Calcutta High Court (Appellete Side)
Jugal Kishore Mondal & Anr vs Bikash Ranjan Chandra on 4 August, 2016
Author: Jyotirmay Bhattacharya
Bench: Jyotirmay Bhattacharya
IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
Appellate Side
Present:
Hon'ble Justice Jyotirmay Bhattacharya
And
Hon'ble Justice Ishan Chandra Das.
R.V.W 292 of 2014
With
CAN 11817 of 2014
And
CAN 11816 of 2014
In
F.A 608 of 1964
With
CAN 12538 of 2014
+
CAN 8607 of 2015
+
CAN 3946 of 2008
+
CAN 3947 of 2008
+
CAN 7610 of 2008
With
COT 3739 of 1968
Jugal Kishore Mondal & Anr.
Vs.
Bikash Ranjan Chandra
For the Review Applicants : Mr. Saktinath Mukherjee, Sr. Adv.
Mr. Aniruddha Chatterjee, Adv.
Mr. Surya Prasad Chattopadhyay, Adv.
For the Appellants/O.P : Mr. Sarvapriya Mukherjee,Adv.
Mr. Jishnu Chowdhury, Adv.
Mr. Saunak Mitra, Adv.
Mr. Arnab Sardar, Adv.
For the applicant in : Mr. Jiban Ratan Chatterjee, Sr. Adv.
CAN 12538/2014 Mr. Ayan Banerjee,
Ms. Dabasree Dhamali, Adv.
Heard on : 01.07.2016 & 22.07.2016
Judgment on : 4th August, 2016
Jyotirmay Bhattacharya, J
Several applications were filed by the parties in this abated appeal.
Before dealing with the merit of those applications, I feel it necessary to
give some background of this litigation for proper appreciation of the context in
which those applications were filed.
Accordingly I record hereinafter the short background of this litigation.
On 30th May, 1935 a non-agricultural tenancy was granted by the Remesh
Chandra Mondal in favour of the predecessor-in-interest of the appellant viz.
Goursiddhi Chandra in respect of the suit property for a period of 20 years with
permission to erect permanent structure thereon. The original lessee constructed
a pucca cinema hall on the demised land. The original lessor viz. Ramesh
Chandra Mondal died in the year 1937 leaving behind him his three sons, viz.
Jagadindra Kumar Mondal, Manindra Mondal and Dinendra Kumar Mondal. The
original lessee, viz. Goursiddhi Chandra died in 1941 leaving behind him his
three sons, viz. Sanat Chandra, Bikash Ranjan Chandra and Ashok Kumar
Chandra.
The lease executed on 30th May 1935 expired on 30th May, 1955 by efflux
of time. Since after the expiry of the lease period, the successor of the original
lessee did not vacate the suit premises, a suit for eviction was filed against the
heirs of the original lessee, viz. Sanat and his two brothers on 27th May, 1959.
The said suit was dismissed on contest on 30th March, 1963 by the learned Trial
Judge by holding, inter alia, that since the lessee had erected construction of
permanent nature on the suit property on the basis of the permission granted to
him by the lessor in the said lease deed, the lessee acquired a non-evictable right
under Section 7(5) of the West Bengal Non-Agricultural Tenancy Act.
Challenging the said decree passed by the learned Trial Court, the plaintiff
filed an appeal before this Court. During pendency of the said appeal, the
respondent No.1, viz. Sanat Kumar Chandra died on 4th August, 1975 leaving
behind his widow, viz. Maya as his only heiresses. No step was taken for substituting the legal heirs of the said Sanat by the appellant within the period of limitation. As a result, when the death of Sanatbabu was reported to the Court, this Court passed an order for dismissal of the appeal after recording abatement thereof on the death of Sanat as no step was taken by the appellant for bringing his legal representatives on record within time.
Subsequently, the other brother of Sanatbabu viz. Ashokbabu died in the year 1999. It is only when pursuant to an order passed by this Court the names of the legal heirs and heiresses of the said Sanatbabu and Ashokbabu were supplied to the learned advocate on record of the appellants, the appellant filed an application for substitution for bringing the legal representatives of the said Sanatbabu and Ashokbabu on record after setting aside abatement on condonation of delay. The said application was registered as CAN 7610 of 2008.
Some of the appellants also died during the pendency of this appeal. Let us now give the details of the death of these appellants who died during the pendency of this appeal. The plaintiff/appellant No. 1, viz. Jagadindrababu died on 25th September, 1972 leaving behind his two sons, viz. Jugal and Nitai and one daughter, viz. Nanibala and his widow Amiya. The heirs of Jagadindrababu were substituted in his place after his death. One of such substituted heirs, viz. Jugalbabu died on 16th August, 1984 leaving behind his son Ashim and daughter, viz. Protima and his widow Sumita. Jugal's son Ashim died sometime in the year 2006.. Two applications were taken out by the appellants in 2008 for substituting the heirs of Jugalbabu and Ashimbabu in their places. The application which was taken out by the appellants for substituting the heirs of Jugalbabu after setting aside abatement was registered as CAN 3947 of 2008. The other application which was filed by the appellant for substituting the heirs of Ashimbabu after setting aside abatement was registered as CAN 3946 of 2008.
All those three applications were listed for hearing before the Division Bench of this Court on 5th February, 2009. All those three applications were dismissed by the said Division Bench on 5th February, 2009, as no reasonable explanation was given by the appellants for such long delay in taking steps for substituting the legal representatives of those three deceased persons. While dismissing all those three applications it was recorded in the order that the said order was passed after hearing the learned Counsel of the parties. However, name of the appearing Counsel of the appellant was not recorded in the said order.
Long thereafter in 2013 the appellants filed an application being CAN 4459 of 2013 praying for recall of the said order passed by the Division Bench of this Court on 5th February, 2009. Since the said application for recall was not filed within the period of limitation, an application for condonation of delay being CAN 4460 of 2013 was also filed by the appellants. It was stated by the appellants in those two applications that their learned Advocate Swapan Kumar Dey died on 30th December, 2008; as a result, the appellants remained unrepresented before the Division Bench of this Court when the appellants' those three applications being CAN 3946 of 2008, CAN 3947of 2008 and CAN 7610 of 2008 were dismissed by the said Division Bench of this Court on 5th February, 2009. They claimed that though it was recorded in the order dated 5th February, 2009, the said order of dismissal of those applications was passed after hearing the learned Counsel of the parties, but, in fact, such recording was not correct as the appellants could not have been represented by their learned Advocate before the Division Bench on the said date as their learned Advocate Swapan Kumar Dey died before 5th February, 2009 when three applications were called on for hearing. To support their said statement they also referred to the order dated 5th February, 2009 to demonstrate that even the name of the appearing Counsel of the appellant was not recorded in the said order. Death certificate of Swapan Kumar Dey, Learned Advocate has also been annexed to the affidavit. The death of Swapan Kumar Dey, learned Advocate, before 5th February, 2009 is not disputed. The appellants thus, prayed for recall of the order of dismissal of those three applications passed on 5th February, 2009 so that those three applications can be reconsidered by this Court after hearing the learned Counsel of the parties.
Let us first of all consider the application for condonation of delay in filing the said recalling application.
In the application for condonation of delay filed in connection with the said application, they tried to explain the reason for the delay of four and half years in filing the said application for recall by alleging that they did not know about the order of dismissal of those three applications passed on 5th February, 2009 earlier and it is only after they came to know about the said order dated 5th February, 2009 they filed the said application for recall of the said order.
Those two applications i.e. application for recall being CAN 4459 of 2013 and the application for condonation of delay filed in connection therewith being CAN 4460 of 2013 were listed for hearing before another Division Bench of this Court on 7th May, 2013. After being convinced about the contention raised by the appellants in their application for recall being CAN 4459 of 2013, the said Division Bench of this Court was pleased to allow the said application by setting aside the order dated 5th February, 2009 after recording that the appellants were prevented by sufficient cause from appearing before the Court when the ex parte order dated 5th February, 2009 was passed. While allowing the said application for recall, the Division Bench of this Court simply recorded that the delay in filing the said application for recall has been sufficiently explained without however recording any reason for coming to such conclusion.
Since the delay of four and half years was condoned by the Division Bench of this Court by a single stroke of pen, the respondents/petitioners felt aggrieved and thus, they challenged the said order of the Division Bench of this Court by filing a Special Leave Petition being SLP(Civil) 6751-6752 of 2014before the Hon'ble Supreme Court. The said Special Leave Petition was, however, dismissed as withdrawn. While dismissing the said Special Leave Petition, the Hon'ble Supreme Court after considering the facts of this case, clarified that in the event of the petitioner's failing in the High Court, it would be open to the petitioners to approach this Court even for challenging the order which was challenged in the said Special Leave Petition. Considering the long pendency of the litigation, the Hon'ble Supreme Court also expressed its desire for disposal of the said matter by the High Court as soon as possible. The said order was passed on 31st October, 2014. Immediately thereafter on 8th December, 2014, the instant review application has been filed along with an application for condonation of delay.
There was 573 days delay in filing the said review application. Reason for such delay has been explained by the respondents/petitioners in the application for condonation of delay being CAN 1817 of 2014. On consideration of the said application for condonation of delay, we find that there was no willful negligence on the part of the respondents/petitioners in filing this review application. Immediately after passing of the order under review, they moved a Special Leave Petition before the Hon'ble Supreme Court and after the said Special Leave Petition was allowed to be withdrawn in the manner as aforesaid, the instant review application has been filed before this Court. Thus, we hold that the reason for the delay in filing this review application before this Court has been sufficiently explained by the Respondents/petitioners in this application. Accordingly, the application for condonation of delay being CAN 1187 of 2014 is allowed. Let the application for review being RVW No. 292 of 2014 now be registered.
Immediately after delay in filing this review application was condoned, we are requested by the learned Counsel appearing for the parties to dispose of the review application on merit. Since the Hon'ble Supreme Court has also expressed its desire for disposing of this review application as soon as possible, we decided to dispose of the review application on merit as prayed for by the learned Counsel appearing for the parties.
Re: RVW 292 of 2014 Re: CAN 11817 of 2014 Let us now consider the merit of the review application in the facts of the present case.
We have already mentioned above that order under review was passed by the other Division Bench of this Court, on an application for recall of the order passed by another Division Bench of this Court on 5th February, 2009 rejecting three applications filed by the appellants seeking leave to substitute the legal representatives of two of the respondents and two of the appellants who died during the pendency of the said appeal. The said application for recall filed by the appellant was registered as CAN 4459 of 2013. The application for condonation of delay filed in connection with the said application for recall was registered as CAN 4460 of 2013.
We have already mentioned above that the said application for recall was filed by the appellants four and half years after the order of dismissal of the aforesaid three applications of the appellants was passed by the other Division Bench of this Court on 5th February, 2009. Such long delay in filing the said application for recall was explained by the appellant simply by projecting their ignorance about the order passed by said Division Bench of this Court on 5th February, 2009 by which their earlier three applications for substitution were dismissed by the other Division Bench of this Court. While passing the order under review, the Division Bench of this Court condoned the delay of four and half years in filing the said recalling application, by a single line order. The Division Bench simply held that delay has been sufficiently explained. Nothing was mentioned in the said order as to the length of delay in filing the said recalling application, further as to how such delay was explained and further as to whether the explanation for such delay was satisfactory or not.
In this context we will have to consider as to whether there was any error apparent on the face of the record in condoning four and half years delay in filing the application for recall by the appellants. We have already mentioned above that the only explanation which was given by the appellants for such long delay was that they were ignorant about the order passed by the other Division Bench of this Court on 5th February, 2009. It was stated that immediately after coming to know about the said order dated 5th February, 2009 they filed the said application for recall.
Let us now consider as to how far such statements of the appellant can be supported from the materials on record. In this regard, we like to refer here the written statement filed by the appellants in another suit filed by Shri Rajib @ Rajendra Ram Pal Vs. Bikash Ranjan Chandra & Ors. being Title Suit No.375 of 2009 where in the appellants categorically mentioned in paragraph 8 thereof that the appeal preferred by Mondal's was dismissed on contest on 5th February, 2009. The said written statement was affirmed by Shri Amal Kishore Mondal on 8th July, 2010. It is that Amal Kishore Mondal who also affirmed the application for recall of the order passed by the Division Bench of this Court on 5th February, 2009. When he himself admitted in the other proceedings that he knew about the order of dismissal of the appeal passed by this Court on 5th February, 2009 as back as on 8th July, 2010, we cannot rely upon his explanation given in the Section 5 application regarding the delay in filing their recalling application in 2013. We thus, hold that the reason for the delay has not been explained satisfactorily and the findings recorded by the Division Bench of this Court in the order under review that the delay has been sufficiently explained by the appellant runs contrary to the materials on record. As such we hold that the application for condonation of delay in filing the recalling application should have been dismissed. We thus, reject the appellants' application for condonation of delay being CAN 4460 of 2013. Consequently the application for recall of the order dated 5th February, 2009 filed by the appellant being CAN 4459 of 2013 also stands dismissed. As a result, the order which was passed by the other Division Bench of this Court on 5th February, 2009 rejecting three applications filed by the appellants being CAN 3946 of 2008, CAN 3947 of 2008 and CAN 7610 of 2008, stand restored.
We also make it clear that we restore the said order dated 5th February, 2009 as we find that long delay in filing those three applications for substitution after setting aside abatement was not at all explained by the appellant satisfactorily. Delay in filing those applications was enormous. Application being CAN 3946 of 2008 was filed for substituting the legal representatives of Ashimbabu, Ashimbabu died on 2006. These two years delay was not explained properly in the said application. Application being CAN 3947 of 2008 was filed for substituting the legal representatives of Jugal. Jugal died on 16th August, 1984. Long delay of 24 years has not been explained by the appellant in the said application. CAN 7610 of 2008 was filed for substituting the legal representatives of Sanatbabu and Ashklbabu. Sanatbabu died in 1975. Long delay of 33 years has not been explained by the appellant properly. Ashokbabu died sometime in 1999. Long delay of 9 years has also not been explained by the appellant properly. As such we restore the order passed by this Court on 5th February, 2009. The application for review being RVW No.292 of 2014 and the application for condonation of delay being CAN 11817 of 2014 are, thus, disposed of. Consequently the application for stay filed in connection with the review application being CAN 11816 0f 2014 is also disposed of.
Re: CAN 12538 of 2014.
This application was filed by one of the heirs of Ashokbabu praying for recall of the order under review passed by the Division Bench on 7th May, 2013. It is contended therein that the applicant therein who is one of the heirs of Ashokbabu viz. one of the respondents herein, was not served with the application for recall filed by the appellants. On consideration of the affidavit of service filed by the appellants in connection with the application for recall being CAN 4459 of 2013, we cannot agree with the submission of Mr. Chatterjee, learned Senior Counsel appearing for the appellants, that his client was not served with a notice relating to the application for recall filed by the appellant. On perusal of the affidavit of service, we find that notice was sent for affecting the service upon his client by registered post with A/D. But since the addressee did not claim such service, the postal envelop was returned to the sender with the postal remarks that the addressee did not claim such service. Not claimed amounts to refusal. As such we hold that service was duly effected upon the applicant.
That apart we find that the other heir of Ashokbabu admittedly, received the notice relating to the said application for recall. As such we cannot accept the submission of Mr. Chatterjee that his client was not served with the notice relating to recall of the order dated 5th February, 2009.
However, we find that Ashokbabu who was one of the respondents in the said appeal died sometime in 1999 leaving behind his two sons viz. Amitava and Supratik and his widow Mallika. Amitava died on 9th May, 2009 leaving behind his widow Sangita and a daughter Ashmita. Supratik died in 2006, Mallika died on 23rd March, 2009. In the application for substitution which was filed by the appellants for substituting the heirs of Ashokbabu being CAN 7610 of 2008, we find that the appellants wanted to bring on record Ashmita and Sangita being the heirs of Amitava who was one of the sons of Ashokbabu. In our considered view this cannot be done without first bringing the heirs of Ashokbabu on record by way of substitution. No step was taken by the appellant for bringing the heirs of Ashokbabu on record by way of substitution. Amitava, Supratik and Mallika were never substituted in the appeal. No step was taken for substituting them in the appeal. Without substituting the heirs of Ashokbabu on record, prayer for substituting the legal heirs of Amitava, viz. Ashmita and Sangita cannot be allowed. As such, we feel that that application for recall filed by Mr. Chatterjee's client being CAN 12539 of 2014 should be allowed. Thus, though we do not agree with the contention of Mr. Chatterjee that his client was not served with any notice regarding the appellants' application for recall of the order dated 5th February, 2009, but we have no hesitation to hold that the order under review passed on 7th May, 2013 is also required to be recalled for the reason as mentioned above. The application being CAN 12538 of 2014 is thus, allowed.
Re: F.A 608 of 1964 There is no other substantive application before us for consideration. As such we could have stopped here. However since we were addressed by the learned Counsel of the parties on the merit of this appeal, we feel it necessary to discuss the merit of the appeal as in our view such discussion is necessary only to clarify that the appeal itself is meritless and has become infractuous. As such there is no need to entertain any further application in connection with this appeal.
Let us now consider the merit of the appeal in the facts of the present case. We have already mentioned above that the suit for eviction of a non- agricultural tenant on expiry of 20 years lease by efflux of time was filed by the plaintiffs/appellants against the defendant/respondent. The said suit was dismissed on contest by the learned Trial Judge on 30th March, 1963 by holding, inter alia, that the said non-agricultural tenant has acquired a non-evictable right in the suit premises as he has raised construction of permanent nature on the suit property in accordance with permission granted by the lessor in the lease deed itself. The instant appeal is directed against the said judgment and decree of the learned Trial Court.
Let us now consider the present rights of the lessor visa vis the rights of the lessee in the context of the different provisions of law.
Estates and rights of intermediaries vested with the State under the West Bengal Estate Acquisition Act, 1953 w.e.f. first Baishak on Bengali year 1363 BS corresponding to British calendar date i.e. 14th April, 1956. Right of the intermediary to retain non-agricultural land is dealt with in Section 6 of the West Bengal Estate Acquisition Act, 1953 which runs as follows:-
Section 6. Right of intermediary to retain certain lands. - (1) Notwithstanding anything contained in Sections 4 and 5, an intermediary shall, except in the cases mentioned in the proviso to sub-Section (2) but subject to the other provisions of that sun-Section, be entitled to retain with effect from the date of vesting -
(a) .....
(b) .......
(c) Non-agricultural land in his khas possession including land held under him by any person, not being a tenant, by leave or licence not exceeding fifteen acres in area, and excluding any land retained under clause (a):
Provided that the total area of land retained by an intermediary under clauses (a) and (c) shall not exceed twenty acres, as may be chosen by him:
Provided further that if the land retained by an intermediary under clause (c) or any part of thereof is not utilized for a period of five consecutive years from the date of vesting, for a gainful or productive purpose, the land or the part thereof may be resumed by the State Government subject to payment of compensation determined in accordance with the principles laid down in sections 23 and 24 of the Land Acquisition Act, 1894 (I of 1894).
The said provision thus, makes it explicitly clear that the intermediary can retain non-agricultural land subject to ceiling limit provided such intermediary is in khas possession of such non-agricultural land. Since admittedly, the lease executed by the intermediary in favour of the non-agricultural tenant, viz. defendants/appellants expired on 30th May, 1955 and further since possession could not be recovered from them on the date of vesting of the intermediary right under the West Bengal Estate Acquisition Act, 1953, such intermediary was not entitled to retain such agricultural tenancy under Section 6(1)(c) of the West Bengal Estate Acquisition Act, 1953 as the intermediary was not in khas possession on the date of vesting. In this regard we are also required to consider the provision of Section 5(1) (c) of the West Bengal Estate Acquisition Act, 1953 which deals with the right of such non-agricultural tenants under an intermediary. The said provision runs as follows:-
Section 5 (1) upon the due publication of a notification under section 5, on an from the date of vesting -
(a) .............
(aa) ............
(b) .............
(c) (subject to the provisions of sub-section (3) of Section 6, every non-agricultural tenant holding any land) under an intermediary, and until the provisions of Chapter VI are given effect to, every raiyat holding any land under an intermediary, shall hold the same directly under the State, as if the State had been the intermediary, and on the same terms and conditions as immediately before the date of vesting:
provided that if any non-agricultural tenant pays rent wholly in kind or partly in kind and partly in cash, then, notwithstanding anything contained in the foregoing clause, he shall pay such rent as a Revenue Officer specially empowered by the State Government in this behalf may determine in the prescribed manner and in accordance with the principle laid down in clause (ii) of Section 42:
provided further that any person aggrieved by an order passed by the Revenue Officer determining rent under the first proviso may appeal to such authority and within such time as may be prescribed;
The said provision, thus, makes it amply clear that defendants being non- agricultural tenants became raiyats directly under the State w.e.f. the date of vesting and, thus, they became liable to pay rent and/or revenue to the State. In view of such provision of the West Bengal Estate Acquisition Act, 1953, relationship of landlord and tenant between the plaintiff (lessor) and the defendant (lessee) ceased to operate with effect for the date of vesting. As such the lessor cannot maintain any suit for eviction against the defendant being the non-agricultural tenant directly under the State. For ascertaining the exact present status of the defendant, we are also required to consider the provision of Section 3 A of the West Bengal Land Reforms Act, 1955. Section 3A deals with the rights of non-agricultural tenants and under tenants in non-agricultural land vests in the State. The said Section came into force on and from 9th day of September, 1980.
Section 3A. Rights of non-Agricultural tenants and under-tenants in non-agricultural land to vest in the State.
- (1) The rights and interests of all non-agricultural tenant and under-tenants under the West Bengal Non-Agricultural Tenancy Act, 1949 (West Bengal Act XX of 1949) shall vest in the State free from all encumbrances, and the provisions of sections 5 and 5A of the West Bengal Estates Acquisitions Act, 1953 (West Bengal Act I of 1954) shall apply with such modifications as may be necessary, mutatis mutandis to all such non-agricultural tenants and under-tenants as if such non-agricultural tenants and under-tenants were intermediaries and the land held by them were estates and a person holding under a non-agricultural tenant or under- tenant were a raiyat.
Explanation.- Noting in sections 5 and 5A of the West Bengal Estates Acquisition Act, 1953 shall be construed to affect in any way the vesting of the rights and interests of a non- agricultural tenant or under-tenant under the West Bengal Non-Agricultural Tenancy Act, 1949 in the State under sub- section (1) of this section.
(2) Notwithstanding anything contained in sub-Section (1), a non-agricultural tenant or under-tenant under the West Bengal Non-Agricultural Tenancy Act, 1949, holding in his khas possession any land to which the provisions of sub-
section (1) apply, subject to the other provisions of this Act, be entitled to retain as a raiyat the said land which together with other lands, if any, held by him shall not exceed the ceiling area under section 14 M. (3) Every intermediary,-
(a) whose land held in his khas possession has vested in the State under sub-section (1), or
(b) whose estates or interests, other than land held in his khas possession, have vested in the State under sub-
section (1), shall be entitled to receive an amount to be determined in accordance with the provisions of section 14V.
[(4) The provisions of this section shall not apply to any land to which the provisions of the West Bengal Thika Tenancy (Acquisition and Regulation) Act, 2001 (West Ben. Act XXXII of 2001), apply.] (5) This section shall be deemed to have come into force on and from 9th day of September, 1980.] In view of such provision of the West Bengal Land Reforms Act, 1955, we have no hesitation to hold that the non-agricultural tenant became raiyat directly under the State in respect of the suit property and as such they being raiyats under the State are entitled to retain the land within the ceiling limit as per Section 14M of the said Act and the intermediary is only entitled to receive compensation to be determined in accordance with the provision of Section 14 of the said Act.
Such being the position in law we hold that the instant appeal has now become infractuous. There is no merit in this appeal as the relationship of landlord and tenant between the plaintiff and the defendant ceased to operate with effect from 1st of Baishak, 1363 B.S. equivalent to 14th April, 1956. Since there is no merit in this appeal, we hold that henceforth no further application will be entertained in this appeal from any of the parties.
The appeal is dismissed.
Formal decree need not be drawn up.
All application filed in connection with the said appeal and the cross- objection are thus, disposed of accordingly.
Urgent photostat certified copy of this order, if applied for, be given to the parties as expeditiously as possibly.
(Jyotirmay Bhattacharya, J) I agree (Ishan Chandra Das, J)