Calcutta High Court (Appellete Side)
Sm Radhika Devi & Ors vs The State Of West Bengal & Ors on 16 February, 2009
Author: Jayanta Kumar Biswas
Bench: Jayanta Kumar Biswas
In the High Court at Calcutta
Constitutional Writ Jurisdiction
Appellate Side
Present:
The Hon'ble Mr. Justice Jayanta Kumar Biswas.
W.P. No. 4809 (W) of 2007
Sm Radhika Devi & Ors.
v.
The State of West Bengal & Ors.
Mr Avijit Sarkar, advocate, for the petitioner. Mr Indrajit Sen, senior advocate, with Mr Sitaram Samanta, advocate,
for the state.
Heard on: February 16, 2009.
Judgment on: February 16, 2009.
The Court:- The three petitioners in this writ petition dated March 7, 2007 are questioning the decision of the
Collector, North 24 Parganas dated February 7, 2007, at p.40, rejecting their application under s.18 of the Land
Acquisition Act, 1894 as time-barred.
The s.4 notification invoking s.17(4) was published on December 10, 1998. The s.6 declaration was published
on December 22, 1998. Then s.9 notice was issued to the recorded owners asking them to appear before the collector
on March 31, 1999 for verification of ownership of the lands. At such stage the petitioners moved this court by filing
W.P. No.6263 of 1999. They asserted that only on March 30, 1999 they had come to learn that proceedings had been
initiated for acquisition of their lands.
The award was made on April 30, 1999. Notice under s.12(2) dated May 3, 1999 was issued to the persons
named in the award. The petitioners were named in the award. Possession of the land was taken on May 10, 1999. By
judgment and order dated December 1, 2006 W.P. No.6263 of 1999 was disposed of granting the petitioners liberty to
file appropriate application under s.18 and ordering that if the application was filed, then it would be disposed of within
six weeks from the date of its filing. Accordingly, they submitted the s.18 application on December 26, 2006.
Mr Sarkar, counsel for the petitioners, submits that since the award was made behind the back of the
petitioners, in view of the provisions of s.18(2)(b) of the Land Acquisition Act, 1894, the s.18 application submitted by
them was not barred by limitation; that since liberty was granted to the petitioners to file a s.18 application, the
application could not be dismissed by the collector holding that it was barred by limitation; and that even if the time to
file the s.18 application had expired before December 26, 2006, since this court granted liberty to file an application, it
must be held that the delay was condoned by this court, and hence on the ground of limitation the collector could not
reject the s.18 application. According to him, since the respondents have not filed any opposition, the writ petition
should be allowed.
Mr Sen, counsel for the state, submits that the hopelessly time-barred s.18 application was rightly rejected by the collector. He relies on the decisions in Sakuru v.Tanaji, AIR 1985 SC 1279, Union of India & Ors. v. Mangatu Ram & Ors., AIR 1997 SC 2704 and State of Karnataka v. Laxuman, AIR 2006 SC 24.
The questions for decision are: (i) whether the s.18 application was barred by limitation; (ii) whether the collector or the court possesses power to condone delay in filing an application under s.18 of the Land Acquisition Act, 1894; and (iii) whether delay, if any, in filing the s.18 application by the petitioners was condoned by this court by the order made in their previous writ petition.
Even if it is assumed that the award was not made in presence of the petitioners or that the s.12(2) notice dated May 3, 1999 issued by the collector was not received by them, in view of the provisions of s.18(2)(b), they could file their s.18 application to the collector only within six months from the date of the collector's award. Hence, at the most, they were entitled to submit their s.18 application within six months from April 30, 1999 when the collector made the award. But, admittedly, the application was submitted only on December 26, 2006. It is therefore evident that their s.18 application was time-barred.
In Sakuru v. Tanaji, AIR 1985 SC 1279, the question for decision was whether the provision of s.5 of the Limitation Act, 1963 could be invoked for condoning the delay in filing an appeal before the collector under s.90 of the Andhra Pradesh (Telengana Area) Tenancy and Agricultural Lands Act, 1950. It was held by their Lordships of the Supreme Court that the provisions of s.5 were not applicable to an appeal filed before the collector who was not a court. In Union of India & Ors. v. Mangatu Ram, AIR 1997 SC 2704, it was held that considering a time-barred s.28A application, the collector could not give the benefit of increase in the amount of compensation by the reference court.
In State of Karnataka v. Laxuman, AIR 2006 SC 24, their Lordships of the Supreme Court said (in para. 4):
"A statute can, even while conferring a right, provide also for a repose. The Limitation Act is not an equitable piece of legislation but is a statute of repose. The right undoubtedly available to a litigant becomes unenforceable if the litigant does not approach the court within the time prescribed. It is in this context that it has been said that the law is for the diligent. The law expects a litigant to seek the enforcement of a right available to him within a reasonable time of the arising of the cause of action and that reasonable time is reflected by the various articles of the Limitation Act."
Their Lordships then said (in para.6) that it is open to the high court to decline to issue a writ on a writ petition taken out alleging inaction on the part of the collector to refer the matter on the basis of a s.18 application filed within time, if the approach to the high court is unduly delayed or the petitioner is guilty of laches. Then their Lordships said (in para.9):
"Therefore, Section 5 of the Limitation Act cannot be resorted to while making an application under Section 18(1) of the Act and the application has to be made within the period fixed by Section 18(2) of the Act."
It is therefore evident that the court has never held that an out of time s.18 application can be entertained by the collector or the court by condoning delay. As a matter of fact, there is no provision in the Land Acquisition Act, 1894 empowering the collector or the court to condone the delay in filing an application under s.18. It is also evident from the decisions relied on by Mr Sen that the provisions of s.5 of the Limitation Act, 1963 do not apply to an application under s.18 submitted to the collector who is not a court. Hence the legal position is that neither the collector nor the court has been given any power to condone the delay in filing an application under s.18 of the Land Acquisition Act, 1894.
The last question is whether by the order dated December 1, 2006 made by this court in the petitioners' previous writ petition delay in filing the s.18 application was condoned. There is absolutely nothing in the order to show that delay in filing the s.18 application was condoned. As a matter of fact, the question did not arise in that case at all. The petitioners were just given liberty to file an appropriate application under s.18, and an order was made that if an application was filed, then it would be disposed of within the time mentioned in the order. The argument that the delay was condoned is a fallacious one, for even before filing a s.18 application by the petitioners this court could not condone the delay in filing it.
I am unable to accept the contention that since liberty was granted by this court to file a s.18 application, the collector was not competent to hold that the application filed by the petitioners was out of time. I am also unable to accept the argument that since liberty was granted by this court to file the s.18 application, it must be held that the delay, if any, in filing the application was condoned. The question of condonation of delay could be relevant only if the question was considered by this court, and if the provisions of the statute conferred power on the collector or the court to condone delay in filing a s.18 application. Delay, even when can be condoned, cannot be condoned by implication, condonation of delay cannot be presumed.
The power to condone delay can be exercised only if the statute provides for condonation of delay. For the purpose the writ court cannot exercise its inherent power that it possesses as a court of plenary jurisdiction. Liberty was granted to the petitioners to submit a s.18 application presumably ordering that the application, if filed, should be decided by the collector in accordance with law only; for the court never orders anyone to act contrary to law. Hence it was the collector's duty to examine whether the application filed by the petitioners seven and a half years after the date of making the award was within the statutory period mentioned in s.18.
I am therefore of the view that it is wrong to say that the collector was not competent to decide the question of limitation. In my opinion, he has rightly rejected the application holding that it was time-barred. I find absolutely no merit in the argument that since the respondents have not filed any opposition to the writ petition, it must be held that the collector was wrong in rejecting the petitioners' s.18 application. It is for the petitioners to prove that the collector was wrong on facts or in law. They have failed to do so; and having failed to establish their case, they cannot claim relief contending that the respondents have not taken any step to disprove their case.
For these reasons, I dismiss the writ petition. There shall be no order for costs.
Urgent certified xerox of this order, if applied for, shall be supplied to the parties within three days from the date of receipt of the file by the section concerned.
(Jayanta Kumar Biswas, J.)