Shri Rabindra Nath Bhattacharjee vs State Of West Bengal
2023 Latest Caselaw 2682 Cal

 19.04.2023
  S/L. No. 9
Court No.12
  Suvayan/
   Sourav

                                  FA 15 of 1999
                                      With
                                  CAN 2 of 2023
                                      With
                                  CAN 3 of 2023
                                      With
                                  CAN 5 of 2023

                        Shri Rabindra Nath Bhattacharjee
                                       Vs.
                              State of West Bengal

               Mr. Debasish Kundu, Sr. Adv.
               Mr. R. N. Banik
                                                   ...for the appellant.


               Mr. Ram Chandra Guchhait
                                                       ...for the State.

               1.    Heard Mr. Debasish Kundu, learned Senior

               Counsel for the appellant and Mr. Ram Chandra

               Guchhait, learned Counsel for the State/respondent.

In re: CAN 3 of 2023

1. This interim application is one for condonation

of delay of 5093 days in filing the application for

setting aside abatement and for substitution.

2. Mr. Kundu, learned Senior Counsel appearing

for the appellant submits that the delay was caused as

the Counsel had no knowledge about the death of the

appellant and he came to know about death of the

appellant only on December 22, 2022, though the

appellant, i.e., Rabindra Nath Bhattacharjee had

expired since 27.01.2009. He submits that this being

an application under Order 22 CPC for bringing the

L.R.s of the deceased appellant on record, a pragmatic

and liberal view be taken to do justice to the parties

especially in view of the fact that, the facts in the

appeal is covered by earlier judgment of this Court.

3. Mr. Guchait, learned Counsel for the State on

the other hand submits that the delay being very long

and unexplained, the same cannot be condoned on

mere asking by the appellant and the petition for

condonation of delay be dismissed with exemplary

cost.

4. Both the parties have relied on some decisions

passed by Hon'ble Supreme Court to substantiate

their contentions, which shall be discussed

subsequently.

5. Coming to the fact of the case it is found from

the record that the appeal was last listed on

11.12.2002 and thereafter the appeal was listed before

the Bench on 06.07.2022 after about 20 years of the

last listing. Batch of cases of the same area being

found to be covered by earlier authoritative judgment

of this Court, have already been disposed of in the

meantime by us. Those appeals, some were filed by

the land losers and some were filed by the State but it

was admitted that the lands, which are the subject

matter of each appeal are covered by the earlier

judgement of this Court and are situated in the same

vicinity.

6. Without going to the merit of the contentions

raised by the learned Counsel for the parties, we

question our common sense when person similarly

circumstanced have already got relief on the basis of

an earlier authoritative judgment of this Court can the

present appellant be singled out on the ground of

delay in filing the substitution petition. We shall try to

find answer to the aforesaid question after discussing

the contentions raised by learned Counsel for the

parties.

7. Mr. Kundu, learned Senior Counsel relying on

the case of Perumon Bhagvathy Devaswom Perinadu

Village vs. Bhargavi Amma (Dead) by LRS & Ors. (2008)

8 SCC 321 submits that the appellant's ignorance of

the respondent's death is a sufficient cause for

condonation of delay under Section 5 of the Limitation

Act provided there is no lack of diligence or negligence

on the part of the appellant and no action has been

taken by him for substitution though he was aware of

the death of the respondent and fails to takes steps to

bring the L.R.s on record. It is further held by Hon'ble

Supreme Court in the aforesaid case that none listing

of appeals for considerable time contribute to

ignorance of appellant regarding the death of the

respondent and such a fact must be kept in mind.

(Emphasis supplied by us)

7.1. In the case of Imrat Lal & Ors. vs. Land

Acquisition Collector & Ors. (2014) 14 SCC 133, delay

of 1110 days in filing appeal for enhancement of

compensation was condoned on the ground that

judicial notice of the fact can be taken that villagers in

India are, by and large illiterate, not conversant with

intricacies of law, usually guided by co-villagers who

are familiar with proceedings in Courts or advocates

with whom they get in touch for redressal of their

grievances and hence, affidavits filed in support of

application for condonation of delay are usually on

basis of half-baked information. In such a matter

Court should adopt liberal approach and either grant

time to party to file better affidavit to explain delay or

suo motu take cognizance of fact that large

number of other similarly situated persons had

been granted relief.

(Emphasis supplied by us)

7.2. In the case of Sardar Amarjit Singh Kalra (Dead)

by LRS. & Ors. vs. Pramod Gupta (SMT) (Dead) by LRS.

& Ors. (2003) 3 SCC 272, the constitution Bench of

Hon'ble Supreme Court has explained the object of

Order 22 by holding that procedure under Order 22

should be liberally construed so as to serve as

handmaid of justice. It should be construed as a

flexible tool of convenience with a view to do real,

effective and substantial justice. In case of death

of some of the appellants during pendency of the

appeal, Court should allow the applications for

bringing their LRs on record even if filed belatedly,

having regard to serious manner in which it would

jeopardize effective adjudication, on merits.

Hon'ble Supreme Court in the aforesaid

constitution Bench has also referred to the maxim

ubi jus ibi remedium by holding that Court should

aim to preserve and protect the rights of parties

and extend help to enforce them.

(Emphasis supplied by us)

7.3. Almost same is the view of Hon'ble Supreme

Court in the case of Banwari Lal (Dead) by Legal

Representatives & Anr. Vs. Balbir Singh (2016) 1 SCC

607 when it is held that rules of procedure under

Order 22 CPC are designed to advance justice and

should be so interpreted as not to make them penal

statutes for punishing erring party. On sufficient

cause, delay in bringing the legal representative of the

deceased party on record should be condoned. It is

further held that procedure is meant only to facilitate

the administration justice and not to defeat the same.

7.4. The substance of the decisions cited by Mr.

Kundu, learned Senior Counsel appearing for the

appellant is to the effect that procedure should not

stand in the way of justice especially when it is

concerned with bringing L.R.s on record under the

provisions of Order 22 CPC.

8. On the other hand Mr. Guchhait, learned

Counsel for the State relies on the case of Popat Bahiu

Govardhane ETC vs. Special Land Acquisition Officer &

Anr. reported in 2013(10) SCC 765 where in Para 13

Hon'ble Supreme Court has held thus:

"13. It is settled legal proposition that law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribes. The Court has no power to extend the period of limitation on equitable grounds. The statutory provision may cause hardship or inconvenience to a particular party but the Court has no choice but to enforce it giving full effect to the same. The legal maxim "dura lex sed lex" which means "the law is hard but it is the law", stands attracted in such a situation. It has consistently been held that, "inconvenience is not" a decisive factor to be considered while interpreting a statute. "A result flowing from a statutory provision is never an evil. A Court has no power to ignore that provision to relieve what it considers a distress resulting from its operation."

With great respect to Mr. Guchhait, learned

Counsel for the State, we feel persuaded to say here

that the question of extension of limitation in the

aforesaid case relates to a petition under Section 28A

of the Land Acquisition Act, 1894 wherein a specific

period has been provided for filing of the application

for re-determination of the compensation. When such

application was filed with delay and prayer was made

to extend the period of limitation, Hon'ble Supreme

Court in the aforesaid case refused to extend the

period of limitation, beyond what has been provided in

Section 28A of the Act. The case is clearly

distinguishable so far as the fact in the present case is

concerned. The appellant here, does not pray for

extension of limitation but prayer has been made for

condonation of delay under Section 5 of the Limitation

Act, which according to the bar, is the right approach

in such a case where abatement has set in by virtue of

death of the sole appellant and delay has been caused

to bring L.R.s of the deceased party on record.

8.1. Second decision relied on by Mr. Guchhait,

learned Counsel appearing for the State is Esha

Bhattacharjee vs. Managing Committee of

Raghunathpur Nafar Academy & Ors. 2013 (12) SCC

649 where Hon'ble Supreme Court has laid various

guidelines which should be borne in mind while

disposing of application for condonation of delay. In

the aforesaid case, order of learned Single Judge was

challenged after delay of 2449 days on the ground that

the respondent had no knowledge about the order

passed by Hon'ble Single Judge till they received the

notice of the contempt application and thereafter

because of miscommunication between the counsel

and the parties no steps could be taken in time.

Hon'ble Supreme Court, however, quashed the order of

the Division Bench in condoning delay on the ground

that a statutory committee cannot remain totally

indifferent to an order passed by the Court and sleep

like 'Kumbhakarna'; the persons chosen to act on

behalf of the Managing Committee cannot take

recourse to fancy and rise like a phonix and move the

Court; neither leisure nor pleasure has nay room while

one moves an application seeking condonation of delay

of almost seven years on the ground of lack of

knowledge; plea of lack of knowledge in the present

case really lacks bona fide.

8.2. The aforesaid case is also distinguishable in the

fact of the present case in as much as the present

appeal was not listed before the Court for almost 20

years and, therefore, there being no connection

between the appellant and the counsel, there was no

scope on the part of either of them to maintain

communication to keep each other posted about day to

day development in the case. It is not a case where

the L.R.s of the appellant slept over the matter or the

Counsel acted at his leisure of pleasure. Therefore,

the aforesaid decision relied on by Mr. Guchhait has

no application to the facts of the present case.

8.3. Lastly, Mr. Guchhait, learned Counsel appearing

for the State relies on the case of State of Maharashtra

vs. Digambar 1995(4) SCC 683 which deals with the

doctrine of delay and laches in paragraphs 14, 17, 18,

21 and 24. The unimitable words of Sir Barnes

Peacock in the case of Lindsay Petroleum Co. Vs.

Prosper Armstrong (1874) 5 PC 221 is enough to

explain the doctrine of "delay in laches" which has

been subsequently followed on umpteen number of

decisions by various High Courts and Hon'ble

Supreme Court. But this case is not one pertaining to

delay and laches on the part of the L.R.s of the

appellant or the lawyer of the appellant.

In view of such fact, this case has also no

application to the facts of the present case.

9. Taking into consideration the fact that the

appeal was not listed for a period of 20 long years

before the Bench; steps have been taken by learned

Counsel for the appellant immediately after knowledge

about the death of the appellant to bring the L.R.s of

the appellant on record and the ratio of the decisions

discussed supra relied on by Mr. Kundu, learned

Counsel for the appellant/petitioner, we are of the view

that it is a fit case where delay should be condoned.

10. Ex-consequenti, the prayer for condonation of

delay is allowed.

11. The interim application being CAN 3 of 2023 is

accordingly allowed.

In re: CAN 5 of 2023

1. This is an application for setting aside of

abatement.

2. Taking into consideration the facts and

submissions and the discussion made in CAN 3 of

2023 (Supra), the abatement is set aside.

3. Accordingly, the interim application being CAN 5

of 2023 is allowed.

In re: CAN 2 of 2023

1. This is an application for substitution vice the

deceased appellant as per particulars in paragraph 5

of the application.

2. Regard being had to the facts and submissions

and the discussion (Supra), the wife and son of the

deceased appellant as described in paragraph 5 of this

application be substituted as appellant no. 1a and 1b.

3. Department is directed to make necessary

correction in the cause title.

4. Accordingly, the interim application being CAN 2

of 2023 is allowed.

In re: FA 15 of 1999

1. Heard Mr. Debasish Kundu, learned Senior

Counsel appearing for the land looser/appellant and

Mr. Ram Chandra Guhhait, learned Counsel appearing

for the State.

2. It is contended by the learned Counsel for the

appellant that the present appeal is squarely covered

by the determination made by a co-ordinate Bench of

this Court in FA 203 of 2013 and other appeals

disposed of on 22.11.2017 [2017 SCC Online Cal.

18181: (2017) 5 CHN 507 (DB): (2018) 181 AIC 808:

(2018) 1 Cal. L.J 559]. The present appeal is by a land

looser. The date of possession of the land was

22.10.1984 and the date of publication of notice under

Section 4(1A) of the West Bengal Act II of 1948 (the Act

II of 1948, for short) is 02.06.1987.

Learned Counsel for the State also fairly

contended that this appeal is covered by the decision

of aforesaid co-ordinate Bench. It is also submitted by

learned Counsel for the State that the State has

preferred no appeals against judgment passed by

learned Additional District Judge, Darjeeling after

remand.

3. It is strenuously submitted by the learned

Counsel for the appellant that the area of the land

looser covered in the present appeal is of the same

locality with which the judgment passed in FA 203 of

2013 and other appeals disposed of on 22.11.2017 by

the co-ordinate Bench (Supra) is concerned. On

perusal of the aforesaid judgment and the appeal

memo in the present case, we are satisfied that the

judgment passed by the co-ordinate Bench in FA 203

of 2013 and other appeals on 22.11.2017 squarely

covers the facts of the present appeal.

4. In the present appeal different points are raised,

inter alia, the multiplier to be applied instead of 8 to

10; deduction towards cultivation cost be reduced

from 50% to 20%; quantum of loss of earning and

solatium are to be revisited in terms of the market

value as decided in FA 203 of 2013 and other appeals.

5. Regard being had to such facts and submissions

and our satisfaction to the effect that judgment passed

in FA 203 of 2013 and other appeals squarely covers

the field so far as the present appeal is concerned, we

remand the matter to the learned Additional District

Judge, 1st Court, Darjeeling to revisit the matters in

the appeal in the light of the judgment passed by the

co-ordinate Bench of this Court in FA 203 of 2013 and

other appeals on 22.11.2017 (Supra).

6. The entire exercise be completed within a period

of six months from the date of receipt of records from

this Court. The parties are directed not to indulge in

any unnecessary adjournments in the matter. In

revisiting the matters on remand, learned Additional

District Judge, 1st Court, Darjeeling shall be guided by

the exercise made by this Court in Land Acquisition

Case No. 2 of 1997 after the remand by the co-ordinate

Bench in FA 203 of 2013 and other appeals disposed

of on 22.11.2017 (Supra).

7. Learned Additional District Judge, 1st Court,

Darjeeling is directed to do the needful for directing

the payment of at least 50% of the original awarded

amount along with interest during the pendency of the

matters on remand on filing of proper application to

that effect.

8. Accordingly, the impugned order in this appeal

is set aside and the matter is remanded.

9. The records be sent down immediately to the

learned Trial Court through special messenger at the

cost of the land looser.

10. Accordingly, the appeal being FA 15 of 1999 is

disposed of.

(Chitta Ranjan Dash, J.)

(Partha Sarathi Sen, J.)