Calcutta High Court (Appellete Side)

David Mantosh & Ors vs Apollo Gleneagles Hospitals Ltd. ... on 4 November, 2022

                 IN THE HIGH COURT AT CALCUTTA
                  CIVIL REVISIONAL JURISDICTION
                          APPELLATE SIDE


PRESENT:

THE HON'BLE JUSTICE AJOY KUMAR MUKHERJEE

                               C.O. 2327 of 2021

                         David Mantosh & Ors.
                                   Vs.
                 Apollo Gleneagles Hospitals Ltd. & Ors.

For the Petitioners             :    Mr. Tanmoy Mukherjee
                                     Mr. Souvik Das
                                     Mr. K. Raihan Ahmed
                                     Mr. Rudranil Das
                                     Ms. S.R. Das


For the Opposite party No. 1    :   Mr. Aniruddha Chatterjee
                                :   Mr. Ajay Gaggar

For the Opposite party No. 2    :   Ms. Shukti Naga

For the State                   :    Mr. Anirban Ray
                                     Mr. Raja Saha
                                     Mr. Shayak Chakraborty



Heard on                        :    19.09.2022

Judgment on                     :    04.11.2022



Ajoy Kumar Mukherjee, J.

1. Being aggrieved and dissatisfied with the communication being No. 463-

UL/O/APC-4/2021 dated November 26,2021 passed by the Special Secretary

& Appellate Authority under section 33 of the Urban Land (Ceiling &

Regulation) Act, 1976(hereinafter called as Act of 1976), present application

under Article 227 of the constitution of India has been preferred. It is alleged

by the petitioners that they had preferred an appeal under section 33 of the Act

of 1976, before the Appellate Authority , urban land ceiling Branch, Kolkata,

which was registered as file No. UDMA-21011(13)/3/2021-ESTT-ULC SEC

Dept. of UDMA. In the said appeal the petitioners herein prayed for declaration

that Notification No. 53-X-U.L. (CAL) dated February 12,1990 is null and void

and the petitioners are owners of premises no. 60, Canal Circular Road,

Kolkata and entitled to possession of the premises in question. One

application under section 5 read with Section 14 of the Limitation Act was also

filed along with the said appeal explaining the delay in preferring the appeal.

But by the impugned order it was informed to the petitioners that the aforesaid

appeal dated 27.08.2021 is not maintainable as the same is well beyond the

stipulated 30 days as envisages in section 33(1) of the urban land (Ceiling &

Regulation) Act, 1976. Petitioners further alleged that they did not get any

opportunity to place their case before the special secretary and the Appellate

Authority and impugned order dated November 26, 2021 was passed without

hearing the petitioners.

2. The present case has got a chequred history. The aforesaid property in

question i.e. 60, canal Circular Road, Kolkata-700054 along with its adjacent

lands was sold by Mr. Monilal Guin and Mr. Bijoy Kumar Guin to M/s.

Hindustan Housing on 15.06.1957. M/s. Hindustan Housing subsequently

transferred the said properties to M/s. Orient Beverage Limited (herein after

called as M/S. OBL) through registered deed dated 30.11.1962.

3. The aforesaid Act of 1976 came into force on 17.02.1976. Aforesaid M/S

OBL claiming to be a "person" under section 2(i) of the Act and claiming "to

hold" the suit property under section 2 (1) of the Act in excess of the ceiling

limits specified under section 4 of the Act, filed a statement under section 6(1)

of the Act before the competent authority but the competent authority by order

dated 27.09.1988 rejected the prayer made by M/S OBL and as such M/S OBL

agreed to surrender the possession of the entire excess land held by them

beyond the prescribed ceiling limit and accordingly M/S OBL surrendered their

possession on the said land along with adjacent lands on 04.01.1990 situated

at Canal Circular Road, Kolkata in favour of the State. M/S OBL prepared to

surrender subject to compensation as provided under the Act. On 08.02.1990

the competent authority served final statement under section 9 of the Act on

M/S OBL which led to the issuance of the notification by the State under

Section 10(1) of the Act which was duly published in the gazette on 15.02.1990

inviting objections from the general public. No objection was received from any

person pursuant to said notification and as such final notification under

section 10(3) was issued on 11.05.1990 and with issuance of said notification

under section 10(3) the suit property was vested to the State of West Bengal

free from all encumbrances. The competent authority on 23.05.1990 served

notice on M/S OBL calling upon them to physically surrender the possession of

the suit property to the State which was done on 28.05.1990.

4. Subsequently the State of West Bengal on 04.04.1991 allotted said

property along with adjacent land measuring around 34,147 square meters

bearing premises no. 58,59,60,61,62,72,73,79 & 81 at canal circular Road to

M/S Apollo Gleneagles Hospital (respondent No. 1 herein) on long term lease of

30 years and they were also given possession of the land by the State on

execution of lease deed dated 02.12.1994 and thereafter said respondent no. 1

set up a Hospital which is running for a considerable period of time.

5. In the year 1992 the aggrieved petitioner suddenly woke up and claimed

that they are the owner of the said property as well as part of the adjacent

properties and feeling aggrieved by the aforesaid notification under section

10(3) of the Act of 1976 dated 11.05.1990, filed a writ petition to challenge the

same before this High Court being W.P. No. 1382/1992. The single judge of

this High court vide order dated 26.08.1992 allowed the writ petition and

quashed the aforesaid notification dated 11.05.1990. Respondent no. 1/

hospital felling aggrieved by the said order of the Single Bench, filed writ appeal

being No. 324/1993 before the Division Bench of this court. However, the

Division Bench of this court vide order dated 03.04.1997 allowed the appeal

and set aside the order of the single judge and dismissed the writ petition

which resulted the notification dated 11.05.1990 issued by the State of West

Bengal to be legal and valid. Feeling aggrieved by said order passed by the

Division Bench one SLP (c) of 12726/97 was preferred before the Apex Court

and Apex Court by its order dated 28.07.1997 dismissed said petition with the

observation that if the aggrieved petitioner has any appropriate remedy under

the Act or any other law it would be open to him to avail the same in

accordance with law. In view of the aforesaid observation of the Apex Court the

aggrieved persons filed civil suit being T.S. No. 101/98 in the court of

Additional District Judge, Sealdah, with a prayer for declaration, ownership

and recovery of possession of the suit property. In the said suit plaintiffs

prayed for a declaration that the entire proceeding which culminated in the

issuance of the notification dated 12.02.1990 be declared as null & void. In the

said suit the State of West Bengal as well as the Hospital/respondent No. 1

herein contested by filing written statement but the trial court vide its

judgment and decree dated 24.04.2008 dismissed the said suit, against which

first appeal being No. 202/2008 was preferred before this High court. The

division Bench of this High court however set aside the aforesaid judgment and

decree passed by the trial court and decreed the suit filed by the plaintiffs with

the observation that the suit is maintainable and is not barred and civil court

has got jurisdiction to try the civil suit on merit and that the competent

authority did not follow the mandatory procedure laid down under the act and

as such the proceeding are not binding on the plaintiff. It was further observed

that the respondent No. 1 herein/hospital was in unauthorized possession of

the property in question and was directed to deliver vacant possession of the

suit property. Being aggrieved by the said order passed by the Division Bench,

the state of west Bengal i.e. competent authority and the hospital/respondent

No. 1 preferred Special Leave Application before the Apex Court being civil

appeal No. 10629-10631 /2014.

6. In the said special leave to appeal the impugned judgment of the division

bench was set aside by the Apex Court and the judgment of the trial court was

restored with the clear observation that the civil court has no jurisdiction to

entertain a civil suit with respect to proceedings under the aforesaid urban

Land Ceiling Act of 1976, being a special and self-contained enactment.

However, in paragraph 63 of the said judgment, Apex Court was of the view

that if there were any remedy available to respondents in relation to the suit

property then any such remedy was under the Act but not by filing a civil suit

in a civil court and start a fresh round of litigation with respect to the suit

property, as such suit is impliedly barred in the light of exclusion of

jurisdiction of the civil court under the Act.

7. In view of the of aforesaid observation of the Apex Court which was

passed on 26.02.2019, the aggrieved petitioners filed an application under

section 33 of the said Act, 1976 challenging the aforesaid notification dated

12.02.1990, along with application under section 5 read with section 14 of the

limitation Act.

8. The aforesaid Appellate Authority by the impugned order dated

26.11.2021 observed that in terms of paragraph 9 of the application, the

aforesaid notification dated 12.02.1990 came to the knowledge of the applicant

in March 1992 and appeal under section 33 of the Act of 1996, can be filed, by

an aggrieved person within 30 days of the date on which the order is

communicated to him but here the delay is for about 20 years from the date

on which the applicants came to know about the notification and as such the

aforesaid appeal dated 27.08.2021 is held to be not maintainable as it is well

beyond the stipulated period of 30 days as envisages under section 33 (1) of the

said Act of 1976.

9. In the present context the only point for consideration before this court is

whether the said Appellate Authority was justified in not admitting the appeal

with the observation that the appeal is hopelessly barred by the limitation as

the appellants had the knowledge of said notification in the year 1992 but they

did not take any action since 1992.

10. The petitioners herein preferred the present application mainly on the

ground that it is not correct to say that there is a delay of 20 years in preferring

the appeal but there is only a delay of 194 days in preferring the said appeal.

Petitioner contented that after passing the aforesaid order by the Apex Court

dated 26.02.2019 the petitioner made contact with several advocates and

sought for legal opinion and in the meantime the lock down started in the

month of March 2020 and thereafter the petitioners made contact with their

advocate who instructed them to prefer the appeal. Accordingly the delay was

caused firstly due to choosing wrong forum and for which they are entitled to

get protection under section 14 of the Limitation Act and secondly after passing

judgment of the Apex Court with the observation that the petitioners have their

remedy within the Act of 1976, they could not prefer said appeal in time due to

Covid-19 pandemic. Accordingly petitioner contended that the Appellate

authority should have condoned the delay of 194 days in preferring the appeal

as the petitioners have good chance to succeed and he ought not to have

dismissed petitioners appeal on the ground of limitation.

11. In this context it is to be mentioned that while disposing the aforesaid

civil appeal no. 10629- 10639/2014 the apex Court observed in paragraph 59

as follows:-

"59. In our view, if Respondent Nos. 1 to 7 plaintiffs claimed themselves to be the lawful owners and holders of the suit property to the exclusion of others, there were three remedies available in law which they could have availed of:

(i) First, a remedy accrued in favour of Respondent Nos. 1 to 7 if not earlier when M/S OBL claimed to have purchased the suit property from the alleged vendors on 30.11.1962. It was at that point of time, a cloud was cast on their alleged title in relation to the suit property. Since registration of the sale deed amounts to a public notice, the Respondents should have filed a Civil Suit against the vendors of M/S OBL, and M/S OBL, for a declaration of their ownership and cancellation of their sale deed in relation to the suit property. It was not availed of.

(ii) The second remedy arose under Section 6 of the Act, for filing a statement as owners and holders of the suit property before the Competent Authority, after the Act came into force in 1976. This was also not availed of by the plaintiffs.

(iii) The third remedy was in filing objections under Section 10(1) of the Act before the competent Authority when the competent Authority invited objections on 12.02.1990 from public and pursuant to it, the notice was issued in that behalf. The respondents again did not avail of this remedy, and failed to file any objections."

12. In the said judgment the apex court was further pleased to observe in

Paragraph 61 as follows:-

"61.In our considered opinion, the dismissal of the SLP by this Court vide Order 28.07.1997 had a three-fold effect on the rights of the parties to the Lis in relation to the suit property:

First, the entire action taken by the competent authority initiated from Section 6 of the Act till issuance of notifications under Section 10 (1) and (3) of the Act issued on 12.02.1990 and 11.05.1990 in relation to the suit property were held to be in conformity with the provisions of the Act. This satisfied the last condition of clauses (1) of Dhula Bai (supra) also.

Second, the suit property stood vested in the State free from all encumbrances under Section 10 (3) of the Act.

Third, the State Government was held to be in legal possession of the suit property as the owner on and after 11.05.1990, to the exclusion of all, by following the due procedure of law."

13. In the said judgment though it was observed by the apex court that if

there was any remedy available to the respondents in relation to the suit

property then any such remedy was under the act, but not by filing a civil suit

in a civil court and start a fresh round of litigation with respect to the suit

property but no where it has been expressed by the Apex Court that the

limitation period will not hit to such remedy. On the contrary in Paragraph 75

of the said judgment of Apex Court is of clear view.

"75. Furthermore, the Respondent Nos. 1 to 7/ plaintiffs having failed to raise objections to the ceiling proceedings at any stage, the suit property stood vested in the State, free from all encumbrances. The belated challenge to the same is meritless. Having failed to avail of the remedies under the Urban Land Ceiling Act and the one resorted to resulted in rejection of the claim made therein upto this Court, Respondent Nos. 1 to 7/Plaintiffs sought to start a fresh round of litigation by filing a Civil Suit, which was barred under the Act. Furthermore, the State after acquiring ownership over the suit land has allotted the suit land to the M/S Apollo Gleneagles Hospitals on a 30 years lease. Hence, the situation, in our view, has now become irreversible."(emphasis added)

14. In view of aforesaid clear finding of the Apex court that the petitioners

failed to raise objection to the ceiling proceeding at any stage and the suit

property stood vested to the State free from all encumbrances and having failed

to avail of the remedies under the urban land ceiling land which resorted to

result in rejection of the claim made therein and as according to the Apex

Court the situation has become irreversible in view of the fact that the state

after acquiring ownership over the suit land has allotted the suit land to the

hospital on a 30 years lease, I find nothing to interfere with the observation

made by the Appellate authority, that the said appeal is not maintainable as

barred by limitation and there is hardly any merit also in the appeal which has

been filed at a belated stage without explaining proper cause of delay.

15. C.O. 2327 of 2021 is accordingly dismissed.