Kedarnath Kundu vs Building Tribunal, Corporation of Calcutta

Anil K. Sen and B.C. Ray, JJ.—An order dated August 21, 1968, passed by the Building Tribunal, Corporation of Calcutta, rejecting an application by the Appellant-Petitioner u/s 5 of the Limitation Act and disposing of his appeal preferred u/s 414A of the Calcutta Municipal Act, 1951, as barred by limitation, is the subject-matter of challenge in this Rule. The Appellant before the Tribunal is the Petitioner before us.

For having made some alleged construction at premises No. 2 Mahatma Gandhi Road (referred to as premises No. 3 Mahatma Gandhi Road in the order of the Tribunal), Calcutta, without sanction and in deviation from the building sanction plan a proceeding u/s 414 of the said Act was initiated against the Appellant on a notice dated July 26, 1967. On September 26, 1967, the Commissioner passed at conditional order for demolition. One of the conditions imposed for avoidance of the demolition was to pay a sum of Rs. 60,058 on October 20, 1967, this order was communicated to the Petitioner. On November 13, 1967, the Petitioner on the advice of a lawyer applied for reconsideration of the order before the Commissioner pleading his inability to pay such a huge sum as imposed by the Commissioner by way of condition incorporated in the order. Such a prayer was rejected by the Commissioner on April 25, 1968, but according to the Petitioner the order was communicated to him only on May 24, 1968. The Petitioner then filed the above appeal before the Tribunal on June 24, 1968, with an application u/s 5 of the Limitation Act for condoning the delay in filing the appeal. It is not in dispute that the limitation prescribed for such an appeal is 30 days from the date of the order and that the provisions of Section 5 of the Limitation Act is applicable. In making out sufficient cause for the condonation prayed for, the Petitioner sought for deduction of three periods in calculating time for filing the appeal on threefold grounds, namely, (i) the absence of knowledge of the order from September 26, 1967, to October 20, 1967, (ii) the time spent in bona fide prosecuting a review from November 13, 1967, to May 24, 1968 and (iii) the time lost due to illness incapacitating him from preferring the appeal from May 26, 1968, to June 21, 1968.

The Tribunal rejected this application holding that the Petitioner had failed to make out any sufficient cause. According to the Tribunal the application for review can hardly be considered as such and the Tribunal further doubted whether the Commissioner had any power to review his own orders in law. It held that if the review was within the powers of the Commissioner the proceeding could not be considered to be a wrong proceeding entitling the Petitioner to claim exclusion of time spent for such proceeding by way of sufficient cause. Alternatively, the Tribunal held that if it be held to be a wrong proceeding, the time spent for such a proceeding could be excluded only in proper circumstances, but no such case had been made out. Lastly, the Tribunal held that even if the entire period from November 13, 1967, to May 24, 1968, be excluded yet the Petitioner not having filed the appeal within six days from May 24, 1968, which was left with him but having filed the appeal 31 days later, the appeal must be held to be clearly barred by limitation. The Tribunal refused to accept the explanation furnished by the Petitioner in respect of this last period and the Petitioner''s plea of illness as sufficient cause because, according to the Tribunal, if the Petitioner could write letters to the Commissioner seeking further reconsideration of his order during this period he could have as well filed the appeal. This is the decision which is the subject-matter of challenge before us in this Rule.

Mr. Dutt has assailed the decision on two points. He has firstly contended that the Tribunal was proceeding on an erroneous misconception of law in thinking that prosecuting the review proceeding cannot be considered as sufficient cause for excluding the period spent in such proceeding. According to Mr. Dutt, the whole test should be as to whether the Petitioner was proceeding with such a proceeding in good faith or not which the Tribunal failed to consider. Secondly, Mr. Dutt has contended that in support of his plea of illness from May 26, 1968, to June 21, 1968, the Petitioner had filed a medical certificate and had also applied for an opportunity being given to him to adduce evidence by examining the physician, but the Tribunal acted irregularly in the exercise of its judicial discretion in neither considering the medical certificate nor allowing the prayer for adducing evidence and on the other hand, rejecting the plea on irrelevant consideration.

The Rule is being contested by the Corporation and Mrs. Sengupta appearing on its behalf has tried to support the order of the Tribunal.

In our considered opinion the points raised by Mr. Dutt have ample substance and the impugned order of the Tribunal is clearly unsustainable in law. Of the three periods sought to be excluded by the Appellant Petitioner, the first one should undisputedly be excluded as it was not the case of the Corporation, that the Commissioner passed the order under challenge in the appeal, in the presence of the parties and such an order was communicated only on October 20, 1967.

So far as the second period is concerned, the same also should be excluded on the authority of the Privy Council''s decision in the case of Brij Indar Singh v. Kanshi Ram L.R. 44 I.A. 218 and the decision of this Court in the case of Indra Mohon Kapur v. Corporation of Calcutta ILR (1969) Cal. 225. It is now a settled law that time spent in a wrong proceeding taken in good faith may be deducted in calculating the limitation for an appeal. Here the Petitioner''s case that he was prosecuting the review proceeding bona fide on the advice of a lawyer has not been challenged or disputed by the Corporation and we are inclined to accept the said case. We are unable to agree with the Tribunal that the application in question cannot be considered to be a genuine application for review. Indeed, by the application the Petitioner did not call upon the Commissioner to review his conclusion that the construction was unauthorised, but he prayed for reconsideration of the amount directed to be paid as a condition precedent to avoid the demolition. There might have been an appeal to the mercy of the Commissioner, but such mercy was invoked on reconsideration and review of his earlier order imposing the amount by way of penalty. Had that prayer been allowed the Petitioner might not have gone for an appeal altogether. Such an application in our opinion can well be considered to be an application for review when there is no specific procedure provided for presenting such an application. The Tribunal may be right in thinking that in law no review by the Commissioner of his own order is admissible. But that makes no difference. So long as the Petitioner satisfies the Tribunal that he honestly believed that such a remedy was available to him and he was pursuing the same honestly, though it may subsequently transpire to be wrong, he is entitled to claim exclusion of the period spent for prosecuting such a proceeding.

So far as the third period is concerned there has been a procedural irregularity affecting merits. It is true that unless the Petitioner satisfies the Tribunal that due to illness he was incapacitated in preferring the appeal during the period from May 26, 1968, to June 21, 1968, as claimed by him he cannot be said to have made out any sufficient cause for exclusion of his period and condonation of the resultant delay. Rut, to do so the Petitioner filed a medical certificate and prayed for permission to adduce evidence. The Tribunal did not consider either of these two things. On the other hand, the Tribunal proceeded to observe that when during the period the Petitioner was writing letters to the Commissioner seeking reconsideration of his orders, illness cannot be a genuine ground. In our opinion, however, the two things are not so inconsistent that they cannot subsist at the same time. Filing of an appeal involves some more endeavour and enterprise than what is needed for writing letters, so that an illness which does not prevent the latter may still prevent the earlier. In any event, the Petitioner wanted to adduce evidence on the point and the Tribunal could not have rejected the case made by the Petitioner in this respect without considering such a prayer made on behalf of the Petitioner.

In the result this application succeeds and the Rule is made absolute. The impugned order is set aside. The appeal and the application u/s 5 of the Limitation Act ate sent back to the Tribunal for hearing in accordance with law. In so doing and in calculating the limitation of the appeal the Tribunal is directed to deduct the two periods from September 26, 1967, to October 20, 1967 and November 13, 1967, to May 11, 1968, for reasons given by us hereinbefore and further consider on evidence as to whether the Petitioner is entitled to get exclusion of the third period referred to hereinbefore or not.

There will be no order as to costs.