Gulmarg Estate Private Limited vs Santanu Sarkar & Ors
2023 Latest Caselaw 1684 Cal

                     IN THE HIGH COURT AT CALCUTTA
                      CIVIL APPELLATE JURISDICTION
                             APPELLATE SIDE


Present:
Hon'ble Justice Soumen Sen
Hon'ble Justice Uday Kumar


                              WPLRT 87 of 2015

                        Gulmarg Estate Private Limited
                                     Vs.
                            Santanu Sarkar & Ors.

For the Petitioner              :Mr. Shakti Nath Mukherjee, Sr. Adv.
                                 Mr. Arindam Banerjee, Adv.
                                 Mr. Arpita Saha, Adv.
                                 Mr. Ashis Kr. Mukherjee, Adv.
                                 Mr. Saurabh Prasad, Adv.

For the respondent              :Mr.Reetabroto Kr. Mitra, Adv.

No. 1, 3, 4, 5, 6 & 7            Mr. Rudrajit Sarkar, Adv.
                                 Mr. Arif Ali, Adv.
                                 Mr. Sayantak Das, Adv.

For the KMC                     : Mr. Alak Kumar Ghosh, Adv.
                                 Mrs. Sima Chakraborty, Adv.
                                 Mr. Debangshu Mondal, Adv.


Hearing Concluded on            : 28th February, 2023


Judgment on                     : 15th March, 2023

Soumen Sen, J.: What appears to be an otherwise simple proposition

of law has been made to look complex and difficult.

The proposition of law that we are required to decide in this petition is

whether West Bengal Land Reforms Tribunal constituted under Section 4 of

the West Bengal Land Reforms and Tenancy Tribunal Act 1997 (in short 'Act

of 1997') has the jurisdiction to extend time beyond the period of 30 days

from an order passed by the Collector under Section 6 of the West Bengal

Thika Tenancy (Acquisition and Regulation) Act, 2001 (in short 'Act of

2001'). At the first blush the argument advanced by the writ petitioner

appeared to be attractive since the tribunal is a creature of statute not a

court and hence the provision of Limitation Act ordinarily would not apply to

a tribunal unless such power is specifically conferred by the statute creating

such tribunal.

The dispute relates to premises No. 20 Ganesh Chandra Avenue

Kolkata-700013 (hereinafter referred to as the 'subject property'). The

respondent no.17 since deceased being the predecessor of the writ petitioner

and the then owner of the subject property filed Thika Tenancy case no.3-D

of 1962 for eviction of Thika Tenant Oriental Accessories Private Ltd.

(hereinafter referred to as 'Oriental') under the Calcutta Thika Tenancy Act,

1949. In the said proceeding on 20th December, 1963 a final order of

ejectment was passed by the appropriate authority. In a proceeding initiated

for fixation of the amount of compensation being Misc. Case no. 64 of 2006,

the learned Thika Controller passed an order on 2nd May, 2007 holding that

the respondent no.17 was entitled to recover possession in terms of the final

order dated 20th December, 1963.

The petitioner purchased the subject property on 18th May, 2007 from

the respondent no.17. On 17th April, 2008 the respondent nos.1 to 11 filed

O.A. No.1211 of 2008 purporting to challenge the said order dated 2nd May,

2007 passed in Misc. Case no.64 of 2006. The said appeal was filed before

the WBLRTT after the lapse of 318 days. The respondent nos.1 and 2 filed

an application being M.A no.340 of 2008 praying for condonation of delay in

filing O.A. no.1211 of 2008 assailing the order dated 2nd May, 2007 passed

by the Controller in the Thika Tenancy Misc. Case no.64 of 2006. There was

a delay of about 318 days. The Learned Tribunal being satisfied with the

explanation offered for the delay allowed the application on 21st December,

2012. During the pendency of the original application before the WBLRTT a

writ petition was filed by the present writ petitioner being WPLRT no.55 of

2013 before a Division Bench assailing the jurisdiction of the Tribunal to

condone the delay. A co-ordinate bench presided over by Justice Girish

Chandra Gupta who later on became the Chief Justice of the High Court at

Calcutta disposed of the appeal on March, 8, 2013 with the following

observations:

"We have considered the rival submissions advanced by the learned advocates appearing before us. There can be no denial of the fact that a substantive right to prefer an appeal has been provided under section 12 of the West Bengal Thika Tenancy (Acquisition and Regulation) Act, 2001, and the period of limitation provided therein is thirty (30) days. We can also agree that the 1997 Act, was impliedly over-ridden by the legislature as regards the days within which the appeal has to be preferred. But the same cannot be said as regards the competence to condone the delay. The legislature was conscious of the fact that under the West Bengal Land Reforms and Tenancy Tribunal Act, 1997, the Tribunal has been given power to condone the delay. If the legislature intended to take away that power, specific provision in that regard would have been made. The legislature did not do any such thing. It is, therefore, not a case where the doctrine of merger can be applied. There can be a merger where there are two provisions governing one field. In that case it could be said that the subsequent provision shall govern the case and the earlier provision stood merged in the subsequent provision. In this case there is only one provision, which is holding the field, that is, power of the Tribunal to condone the delay, with regard to which, the subsequent act is silent. Therefore, logically it cannot be said that the power of the Tribunal to condone the delay was taken away. The Judgment cited by Mr. Basu is of no assistance.

We, as such, are of the opinion, that the Tribunal did not make any mistake in exercising the power of condonation of delay under section 10 of the West Bengal Land Reforms and Tenancy Tribunal Act, 1997. The question formulated above is answered in the affirmative.

The writ petition is thus disposed of. Parties shall bear their own cost."

(emphasis supplied)

The writ petitioner being aggrieved by the said order preferred a

Special Leave Petition being SLP No.19991 of 2013 in which the Hon'ble

Supreme Court on 5th July, 2013 passed the following order:

"The special leave petition is dismissed with liberty to the petitioner to raise the question regarding discretion to condone the delay before the Forum where the matter is pending." (emphasis supplied)

On the basis of the aforesaid observation the present writ petitioner

filed an application being MA no.563 of 2013 for consideration whether

WBLRTT constituted under the West Bengal Land Reforms and Tenancy

Tribunal Act (in short the Act, 1997) has the authority to condone delay in

any statutory appeal filed before it under Section 10 of the Act of 1997 read

with Section 12 of WBTT Act 2001. The Tribunal upon consideration of the

submissions made on behalf of the writ petitioner and the present

respondent ruled in favour of its jurisdiction to condone delay in an appeal

filed under section 12 provided the explanations and reasons for the delay

are satisfactory. The relevant observations are:

"15. In our opinion, provisions of Section 3 of the Act, 2001 cannot be a bar to condone delay in an appeal filed under Section 12 if there is satisfactory explanation and reason for the delay caused to avoid miscarriage of justice. Such delay could not have been condoned, if such condonation had been bared expressly to the effect that Limitation Act will not apply as is manifestly expressed under Section 136(2) of the West Bengal Co-operative Societies Act, 1983.

The issue placed before this tribunal is not whether there is any difference between court and Tribunal or not. Issue is whether

W.B.L.R.T.T has authority and power to condone delay. Admittedly, there is a gulf of difference between the two. But facts discussed above go to show that the W.B.L.R.T.T formed under Article 323B has all the power to function as court though all tribunals are not courts. Hence, WBLRTT can apply its discretion under the Limitation act to condone delay. The delay under Section 12 of the Act, 2001 can be condoned by way of application of Sections 4 to 24 (both inclusive) of the Limitation Act read with Section 10(2) of the WBLR & TT Act. Even if it is not a court, due to vesting of jurisdiction, authority and power of all courts including power to condone delay, subject to the restrictions imposed by the Hon'ble Apex Court in L. Chandra Kumar (Supra), WBLRTT as Tribunal is in position to condone delay.

16. This Tribunal is formed under the WBLR & TT Act, 1997. Validity of the Act ousting the jurisdiction of all courts including the writ jurisdiction of the Hon'ble Single Bench is upheld by the Hon'ble Apex Court. The WBLR & TT is the Tribunal within the meaning of Article 323B(1). The Act itself is a guide to this Tribunal. This Tribunal cannot adjudicate the validity of the Act, 1997. As the question raised do-novo that Tribunal cannot condone the delay as it is not a Court, such challenge tantamount to assailing the validity of Section 10(2) of the WBLR & TT Act. The Act, 2001 cannot over-ride the provisions of the Act, 1997. For these reasons also, Tribunal cannot entertain the instant MA though the same has been filed in terms of liberty granted by the Hon'ble Apex Court." (emphasis supplied)

Mr. Shakti Nath Mukherjee, the learned Senior Counsel appearing on

behalf of writ petitioner submits that an appeal is a creature of statute. The

order passed by the controller is appealable only under Section 12 of the

Act, 2001 and not otherwise. Section 3 of the Act 2001 is an overriding

provision and having an overriding effect over all other law being enforced at

the relevant time.

Section 6 of the Act, 1997 determines the jurisdiction and Section 10

of the Act, 1997 provides the remedies. Section 6 of the Act, 1997 does not

permit an appeal against any order under the Act, 2001.

Mr. Mukherjee, submits that Section 6 categorizes 5 types of matters

over which the tribunal would have jurisdiction. One of the matters over

which the tribunal would have jurisdiction is any order made by an

authority under the West Bengal Thika Tenancy Acquisition and Regulation

Act, 2001 that was introduced in the definition of "Specified Act" under

Section 2(r) of the Act, 1997 by way of amendment on 1st March, 2005.

Section 10 of the Act, 1997 refers to the application that may be

made to the tribunal in relation to matters mentioned in Section 6 and other

provisions of the Act. It is submitted that Section 6 contemplates

proceedings which are original in nature namely in matters covered by

Section 6(a), (b) and (d) and appellate jurisdiction in respect of matters

mentioned in Section 6 (c) and (e) respectively.

Mr. Mukherjee submits that although Section 10(2) is not happily

worded but original and appellate proceedings cannot be treated alike when

it concerns condonation of delay as the benefit of condonation of delay

beyond the period of 60 days cannot be availed when there is a specific

provision under Section 12 of the Act, 2001 which gives right to a party

affected by the order passed by the controller to prefer an appeal within 30

days from the date of order and the said Section has to be read in

conjunction with Section 3 of Act, 2001 and Section 10 of Act, 1997 and not

in derogation thereof.

It is submitted that the Act, 2001 is a subsequent legislation and is a

special statute in relation to the Act, 1997.

The remedy under the Act 1997 is a remedy under a general law and

the appeal under Section 12 of the Act of 2001 is a remedy under a special

law, in so far as challenges to orders are made from the order of the Thika

Controller under the 2001 Act is concerned.

It is submitted that the Rules of interpretation uniformly accepted in

case of conflict between two set of Rules or statute are well settled. Where a

latter special law is repugnant to or inconsistent with the earlier general law,

the latter special law will prevail over the earlier general law. [See. Maya

Mathew vs. State of Kerala & Ors., reported in 2010 (4) SCC 498

(paragraph 12)]

In the instant case, the remedy of appeal under Section 12 of the

2001 Act, being a special law remedy enacted later would prevail over the

earlier general law remedy. In such circumstances, the only remedy left to a

person aggrieved from an order of the Thika Controller, would be to file an

appeal under Section 12 of the 2001 Act within a period of 30 days from the

date of order.

Since the appeal was ex-facie time barred on the date of presentation

of the O.A. before the Tribunal, the private respondents would not be

entitled to any relief in the said appeal and the same would be liable to be

dismissed as time barred. There is no scope for condonation of delay in

connection with an appeal under Section 12 of the 2001 Act as the said Act

does not provide any power to the Appellate Forum to condone such delay

and also does not make the provision for condonation of delay under Section

5 of the Limitation Act, 1963 applicable in respect of an appeal under

Section 12 thereof.

Section 10(3) of the 1997 Act creates a bar against admission of any

application under Section 10(1) by the Tribunal unless the Tribunal is

satisfied that the applicant has availed of all remedial measures available to

him under the relevant specified Act. In this case, the relevant 'Specified Act'

is the 2001 Act. The applicants have disentitled themselves from availing of

the remedial measure available to them under the 2001 Act by not filing an

appeal within the prescribed time period. As such, the statutory bar to the

admission of an application under Section 10(1) of the 1997 Act would stare

at the Tribunal disentitling it from admitting the proceedings being O.A.

No.1211 of 2008 as a proceeding under Section 10 of the 1997 Act.

Section 6 of the 1997 Act is an empowering provision, which enables

the Tribunal to exercise jurisdiction, power and authority in relation to an

order made by an authority under a specified Act. However, exercise of such

power has to be in connection with a proceeding presented validly under

Section 10 of the 1997 Act. If the proceeding under Section 10 of the 1997

Act suffers from a bar to its admissibility owing to non-satisfaction of

Section 10(3)(a) thereof, power conferred under Section 6 of the 1997 Act

cannot necessarily be exercised. Thus, a proceeding under Section 10,

which cannot be admitted by the Tribunal owing to the bar contemplated

under Section 10(3) of the said Act would remain barred and inadmissible,

as would be the case here, in the event the proceeding being O.A. No.1211 of

2008 is construed to be one under Section 10(1) of the 1997 Act.

It is trite law that when a litigant disentitles himself from availing the

statutory remedy granted by a particular statute, such disentitlement

cannot be a ground for the Writ Court under Article 226 of the Constitution

of India to entertain a petition in the teeth of such disentitle/barred

statutory remedy. Since the LRTT, in view of the judgment of L. Chandra

Kumar vs. Union of India & Ors. reported in 1997(3) SCC 261, exercises

the powers equivalent to a Hon'ble Single Judge of this Hon'ble Court, in

respect of the matters under Article 226 of the Constitution of India, the self

same bar in entertaining of O.A. on the ground of disentitlement of the

applicant in pursuing his special statutory remedy, would apply in case of

the private respondents herein. [See A.V. Venkateswaran, Collector of

Customs, Bombay vs. Ramchand Sobhraj Wadhwani & Anr., reported in

AIR 1961 SC 1506 SC 1506 (paragraph 11)].

Section 12 does not contain any power for condonation of delay in

the filing of the appeal contemplated therein.

The 2001 Act does not contain any substantive provision empowering

or authorizing the appellate forum in an appeal under Section 12 to condone

delay in filing of the same. The Appellate Authority specified in Section 12 of

the 2001 Act is the Tribunal constituted under the West Bengal Land

Reforms and Tenancy Tribunal Act, 1997 [hereafter "the 1997 Act"]. The

Tribunal, though constituted under the 1997 Act, can only act within the

confines of the 2001 Act while considering a statutory appeal under Section

12 of the 2001 Act. Further, and in any event, the power available to the

Tribunal under section 10(2) of the 1997 Act cannot be used to condone the

delay in filing of statutory appeal under Section 12 of the 2001 Act.

The legislature has consciously reserved the power of condonation

under Section 10(2) of the 1997 Act to an application "within the meaning of

Section 10(1)" thereof and not to an appeal. It is not open to read the term

"appeal" instead of or in conjunction with the term "application" in section

10(2) of the 1997 Act as that would amount to judicial legislation, which is

impermissible. For a harmonious construction of sections 10(1) and 10(2),

one has to fall back on section 6 of the 1997 Act since Section 10(1) makes

it clear that it is subject to the provisions of Section 6.

Section 6(c) does envisage an appellate remedy but as on the date of

enforcement of the 1997 Act (i.e. on 12.08.1998), the Calcutta Thika

Tenancy (Acquisition & Regulation) Act, 1981 [hereafter "the 1981 Act"]

which was then in force did not confer any appellate jurisdiction on the

Tribunal in respect of orders passed by the Thika Controller.

Thus, as on the date of enforcement of the 1997 Act, what existed by

way of appellate power was only the appellate power in section 6(c) thereof.

Since Section 6 contains mixture of sub-sections in which original

[power [sub-section (c)] coexist, the State Legislature consciously made the

power of condonation under Section 10(2) of the 1997 Act applicable only to

an application by which an original proceeding is initiated and not an

appeal. At the highest, such power to condone delay may be extended to an

appeal under sub-section(c) of Section 6 but not to an appeal under Section

10(2) of the Act of 1997.

Hence, the power to condone the delay under Section 10(2) of the

1997 Act cannot be extended to condone delay in a statutory appeal under

section 12 of the 2001 Act.

It is settled law that provisions of section 5 of the 1963 Act is

available only to Courts. [See M.P. Steel Corporation vs. Commissioner of

Central Excise reported in 2015(7) SCC 58, paragraphs 20-23]. When an

Appellate forum is created by a special statute, the provisions of section 5 of

the 1963 Act cannot be read into such statute by implication. Only if such

statute expressly makes the provisions of section 5 of the 1963 Act or the

relevant part of the 1963 Act in which section 5 is housed, applicable to an

appeal arising out of such special statute, can the power to condone under

section 5 of the 1963 Act be assumed by the appellate forum.

The West Bengal Land Reforms and Tenancy Tribunal (hereafter "the

LRTT") under the LRT Act, 1997 was established under the provisions of

Article 323B in Chapter XIV-A of the Constitution. The said Article expressly

enables legislation to be made dealing with the procedure and limitation

before Tribunals to be established in Article 323(3)(c). In addition, the

Article debars any court except the Hon'ble Supreme Court from dealing

with the matters required to be dealt with by the Tribunal.

The LRT Act, 1997 created a Tribunal and not a Court. The Hon'ble

Supreme Court in Union of India vs. R. Gandhi, President, Madras Bar

Association, reported in 2010(11) SCC 1 (paragraphs 38 and 45), has

indicated the differences between a Court and a Tribunal and have observed

that all Courts are Tribunals but all Tribunals are not Courts.

It has not now been settled that the power of condonation under

Section 5 of the Limitation Act is not available to Tribunals and in this

regard reliance was placed on Ganesan vs. Commissioner Tamil Nadu

Hindu Religious and Charitable Endowments Board & Ors., reported at

2019(7) SCC 108 (paragraphs 58, 59), which read as follows:

"58. We have already noticed that Mukri Gopalan [Mukri Gopalan v. Cheppilat Puthanpurayil Aboobacker, 1995(5) SCC 5] was held to be not a good law by this Court in M.P. Steel [M.P. Steel Corpn, v. CCE, 2015(7) SCC 58: 2015(3) SCC (Civ) 510] on the ground that it has not noticed the earlier three-Judge Bench judgments and also in view of the subsequent three-Judge Bench judgment, the said case is not a good law. As far as Anshuman Shukla case [State of M.P. v. Anshuman Shukla, (2014)10 SCC 814] is concerned we have already noticed the issue, in the said case, of applicability of Section 5 of the Limitation Act in the revision filed in the High Court, the High Court being a court, the Limitation Act was fully applicable and the said judgment does not support the proposition that in an application not before a court, Section 5 shall automatically be applicable.

59. The ratio which can be culled from the abovenoted judgments, especially judgments of three-Judge Benches, as notied above, is as follows:

1. The suits, appeals and applications referred to in the Limitation Act, 1963 are suits, appeals and applications which are to be filed in a court.

2. The suits, appeals and applications referred to in the Limitation Act are not the suits, appeals and applications which are to be filed before a statutory authority like Commissioner under the 1959 Act.

3. Operation of Section 29(2) of the Limitation Act is confined to the suits, appeals and applications referred to in a special or local law to be filed in court and not before statutory authorities like Commissioner under the 195 Act.

4. However, special or local law vide statutory scheme can make applicable any provision of the Limitation Act or exclude applicability of

any provision of the Limitation Act which can be decided only after looking into the scheme of particular, special or local law."

It may not be correct to contend that the Hon'ble Supreme Court

while dismissing the Special Leave Petition on 15th July, 2013 upheld the

power of the Tribunal and gave liberty to only raise the question regarding

discretion to condone the delay. It is submitted that under Section 5 of the

Limitation Act, the Court is empowered to exercise discretion to condone or

not to condone after sufficient cause is shown. Reference in this regard is

drawn to the judgment of Ramlal, Motilal & Chotelal v. Rewa Coalfields

Ltd. reported at AIR 1962 SC 361 (paragraph 12) which states as under:

"12. It is, however, necessary to emphasise that even after sufficient cause has been shown a party is not entitled to the condonation of delay in question as a matter of right. The proof of a sufficient cause is a condition precedent for the exercise of the discretionary jurisdiction vested in the court by Section 5. If sufficient cause is not proved nothing further has to be done;

the application for condoning delay has to be dismissed on that ground alone. If sufficient cause is shown then the court has to enquire whether in its discretion it should condone the delay." (emphasis supplied)

In short Mr. Mukherjee raises a jurisdictional issue with regard to

the competence of the Tribunal to decide an application for condonation of

delay beyond 30 days from an order passed by the Thika Collector under

Section 6 of Act 2001.

Per contra Mr. Reetabroto Mitra, learned Advocate submits that

Section 6(a) refers to "any order made by an authority under its Specified

Act". The order passed by the Thika Controller was under a 'Specified Act'

namely West Bengal Thika Tenancy (Acquisition and Regulation) Act,

2001.

By reason of Section 6(a) of the Act of 1997 it can only be

challenged before the Tribunal. The appellate provision prescribes that an

application can be made within 60 days from the date on which such

order was passed by the authority.

It however, provides that the Tribunal may admit such appeal

beyond the period of 60 days if it is satisfied with the explanation offered

by the petitioner for not being able to file the appeal within the period of

limitation.

It is submitted that the object of the Act is to provide remedy to a

litigant who has suffered an order under a Specified Act.

It is submitted that in L. Chandra Kumar (supra) the Hon'ble

Supreme Court has clearly stated that the Tribunals would continue to

Act as the only court of first instance in respect of the areas of law for

which they have been constituted meaning thereby all the powers that the

Tribunal would be exercising under Section 6 of the Act of 1997 are

original in nature irrespective of the fact whether it is arising out of an

order made by an authority under a Specified Act or an appeal against an

order of any Tribunal.

It is submitted that there is no conflict between the 2001 Act and

the 1997 Act. The Act 2001 deals with substantive rights of the parties

and it provides for a remedy that can be availed under a different statute

and before a forum constituted for the purpose of deciding the merits of

the order made by an authority under a Specified Act or any other matter

that has been specifically mentioned in Section 6 of the 1997 Act.

The Thika Tenancy Act (hereinafter "the Act of 2001") in its

preamble states that the Act of 2001 has been enacted to provide for the

acquisition of interest of landlords in respect of land comprised in Kolkata,

Howrah and other municipalities of West Bengal for development and

equitable utilizations of such lands.

A bare reading and comparison of the two preambles (1997 and

2001 Act respectively), clearly indicate that the 1997 Act has been enacted

for the establishment of the Tribunal with its powers to decide certain

disputes while the 2001 Act is for a completely different purpose. Thus,

the question of the Act of 1997 and that of 2001 being contrary to or

inconsistent with each other clearly does not arise.

The powers of the Tribunals are solely guided by the Act of 1997

and the 2001 Act has not been enacted to clothe the Tenancy Tribunals

with powers and consequently neither to undress the Tribunal with

powers already vested in it by the 1997 Act. Thus, the arguments made by

the Applicant/Petitioner that the provisions of 2001 Act will so far as it

conflict with 1997 Act, shall prevail, being a subsequent act is completely

unfounded. It cannot be denied and is indeed indisputable that both acts

fall within the category of special statutes dealing with special purposes as

expressed in their respective preambles.

Section 10(1) of the Act of 1997 clearly states that the aggrieved

person may prefer an appeal to the Tribunal for redressal of his grievance.

Sub-section 2 of the same section categorically provides to the concerned

Tribunal, in this case the Tenancy Tribunal, a power to enlarge the time in

filing such application.

It is a well accepted proposition of the general principles of

interpretation that legislative intent which has been categorically provided

for in a statute, it is intended to be negated or diluted, has to be done by

way of similar legislation. A positive legislation cannot dilute by

implication.

The provisions of Section 12 of the Act of 2001 provide a time

period of 30 days within which the appeal has to be filed. It does not in

any manner dilute or negates the Tribunal's power to enlarge such time.

The mere mention of the time period (at 30 days) does not in itself make

the subsisting legislative intent as envisaged in Section 10 of the Act of

1997 redundant or otiose.

The Hon'ble Supreme Court of India in its order dated July 15,

2013 has upheld the power of the Tribunal to condone such delay and

remanded the back merely to revisit the discretion exercised by the

Tribunal in condoning the delay. The matter is clearly res judicata. The

reason for res judicata will appear from the fact that the order by this

Hon'ble Court, while the same petitioner had challenged the discretion,

has been upheld by a Division Bench by its order dated March 8, 2013.

The Hon'ble Division Bench had specifically came to a finding that

the legislature being conscious of the fact that the LRTT Act had been

given the power to condone the delay, chose not to take the same away,

which ought to have been done specifically, if so intended, by the

legislature, by the act of 2001. The subsequent act not having taken away

the existing power specifically, it cannot be held that the power of the

Tribunal to condone the delay have been taken away. The provision

regarding the power of LRTT to condone delay being specific in the LRTT

Act and being silent in the specific act of 2011, clearly means that the

provision of power to exercise discretion has been upheld even by the

subsequent act. Thus, the Tribunal did not make any mistake in

exercising the power of condonation of delay under Section 10 of the West

Bengal Land Reforms and Tenancy Tribunal Act, 1977.

It was precisely this aforestated finding that was carried in the

appeal to the Hon'ble Supreme Court of India, which upheld such finding

and restricted the remand only to the extent of the discretion exercised by

the Tribunal in condoning the delay. The petitioner herein have not

challenged the discretion exercised by the Tribunal, but has challenged

the power/jurisdiction of the Tribunal to exercise its powers to condone

the delay. This having already been decided by the Division Bench of this

Court and upheld by the Hon'ble Supreme Court of India is res judicata

and cannot be agitated afresh at this stage or in this proceeding.

The rationale behind the provision has been laid out and reiterated

in no uncertain terms by the Hon'ble Supreme Court by deciding the case

of L. Chandra Kumar. The Hon'ble Supreme Court of India has

categorically stated that the powers of the Tribunal are akin to that of a

single judge of the High Court since the Tribunals were established to de

clog the High Court with their enhanced jurisdiction under Article 226 on

account whereof an appeal from the Single Bench is still treated as a writ

petition to be entertained by a Division Bench at the first instance before a

High Court.

It has been categorically held that the Tribunals created under

Article 323 A and Article 323 B are possessed of the competence to test

the constitution validity of statutory provisions and rules and will

nevertheless continue to act like courts of the first instance in respect of

the areas of law for which they have been constituted. Thus, insofar as

Tribunals are concerned, the provisions of Section 29(2) of the Limitation

Act should be made applicable and there being no express bar of or

exclusion by the special statute, Sections 4 to 24 are to apply in its

entirely to the Tribunals including the present one.

Had the legislature intended to take away the power, then specific

provision in that regard would have also been made in the new Act but in

the absence of such provisions and the Act of 2001 being silent on the

same issue, the doctrine of merger in this case cannot be applied.

Further, the doctrine of implied prohibition is also not applicable in

the present case. The doctrine of implied prohibition is a principle of

statutory interpretation according to which, when a law or a statute

directs that a thing is to be done in a certain way, then even if there are no

negative connotations or words attached to it, that thing shall not be done

in any other way. The basic premise behind this doctrine is that "the Court

must, as far as possible, attach a construction which effectuates the

legislative intent and purpose."

Considering the above discussion, the Hon'ble Supreme Court in

the case of Apex Laboratories (P) Ltd. V. CIT, (2022) 7 SCC 98 has held

as follows:

"Interpretation of law has two essential purposes: one is to clarify to the people governed by it, the meaning of the letter of the law; the other is to shed light and give shape to the intent of the lawmaker. And, in this process the courts' responsibility lies in discerning the social purpose which the specific provision subserves. Thus, the cold letter of the law is not an abstract exercise in semantics which practitioners are wont to indulge in. So viewed the law has birthed various ideas such as implied conditions, unspelt but entirely logical and reasonable obligations, implied limitations, etc. The process of continuing evolution, refinement and assimilation of these concepts into binding norms (within the body of law as is understood and enforced) injects vitality and dynamism to statutory provisions. Without this dynamism and contextualisation, laws become irrelevant and stale".

"42. It is also a known principle that what cannot be done directly cannot be achieved indirectly, As was said in Fox v. Bishop of Chester [Fox v. Bishop of Chester, (1824) 2 B&C 635: 107 ER 520 quoted and applied in Jagir Singh v. Ranbir Singh, (1979) 1 SCC 560: 1979 SCC (Cri) 348: (1979) 2 SCR 282] that it is a:

"Well -known principle of law that the provisions of an Act of Parliament shall not be evaded by shift or contrivance."

And that: (Jagir Singh case, SCC p. 565, para 5)

"5.... "To carry out effectually the object of a statute, it must be construed as to defeat all attempts to do, or avoid doing, in an indirect or circuitous manner that which it has prohibited or enjoined.'" (emphasis supplied)

A judicious approach ought to be taken while interpreting different

provisions of different statutes enacted for completely different purposes.

In fact, the approach has always been to take a harmonious construction

to ensure that the concerned Tribunal/Court as the case may be, is clothe

with jurisdiction to afford maximum relief to persons in distress, who has

approached the concerned Court or Tribunal.

The Tribunal in the impugned order of December 16, 2014 has

considered itself to be a Tribunal and not a Court and has still held that

he has the power to condone the delay which has occurred in filing he

appeal. The appeal being an original application falls well within the

parameters set-forth in section 10 of the Act of 1997 and thus is entitled

to the enlargement of time as rightly affording by the said Tribunal.

Thus, West Bengal Land Reforms and Tenancy Tribunal had rightly

condoned the delay by exercising its power under the West Bengal Land

Reforms and Tenancy Tribunal Act, 1997 and there cannot be any

question of revisiting the opinion already formed by the Hon'ble Division

Bench in 2013.

For proper and better appreciation of the issues raised in this writ

petition it is necessary to refer to the objects and reasons of the two Acts

and Sections 6 and 10 of the Act of 1997 and Sections 3 and 12 of the Act of

2001.

The objects and reasons of the Act of 1997 is summarised in the

Preamble which reads:

"An Act to provide for the setting up of a Land Reforms and Tenancy Tribunal in pursuance of article 323B of the Constitution of India and for the adjudication and trial by such Tribunal of disputes, claims, objections and applications relating to, or arising out of land reforms or tenancy in land and other matters under a specified Act and for matters connected therewith or incidental thereto.

Whereas it is expedient to provide for the setting up of a Land Reforms and Tenancy Tribunal and for adjudication and trial by such Tribunal of disputes, claims, objections and applications relating to, or arising out of, land reforms or tenancy in land and other matters under a specified Act and for the exclusion of the jurisdiction of all courts except a Division Bench of the High Court exercising writ jurisdiction under articles 226 and 227 of the Constitution of India and the Supreme Court of India in adjudication and trial of such disputes, claims, objections and applications and for matters connected therewith or incidental thereto;" (emphasis supplied)

The objects and reasons of the Act of 2001 are:

"An Act to provide for the acquisition of interests of landlords in respect of lands comprised [in thika tenancies and certain other tenancies] in Kolkata, Howrah and other Municipalities of West Bengal for development and equitable utilization of such lands.

Whereas it is expedient to provide for the acquisition of interests of landlords in respect of lands comprised [in thika tenancies and certain other tenancies] in Kolkata, Howrah and other Municipalities of West Bengal for development and equitable utilisation of such lands with a view to subserving the common good." (emphasis supplied)

The Sections 6 and 10 of the Act of 1997 read:

"Sec.6. Subject to the other provisions of this Act, the Tribunal shall, with effect from such date as may be appointed by the State Government by

notification in this behalf, exercise jurisdiction, power and authority in relation to--

(a) an order in original made by an Authority under a specified Act;

(b) an application complaining in action or culpable negligence of an Authority under a specified Act;

(c) an appeal against an order of the Mines Tribunal appointed under section 36 of the West Bengal Estates Acquisition Act, 1953;

(d) adjudication of disputes and applications relating to matters under any provision of a specified Act involving interpretation of any provision of the Constitution or of validity of a specified Act or of any other law for the time being in force;

(e) adjudication of matters, proceedings, cases and appeals which stand transferred from the High Court and other Authorities to the Tribunal in accordance with the provisions of this Act.

10. (1) Subject to the provisions of section 6 and other provisions of this Act, a person aggrieved by any order passed by an Authority or any action taken either by an Authority or by the State Government may prefer an appeal to the Tribunal for the redressal of his grievance.

(2) Every application under sub-section (1) shall be made within sixty days from the date on which such order was passed or such action was taken, as the case may be, or within such further time as may be allowed by the Tribunal for cause shown to its satisfaction, and shall be made in such form, and shall be accompanied by such fee, as may be prescribed.

(3) Save as expressly provided in this Act, the Tribunal shall not admit an application referred to in sub-section (1) unless it is satisfied that--

(a) the application has availed of all remedial measures available to him under the relevant specified Act, and

(b) the remedial measures available under the provisions of the relevant specified Act are not adequate or shall cause undue hardship to the applicant.

(4) The Tribunal may, if it is satisfied after such enquiry as it may deem fit that requirements under this Act and the rules made thereunder are complied with in relation to the application referred to in sub-section (1), admit

such application, but where the Tribunal is not so satisfied, it may reject the application summarily giving reasons therefore.

(5) Where an application under sub-section (1) has been admitted by the Tribunal, it shall decide and dispose of such application as expeditiously as possible, and ordinarily within six months from the date of such admission or from the date of receipt of records from the concerned Authority or the State Government, as the case may be.

(6) While deciding the application under sub-section (5), the Tribunal shall issue such direction, or pass such order, as it may deem fit.

(7) Notwithstanding anything contained in any other provision of this Act or in any other law for the time being in force, no interim order (whether by way of injunction or stay or in any other manner) shall be made on, or in any proceeding relating to, an application made under sub-section (1) unless--

(a) copies of such application and of all documents in support of the plea for such interim order are duly furnished seven days in advance to each of the parties against whom such application is made or is proposed to be made;

(b) an opportunity of being heard is given to each of the parties against whom such application is made:

Provided that the Tribunal may pass an interim order as an exceptional measure if it is satisfied for reasons to be recorded in writing that it is necessary so to do for preventing any loss being immediately caused to the applicant:

Provided further that if the application referred to in subsection (1) is not decided and disposed of within a period of six months from the date of the interim order, the interim order shall, if it is not vacated earlier, stand vacated on the expiry of the period as aforesaid unless, for special reasons or in the interest of justice, the interim order is varied, modified or extended by the Tribunal." (emphasis supplied)

The Sections 3 and 12 of the Act of 2001 read:

"3. Act to have overriding effect.--The provisions of this Act shall have effect notwithstanding anything to the contrary contained in any other law for the time being in force or in any custom or usage or in any contract, express or implied.

12.Appeal. (1) Any person aggrieved by an order of a Controller may, within 30 days from the date of the order, prefer an appeal in writing before the Land Reforms and Tenancy Tribunal established under the West Bengal Land Reforms and Tenancy Tribunal Act, 1997 (West Bengal. Act 25 of 1997).

(2) Subject to provisions of this Act and rules made thereunder, any order passed by the Land Reforms and Tenancy Tribunal may, in the manner prescribed, be reviewed by the said Tribunal on account of some mistake or error apparent on the face of the record or for any other sufficient cause of like nature"

The objects and reasons of the Act of 1997 clearly shows that it was

enacted for creation of a Land Reforms and Tenancy Tribunal for

adjudication and trial by such Tribunal of claims, disputes, objections and

applications, inter alia, in respect of matters under a specified act and for

the exclusion of the jurisdiction of all courts except a Division Bench of the

High Court exercising writ jurisdiction under Articles 226 and 227 of the

Constitution of India and the Supreme Court of India.

The Tribunal shall exercise jurisdiction, power and authority in

relation to-

(1) Any order made by an Authority under a specified Act;

(2) An application complaining inaction or culpable negligence of an

Authority under a specified Act;

(3) An appeal against an order of the Mines Tribunal appointed under

sec.36 of the West Bengal Estates Acquisition Act, 1963.

(4) Applications relating to any constitutional validity of any Act.

(5) Adjudication of matters, proceedings, cases and appeals which stand

transferred from the High Court and other Authorities to the Tribunal.

A person may prefer an appeal to the Tribunal under Section 10 for

the redressal of his grievance if such person is aggrieved by-

(1) Any order passed by an Authority, or

(2) Any action taken by an Authority, or

(3) Any action taken by the State Govt.

'Authority' means an officer or authority or functionary exercising

powers or discharging functions as such under a specified Act[See.2(b) of the

WBLR & TT 1997].

Limitation period for filing such application is 60 days from the date on

which such order was passed or such action was taken. The Tribunal has

absolute power to condone the delay in filing application on the basis of

sufficient satisfactory reasons shown by the applicant.

Under section 10, the Tribunal shall not admit an application unless it

is satisfied that -

(1) The applicant has availed of all remedial measures available to him

under the relevant specified Act, and

(2) The available remedial measures are not adequate or shall cause

undue hardship to the applicant.

(3) After admitting application, the Tribunal shall decide and dispose of

it as expeditiously as possible, and ordinarily within 6 months from

the date of such admission or from the date of receipt of records

from the concerned Authority or the State Government, as the case

may be. The Tribunal has power to reject the application summarily

giving reasons therefore. While deciding the application, the

Tribunal may issue such direction, or pass such order, as it may

deem fit.

(4) Rule 3 of the W.B. Land Reforms and Tenancy Tribunal Rules, 1997

deals with the method of filing an application for the redressal of

grievances. This Rule 3 also enumerates those matters which must

be contained in such application.

It is a comprehensive legislation for adjudication of disputes, claims,

objections and applications relating to or arising out of, land reforms or

tenancy in land and other matters under a "Specified Act". The tribunal has

come in the place of courts to adjudicate such matters. It was for such

reason the tribunal has been vested with the power of condonation of delay

as a court would have exercised but for the present legislation.

Even before the amendment of Section 2(r) in the Act of 1997 by which

the Act of 2001 was brought under the preview of the Act of 1997 under

Section 12 of the Act of 2001 an appeal before the tribunal would lie from

the order of the Controller within 30 days from the days of the order. The

learned Counsel for the parties, however, could not immediately appraise

the procedure that was followed when there was no reference to the Act of

2001 in the definition of 'specified Act' under Section 2(r) of the Act of 1997.

The Thika Tenancy Act of 2001 was included in Section 2(r) as 2(r)(vii) in

2005 with retrospective effect from March 1, 2003. We presume that the

tribunal notwithstanding such amendment to the 1997 Act might have

exercised its jurisdiction because of the conferment of jurisdiction upon it by

the Act of 2001 as a litigant cannot be rendered remediless. However, we

are not concerned with the said problem.

Here there are two statutes - one providing for substantive rights of the

parties (Act of 2001) and the other remedial measures (Act of 1997). It is

trite law that curtailment of jurisdiction shall not be easily inferred. Even if,

there may not be any express provision for curtailing or ousting the

jurisdiction, there shall be a clear indication to that effect in the statute.

Ouster of jurisdiction of a Court or tribunal is a serious matter and unless

there are strong indication to that effect such provisions are required to be

interpreted in favour of the jurisdiction of the court or tribunal. The ouster

of jurisdiction cannot be easily inferred. However, the court and tribunal are

not to be equated alike. The tribunal is creature of statute and does not

have a plenary jurisdiction.

Where a provision of an Act is inconsistent with a provision of earlier

legislation, the earlier provision is impliedly repealed by the later. The rule

was stated by North J in Re Williams (1887) 36 Ch. D. 573, 578-

"The provisions of an earlier Act may be revoked or abrogated in particular cases by a subsequent Act, either from the express language used being addressed to the particular point, or from implication or inference from the language used." [Thoburn v. Sunderland City Council [2002]3 W.L.R. 247]. [See. Craies on Legislation, 12th Edition.]

However, there is presumption against a repeal by implication and the

reason of this rule is based on the theory that the legislature while enacting

a law has complete knowledge of the existing laws on the same rule, subject

matter and therefore, when it does not provide a repealing provision, the

intention is clear not to repeal the existing legislation. [See, Municipal

Council, Palai v TJ Joseph, AIR 1963 SC 1561, p 1564, State of M.P. v

Kedia Leather & Liquor Ltd. & Ors., 2003(7) SCC 389 paragraphs 13 14

& 15: Harshad S. Mehta & Ors. v. State of Maharashtra, 2001(8) SCC

257].

In Kedia Leather (supra) the doctrine of implied repeal was explained in

the following words:

"13. There is presumption against a repeal by implication; and the reason of this rule is based on the theory that the Legislature while enacting a law has a complete knowledge of the existing laws on the same subject matter, and therefore, when it does not provide a repealing provisions, the intention is clear not to repeal the existing legislation. (See: Municipal Council Palai through the Commissioner of Municipal Council, Palai v. T.J. Joseph : [1964]2SCR87 , Northern India Caterers (Private) Ltd. and Anr. v. State of Punjab and Anr.: [1967]3SCR399 , Municipal Corporation of Delhi v. Shiv Shanker: 1971CriLJ680 and Ratan Lal Adukia and Anr. v. Union of India: AIR1990SC104 . When the new Act contains a repealing section mentioning the Acts which it expressly repeals, the presumption against implied repeal of other laws is further strengthened on the principle expressio unius (Personal vel rei) est exclusio alterius. (The express intention of one person or thing is the exclusion of another), as illuminatingly stated in Garnett v. Bradley (1878) 3 AC 944. The continuance of existing legislation, in the absence of an express provision of repeal by implication lies on the party asserting the same. The presumption is, however, rebutted and a repeal is inferred by necessary implication when the provisions of the later Act are so inconsistent with or repugnant to the provisions of the earlier Act and that the two cannot stand together. But, if the two can be read together and some application can be made of the words in the earlier Act, a repeal will not be inferred. (See: A.G. v. Moore (1878) 3 Ex. D 276, Ratanlal's case (supra) and R.S. Raghunath v. State of Karnataka and Anr.: AIR1992SC81 .

14. The necessary questions to be asked are:

(1) Whether there is direct conflict between the two provisions.

(2) Whether the Legislature intended to lay down an exhaustive Code in respect of the subject-matter replacing the earlier law;

(3) Whether the two laws occupy the same field.

(See: Pt. Rishikesh and Anr. v. Salma Begum (Smt.): [1995]3SCR1062 , and Shri A.B. Krishna and Ors. v. The State of Karnataka and Ors.: [1998]1SCR157

15. The doctrine of implied repeal is based on the theory that the Legislature, which is presumed to know the existing law, did not intend to create any confusion by retaining conflicting provisions and, therefore, when the court applies the doctrine, it does not more than give effect to the intention of the Legislature by examining the scope and the object of the two enactments and by a comparison of their provisions. The matter in each case is one of the construction and comparison of the two statutes. The Court leans against implying a repeal, "unless two Act are so plainly repugnant to each other that effect cannot be given to both at the same time, a repeal will not be implied, or that there is a necessary inconsistency in the two Acts standing together." (See Craies on Statute Law, Seventh Edition, page 366, with reference to Re: Barry (1936) Ch. 274. To determine whether a later statute repeals by implication an earlier, it is necessary to scrutinize the terms and consider the true meaning and effect of the earlier Act. Until this is done, it is impossible to ascertain whether any inconsistency exists between the two enactments. The area of operation in the Code and the pollution laws in question are different with wholly different aims and objects; and though they alleviate nuisance, that is not of identical nature. They operate in their respective fields and there is no impediment for their existence side by side."

A distinct and unequivocal provision is required in the Act of 2001 or

the Act of 1997 for the purpose of denuding the power of the Tribunal to

decide an application for condonation of delay arising out of an order of the

Collector under the Act of 2001 regard being had to the existing conferment

of jurisdiction to the tribunal to decide an appeal from an order of the

Collector and other orders passed by an authority under "Specified Acts". It

seems to us impossible to suppose that the legislature can have intended

under the Act of 2001, as it were by a side wind, to effect a material change

in the right of the person aggrieved to avail the remedy of appeal with a

prayer for cndonation of delay. This jurisdictions cannot be taken away

except by express words or necessary implication. A general rule applicable

to the construction of statutes is that there is not to be presumed without

express words, an authority to deprive the tribunal of a jurisdiction it had

previously exercised. Moreover, the rule of implied prohibition is, however,

subservient to the basic principle that the court must, as far as possible,

adopt a construction which effectuates the legislative intent and purpose.

[See, G.P. Singh Principles of Statutory Interpretation, 15th Edition,

Jamal Uddin Ahmad v. Abu Saleh Najmuddin, AIR 2003 SC 1917: 2003

(4) SCC 257, Paragraphs 11 and 12] The legislature while enacting the Act

of 2001 has complete knowledge of the existing Act of 1997 and still then it

does not provide for a repealing provision or an amendment to the Act of

1997 in Section 10(2) and thus holds out an intention not to abrogate the

power of the tribunal to condone delay.

The continuance of existing legislation, in the absence of an express

provision of repeal, being presumed, the burden to show that there has been

a repeal by implication lies on the party asserting the same. [See. Lybbe v

Hart, (1883) 29 Ch D 8, p 15.] The presumption is, however, rebutted and

a repeal is inferred by necessary implication when the provisions of the later

Act are so inconsistent with or repugnant to the provisions of the earlier Act

"that the two cannot stand together"[Municipal Council, Palai v TJ

Joseph, AIR 1963 SC 1561]

Moreover, both the acts are not operating on the same field. They may

be complementary to each other.

Absence of an express prohibition is highly relevant for interring that

there is no implied prohibition. The two acts are not inconsistent with each

other.

Mr. Mukherjee has submitted that the Act of 1997 is a general statute

and the Act of 2001 is a special statute. The doctrine of generaila

specialibus non derogant provides that the provisions of a general statute

must yield to those of a special one. However, we are of the view that there is

no conflict between the two statutes and section 3 read with section 12 of

the Act of 2001 have not in any way affected the jurisdiction of the tribunal

to condone delay beyond 30 days arising out of an order passed by the

collector under the Act of 2001. The doctrine of implied repeal was

considered in a fairly recent decision in Pharmacy Council of India v. Dr.

S.K. Toshniwal Educational Trust viderbha Institute of Pharmacy &

Ors., reported at 2021(10) SCC 57 paragraphs 13.3 to 13.6. The

observations relevant for the present purpose are:

"13.3. In the case of D.J. Bahadur (supra), this Court had an occasion to consider the conflict between the general legislation and the special legislation and argument of 'implied repeal'. In the said decision, this Court took note of the following extracts from the Craies on Statute Law [1963 Edn., pp. 376-77]:

49. ***

'The general rule, that prior statutes are held to be repealed by implication by subsequent statutes if the two are repugnant, is said not to apply if the prior

enactment is special and the subsequent enactment is general, the Rule of law being, as stated by Lord Selbourne in Sewards v. Vera Cruz [Mary Sewards v.

Owner of the "Vera Cruz", (1884) 10 AC 59, 68],

'......that where there are general words in a later Act capable of reasonable and sensible application without extending them to subjects specially dealt with by earlier legislation, you are not to hold that earlier and special legislation indirectly repealed, altered, or derogated from merely by force of such general words, without any indication of a particular intention to do so.

There is a well-known Rule which has application to this case, which is that a subsequent general Act does not affect a prior special Act by implication. That this is the law cannot be doubted, and the cases on the subject will be found collected in the third edition of Maxwell is generalia specialibus non derogant -- i.e. general provisions will not abrogate special provisions.' When the legislature has given its attention to a separate subject and made provision for it, the presumption is that a subsequent general enactment is not intended to interfere with the special provision unless it manifests that intention very clearly. Each enactment must be construed in that respect according to its own subject-matter and its own terms.

13.4. In the said decision, it is observed that an 'implied repeal' is the last judicial refuge and unless driven to that conclusion, is rarely resorted to. It is further observed that in determining whether a statute is a special or a general one, the focus must be on the principal subject-matter plus the particular perspective. It is observed that for certain purposes, an Act may be general and for certain other purposes it may be special and we cannot blur distinctions when dealing with finer points of law. It is further observed that what is special or general is wholly a creature of the subject and context and may vary with situation, circumstances and angle of vision. Law is no abstraction but realizes itself in the living setting of actualities. Which is a special provision and which general, depends on the specific problem, the topic for decision, not the broad rubric nor any Rule of thumb.

13.5. In the case of Yakub Abdul Razak Memon (supra), this Court again had an occasion to consider the conflict between the general statue and the special statute. After considering the various decisions of this Court on the point, it is observed and concluded in paragraphs 1518 to 1522 as under:

"1518. The principle that the latter Act would prevail the earlier Act has consistently been held to be subject to the exception that a general provision does not derogate from a special one. It means that where the literal meaning of the general enactment covers a situation for which specific provision is made by another enactment contained in the earlier Act, it would be presumed that the situation was intended to continue to be dealt with by the specific provision rather than the later general one.

1519. The basic Rule that a general provisions should yield to the specific provisions is based on the principle that if two directions are issued by the competent authority, one covering a large number of matters in general and another to only some of them, his intention is that these latter directions should prevail as regards these while as regards all the rest the earlier directions must be given effect to.

1520. It is a settled legal proposition that while passing a special Act, the legislature devotes its entire consideration to a peculiar subject. Therefore, when a general Act is subsequently passed, it is logical to presume that the legislature has not repealed or modified the former special Act unless an inference may be drawn from the language of the special Act itself.

1521. In order to determine whether a statute is special or general one, the court has to take into consideration the principal subject-matter of the statute and the particular perspective for the reason that for certain purposes an Act may be general and for certain other purposes it may be special and such a distinction cannot be blurred.

1522. Thus, where there is inconsistency between the provisions of two statutes and both can be regarded as special in nature, the conflict has to be resolved by reference to the purpose and policy underlying the two enactments and the clear intendment of the legislature conveyed by the language of the relevant provisions therein. (Vide Ram Narain v. Simla Banking and Industrial Co. Ltd. [: AIR 1956 SC 614], J.K. Cotton Spg. & Wvg. Mills Co. Ltd. v. State of U.P. [: AIR 1961 SC 1170], Kumaon Motor Owners' Union Ltd. v. State of U.P. [: AIR 1966 SC 785], Sarwan Singh v. Kasturi Lal [: (1977) 1 SCC 750], U.P. SEB v. Hari Shankar Jain [: (1978) 4 SCC 16: 1978 SCC (L&S) 481], LIC v. D.J. Bahadur [: (1981) 1 SCC 315: 1981 SCC (L&S) 111], Ashoka Mktg. Ltd. v. Punjab National

Bank [: (1990) 4 SCC 406: AIR 1991 SC 855] and T.M.A. Pai Foundation v. State of Karnataka

13.6. In the case of R.S. Raghunath v. State of Karnataka: (1992) 1 SCC 335, this Court was considering the enforceability of special law on the subject in spite of the general law. This Court noted the following paragraph in Maxwell on the Interpretation of Statutes:

"7. .... A general later law does not abrogate an earlier special one by mere implication. Generalia specialibus non derogant, or, in other words, 'where there are general words in a later Act capable of reasonable and sensible application without extending them to subjects specially dealt with by earlier legislation, you are not to hold that earlier and special legislation indirectly repealed, altered, or derogated from merely by force of such general words, without any indication of a particular intention to do so. In such cases it is presumed to have only general cases in view, and not particular cases which have been already otherwise provided for by the special Act."

That, thereafter it is further observed and held as under:

"7. ....... In Maharaja Pratap Singh Bahadur v. Thakur Manmohan Dey [AIR 1966 SC 1931: (1966) 3 SCR 663] applying this principle it is held that general law does not abrogate earlier special law by mere implication. In Eileen Louise Nicolle v. John Winter Nicolle [(1922) 1 AC 284], Lord Phillimore observed as under:

"...... It is no doubt a sound principle of all jurisprudence that a prior particular law is not easily to be held to be abrogated by a posterior law, expressed in general terms and by the apparent generality of its language applicable to and covering a number of cases of which the particular law is but one. This as a matter of jurisprudence, as understood in England, has been laid down in a great number of cases, whether the prior law be an express statute ... or be the underlying common or customary law of the country.

... Where there are general words in a later Act capable of reasonable and sensible application without extending them to subjects specially dealt with by earlier legislation ... that earlier and special legislation is not to be held indirectly repealed, altered or derogated from merely by force of such general

words, without any indication of a particular intention to do so'. [Ed.: Quoting from Vera Cruz case, (1884) 10 AC 59, 68]

In Justiniano Augusto De Piedade Barreto v. Antonio Vicente Da Fonseca [(1979) 3 SCC 47 : AIR 1979 SC 984] this Court observed that a law which is essentially general in nature may contain special provisions on certain matters and in respect of these matters it would be classified as a special law. Therefore unless the special law is abrogated by express repeal or by making provisions which are wholly inconsistent with it, the special law cannot be held to have been abrogated by mere implication. (emphasis supplied)

The object of Section 12 of the Act of 2001 was not to repeal Section

10(2) of the Act of 1997 but merely to constitute a disability to prefer an

appeal beyond thirty days without curtailing the power of the Tribunal to

condone delay in appropriate situation.

If the intention of the legislature were to deny right of appeal beyond 30

days this should have been stated expressly in Section 12 of Act of 2001 or

Section 10(2) of the Act of 1997.

The tribunal in deciding the application for condonation of delay was

conscious of the fact that it is not a court and its power is derived from the

Act of 1997. We have in the earlier part of the order referred to the relevant

observations made by the tribunal in this regard. The co-ordinate Bench in

the first round of litigation has dealt with the said issue and affirmed the

order passed by the tribunal with regard to its jurisdiction. It is interesting

to note that in the Special Leave Petition the observation of the Hon'ble

Supreme Court was with regard to the discretion of the tribunal to condone

the delay and not with regard to the jurisdiction to decide the application for

condonation of delay. The SLP was dismissed. The exercise of discretion is

part of jurisdiction and an authority can only exercise its power of discretion

provided it is vested with the authority to decide the matter one way or the

other. In our respectful reading of the order of the Hon'ble Supreme Court it

has not nullified the order of the Co-ordinate Bench. It has only directed

the tribunal to decide on the question of discretion to condone the delay if it

is raised by the petitioner. However, without being pedantic we have

relooked at the power and jurisdiction of the Tribunal to condone the delay.

We are of the view that Section 12 of the Act of 2001 has by necessary

implication amended the period to prefer an appeal against the order of the

Controller and does not in any way whittle down the power of the tribunal to

consider a prayer for condonation of delay if it is filed beyond the period of

30 days. There is no clear indication to that effect. The said two privisions

are to be read harmoniously. It would also be anomalous that for orders

passed by authorities in respect of all other "Specified Acts" the Tribunal

would have jurisdiction to decide an application for condonation of delay

and for an order of the Controller the Tribunal would have no jurisdiction at

all to condone delay. This is clearly not the intention of the Legislature.

In other words the right to prefer an appeal and/or application by a

person aggrieved by an order of a Controller under the Act of 2001 would be

30 days from the date of the order whereas the statutory period for

preferring an appeal and/or application by an aggrieved party would be 60

days in respect of any other matter covered under Section 6 of the Act of

1997. The legislature was conscious of the provision of appeal under

Section 10 of the Act of 1997. If the legislature were of the view that any

person aggrieved by the order of the controller would not be able to prefer an

appeal beyond 30 days then they would have brought suitable amendment

in Section 12 of the Act of 2001 or Section 10 of the Act of 1997. There is no

substantive and material difference to an order passed under any specified

Act when it comes to the matter of challenge Section 10(1) of the Act of 1997

does not make any distinction between the orders covered under Section

6(a) to 6(c). The nature and complexion of the order for the purpose of

challenge has remained the same. Moreover the Tribunals would continue to

act as the only courts of first instance in respect of the areas of law for

which they have been constituted [See. L. Chandra Kumar (supra)

paragraph 93].

The legislature has amended Section 2(r) of the Act of 1997 to include

the Act of 2001 in the definition of "Specified Acts" with effect from 1st

March, 2005. Once the tribunal is vested with the power to condone the

delay on sufficient cause being shown the said power in our view cannot be

taken away while deciding an appeal from the order of the controller under

the Act of 2001 without an express provision to that effect in the Act of

1997. The tribunal is clearly vested with the power to condone the delay

and accordingly, the principles of section 5 of the Limitation Act would be

applicable in deciding the application for condonation of delay. The

legislature was conscious of the fact that under the Act of 1997 the tribunal

has been given the power to condone the delay and unless there is a specific

provision taking away that power we are unable to accept the contention of

the writ petitioner that such power has been impliedly taken away by reason

of Sections 3 and 12 of the Act of 2001. We accept the submission of Mr.

Reetabrato Mitra, learned Advocate for the respondent in this regard. A right

of appeal is a valuable right and any interpretation that would defeat such

right when there are existing provisions to that effect cannot be easily

inferred. The intention of the legislature has to be gathered from the object,

reasons and purpose of the two statutes. There is no conflict between the

two statutes. In our view the time for a party to prefer an appeal from the

order of the Controller is reduced to 30 days as opposed to 60 days that are

available for orders passed by an authority under other "Specified Acts"

without disturbing the power of the tribunal to exercise its discretion to

condone the delay. It has not been argued before us that the discretion was

wrongly applied by the tribunal. The issue raised before the tribunal was its

jurisdiction to decide an application for condonation of delay and once it is

held that it has the power to condone the delay the question of discretion

comes.

The legislature never intended to denude the power of the Tribunal to

condone the delay as the tribunal would act as the court of first instance. It

was for this reason the tribunal was vested with the power to condone delay.

This is clearly discernible from the objects and reasons of the Act of 1997. If

no such power is vested or interpreted in the manner as argued by Mr.

Mukherjee it would make the appellate provision otiose. The legislature was

of the clear view that the Tribunal would have appellate jurisdiction over

orders passed by authorities under the specified Acts as a court of first

instance. It has never intended to attach finality to an order passed by an

appropriate authority under the Specified Act after a specific time or period

and for that purpose vested the tribunal with the jurisdiction to condone

delay on fulfilment of certain conditions.

No argument has been advanced before us that the respondents have

failed to offer sufficient explanation for condonation of delay and the

Tribunal has arbitrarily exercised such discretion.

Under such circumstances the writ application stands dismissed.

However, there shall be no order as to costs.

     I agree                                     (Soumen Sen, J.)


     (Uday Kumar, J.)