that does not affect the general argument".

So far as res judicata is concerned, it is a statutory principle in Section 11, CPC and binding on the courts. So far as limitation is concerned, the statute of limitation has to be strictly construed as applying only to the suit, application or appeal, the relevant provision referes to. All the five judges in the instant case40 concede that the statute of limitation does not govern applications under Article 32 or 226. Shri H. M. Seervai has not gone so far as to mention in his treatise that principles analogous to limitation apply to writ applications under Article 32 where there is delay or undue delay. There cannot be any bar of limitation unless statute provides it. Where the remedy under Article 32 is fundamental and mandatory there can be no question of laches or delay unless some rule or law fixes the time. Bachawat, J., concedes that under Article 145 the Supreme Court could provide a rule fixing the time within which the writ application should be filed. When there is no such rule can the court draw upon an imaginary power residing in it to fix the period of delay? It cannot. If principles of delay are invoked by the High Court, when acting under Article 226 it is because the power under Article 226 is discretionary. The court may or may not issue a writ even if there is an infringement of a right. But under Article 32, the court is bound to issue the writ if there has been an infringement of a fundamental right. In such an event, there is no power in the court to draw upon the doctrine of laches. Article 32 is so fundamental and is considered as the highest public policy and so there is no scope for the application of the doctrine of laches. But in so far as Article 226 is concerned, the remedy under that article is discretionary with the court. A court in its discretionary powers can certainly draw upon the doctrine of laches for refusing to exercise its power to issue a writ. The writ court under Article 32, it must be clearly stated and emphasised, can never possess any discretionary power to withhold the remedy. If the writ court under Article 32 refused a writ on the ground of res judicata, it is because of the established doctrine of res judicata, by a long catina of decisions based upon Section 11 of the CPC. There is no section or rule which regulates the filing of the writ petition under Article 32. There is no decision so far when a writ application under Article 32 has been dismissed on the ground of delay. Till a statutory rule or law specifies the period, the Supreme Court has no jurisdiction to dismiss a petition under Article 32 on the score of delay.

8. It is crystal clear why the founding fathers formulated Article 32 as fundamental right. It was because they wanted the road to justice to be shorn off all obstacles, procedural or substantive so that the citizen can demand remedy as of right should there be an invasion of his fundamental rights by State action. If the power is diluted by vesting or recognising a residuary discretionary power in the courts, then the very object of Article 32 is clearly frustrated. For: (1) The words "discretionary" is contradictory to the concept of mandatory duty cast on the Supreme Court. (2) Further, the Supreme Court Judges have taken the oath to uphold the constitution. This implies that where laws or principles of justice are contrary to the provisions of the Constitution, it is the latter the court should uphold. There can be no question of the requirements of the Administration of Justice being superior to the mandate of the Constitution. The Constitution itself lays down in Article 140 as to ancillary powers of the Supreme Court. The article says Parliament may by law make provisions for conferring upon the Supreme Court such supplemental powers not inconsistent with any of the provisions of the Constitution as may appear to be necessary or desirable for enabling the court more effectively to exercise the jurisdiction conferred on it by or under this Constitution. So what is paramount is the constitutional provisions and administration of justice has necessarily to be in accordance with or subservient to the commands of the Constitution. Bachawat, J., has, therefore, no basis in imagining that the Constitution should subserve his concept of Administration of Justice. What is important is no concept of administration of Justice should 'trample under foot' (to use the exaggerated language of Bachwat, J.) the letter and spirit of the Constitution.

(3) If the above premise is granted, then there can be no room for discovering a discretionary power under Article 32 in the interests of administration of justice.

(4) The term 'discretion' like the proverbial Chancellor's foot cannot be kept under control. It can expand or contract according to the whim of the Presiding Judge. For instance, in the instance Trilokchand case, Sikri, J., opined that three years will be the proper yardstick for measuring reasonable time for prefering a writ petition. Bachawat, J., would put it as one year. Of course, both these Judges resorted to the aid of the provisions of the Limitation Act to provide the yardstick of reasonableness. The question is, should Article 32 be left to the whims of a Judge as to when it can be invoked ?

(5) Article 32 can be regulated only by constitutional provisions. Clause (4) of Article 32 makes this clear. That is why we have in Article 145 the rule making power of the Supreme Court. Article 145(c) refers to rules as to the proceedings in the court for the enforcement of any of the rights conferred by Part III. Bachawat, J., refers to this but in his hurry to enforce his basic ideas of administration of justice, would discover an inherent power in the court to fix 'reasonable time' in the absence of a rule. What is the urgency in Trilokchand's case for the Judge to ignore Article 145(c) and to discover an inherent discretionary power to fix 'reasonable time'. This is a most dangerous trend. It is rank judicial legislation contrary to the Constitutional provision. Heavans will not fall if at the worst Bachawat, J., opined like Sikri, J., that a three year period will suffice and that it is only a "mistake of law". Why should His Lordship strain to ferret out 'coercion by the State' to make it a one year period? What is the great principle of administration of justice to go into an investigation as to the law of limitation to provide the yardstick for reasonableness, when all the Judges are agreed that the Statute of Limitation does not govern the proceedings under Article 32 or 226. At any rate, Trilokchand case cannot be the occasion or the forum for the Judiciary to invoke the theory of discretionary power for exercising the jurisdiction under Article 32. There was no compelling necessity for such a doctrine. Broadly stated, a litigant had paid wrongly an illegal tax and wants its return from the State. Why should the court hunt for principles of administration of justice to deny the litigant his claim ? On the other hand, justice requires he should be paid back the amount. If Limitation Law is deemed as moral, since there is no law in existence preventing such refund, there is nothing immoral in granting the refund even after the lapse of ten years. But if the Court is anxious that a legal court should be put on this, then it is open to formulate a legal rule under Article 145(c) fixing the period by which a writ should be filed after the cause of action arose. In the absence of such a rule, the court may not arrogate to itself discretionary powers to solve any particular situation.

(6) Once the court assumes such discretionary powers, we cannot visualise the limitation for the exercise of it. Hegde, J., pithly states41 "should this court, an institution primarily created for the purpose of safeguarding the fundamental rights guaranteed under Part III of the Constitution narrow down those rights ? The implications of this decision are bound to be far reaching. It is likely to pull down from the high pedestal now occupied by the fundamental rights to the level of other civil rights.42 I am apprehensive that this decision may mark an important turning point in down-grading the fundamental rights guaranteed under the Constitution. I am firmly of the view that a relief asked for under Article 32 cannot be refused on the ground of laches. The provisions of the Limitation Act have no relevance either directly or indirectly to proceedings under Article 32. Considerations which are relevant in proceedings under Article 226 are wholly out of place in a proceeding like the one before us".

(7) To cite Hegde, J. again43 "once it is held that the power of this Court under Article 32 is a discretionary power—that in my opinion is the result of the decision of Bachawat and Mitter, JJ.—then it follows that this Court can refuse relief under Article 32 on any one of the grounds on which relief under Article 226 can be refused. Such a conclusion militates not only against the plain words of Article 32 but also the lofty principle underlying that provision. The resulting position is that the right guaranteed under that article would cease to be a fundamental right".

(8) If it is conceded that it is the Constitution that is supreme and that the three wings of Government, the Judiciary, the Executive and the Legislature are subordinate to it then it stands to reason that the Judiciary should not discover some inherent discretionary power in the interests of administration of justice to override a specific constitutional provision as Article 32. Article 32 can be regulated only by other provisions of the Constitution e.g., Article 145(c) which can lay down the time by which a writ petition is to be filed. That will be a salutory check on sleeping litigants. But instead of having such a rule formulated if the Supreme Court wants to ride on an "unbridled horse' called 'discretion" then the horse is likely to run amock and lead one to collosal danger. There is the other principle that the citizen should know his rights clearly as to when he can and should file a writ petition. If the rule under Article 145(c) can guide him in this, he is safe. But in the absence of such a rule, the citizens' interests are not safe in the hands of Judges who may have different yardstick for measuring 'reasonable' and 'unreasonable' delay. One fundamental and cardinal basis in the administration of justice is certainty. Let the period by which a party should file a writ petition be certain. Let it not be uncertain, hazy and left to the whims of a Judge. If illegally levied, sales-tax refund is equitable, and if the court wants to discover an equity in favour of the State due to long delay in the claim, let us have a certain rule fixing the time. That will be equity with notice both to the State and citizen.

(9) There can be no discretionary exercise of power on the score of 'stale claims'. Stale because of what ? Due to lapse of time ? If that is 'staleness' the law must declare it by a statute or a rule. So long as under Article 145(c) no rule is enunciated as to when a claim is stale, it is not open to the court to call a claim stale as and when it pleases, however reasonable or equitable it may be. There is no equity in denying a just claim. But law can lay down a limit for the enforcement of a long delayed claim. Limitation is what statute provides and not as equity would declare it. If it is so inequitable to claim after 20 years let the law say so or even fix a period of three or six years. The limit fixed must be legally proclaimed.

(10) What Article 32 protects is only an enforceable right i. e., an existing right and not that which is barred by time e.g. adverse possession. So long as there is no bar as to time by statute there is nothing inequitable in making or granting a claim. If the law did not fix a three years period for recovery of a simple debt on a promissory note, there is nothing immoral if the creditor sues the debtor after three years. But now that the law has fixed the period as three years. The creditor cannot say it is unjust if the court refuses to give him a decree on the footing that the debt is time-barred.

(11) It is erroneous to urge (as Chief Justice M. Hidayatullah would say) that the guarantee extends only to the filing of the writ petition under Article 32. The Article says 'the right to move the court' is guaranteed and adds in clause (2) of that article that the Supreme Court shall have the power to issue directions, writs, etc., for the enforcement of the rights conferred, in Part III of the Constitution. It is thus clear that the guarantee does extend to the enforcement also. It is not proper, therefore, for Hidayatullah, J., to state that "the extent or manner of interference is for the court to decide," e.g. alternate remedies, res judicata, limitation, laches, etc. For one thing under Article 226, the Court can control its discretion on the ground of availability of alternative relief, but under Article 32 alternative relief is absolutely no bar. Res judicata and limitation are governed by statute and the court can act on such principles as statute allows it. Laches or delay is not governed by any statute or rule and so under Article 32, the court has no discretionary power vested in it to deny a writ remedy because of delay. The Chief Justice is further in error in stating that in matters of delay the analogy of the law of limitation followed by courts of equity can be adopted. He further errs in stating that where there is no analogous law of limitation it is left to the Court's discretion to fix what is reasonable delay and what is not.

(12) Once all the Judges are agreed that the law of limitation does not per se govern proceedings under Article 32 or 226, it appears out of place to invoke the one year rule of limitation (as Bachawat and Mitter, JJ., would) or a three years period as Sikri, J., would. Article 23 of the Limitation Act of 1963, does not in terms apply to writs at all. It applies to suits only. So, if coercion is by the State and the coerced citizen rushes to the Supreme Court under Article 32, the said Article 23, cannot at all apply.

(13) Bachawat, J.'s reasoning that a writ application can be dismissed if it contains misleading and inaccurate statements, it only indicates that a court will not hear a man who comes to court with unclean hands. The order of dismissal of such a write application is not one on merits. It is open to the applicant to come again with proper and accurate particulars. Dismissal for false particulars is not in any way derogatory to the mandatory character of Article 32. If the party comes with true particulars then the Court has a mandatory duty to grant the remedy if as of fact there has been an infringement of a fundamental right.

(14) It is further erroneous for Hidayatullah, C. J., to state that the mistake of law arose when the petitioner moved his first writ application on 28-11-1958 when he is aware of the unconstitutionality of the impugned Section 12-A(4). It is only when Section 12-A(4) was struck down by the Supreme Court on 29-9-1967 in Kantilal Babulal case, the mistake of law could be attributed to the citizen. In 1958 it was a "hope" but in 1967 it was a "reality", as the court declared the provision as illegal. Within six months of 29-9-67 the petitioner has filed the writ in Trilokchand case. Where there is the undue delay ? Why should the Judge impute knowledge of mistake of law to the petitioner in 1958 itself ? What is the principle involving the administration of justice that makes it incumbent on Hidayatullah, C.J., to impute knowledge to Trilokchand 10 years prior to 1967. Is not a law legal till it is set aside by competent court ? Is it not legal and equitable to therefore conclude that Section 12-A(4) became illegal only in 1967 and not in 1958. If it is not illegal in 1958 how could the petitioner be saddled with knowledge on the score of mistake of law in 1958 itself. We can only say that it is all strange logic and no law or equits on the part of the Chief Justice to turn the petitioner out of court on untenable grounds. All the Judges are agreed that the tax collected is illegal. What is the equity in not refunding it when there is no bar limitation as such. Why should the Court discover a discretionary power in itself to defeat the petitioner on the score of delay.

(15) Viewed from any angle we humbly submit that :

(i) Article 32 is mandatory and absolute ;

(ii) There is no discretionary power left in the Judiciary to deny a writ on the score of delay.

(iii) That it is on the other hand unjust to deny refund of the illegal tax collection to Trilokchand.

(iv) Such unjust refusal cannot at all be high public policy. It is unjust because no law or rule prevents such a claim.

(16) In view of the fact that the Judges are not unanimous in Trilokchand case and divergent views are expressed as pointed out, in the above analysis, it is just and proper that the issue must be reheard in a fuller Bench of the Supreme Court on a suitable future occasion. In fact, the Supreme Court can exercise its review powers under Article 137 of the Constitution and declare the correct law. If this is not possible, on a future occasion the issue must be heard by a fuller Bench. — Honorary Editor.

1. Advocate-General of Maharashtra and author of the Constitutional Law of India. The case comment is in Bombay Law Reporter, 1969. Journal column pp. 35 to 38 (June issue). Return to Text
2. 16 STC 973. Return to Text
3. 21 STC 174. Return to Text
4. Hidayatullah, C. J. and Bachawat and Mitter, JJ. Return to Text
5. Daryao v. State of U.P., (1962) 1 SCR 574. Amalgamated Coalfields Ltd. v. Janapada Sabha, AIR 1964 SC 1013-1018. Return to Text
6. Courts of Equity do this. Vide Vol. 34, American Jurisprudence Limitation of actions. Section 54. Story on Equity, 3rd Edn., p. 224, Section 529. Halsbury Vol. 14, p. 647, Article 1190. Return to Text
7. State of M. P. v. Bhailal Bhai, (1964) 6 SCR 26 271-272. State of Kerala v. Aluminium Industries, 16 STC 689-692. Return to Text
8. State of M. P. v. Bhailal Bhai, (1964) 6 SCR 26 271-272. State of Kerala v. Aluminium Industries, 16 STC 689-692. Return to Text
9. Daryao case supra. Return to Text
10. Indian Sugar and Refineries Ltd. v. Union of India, Writ Petition No. 183 of 1966, decided on 12-3-1968. Return to Text
11. Halsbury Vol. 14, p. 649, Article 1190. Knox v. Gye, LR 5 LH 656-674. Return to Text
12. State of Madhya Pradesh v. Bhailal Bhai, supra. Return to Text
13. Sobraj Odharmal v. State of Rajasthan, (1963) Supra (1) SCR 99 at 111. Return to Text
14. Anglo Indian Codes, Vol. II, p. 940 (re. Limitation Act) See also H. H. Ruakiuraboye v. L. Mottick Chand, (1851-52) SMIA 234, 251. Return to Text
15. Bhailal Case- Supra. Return to Text
16. Bhailal's Case- Supra. Return to Text
17. Daryao case Supra. Return to Text
18. Per Rajagopala Ayyangar, J., in Kharak Singh v. The State of U. P., (1964) 1 SCR 332. Return to Text
19. Kamalabhai Harjivandas Parekh v. T. B. Desai, (1965) Vol. 67 BLR 85. Return to Text
20. Basheshar Nath v. The Commissioner of Income-tax, (1959) Supp (1) SCR 528. Return to Text
21. 1969(1) SCC 110 at p. 136. Return to Text
22. (1967) 2 SCR 762. Return to Text
23. If Golaknath forbids such amendment by Parliament neither can court curtail the right under Article 32 by the doctrine of delay or principles of the Limitation Law. Return to Text
24. 1969 (1) SCC 110 at 136. Return to Text
25. 1969 (1) SCC 110 at 136. Return to Text
26. See State of M. P. v. Bhailal Bhai, (1964) 6 SCR 261. Return to Text
27. 1969 (1) SCC 110 at 137. Return to Text
28. Vide 1969 Bom LRJ pp. 35-38. Return to Text
29. (1967) 2 SCR 762. Return to Text
30. (1952) SCR 597. Return to Text
31. 1952 SCR 899. Return to Text
32. See Supra. Return to Text
33. 1952 SCR 899. Return to Text
34. See supra Return to Text
35. 1969 BLJR 35 to 38, 35. Return to Text
36. 1969(1) SCC 110. Return to Text
37. 1968 Edn. 176. Return to Text
38. R. v. Burah, (1878) 59-A 178. Return to Text
39. See Footnote 7, 176, of H. M. Seervai's book. Return to Text
40. Trilokchand case under discussion. Return to Text
41. 1969(1) SCC 136. Return to Text
42. That is what Bachawat, J. and Shri H. M. Seervai would appear to declare. Return to Text
43. 1969 (1) SCC at 137 per Hegde, J. 38SUPREME COURT CASES1969 (2)SCCJOURNAL SECTION39 Return to Text