Calcutta High Court
Amaresh Das And Ors. vs State Of West Bengal And Ors. on 10 May, 2007
Equivalent citations: 2007(3)CHN170
Author: Bhaskar Bhattacharya
Bench: Bhaskar Bhattacharya
JUDGMENT Bhaskar Bhattacharya, J.
1. This application under Article 226/227 of the Constitution of India is at the instance of the unsucessful applicants before the West Bengal Land Reforms and Tenancy Tribunal and is directed against order dated February 15, 2007 passed by the said Tribunal thereby dismissing the application filed by the writ petitioners.
2. Being dissatisfied with an order dated July 3, 2002 passed by the B.L. & L.R.O. concerned, the private respondents before us, the owners of the disputed lands, moved an application before the Tribunal thereby challenging the order of the said B.L. & L.R.O. by which the predecessors-in-interest of the present writ petitioners were declared bargadar in respect of the property in dispute with direction upon him to take possession of the property concerned. The Tribunal dismissed the said application on the ground that the private respondents had efficacious alternative remedy by way of appeal.
3. Being dissatisfied, the private respondents, in the past, filed a writ application under Article 226/227 of the Constitution of India before a Division Bench of this Court but the said Division Bench dismissed such application thereby affirming the order passed by the Tribunal.
4. Subsequently, the private respondents filed an appeal before the appellate authority under Section 54 of the West Bengal Land Reforms Act against the order passed by the B.L. & L.R.O. beyond 253 days after the expiry of the period of limitation prescribed by law. The appeal was not accompanied by any application for condonation of delay. During the pendency of the said appeal, the predecessors-in-interest of the present writ petitioners in whose favour the B.L. & L.R.O. passed the order impugned in the appeal died but notwithstanding such fact, the private respondents, did not substitute the heirs and legal representatives of the said declared bargadar in the appeal.
5. The present writ petitioners, who are all the sons of the deceased person in whose favour the B.L. & L.R.O. had granted relief, appeared before the appellate authority of their own and contended that the appellate authority had no jurisdiction to take up the appeal, which was filed beyond the period of limitation without condoning the delay in preferring such appeal. They also pointed out that the sole respondent before the appellate authority had already died and, therefore, without substituting them in place of the deceased respondent the appeal could not proceed.
6. Notwithstanding those objections, the appellate authority, curiously enough, entered into the merit of the appeal and came to the conclusion that the finding of the B.L. & L.R.O. concerned which was the subject-matter of the appeal was illegal and, therefore, set aside the order passed by the B.L. & L.R.O. and remanded the matter back to the B.L. & L.R.O. for fresh decision.
7. Being dissatisfied, the writ petitioners moved the Tribunal thereby complaining that the appellate authority could not allow the appeal against a dead man and that too, in an appeal preferred beyond the period of limitation without condoning the delay in preferring the appeal.
8. The Tribunal by the order impugned herein accepted the position that the appeal was preferred beyond the period of limitation; notwithstanding such position, the Tribunal decided to ignore such question by making the following observation:
...Although, in our opinion, delay should have been explained by the appellants and in the interest of natural justice, the applicants should also have been given an opportunity for registering their objection to that appeal. However, since the condonation of delay is the discretionary power of the appellate authority, we do not intend to make any comment on that. Moreover, we agree to the argument of the Id. G.R. that the appellate authority has not decided the matter finally and has remanded the case to the Bhagchash Officer for afresh determination. That being the position, the applicants have all the points open to them and they can put up their cases before the Bhagchash Officer for redressal of their grievances. Moreover when the order of the Bhagchash Officer suffers from material irregularity and the appellate authority has ordered for afresh determination by rectifying those deficiencies, we do not find any reason to interfere with that order and we are of the opinion that there is no merit in this O.A. 3845/05 and should therefore be dismissed.
9. Being dissatisfied, the writ petitioners have come up with the present application under Article 226/227 of the Constitution of India.
10. Mr. Das, the learned Advocate appearing on behalf of the writ petitioners vehemently contended before us that the Tribunal acted illegally and with material irregularity in approving the order of the appellate authority, which was, on the face of it, without jurisdiction. According to Mr. Das, once the sole respondent died during the pendency of the appeal, so long his clients were not substituted after setting aside the abatement, the appeal could not be taken up for hearing on merit. Moreover, according to Mr. Das, the appeal being preferred, admittedly, beyond the period of limitation prescribed by law, the appellate authority had no jurisdiction to enter into the merit of the matter so long the delay was not condoned. Mr. Das points out that no application for condonation was filed before the appellate authority although his clients took specific objection by entering appearance in the abated appeal.
11. Mr. Manna, the learned Advocate appearing on behalf of the private respondents has opposed the aforesaid contentions advanced by Mr. Das and has contended that the writ petitioners having already entered appearance in the appeal, they were not prejudiced in any way for non-substitution of the original respondent. According to Mr. Manna, his clients were not aware of the death of the respondent during the pendency of the appeal.
12. As regards the question of limitation, Mr. Manna submits that an application for condonation of delay need not necessarily be in writing and that there can be oral application for condonation of delay and in this case, it should be presumed that the appellate authority has allowed the oral prayer for condonation of delay.
13. Mr. Manna further contends that the Tribunal having arrived at the conclusion that the B.L. & L.R.O. acted with material irregularity in recording the name of the father of the writ petitioners as bargadar, this Court sitting in a writ jurisdiction should not interfere with such finding recorded by the Tribunal.
14. Therefore, the first question that arises for determination in this application under Article 227 of the Constitution of India is whether the appellate authority was justified in entering into the merit of the appeal although the appeal was preferred beyond the period of limitation and there was no prayer for condonation of delay and whether the Tribunal was justified in ignoring such fact.
15. It is now a settled law that the appeal is a creature of statute and if here is a period of limitation prescribed for preferring such appeal, no appeal can be entertained beyond the period of limitation unless the appellate authority is vested with the jurisdiction to condone the delay and, in exercise of such power, the appellate authority actually condoned such delay. In the case before us, under the provisions of the Land Reforms Rules, the period of limitation for filing the appeal is one month from the date of passing of the order and the appellate authority is also given power to condone the delay in preferring such appeal if sufficient cause is shown by the appellant.
16. In the case before us, there was, however, no application for condonation of delay. It further appears that the sole respondent also died during the pendency of the appeal and at that stage, the writ petitioners before us, the sons of the deceased respondent, pointed out to the appellate authority that their father had died and that the appeal was preferred beyond the period of limitation.
17. Notwithstanding such objection, the appellate authority decided to enter into the merit of the appeal and set aside the order impugned therein by remanding the matter back to the B.L. & L.R.O. concerned for fresh decision.
18. We are unable to approve the order passed by the appellate authority for the following reasons:
As pointed out by the Supreme Court in the case of Ragho Singh v. Mohan Singh and Ors. , if there was no application for condonation of delay, the appeal could not be entertained and the appellate authority cannot enter into the merit.
Over and above, the sole respondent being dead, and such fact having been brought to the notice of the appellate authority, it was its duty to first, ask the appellants therein to file appropriate application for substitution and after substitution of the present appellants and other heirs of the deceased if any, the appellate authority could enter into the question of condonation of delay in preferring the appeal if any prayer was made for condonation of delay. Under the provisions of the West Bengal Land Reforms Act or the rules made thereunder, the provisions of Order 22 of Code of Civil Procedure have not been made applicable to the proceedings of appeal and, therefore, the question of abatement of appeal did not arise.
19. We are unable to approve the reason assigned by the Tribunal in not interfering with the order passed by the appellate authority. Question of condonation of delay is no doubt discretionary but where the heirs of the deceased respondents have not been substituted nor have any memorandum of appeal been served upon the heirs of the respondent and no separate application for condonation of delay has been filed and consequently the heirs of deceased respondent did not get any opportunity to know either the grounds of codonation of delay or the grounds mentioned in the memorandum of appeal, the delay could not be even impliedly condoned nor could the appellate authority enter into the merits of the appeal.
20. After going through the order passed by the appellate authority we find that the appellate authority specifically recorded that the question of limitation was raised by the heirs of the deceased respondent but it did not decide the question of limitation for the reason best known to it. The first point to be decided by the appellate authority as recorded in the order-sheet was whether the appeal submitted by Kadamba Kishore Giri and Ors. should be accepted or not and the said question had been answered by the following observation:
As regards first point all the parties are consulted. The objection raised by the opponent has been carefully considered. I find no difficulty in accepting the appeal. Hence it is accepted.
21. Therefore, the previously mentioned finding cannot be said to be an implied finding allowing the application for condonation of delay though no such application was filed. Moreover, the memorandum of appeal had not been served upon the heirs of the deceased respondent and no formal order was even passed allowing any application for substitution.
22. We now propose to deal with the various decisions cited by Mr. Manna in this behalf.
23. In the case of Hari Shankar Singhania and Ors. v. Gaur Hari Singhania and Ors. , the High Court while dismissing an appeal was of the view that the oral application for condonation of delay should not be entertained in Court of Law according to the present judicial system. The Supreme Court on appeal observed that such observation was not pertinent in the said case because the proceeding was filed well within the period of limitation. Therefore, we find that the said decision does not help Mr. Manna's client in any way. Moreover, this is nobody's case that even any oral application was made before the appellate authority in the present case.
24. In the case of Saithalavi v. Kerala State Electricity Board , an application under Section 16(3) of the Telegraph Act, 1985 was filed beyond the period of three years and objection of limitation although taken before the Trial Court was neither canvassed and not included in issue. In such a case, the Supreme Court was of the view that the question of limitation being a pure question of law assumed the character of jurisdictional issue and therefore, the High Court rightly held that such an application to be time-barred. However, the Supreme Court in that case gave liberty to the applicant to show that he had sufficient case for getting the delay condoned by filing an application under Section 5 of the Limitation Act. By relying upon the said decision, Mr. Manna wanted to contend before us that even if we hold that the appeal was barred by limitation his client should get an opportunity to file an application. In the case before us, the question of limitation was very much pressed by the writ petitioners before the appellate authority, but the appellate authority chose to dispose of the appeal on merit even before substitution the heirs of the deceased respondent. Therefore, it is a fit case where it was the duty of the appellate authority to first substitute the writ petitioners and then consider the question of limitation or the sufficiency of the ground for condonation if prayed for by the appellants. Law, however, is now settled that an application for condonation of delay need not be filed along with the memorandum of appeal and can be filed even subsequently and in such a situation, the delay should be explained till the presentation of the appeal and not till the filing of the subsequent application for condonation of delay. At this stage it will not be out of place to refer to the following observation of the Apex Court in the case of Sandhya Rani Sarkar v. Sudha Rani Devi and Ors. :
Very serious exception is taken to one observation of the High Court that an application for condoning the delay was submitted simultaneously with filing the appeal though in fact it was done nearly four years after filing of the appeal, and that the office of the High Court was misled by certain averments made in the Memo of Appeal which the Registry prima facie accepted and numbered the appeal without insisting upon an application for condonation of delay or bringing that fact to the notice of the Court on whose cause list the appeal was listed for admission. Now, it is undoubtedly true that the application for condoning the delay was made on 8th August, 1972 and there is some factual error in stating in the judgment that the application was simultaneously filed with the appeal. But this aspect is not very material as the delay had to be explained till the date of filing of the appeal and not at any rate after filing of the appeal or till the application for condoning the delay was made.
(Emphasis supplied)
25. In the case of L. Naik Mahabir Singh v. Chief of Army Staff reported in 1990 (Supp) SCC 89, an application for special leave was filed beyond the period of limitation but no application for condonation of delay was filed. In such circumstances, the Supreme Court accepted the oral prayer of the Counsel to condone the delay and thereafter, proceeded to hear the matter on merit. By relying upon the said decision Mr. Manna submitted before us that an oral application for condonation of delay is permissible. That an oral application for condonation of delay is permissible in some instances where facts giving rise to the cause of delay are already borne out by materials on record is not in dispute. In the case before us, the so-called memorandum of appeal filed before the appellate authority has been annexed to the writ application. We find that the same was not filed in the form of memorandum of appeal in accordance with the Code of Civil Procedure as enjoined by the rules framed under the West Bengal Land Reforms Act but was supported by affidavit disclosing, in detail, how in the past, the appellants unsuccessfully first moved the Tribunal and then, this Court in writ jurisdiction and ultimately, preferred the appeal. Therefore, the reason for delay was more or less sufficiently indicated in the purported memorandum of appeal but specific prayer was not made. In such a situation, we propose to give an opportunity to the landowners to file a formal application for condonation of delay and to correct the memorandum of appeal in accordance with rules.
26. In the case of State of West Bengal v. Nripendra Nath Banerjee and Ors. reported in 96 CWN 209, an appeal preferred beyond the period of limitation was filed without any application for condonation of delay. Subsequently, such application was filed explaining the delay. In such circumstances, the Division Bench of this Court was of the view that even if an application for condonation of delay is filed not along with the memorandum of appeal but subsequently, there is no bar in condoning the delay. We respectfully agree with the view and propose to give an opportunity to file such an application to the private respondents.
27. We, therefore, find that this is a fit case where the order passed by the Tribunal as well as the appellate authority should be set aside as the appellate authority entertained the appeal against the order of the B.L. & L.R.O. concerned which was preferred beyond the period of limitation without deciding the question of sufficiency on the ground of condonation of delay. We, however, give an opportunity to file an appropriate application for condonation of delay by incorporating the reasons already given in the memorandum of appeal filed by the private respondents provided such application is filed within a fortnight from today and further, the private respondents pay costs of Rs. 3400/- to the writ petitioners within a month from today for unnecessarily harassing them by approaching various wrong forums. In default, of filing such application and payment of costs, the order passed by the B.L. & L.R.O. impugned in the appeal before the appellate authority will stand.
28. This writ application, thus is allowed: the order of the Tribunal and the appellate authority are set aside and the matter is remanded back to the appellate authority in the light of the observations made in this order and subject to the conditions imposed herein.
Kishore Kumar Prasad, J.
29. I agree.