Calcutta High Court (Appellete Side)
M/S. Geeta Glass Works Private Limited vs Smt. Mili Dutta & Ors on 1 February, 2024
01.02.2024
Item No.01
Court No.6.
S. De
M.A.T. 2076 of 2023
With
I.A. No. CAN 1 of 2023
I.A. No. CAN 2 of 2023
M/s. Geeta Glass Works Private Limited.
Vs.
Smt. Mili Dutta & Ors.
Mr. Arif Ali,
Mr. Sarban Bhattacharjee,
...for the appellant.
Mr. Bhudeb Bhattacharyya,
Mr. Sugata Shankar Roy,
...for the respondent nos. 1&2.
Sk. Md. Galib,
Ms. Sujata Mukherjee,
...for the State respondents.
Mr. Biswajit Mukherjee,
Mr. Gopal Chandra Das,
...for the K.M.C.
By consent of the parties, the appeal and the
connected application are taken up together for
hearing.
A judgment and order dated April 26, 2023,
whereby the writ petition of the respondent nos. 1 and
2 herein was disposed of by a learned Judge of this
Court, is the subject matter of challenge in this appeal
at the instance of the respondent nos. 6 in the writ
petition.
2
It appears that the writ petitioners approached
the learned Single Judge by challenging an order of
the Controller, Kolkata Thika Tenancy, dated April 16,
2012. A challenge was also thrown to the refusal of
the Kolkata Municipal Corporation authorities to
mutate the names of the writ petitioners as owners of
premises no. 23M, Radha Madhab Dutta Garden Lane,
Kolkata - 700 010. The said property presently stands
mutated in the name of the appellant herein as a thika
tenant.
The learned Judge, after hearing learned counsel
representing the parties concluded that the order of
the Controller of Thika Tenancy has to be challenged
before the West Bengal Land Reforms and Tenancy
Tribunal (in short the 'Tribunal'). The learned Judge
disposed of the writ petition with the following
observations and directions :
"However, on perusal of interim
order passed by the coordinate Bench at
the time of admission of the writ petition
it appears that direction has been given
on 15th November, 2016 directing that the
mutation which has been done in favour
of the private respondents would be
treated as temporary till disposal of the
writ petition.
3
On consideration of the issue
involved in this writ petition it is
appropriate for the petitioners to
approach the Tribunal. This Court directs
that the interim order passed on 15th
November, 2016 shall continue for a
period of eight weeks from date.
Petitioners shall be at liberty to file
original application before the West
Bengal Land Reforms & Tenancy
Tribunal within a period of eight weeks
from date. In the event original
application is filed before the Tribunal
challenging the order of the Controller,
Kolkata Thika Tenancy, dated 16th April,
2012, the interim order passed by the
coordinate Bench on 15th November, 2016
shall continue till disposal of the original
application.
However, it is made clear, if
petitioners fail to approach the Tribunal
by filing the original application within
the aforesaid time the interim order
passed by this Court on 15 th November,
2016 shall stand vacated without any
further reference to this Court.
4
This Court has not expressed any
view on merit of the order passed by the
Thika Controller and all issues are kept
open."
Being aggrieved, the respondent no.6 in the writ
petition has come up by way of this appeal.
The appellant's grievance is two-fold. Firstly, it
says that the writ petitioners have filed an original
application before the Tribunal assailing the relevant
order of the Thika Controller within the time period
granted by the learned Single Judge. However, they
are contending that the learned Single Judge has
condoned the delay in approaching the Tribunal.
Learned advocate says that this could not have been
done by the learned Judge and His Lordship has also
not done so. The order is being wrongly interpreted by
the writ petitioners before the Tribunal. Hence, a
clarification is required.
Secondly, learned counsel for the appellant says
that the learned Judge could not have directed
continuation of the interim order till the disposal of the
original application if such application was filed by the
writ petitioners before the Tribunal within the period of
eight weeks granted by the learned Single Judge.
There is huge delay on the part of the writ petitioners
5
in approaching the Tribunal. Hence, technically the
appeal that has been filed before the Tribunal is time
barred since such statutory appeal was required to be
presented within thirty days from the date of the
impugned order of the Thika Controller as provided in
Section 12 of the West Bengal Thika Tenancy
(Acquisition and Regulation) Act, 2001. Learned
counsel says that the writ petitioners may be able to
persuade the Tribunal to condone the delay but the
fact remains that such condonation has to be first
obtained before the appeal can be admitted by the
Tribunal.
Learned counsel relied on a decision of a
Division Bench of this Court in the case of Surendra
Nath Roy Vs. Jatindra Nath Roy reported in (1940-
41) 45 CWN 524. In that case, a plaint had been
presented before a wrong Court. The plaint was
returned by that Court enlarging the time period for
presenting the same before the appropriate Court. The
matter having been carried to the Division Bench of
this Court, it was held that it was for the Court before
which the plaint was to be re-filed to consider whether
the same was being presented within the period of
limitation. The Court returning the plaint could not
enlarge the period of limitation as that would go
beyond the statute of limitation. Learned counsel says
that the same principle would apply in this case.
6
Learned advocate for the writ petitioners draws
our attention to a certified copy of an order dated July
3, 2023, passed by the Tribunal. The relevant portion
of the said order reads as follows :
"Ld. Government Representative
raises objection regarding the
maintainability of this present application
as there is apparent delay in filing the
present application and the applicants have
not taken proper steps for condonation of
such delay either in the Original Application
or in the present application also suffers
from non-joinder of necessary parties.
As the Hon'ble High Court in its order
dated 26.04.2023 has granted liberty to
the applicants to approach this Tribunal
wherein the writ petition was filed
challenging the order of the Thika
Controller, Kolkata dated 16.04.2012 there
is no delay in the present application as the
applicants have filed the present
application on 09.06.2023 which is within
the limitation period.
............................
Accordingly, the present application is hereby admitted."
7Learned advocate for the writ petitioners says that the learned Single Judge, considering the facts and circumstances of the case was satisfied that the interest of the writ petitioners is required to be protected. Accordingly, the learned Judge permitted the writ petitioners to file the appeal before the Tribunal within eight weeks and directed continuation of the interim protection till the disposal of the appeal before the Tribunal. There is no infirmity in the order of the learned Single Judge. This appeal should be dismissed.
We agree with learned advocate for the appellant when he says that the learned Judge could not have condoned the delay in presenting the appeal before the Tribunal. It may not be necessary for us to read the order impugned in that manner also. In our view, the learned Single Judge's order should be construed as having permitted the writ petitioners to approach the Tribunal with an appeal and application for condonation of delay, if any. We would like to read the order in this manner since in our considered opinion the learned Single Judge did not have the jurisdiction to condone the delay in presenting appeal before the Tribunal. It is for the Tribunal to decide whether the delay should be condoned or not. If the appellant before the Tribunal can satisfactorily explain the delay, the Tribunal may well condone the delay and proceed 8 with the appeal on merits. We are of the view that the Tribunal misunderstood the true purport of the order dated April 26, 2023, which is impugned in this appeal.
Hence, we only clarify that the order dated April 26, 2023, passed by the learned Single Judge in WPA 19273 of 2015 shall not be construed as having condoned the delay in presenting the relevant appeal before the Tribunal. We say no further. Whatever the legal consequences are, will follow. The writ petitioners will be at liberty to file any application for condonation of delay before the Tribunal, if they are so advised and the Tribunal shall consider the same in accordance with law after giving an opportunity of filing objection thereto to the present appellant.
Since we are told that the disputes between the parties are pending for a long time, we request the Tribunal to dispose of the matter pending before it, as expeditiously as possible.
The appeal being MAT 2076 of 2023 is disposed of accordingly along with the application being I.A. No. CAN 2 of 2023.
Since we have not called for affidavits, the allegations contained in the stay application are deemed not to be admitted by the respondents.
Urgent certified photostat copy of this order, if applied for, shall be given to the parties as 9 expeditiously as possible on compliance with all the necessary formalities.
(M.V. Muralidaran, J.) (Arijit Banerjee, J.)