Calcutta High Court (Appellete Side)
(Hirak Ranjan Bera & Ors vs The State Of on 1 August, 2019
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01.08.2019
rrc
W.P.L.R.T. 84 of 2019
(Hirak Ranjan Bera & Ors. Vs. The State of
West Bengal & Ors.)
Mr. Arun Kumar Deb
Mr. Jagadish Chandra Das
Mr. Binoy Kumar Das
......For the petitioners
Mr. Chandi Charan De, Addl. Govt. Pleader
Mr. Aniruddha Sen
.....For the State
1. This is the second round of writ litigation before this
Court.
2. In the first round of writ litigation (W.P.L.R.T. 2 of 2019),
an order dated 27th August, 2018 passed by the 1st
Bench of the West Bengal Land Reforms and Tenancy
Tribunal was under challenge. Such order had granted a
prayer made by the learned counsel for the petitioners to
take necessary steps for condonation of delay in
presentation of the original application before the
tribunal [O.A. 3559 of 2017 (LRTT)]. The challenge to the
order dated 27th August, 2018 was not accepted by a
coordinate Bench of this Court on the ground that the
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petitioners had applied for modification of the order dated
27th August, 2018 (M.A. 1002 of 2018), which was yet to
be decided. W.P.L.R.T. 2 of 2019 was disposed of with a
request to the tribunal to dispose of M.A. 1002 of 2018 as
expeditiously as possible. The 1st Bench of the tribunal
considered M.A. 1002 of 2018 on 20th February, 2019.
For the reasons recorded in such order, M.A. 1002 of
2018 was dismissed on contest and as per the previous
order dated 27th August, 2018, O.A. 3559 of 2017 was
directed to be listed under the heading 'Motion' on 18th
April, 2019. The order dated 20th February, 2019 is the
subject matter of challenge in this writ petition dated 15th
July, 2019.
3. In paragraph 20 of the writ petition, it has been averred
that by an order dated 18th April, 2009, the original
application has been directed to be listed on 16th March,
2020.
4. The effect of the order dated 20th February, 2019
dismissing M.A. 1002 of 2018 is that the order dated 27th
August, 2018 granting liberty to the petitioners to take
steps for condonation of delay in presentation of the
original application survives and, therefore, without an
application being filed for such purpose, the original
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application may not be entertained. From the tenor of the
orders dated 27th August, 2018 and 20th February, 2019,
it appears to us that the tribunal was of the view that it
was the petitioners' counsel who had made a prayer for
taking steps for condonation of delay and a contention to
the contrary was not accepted.
5. Let us consider whether having regard to the contents of
the original application as well as the West Bengal Land
Reforms and Tenancy Tribunal Act as well as the rules
framed thereunder, the petitioners are under any
obligation to file a separate application for condonation of
delay in presentation of the original application.
6. Mr. Deb, learned advocate appearing for the petitioners
has drawn our attention to paragraph 5 of the original
application. Paragraph 5 of the original application reads
as follows :-
"5. LIMITATION
That the applicants declare that the instant
application is filed beyond the Limitation period
prescribed U/S 10 of the West Bengal Land and
Land Reforms and Tenancy Tribunal Act, 1997 and
the Rules framed thereunder and that too due to
inadvertence on the part of the Ld. Advocate for the
applicants, the reasons are as follows :-
The Ld. Advocate for the applicants at the time
of drafting of the Original Application being O.A.
No. 1466 of 2017 (LRTT) has inadvertently failed
to look into matter of the cause title of the order
sheets which contains an analogous order dated
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07.03.2017 under challenge purportedly passed
in Two Appeals i.e. one L.R. Appeal no.
143(T)/2015 and another L.R. Appeal no.
184(T)/2016.
As a matter of fact, when the Original
Application no. 1466 of 2017 (LRTT) was called on
27.10.2017 for admission under Motion, the Ld.
1st Bench comprising of the Hon'ble Justice
Sankar Acharya, Chairman and the Hon'ble
Administrative Member Liakat Ali was pleased
point out that two separate Original Application
are to be filed, for which the said O.A. matter i.e.
O.A. No. 1466 of 2017 (LRTT) was adjourned and
the matter to appear on 27.08.2018. In course of
submissions it was pointed out that the O.A. No.
1466 of 2017 (LRTT) will appear and be heard out
analogously with the instant O.A. matter to be
filed separately. Since the order impugned was
passed in two
Appeals. By this time 253 days have expired for
no willful laches on the part of the Learned
Advocate, nor the applicants. Viewed in such
circumstances, the said 253 days delay may be
kindly be condoned, otherwise the applicants will
be seriously prejudiced."
Based thereon, it has been contended before us that the
tribunal ought to have looked into the substance of the
original application and considered whether sufficient
cause had been shown for condonation of delay or not.
7. Section 10 of the West Bengal Land Reforms and Tenancy
Tribunal Act, 1997 (hereafter the 1997 Act) has the
marginal note 'Application to Tribunal'. Sub-section (2)
thereof reads as follows :-
"10.(1) * * *
(2) Every application under sub-section (1)
shall be made within sixty days from the date on
which such order was passed or such action was
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taken, as the case may be, or within such further
time as may be allowed by the Tribunal for cause
shown to its satisfaction, and shall be made in
such form, and shall be accompanied by such fee,
as may be prescribed.
* * *"
(emphasis supplied)
The word 'prescribed' in sub-section (2) of Section 10 has
been defined in clause (p) of Section 2 of the 1997 Act as
follows:-
"Prescribed" means prescribed by rules made
under this Act.
8. The rules framed in exercise of power conferred by
Section 20 of the 1997 Act, however, does not provide
any particular form in which an application under
Section 6 or Section 10 of the 1997 Act is to be filed.
Rule 3 refers to the particulars that an application before
the tribunal must contain. It is, however, one thing to
say that an application should contain certain
particulars and it is yet another thing that an application
must be filed in a form to be prescribed by the rules.
9. We have gathered from Mr. Deb and Mr. De, learned
Additional Government Pleader appearing for the
respondents that applications are being filed before the
tribunal in a particular format of the nature which has been used by the petitioners while filing O.A. 3559 of 6 2017 before the tribunal. Such format is available from the office of the tribunal.
10. Mr. Deb has placed reliance on a decision of a learned Judge of the Punjab High Court reported in AIR 1959 Punjab 646 (Firm Kaura Mal Bishan Dass Vs. Firm Mathra Dass Atma Ram, Ahmedabad and others). Although it was a case dealing with Section 5 of the Limitation Act, 1908, it was held that the discretion under Section 5 has to be a judicial discretion and not an arbitrary one; merely because there was no written application filed by the appellant is hardly a sufficient ground for refusing him the relief, if he is otherwise entitled to it. The decision refers to a Division Bench decision of the Allahabad High Court reported in AIR 1936 All 666 (Mt. Kulsoomun Nissa Vs. Noor Mohammad) wherein the High Court was of the view that the Court below had erred in the exercise of its jurisdiction by refusing extension of time on the ground that no formal application had been made in that behalf.
11. A coordinate Bench of this Court while disposing of W.P.L.R.T. 81 of 2018 (Sri Dipak Bhattacharya Vs. The State of West Bengal & Ors.) set aside the order of the tribunal requiring the original applicant to file a separate 7 application for interim relief, considering that the original application itself contained the prayer for interim relief.
12. Since there is no particular form prescribed by the rules framed under the Act coupled with the fact that the petitioners themselves had stated in the original application that the same was barred by limitation and they had prayed for condonation of delay in paragraph 5, we are of the considered opinion that the petitioners need not file any separate application; however, a prayer for condonation of delay shall be incorporated in paragraph 8 of the original application and upon its incorporation within three weeks, the same shall be considered on the basis of the averments made in paragraph 5 thereof.
13. If any of the respondents wishes to file any affidavit-in- opposition, the same may be filed within 30th November, 2019; reply thereto, if any, may be filed by 31st January, 2020.
14. The tribunal shall proceed to consider the prayer for condonation of delay first on 16th March, 2020 and if such prayer is allowed, it shall proceed to consider the original application on merits.
15. The writ petition stands disposed of. There shall, however, be no order as to costs.
8Urgent photostat certified copy of this order, if applied for, be given to the parties as expeditiously as possible. (Saugata Bhattacharyya, J.) (Dipankar Datta, J.)