Hirak Ranjan Bera & Ors vs State Of West Bengal & Ors

This is the second round of writ litigation before this Court.

In the first round of writ litigation (W.P.L.R.T. 2 of 2019), an order dated 27th August, 2018 passed by the 1st Bench of the West Bengal Land Reforms and Tenancy Tribunal was under challenge. Such order had granted a prayer made by the learned counsel for the petitioners to take necessary steps for condonation of delay in presentation of the original application before the tribunal [O.A. 3559 of 2017 (LRTT)]. The challenge to the order dated 27th August, 2018 was not accepted by a coordinate Bench of this Court on the ground that the petitioners had applied for modification of the order dated 27th August, 2018 (M.A. 1002 of 2018), which was yet to be decided. W.P.L.R.T. 2 of 2019 was disposed of with a request to the tribunal to dispose of M.A. 1002 of 2018 as expeditiously as possible. The 1st Bench of the tribunal considered M.A. 1002 of 2018 on 20th February, 2019. For the reasons recorded in such order, M.A. 1002 of 2018 was dismissed on contest and as per the previous order dated 27th August, 2018, O.A. 3559 of 2017 was directed to be listed under the heading 'Motion' on 18th April, 2019. The order dated 20th February, 2019 is the subject matter of challenge in this writ petition dated 15th July, 2019.

In paragraph 20 of the writ petition, it has been averred that by an order dated 18th April, 2009, the original application has been directed to be listed on 16th March, 2020.

The effect of the order dated 20th February, 2019 dismissing M.A. 1002 of 2018 is that the order dated 27th August, 2018 granting liberty to the petitioners to take steps for condonation of delay in presentation of the original application survives and, therefore, without an application being filed for such purpose, the original application may not be entertained. From the tenor of the orders dated 27th August, 2018 and 20th February, 2019, it appears to us that the tribunal was of the view that it was the petitioners' counsel who had made a prayer for taking steps for condonation of delay and a contention to the contrary was not accepted.

Let us consider whether having regard to the contents of the original application as well as the West Bengal Land Reforms and Tenancy Tribunal Act as well as the rules framed thereunder, the petitioners are under any obligation to file a separate application for condonation of delay in presentation of the original application.

Mr. Deb, learned advocate appearing for the petitioners has drawn our attention to paragraph 5 of the original application. Paragraph 5 of the original application reads as follows :-

"5. LIMITATION

That the applicants declare that the instant application is filed beyond the Limitation period prescribed U/S 10 of the West Bengal Land and Land Reforms and Tenancy Tribunal Act, 1997 and the Rules framed thereunder and that too due to inadvertence on the part of the Ld. Advocate for the applicants, the reasons are as follows :-

The Ld. Advocate for the applicants at the time of drafting of the Original Application being O.A. No. 1466 of 2017 (LRTT) has inadvertently failed to look into matter of the cause title of the order sheets which contains an analogous order dated 07.03.2017 under challenge purportedly passed in Two Appeals i.e. one L.R. Appeal no. 143(T)/2015 and another L.R. Appeal no. 184(T)/2016.

As a matter of fact, when the Original Application no. 1466 of 2017 (LRTT) was called on 27.10.2017 for admission under Motion, the Ld. 1st Bench comprising of the Hon'ble Justice Sankar Acharya, Chairman and the Hon'ble Administrative Member Liakat Ali was pleased point out that two separate Original Application are to be filed, for which the said O.A. matter i.e. O.A. No. 1466 of 2017 (LRTT) was adjourned and the matter to appear on 27.08.2018. In course of submissions it was pointed out that the O.A. No. 1466 of 2017 (LRTT) will appear and be heard out analogously with the instant O.A. matter to be filed separately. Since the order impugned was passed in two Appeals. By this time 253 days have expired for no willful laches on the part of the Learned Advocate, nor the applicants. Viewed in such circumstances, the said 253 days delay may be kindly be condoned, otherwise the applicants will be seriously prejudiced."

Based thereon, it has been contended before us that the tribunal ought to have looked into the substance of the original application and considered whether sufficient cause had been shown for condonation of delay or not.

Section 10 of the West Bengal Land Reforms and Tenancy Tribunal Act, 1997 (hereafter the 1997 Act) has the marginal note 'Application to Tribunal'. Sub-section (2) thereof reads as follows :-

"10.(1) * * *

(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.

***"

(emphasis supplied)

The word 'prescribed' in sub-section (2) of Section 10 has been defined in clause (p) of Section 2 of the 1997 Act as follows:-

"Prescribed" means prescribed by rules made under this Act.

The rules framed in exercise of power conferred by Section 20 of the 1997 Act, however, does not provide any particular form in which an application under Section 6 or Section 10 of the 1997 Act is to be filed. Rule 3 refers to the particulars that an application before the tribunal must contain. It is, however, one thing to say that an application should contain certain particulars and it is yet another thing that an application must be filed in a form to be prescribed by the rules.

We have gathered from Mr. Deb and Mr. De, learned Additional Government Pleader appearing for the respondents that applications are being filed before the tribunal in a particular format of the nature which has been used by the petitioners while filing O.A. 3559 of 2017 before the tribunal. Such format is available from the office of the tribunal.

Mr. Deb has placed reliance on a decision of a learned Judge of the Punjab High Court reported in AIR 1959 Punjab 646 (Firm Kaura Mal Bishan Dass Vs. Firm Mathra Dass Atma Ram, Ahmedabad and others). Although it was a case dealing with Section 5 of the Limitation Act, 1908, it was held that the discretion under Section 5 has to be a judicial discretion and not an arbitrary one; merely because there was no written application filed by the appellant is hardly a sufficient ground for refusing him the relief, if he is otherwise entitled to it. The decision refers to a Division Bench decision of the Allahabad High Court reported in AIR 1936 All 666 (Mt. Kulsoomun Nissa Vs. Noor Mohammad) wherein the High Court was of the view that the Court below had erred in the exercise of its jurisdiction by refusing extension of time on the ground that no formal application had been made in that behalf.

A coordinate Bench of this Court while disposing of W.P.L.R.T. 81 of 2018 (Sri Dipak Bhattacharya Vs. The State of West Bengal & Ors.) set aside the order of the tribunal requiring the original applicant to file a separate application for interim relief, considering that the original application itself contained the prayer for interim relief.

Since there is no particular form prescribed by the rules framed under the Act coupled with the fact that the petitioners themselves had stated in the original application that the same was barred by limitation and they had prayed for condonation of delay in paragraph 5, we are of the considered opinion that the petitioners need not file any separate application; however, a prayer for condonation of delay shall be incorporated in paragraph 8 of the original application and upon its incorporation within three weeks, the same shall be considered on the basis of the averments made in paragraph 5 thereof.

If any of the respondents wishes to file any affidavit-in-opposition, the same may be filed within 30th November, 2019; reply thereto, if any, may be filed by 31st January, 2020.

The tribunal shall proceed to consider the prayer for condonation of delay first on 16th March, 2020 and if such prayer is allowed, it shall proceed to consider the original application on merits.

The writ petition stands disposed of. There shall, however, be no order as to costs.

Urgent photostat certified copy of this order, if applied for, be given to the parties as expeditiously as possible.