Calcutta High Court (Appellete Side)
Sisir Kumar Nanda & Ors vs The State Of West Bengal & Ors on 12 April, 2010
Author: Pratap Kumar Ray
Bench: Pratap Kumar Ray
12.04.2010
W.P.L.R.T. 21 of 2010
Sisir Kumar Nanda & Ors.
V.
The state of West Bengal & Ors.
Mr. S. K. Maity
..for the petitioners
Mr. Sitaram Samanta
..for the state
Heard learned advocates appearing for the
parties. Assailing the order dated 30th April, 2009
passed by the West Bengal Land Reforms and Tenancy
Tribunal, 1st Bench in Case No. O.A. - 274/2009 (LRTT)
this writ application has been filed.
Impugned order reads such :-
"This is an application filed U/S-5 for condonation
of delay. The petitioner originally filed an
application but that was dismissed for delay. The
Ld. Counsel's non-appearing for the petitioner
was that he was ill and when he came after
recovery he filed the appeal. The petitioner again
submits that after recovery he filed the appeal and
the authority rejected this prayer for condonation
of delay on the ground that the application has
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been filed in a casual manner. The Ld. Counsel
says he has not filed the application in a casual
manner. Actually he came out after his recovery
and then immediately he filed application. As
such he has according to him not committed any
delay. We consider the matter. However, on
another observation finding must be there. The
petitioner has cited the reference of (AIR 1987
Supreme Court Case) and in this judgment
Hon'ble Apex Court has observed that day to day's
explanation for condonation of delay is not
necessary. However, considering the factors we
find that the petitioner filed the appeal after
recovery and then again according to him
'Homoeopathic Chikitsayk' the petitioner then
took serious step. But we find that the Appellate
Authority could not get any cogent documents
and support or certified copy of the petitioner. In
such a situation we cannot interfere into the order
impugned in as such as no cogent documents was
annexed with the application U/S-5. Considering
this submission made by the Ld. Counsel of the
petitioner the averment (only 4 paragraphs) had
the hospitally illness. The authority passed the
order in which is no infirmity in the order and the
entire to take him with the order. The appeal is
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therefore, dismissed. There will be no order as to
cost."
Original application filed before the learned
Tribunal below assailing the order dated 24th November,
2008 passed by the appellate authority under Section
54 of the West Bengal Land Reforms Act in Appeal Case
No. 78(T)/2008.
The said order reads such :-
"The case is taken up for hearing. One Tarit
Kumar Nanda on behalf of the appellant appears
and files hazira.
Heard the representative of the appellant and
consider the petition u/s 5 of Limitation Act for
condonation of delay (1 year 7 months) in filing
the appeal. The said petition filed in a very casual
manner does not contain or reflect sufficient
reason for not preferring the appeal within the
prescribed period.
Hence, the said petition for condonation of
delay is disallowed and the appeal is not
admitted."
The writ petitioner preferred that appeal before
the said appellate authority assailing the order of Block
Land & Land Reforms Officer, Bhagabanpur-II in case
No. 9 (LRTT)/2006. The concerned Revenue Officer
rejected the prayer for correction of record of rights on
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the basis of the judgment and decree passed by the
Civil Court wherein the State contested the matter
unsuccessfully even to the 1st Appellate Court. The
suit was initiated by the predecessor-in-interest of the
writ petitioner. There was delay in filing the appeal
assailing the order of the Revenue Officer concerned for
which the present writ petitioner filed an application
under Section 5 of the Limitation Act before the said
appellate authority which reads such :-
" Before the Appellate Authority u/s 54 of
West Bengal Land Reforms Act
And
The Dist. Land & Land Reforms Officer
Purba-Medinipur, Tamluk
A petition u/s 5 of the limitation Act.
The appellants above named most respectfully
Seweth
1.That your appellant has failed this appeal against the final order passed by the Ld. B.L. & L.R.O. Bhagwanpur-II in case no.9(LRTT)/2006 dtd.
2. That your appellants could not file the appeal within the prescribed period of limitation as your appellant was fallen ill from 11.3.2007. (Copy of medical certificate enclosed).
3. That your appellant is an ignorant person about law. So to consult with the Ld. Advocate and to prepare the writ it took time.
4. That delay of the appellants shall be condoned as there are sufficient causes.
Under the above circumstances your appellants pray to condone the delay of the appeal for the reasons mentioned above.
And for this act of kindness, your appellant as in duty bound, shall ever pray."
The appellate authority, however, held that 5 application was filed in casual manner and the reason was not sufficient to condone the delay. Again such the writ petitioner moved the learned Tribunal below, the order of whom is under challenge before us.
Having regard to the fact that prima facie writ petitioner got a substantial point to agitate on the issue as to whether the Revenue Officer is bound by the decree of the Civil Court or not. Considering such merit, the delay as caused in preferring the appeal, in our view, ought to have been considered as a technical point and appellate authority ought to have allowed the application to dispose the appeal on merit. The delay in preferring the appeal is within the domain of the procedural law and it cannot take away the substantive right of the parties. If there is a prima facie merit of the case to agitate, it is the finding of the Apex Court that application under Section 5 of the Limitation Act should be considered leniently for the purpose of disposing of the main matter on merit. The Three Judges Bench of the Apex Court in the case of State of Haryana v. Chandra Mani reported in 1996 (3) SCC 132 on considering the 17 cases of the Apex Court, passed earlier, dealt with the issue in question and held "that the application should be construed in pragmatic and justice oriented manner". Sufficiency of cause also has been dealt with and considered by the Apex Court so far 6 as its contextual meaning in the case of Hemant Bhimappa Gadivaddar v. State of Karnataka reported in 2000 (9) SCC 732 and also in the case of N. Balakrishnan v. M. Krishnamurthy reported in 1998 (7) SCC 123 as well as in the case of Chandra Mani (supra) as already referred to, by holding, inter alia, "sufficiency of cause is not limited with reference to the period but it is passed on the logic of averment as contained in the application seeking condonation of delay".
It appears from the application filed before the appellate authority that the illness is the main ground for such delay and certificate of medical officer concerned was submitted. The appellate authority did not disbelieve the medical certificates but simply rejected the petition on the ground "application filed in casual manner". In an appeal under Section 54 of the West Bengal Land Reforms Act, in our view, the present writ petitioner satisfied the delay point by submitting his application annexing the medical certificates thereof. Learned Tribunal below also did not consider the issue on reflection of settled legal proposition of law that when an arguable case was made out, technicalities of time limit could not be an embargo to condone the delay. Reliance is placed to the judgment passed in the case of State of Nagaland v. Lipok. A. O. reported in 2005 (3) SCC 752, Ram Nath Sao @ Ram Nath Sahu v.
7Gobardhan Sao reported in 2002 (3) SCC 195 and Chandra Mani (supra) as already referred to.
Considering the legal position accordingly we are of the view that a litigant should not be thrown away from the protection of the court of law as well as from the quasi judicial authorities only on the ground of delay. In the instant case, it appears that the Revenue Officer was invited to correct the record of rights in terms of the judgment and decree passed by the civil court. There is no doubt that judgment and decree passed by the civil court wherein State was a party and in the instant case, when the State unsuccessfully faught upto the 1st Appellate Court, we are of the view that the order of the Revenue Officer rejecting the prayer for correction of the record of rights, had a substantial point for consideration in appeal by the appellate authority. Once we observe that there is a prima facie case, the question of limitation practically becomes a technical formalities. As such, we are allowing this writ application by quashing the order of the appellate authority and the order of the learned Tribunal below impugned before us. Application under section 5 of the Limitation Act stands allowed by exercising the power of writ jurisdiction on considering the factual matrix of the case. Appellate authority is directed to dispose of the appeal on merit after hearing the parties concerned 8 preferably within six months from this date. A reasoned decision to be passed by the said appellate authority on merit.
The writ application accordingly succeeds. Urgent xerox certified copy of this order, if applied for, be given to the learned advocates for the parties on priority basis.
(Pratap Kumar Ray, J.) (Mrinal Kanti Sinha, J.) 9