Patna High Court
M/S Prakriti Enterprises vs The Chief Commissioner Of Cgst And … on 18 June, 2025
Author: P. B. Bajanthri
Bench: P. B. Bajanthri
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.13976 of 2019
======================================================
M/s Prakriti Enterprises 462, Nehru Nagar, Patliputra, Patna-800013, through
its Partner Shri Shailendra Kumar Sharma, S/o Chandrika Sharma, Resident
of 462, Nehru Nagar, P.O. and P.S. Patliputra, Patna-800013
... Petitioner/s
Versus
1. The Chief Commissioner of CGST and Central Excise 1st Floor, Annexy
Central Revenue Building, Birchand Patel Path, Patna-800001
2. The Principal Commissioner of CGST and Central Excise, Patna-I, 3rd
Floor, Annexy Central Revenue Building, Birchand Patel Path, Patna-
800001
3. The Asst/Dy. Commissioner of CGST and Central Excise, Patna (Central)
Division, Bank Road, Gandhi Maidan, Patna-800001
4. The State of Bihar through Principal Secretary, Department of Education,
New Secretariat, Patna
5. The State Project Director, Bihar Education Project Council, Shishka
Bhawan, Saidpur, Patna-800004
6. The Branch Manager State Bank of India, Kidwaipuri Branch, Kidwaipuri,
Patna-800001 (IFC SBIN 0004142)
... Respondent/s
======================================================
Appearance :
For the Petitioner/s : Mr. D.V.Pathy, Sr. Advocate
Mr. Hiresh Karan, Advocate
Mr. Vivekanand, Advocate
Mr. Sadashiv Tiwari, Advocate
Ms. Shivani Dewalla, Advocate
Ms. Prachi Pallavi, Advocate
For the Respondent/s : Dr. K.N. Singh, ASG I
Mr. Anshuman Singh, Sr. SC, CGST and CX
Mr. Shivaditya Dhari Sinha, Advocate
Mr. Alok Kumar, Advocate
Mr. Girijish Kumar, Advocate
For Bank : Mr. K.K. Sinha, Advocate
: Mr. Din Bandhu Singh, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE P. B. BAJANTHRI
and
HONOURABLE MR. JUSTICE S. B. PD. SINGH
ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE P. B. BAJANTHRI)
Date : 18-06-2025
In the instant writ petition, petitioner has prayed for
the following reliefs :
"(a) That the Demand cum Show Cause
Notice, vide C. No V (39)10- Audit/ Inv/2010/ Part-I /
Patna High Court CWJC No.13976 of 2019 dt.18-06-2025
2/17
3182, dated 23/04/2013, (contained in Annexure - 3) be
quashed, as being illegal and without Jurisdiction.
(b) That the Notice, dated 10/05/2019, U/s 87
of the Finance Act, 1994 (contained in Annexure - 5),
issued to the State Bank of India, S.K. Puri Branch (IFSC
SBIN 0004142), vide C. No. V(30)321/ ARC/ CGST/ PD/
2019/ 1767, initiating a proceeding for attaching the
Petitioner's Bank (Current) Account No. 34963114466
and Bank (Current) Account No. 10636207919, be
quashed as being illegal, without jurisdiction and is
violation of fundamental right as well as constitutional
right and is also in violation of Principle of Natural
Justice.
(c) That any other lawful relief/s might be
allowed for which petitioner is entitled."
2. Petitioner is a firm providing certain goods and
services insofar as Centrally Sponsored Schemes Services
provided therein by the State government. There was an agreement
on 19.06.2007 between the Bihar Shiksha Pariyojna Parishad
(BSPP), the Society and the petitioner - M/s Prakriti Enterprises.
They have executed service with goods as is evident from
Paragraph No. 1 of the agreement read with various Clauses like
Duration of Contract, Working Model, Payment Terms,
Ownership/Transfer, Amendments, Counterparts, Force Majure,
Arbitration and General. The contract was for a period of three
years. The same was executed and completed in the year 2011 -
2012, in other words, for the period from 2007-2008 (from
October, 2007 to March, 2008) to year 2011-2012. For the
execution of the aforementioned agreement, the petitioner has
Patna High Court CWJC No.13976 of 2019 dt.18-06-2025
3/17
failed to register his firm, resultantly, he has failed to calculate
service tax and remit in the concerned respondents/department. In
this regard, Demand cum Show Cause Notice was issued on
23.04.2013
. The petitioner had submitted his explanation/reply on
25.03.2014 which was not satisfied by the respondents/department,
thus proceeded to pass final order on 31.10.2014 and it was
communicated on 03.11.2014 to the petitioner whereas the
petitioner has not invoked remedy of appeal before the appellate
authority under Section 86 of the Finance Act, 1994 (hereinafter
referred to as ‘the Act, 1994’). Thus, the present writ petition was
filed on 19.06.2019.
3. Learned counsel for the petitioner submitted that there
is violation of Section 73 (4-B) of the Act, 1994 and it is in respect
of limitation and it consisting of two folds namely 12 months and 5
years period limitation. Insofar as 5 years period is concerned, if
there is any misrepresentation/fraud etc., the 5 years could be
taken into consideration by the department. It is also submitted
that identical matters are pending consideration before the Hon’ble
Supreme Court in the case of Union of India and Others Vs.
GMR Airport Infrastructure Ltd. in Special Leave to Appeal (C)
No. 5392/2025, therefore, matter is required to be adjudicated after
disposal of the Hon’ble Supreme Court decision cited supra.
Patna High Court CWJC No.13976 of 2019 dt.18-06-2025
4/17
4. Per contra, learned counsel for the respondents raised
preliminary objection that there is delay and laches on the part of
the petitioner insofar as assailing the show cause notice dated
23.04.2013 and consequently order dated 31.10.2014 and further
actions only in the year 2019. It is also submitted that final order
was communicated to the petitioner on 03.11.2014. That apart, he
has failed to invoke the remedy of appeal before the appellate
tribunal under Section 86 of the Act, 1994. On the other hand,
learned counsel for the petitioner while replying to the
aforementioned contention of the respondents submitted that
question of delay and laches would not arise in view of violation
of Section 73 (4-B) of the Act, 1994. It is further submitted that
order dated 31.10.2014 has not been communicated to the
petitioner. This Court under Article 226 can ignore the delay and
laches in the light of the facts of the case in hand.
5. Heard learned counsels for the respective parties.
6. Preliminary issue raised on behalf of the respondents
is that writ petition is barred by limitation and laches. Time and
again Courts have held that delay and laches is required to be
examined by the Writ Courts and so also in not exhausting
alternative statutory remedy. In the present case, cause of action
accrued to the petitioner on 31.10.2014 whereas the writ petition
Patna High Court CWJC No.13976 of 2019 dt.18-06-2025
5/17
was filed in the month of June, 2019. Petitioner had a statutory
remedy of appeal before the appellate tribunal under Section 86 of
the Act, 1994 and the same has not been exhausted. It is necessary
to reproduce Section 86 of the Act, 1994 and it reads as under :
“86. Appeals to Appellate Tribunal – (1) Any
assessee aggrieved by an order passed by a
10[Commissioner] of Central Excise under [section 73
section 83A [xxxx]], or an order passed by a [Commissioner]
of Central Excise (Appeals) under section 85, may appeal to
the Appellate Tribunal against such order “within three
months of the date of receipt of the order”.
[(1A) (i) The Board may, by notification in the
Official Gazette, constitute such Committees as may be
necessary for the purposes of this Chapter.
(ii) Every Committee constituted under clause (i)
shall consist of two Chief Commissioners of Central Excise or
two Commissioners of Central Excise, as the case may be.]
[(2)The [Committee of Chief Commissioners of
Central Excise] may, if it objects to any order passed by the
Commissioner of Central Excise under [section 73 or section
83A [xxxx]], direct the Commissioner of Central Excise to
appeal to the Appellate Tribunal against the order.
[Provided that where the Committee of Chief
Commissioners of Central Excise differs in its opinion against
the order of the Commissioner of Central Excise, it shall state
the point or points on which it differs and make a reference to
the Board which shall, after considering the facts of the order,
if is of the opinion that the order passed by the Commissioner
of Central Excise is not legal or proper, direct the
Commissioner of Central Excise to appeal to the Appellate
Tribunal against the order.
[(2A) The Committee of Commissioners may, if he
objects to any order passed by the Commissioner of Central
Excise (Appeals) under section 85, direct any Central Excise
Officer to appeal on his behalf to the Appellate Tribunal
against the order:]
[Provided that where the Committee of
Commissioners differs in its opinion against the order of the
Commissioner of Central Excise (Appeals), it shall state the
point or points on which it differs and make a reference to the
jurisdictional Chief Commissioner who shall, after
Patna High Court CWJC No.13976 of 2019 dt.18-06-2025
6/17
considering the facts of the order, if is of the opinion that the
order passed by the Commissioner of Central Excise
(Appeals) is not legal or proper, direct any Central Excise
Officer to appeal to the Appellate Tribunal against the order.
Explanation.– For the purposes of this sub-
section, “jurisdictional Chief Commissioner” means the Chief
Commissioner having jurisdiction over the concerned
adjudicating authority in the matter.]]
[(3) “Every appeal under sub-section (2) or sub-
section (2A) shall be filed within four months from the date on
which the order sought to be appealed against is received by
the Committee of Chief Commissioners or, as the case may be,
the Committee of Commissioners.”;]
(4) [The Commissioner of Central Excise or
15[any Central Excise Officer subordinate to him] or the
assessee, as the case may be, on receipt of of a notice that an
appeal against the order of the Commissioner of Central
Excise or the Commissioner of Central Excise (Appeals) has
been preferred under sub-section (1) or sub-section (2) or
sub-section (2A)] by the other party may, notwithstanding that
he may not have appealed against such order or any part
thereof, within forty-five days of the receipt of the notice, file a
memorandum of cross-objections, verified in the prescribed
manner, against any part of the order of the 1[Commissioner]
of Central Excise or the [Commissioner] of Central Excise
(Appeals), and such memorandum shall be disposed of by the
Appellate Tribunal as if it were an appeal presented within the
time specified in sub-section (3).
(5) The Appellate Tribunal may admit an appeal
or permit the filing of a memorandum of cross-objections after
the expiry of the relevant period referred to in sub-Section 1
or Sub Section 3 or Sub Section 4, if it is satisfied that there
was sufficient cause for not presenting it within that period.
(6) An appeal to the Appellate Tribunal shall be in
the prescribed form and shall be verified in the prescribed
manner and shall, irrespective of the date of of demand of
service tax and interest or of levy of penalty in relation to
which the appeal is made, be accompanied by a fee of, —
a) where the amount of service tax and interest
demanded and penalty levied by any Central Excise Officer in
the case to which the appeal relates is five lakh rupees or less,
one thousand rupees;
b) where the amount of service tax and interest
demanded and penalty levied by any Central Excise Officer in
the case to which the appeal relates is more than five lakh
Patna High Court CWJC No.13976 of 2019 dt.18-06-2025
7/17
rupees but not exceeding fifty lakh rupees, five thousand
rupees;
c) where the amount of service tax and interest
demanded and penalty levied by any Central Excise Officer in
the case to which the appeal relates is more than fifty lakh
rupees, ten thousand rupees:
Provided that no fee shall be payable in the case
of an appeal referred to in sub-section (2) or sub-section (2A)
or a memorandum of cross-objections referred to in sub-
section (4).
(6A) Every application made before the Appellate
Tribunal, —
a) in an appeal for grant of stay or for
rectification of mistake or for any other purpose; or
b) for restoration of an appeal or an application,
shall be accompanied by a fee of five hundred rupees :
Provided that no such fee shall be payable in the
case of an application filed by the Commissioner of Central
Excise or Assistant Commissioner of Central Excise or
Deputy Commissioner of Central Excise, as the case may be
under this sub-section.] (7) Subject to the provisions of this
Chapter, in hearing the appeal and making orders under this
section, the Appellate Tribunal shall exercise the same powers
and follow the same procedure as it exercise and follows in
hearing the appeals and making orders under the 4[Central
Excise Act, 1944] (1 of 1944).”
7. Statutory appeal is required to be filed within the time
limit stipulated. To overcome the filing of appeal, the present writ
petition has been filed after about five years from the date of cause
of action accrued to the petitioner. In this regard, it is necessary to
take note of Hon’ble Supreme Court decision namely State of
Jammu and Kashmir V/s. R.K.Zalpuri and others reported in
AIR 2016 SC 3006, in Paragraph No. 20 it is held as under:
“20. Having stated thus, it is useful to refer
to a passage from City and Industrial Development
Corporation V/s.Dosu Aardeshir Bhiwandiwala and others
{(2009) 1 SCC 168}, wherein this Court while dwelling upon
Patna High Court CWJC No.13976 of 2019 dt.18-06-2025
8/17jurisdiction under Article 226 of the Constitution, has
expressed thus:-
“The Court while exercising its jurisdiction under
Article 226 is duty-bound to consider whether:
(a) Adjudication of writ petition involves any
complex and disputed question of facts and whether they can
be satisfactorily resolved;
(b) The petition reveals all material facts;
(c) The petitioner has any alternative or effective
remedy for the resolution of the dispute;
(d) Person invoking the jurisdiction is guilty of
unexplained delay and laches;
(e) Ex facie barred by any laws of limitation;
(f) Grant of relief is against public policy or
barred by any valid law; and host of other factors”
Underline Supplied
8. Identical views have been taken by the Hon’ble
Supreme Court in yet another decision insofar as in not exhausting
appeal remedy and to overcome the action in not filing statutory
appeal within the time limit and filing of the writ petition. Such
litigation are not entertainable. The Hon’ble Supreme Court in the
case of Assistant Commissioner (CT) LTU, Kakinada and Ors.
vs. M/s Glaxo Smith Kline Consumer Health Care Limited
reported in (2020) 19 SCC 681, in Paragraph Nos. 1, 14, 15 and
16, it is held as under :
“1. Leave granted. The moot question in this
appeal emanating from the judgment and order dated 19-11-
2018 in Glaxo Smith Kline Consumer Healthcare Ltd. v. CCT
[Glaxo Smith Kline Consumer Healthcare Ltd. v. CCT, 2018
SCC OnLine Hyd 1985] passed by the High Court of
Judicature at Hyderabad for the State of Telangana and the
State of Andhra Pradesh (for short “the High Court”) is :
Whether the High Court in exercise of its writ jurisdiction
under Article 226 of the Constitution of India ought entertain
a challenge to the assessment order on the sole ground that
Patna High Court CWJC No.13976 of 2019 dt.18-06-2025
9/17the statutory remedy of appeal against that order stood
foreclosed by the law of limitation?
14. In the backdrop of these facts, the central
question is : Whether the High Court ought to have
entertained the writ petition filed by the respondent? As
regards the power of the High Court to issue directions,
orders or writs in exercise of its jurisdiction under Article 226
of the Constitution of India, the same is no more res integra.
Even though the High Court can entertain a writ petition
against any order or direction passed/action taken by the
State under Article 226 of the Constitution, it ought not to do
so as a matter of course when the aggrieved person could
have availed of an effective alternative remedy in the manner
prescribed by law (see Baburam Prakash Chandra
Maheshwari v. Antarim Zila Parishad [Baburam Prakash
Chandra Maheshwari v. Antarim Zila Parishad, AIR 1969 SC
556] and also Nivedita Sharma v. COAI [Nivedita Sharma v.
COAI, (2011) 14 SCC 337 : (2012) 4 SCC (Civ) 947] ). In
Thansingh Nathmal v. Supt. of Taxes [Thansingh Nathmal v.
Supt. of Taxes, AIR 1964 SC 1419] , the Constitution Bench of
this Court made it amply clear that although the power of the
High Court under Article 226 of the Constitution is very wide,
the Court must exercise self-imposed restraint and not
entertain the writ petition, if an alternative effective remedy is
available to the aggrieved person. In para 7, the Court
observed thus : (Thansingh Nathmal case [Thansingh
Nathmal v. Supt. of Taxes, AIR 1964 SC 1419] , AIR p. 1423)
“7. Against the order of the
Commissioner an order for reference could
have been claimed if the appellants
satisfied the Commissioner or the High
Court that a question of law arose out of
the order. But the procedure provided by
the Act to invoke the jurisdiction of the
High Court was bypassed, the appellants
moved the High Court challenging the
competence of the Provincial Legislature
to extend the concept of sale, and invoked
the extraordinary jurisdiction of the High
Court under Article 226 and sought to
reopen the decision of the taxing
authorities on question of fact. The
jurisdiction of the High Court under
Article 226 of the Constitution is couched
in wide terms and the exercise thereof is
Patna High Court CWJC No.13976 of 2019 dt.18-06-2025
10/17
not subject to any restrictions except the
territorial restrictions which are expressly
provided in the Articles. But the exercise of
the jurisdiction is discretionary : it is not
exercised merely because it is lawful to do
so. The very amplitude of the jurisdiction
demands that it will ordinarily be exercised
subject to certain self-imposed limitations.
Resort to that jurisdiction is not intended
as an alternative remedy for relief which
may be obtained in a suit or other mode
prescribed by statute. Ordinarily the Court
will not entertain a petition for a writ
under Article 226, where the petitioner has
an alternative remedy, which without being
unduly onerous, provides an equally
efficacious remedy. Again the High Court
does not generally enter upon a
determination of questions which demand
an elaborate examination of evidence to
establish the right to enforce which the
writ is claimed. The High Court does not
therefore act as a court of appeal against
the decision of a court or tribunal, to
correct errors of fact, and does not by
assuming jurisdiction under Article 226
trench upon an alternative remedy
provided by statute for obtaining relief.
Where it is open to the aggrieved petitioner
to move another tribunal, or even itself in
another jurisdiction for obtaining redress
in the manner provided by a statute, the
High Court normally will not permit by
entertaining a petition under Article 226 of
the Constitution the machinery created
under the statute to be bypassed, and will
leave the party applying to it to seek resort
to the machinery so set up.”
(emphasis supplied)
15. We may usefully refer to the exposition of this
Court in Titaghur Paper Mills Co. Ltd. v. State of Orissa
[Titaghur Paper Mills Co. Ltd. v. State of Orissa, (1983) 2
SCC 433 : 1983 SCC (Tax) 131] , wherein it is observed that
where a right or liability is created by a statute, which gives a
special remedy for enforcing it, the remedy provided by that
Patna High Court CWJC No.13976 of 2019 dt.18-06-2025
11/17
statute must only be availed of. In para 11, the Court observed
thus : (SCC pp. 440-41)
“11. Under the scheme of the
Act, there is a hierarchy of authorities
before which the petitioners can get
adequate redress against the wrongful
acts complained of. The petitioners have
the right to prefer an appeal before the
Prescribed Authority under sub-section
(1) of Section 23 of the Act. If the
petitioners are dissatisfied with the
decision in the appeal, they can prefer a
further appeal to the Tribunal under sub-
section (3) of Section 23 of the Act, and
then ask for a case to be stated upon a
question of law for the opinion of the
High Court under Section 24 of the Act.
The Act provides for a complete
machinery to challenge an order of
assessment, and the impugned orders of
assessment can only be challenged by the
mode prescribed by the Act and not by a
petition under Article 226 of the
Constitution. It is now well recognised
that where a right or liability is created
by a statute which gives a special remedy
for enforcing it, the remedy provided by
that statute only must be availed of. This
rule was stated with great clarity by
Willes, J. in Wolverhampton New
Waterworks Co. v. Hawkesford
[Wolverhampton New Waterworks Co. v.
Hawkesford, (1859) 6 CBNS 336, 356 :
141 ER 486] in the following passage:
‘There are three classes of
cases in which a liability may be
established founded upon statute. … But
there is a third class viz. where a liability
not existing at common law is created by a
statute which at the same time gives a
special and particular remedy for
enforcing it…. The remedy provided by the
statute must be followed, and it is not
competent to the party to pursue the
Patna High Court CWJC No.13976 of 2019 dt.18-06-2025
12/17course applicable to cases of the second
class. The form given by the statute must
be adopted and adhered to.’
The rule laid down in this
passage was approved by the House of
Lords in Neville v. London Express
Newspaper Ltd. [Neville v. London Express
Newspaper Ltd., 1919 AC 368 (HL)] and
has been reaffirmed by the Privy Council in
Attorney General of Trinidad & Tobago v.
Gordon Grant & Co. Ltd. [Attorney
General of Trinidad & Tobago v. Gordon
Grant & Co. Ltd., 1935 AC 532 (PC)] and
Secy. of State v. Mask & Co. [Secy. of State
v. Mask & Co., 1940 SCC OnLine PC 10 :
AIR 1940 PC 105] It has also been held to
be equally applicable to enforcement of
rights, and has been followed by this Court
throughout. The High Court was therefore
justified in dismissing the writ petitions in
limine.”
(emphasis supplied)
In the subsequent decision in
Mafatlal Industries Ltd. v. Union of India
[Mafatlal Industries Ltd. v. Union of India,
(1997) 5 SCC 536] , this Court went on to
observe that an Act cannot bar and curtail
remedy under Article 226 or 32 of the
Constitution. The Court, however, added a
word of caution and expounded that the
Constitutional Court would certainly take
note of the legislative intent manifested in
the provisions of the Act and would
exercise its jurisdiction consistent with the
provisions of the enactment. To put it
differently, the fact that the High Court has
wide jurisdiction under Article 226 of the
Constitution, does not mean that it can
disregard the substantive provisions of a
statute and pass orders which can be
settled only through a mechanism
prescribed by the statute.
16. Indubitably, the powers of the High Court
under Article 226 of the Constitution are wide, but certainly
Patna High Court CWJC No.13976 of 2019 dt.18-06-2025
13/17
not wider than the plenary powers bestowed on this Court
under Article 142 of the Constitution. Article 142 is a
conglomeration and repository of the entire judicial powers
under the Constitution, to do complete justice to the parties.
Even while exercising that power, this Court is required to
bear in mind the legislative intent and not to render the
statutory provision otiose. In a recent decision of a three-
Judge Bench of this Court in ONGC v. Gujarat Energy
Transmission Corpn. Ltd. [ONGC v. Gujarat Energy
Transmission Corpn. Ltd., (2017) 5 SCC 42 : (2017) 3 SCC
(Civ) 47] , the statutory appeal filed before this Court was
barred by 71 days and the maximum time-limit for condoning
the delay in terms of Section 125 of the Electricity Act, 2003
was only 60 days. In other words, the appeal was presented
beyond the condonable period of 60 days. As a result, this
Court could not have condoned the delay of 71 days. Notably,
while admitting the appeal, the Court had condoned the delay
in filing the appeal. However, at the final hearing of the
appeal, an objection regarding appeal being barred by
limitation was allowed to be raised being a jurisdictional
issue and while dealing with the said objection, the Court
referred to the decisions in Singh Enterprises v. CCE [Singh
Enterprises v. CCE, (2008) 3 SCC 70] , CCE v. Hongo (India)
(P) Ltd. [CCE v. Hongo (India) (P) Ltd., (2009) 5 SCC 791] ,
Chhattisgarh SEB v. CERC [Chhattisgarh SEB v. CERC,
(2010) 5 SCC 23] and Suryachakra Power Corpn. Ltd. v.
Electricity Deptt. [Suryachakra Power Corpn. Ltd. v.
Electricity Deptt., (2016) 16 SCC 152 : (2017) 5 SCC (Civ)
761] and concluded that Section 5 of the Limitation Act, 1963
cannot be invoked by the Court for maintaining an appeal
beyond maximum prescribed period in Section 125 of the
Electricity Act.
In the case of Mrinmoy Maity vs. Chhanda Koley and
Others reported in 2024 SCC OnLine SC 551, in Paragraph Nos.
9, 10, 11, the Hon’ble Supreme Court has held as under :
9. Having heard rival contentions raised and on
perusal of the facts obtained in the present case, we are of the
considered view that writ petitioner ought to have been non-
suited or in other words writ petition ought to have been
dismissed on the ground of delay and latches itself. An
applicant who approaches the court belatedly or in other
Patna High Court CWJC No.13976 of 2019 dt.18-06-2025
14/17
words sleeps over his rights for a considerable period of time,
wakes up from his deep slumber ought not to be granted the
extraordinary relief by the writ courts. This Court time and
again has held that delay defeats equity. Delay or latches is
one of the factors which should be born in mind by the High
Court while exercising discretionary powers under Article 226
of the Constitution of India. In a given case, the High Court
may refuse to invoke its extraordinary powers if laxity on the
part of the applicant to assert his right has allowed the cause
of action to drift away and attempts are made subsequently to
rekindle the lapsed cause of action.
10. The discretion to be exercised would be with
care and caution. If the delay which has occasioned in
approaching the writ court is explained which would appeal
to the conscience of the court, in such circumstances it cannot
be gainsaid by the contesting party that for all times to come
the delay is not to be condoned. There may be myriad
circumstances which gives rise to the invoking of the
extraordinary jurisdiction and it all depends on facts and
circumstances of each case, same cannot be described in a
straight jacket formula with mathematical precision. The
ultimate discretion to be exercised by the writ court depends
upon the facts that it has to travel or the terrain in which the
facts have travelled.
11. For filing of a writ petition, there is no doubt
that no fixed period of limitation is prescribed. However, when
the extraordinary jurisdiction of the writ court is invoked, it
has to be seen as to whether within a reasonable time same
has been invoked and even submitting of memorials would not
revive the dead cause of action or resurrect the cause of
action which has had a natural death. In such circumstances
on the ground of delay and latches alone, the appeal ought to
be dismissed or the applicant ought to be non-suited. If it is
found that the writ petitioner is guilty of delay and latches, the
High Court ought to dismiss the petition on that sole ground
itself, in as much as the writ courts are not to indulge in
permitting such indolent litigant to take advantage of his own
wrong. It is true that there cannot be any waiver of
fundamental right but while exercising discretionary
jurisdiction under Article 226, the High Court will have to
necessarily take into consideration the delay and latches on
the part of the applicant in approaching a writ court. This
Court in the case of Tridip Kumar Dingal v. State of W.B.,
(2009) 1 SCC 768 has held to the following effect:
Patna High Court CWJC No.13976 of 2019 dt.18-06-2025
15/17“56. We are unable to uphold the
contention. It is no doubt true that there can be
no waiver of fundamental right. But while
exercising discretionary jurisdiction under
Articles 32, 226, 227 or 136 of the
Constitution, this Court takes into account
certain factors and one of such considerations
is delay and laches on the part of the applicant
in approaching a writ court. It is well settled
that power to issue a writ is discretionary. One
of the grounds for refusing reliefs under Article
32 or 226 of the Constitution is that the
petitioner is guilty of delay and laches.
57. If the petitioner wants to invoke
jurisdiction of a writ court, he should come to
the Court at the earliest reasonably possible
opportunity. Inordinate delay in making the
motion for a writ will indeed be a good ground
for refusing to exercise such discretionary
jurisdiction. The underlying object of this
principle is not to encourage agitation of stale
claims and exhume matters which have already
been disposed of or settled or where the rights
of third parties have accrued in the meantime
(vide State of M.P. v. Bhailal Bhai, [AIR 1964
SC 1006 : (1964) 6 SCR 261], Moon Mills Ltd.
v. Industrial Court, [AIR 1967 SC 1450] and
Bhoop Singh v. Union of India, [(1992) 3 SCC
136 : (1992) 21 ATC 675 : (1992) 2 SCR
969]). This principle applies even in case of an
infringement of fundamental right (vide
Tilokchand Motichand v. H.B. Munshi, [(1969)
1 SCC 110], Durga Prashad v. Chief
Controller of Imports & Exports, [(1969) 1
SCC 185] and Rabindranath Bose v. Union of
India, [(1970) 1 SCC 84]).
58. There is no upper limit and
there is no lower limit as to when a person can
approach a court. The question is one of
discretion and has to be decided on the basis of
facts before the court depending on and
varying from case to case. It will depend upon
what the breach of fundamental right and the
Patna High Court CWJC No.13976 of 2019 dt.18-06-2025
16/17
remedy claimed are and when and how the
delay arose.”
In the light of these facts and circumstances, on the
preliminary issue relating to maintainability of the present writ
petition, on the ground of delay and laches, the petitioner has not
made out a case so as to interfere with the impugned action of the
respondents. Accordingly, the present writ petition is liable to be
dismissed.
9. The Hon’ble Supreme Court in the case of Tamil
Nadu Cements Corporation Limited vs. Micro and Small
Enterprises Facilitation Council and Another reported in (2025)
4 SCC 1, in paragraph Nos. 54 to 63 analyzed maintainability of
writ petition where alternative remedy or exhaustion of remedies,
while it is held that Writ Court, despite existence of alternative
remedy can exercise jurisdiction in case of (i) violation of
principles of natural justice; (ii) order in proceeding without
jurisdiction; (iii) the vires of the Act is challenged; or (iv) remedy
under Statute is onerous or burdensome in character, like where
party is required to deposit full amount of tax before filing appeal.
In the present case, if the petitioner had approached within a
reasonable period of time, we could have examined the
aforementioned principles. On the other hand, the petitioner could
not explained undue delay and laches for about five years in filing.
Patna High Court CWJC No.13976 of 2019 dt.18-06-2025
17/17
Therefore, on the ground of laches, petitioner has not made out a
case.
10. Learned counsel for the petitioner submitted that
identical matter is pending consideration before the Hon’ble
Supreme Court insofar as interpretation of Section 73 (4-B) of the
Act, 1994 is concerned, the same would not assist in the present
case in view of the fact that petitioner has slept over the matter for
about five years, therefore, it is not appropriate to defer this matter
till disposal of the aforementioned decision which is required to be
decided on merits. On the other hand, we are proceeding to decide
the present writ petition on the preliminary issue of delay and
laches on the part of the petitioner. Hence, present CWJC No.
13976 of 2019 stands dismissed.
(P. B. Bajanthri, J)
(S. B. Pd. Singh, J)
GAURAV S./-
AFR/NAFR AFR CAV DATE Uploading Date 24.06.2025 Transmission Date