State of West Bengal Vs.
Administrator, Howrah Municipality & Ors [1971] INSC 346 (14 December 1971)
VAIDYIALINGAM, C.A.
VAIDYIALINGAM, C.A.
MATHEW, KUTTYIL KURIEN
CITATION: 1972 AIR 749 1972 SCR (2) 874 1972
SCC (1) 366
CITATOR INFO:
F 1972 SC1973 (3) R 1978 SC 335 (12) F 1978
SC 537 (8) RF 1979 SC1666 (5)
ACT:
Limitation Act, 1963 , s. 5-Sufficient cause'
and necessary steps's', scope of-Party acting on advice of legal adviserIf sufficient
cause.
HEADNOTE:
In certain land acquisition references the
District Judge passed an order in 1963 awarding compensation to be paid by the
appellant to the first respondent. When the first respondent levied execution
the appellant filed objections on Aug" 27, 1964, under s. 47, Civil
Procedure Code, but the objection petitions were dismissed in January 1965. On
March 4, 1965, it was discovered that no appeal was filed against the. Order of
the district judge awarding compensation. Thereafter the appellant took
diligent and active steps to challenge the decision of.the district judge. On
the advice of the legal adviser an application under Art. 227 was filed on May
17, 1965 and on July 4, 1965 appeals were filed against the decision of the
district judge with an application under s. 5 of the Limitation Act 1963,
praying that the delay in filing the appeal may be excused. In that application
after stating the above facts it was also severed that the delay was caused by
the omission and neglect of the Government Pleader to advise the appellant. The
High Court held that the appellant had not sufficiently explained the delay
during the period between August 27, 1964 and July 3, 1965 but gave no reasons
for its conclusion.
Allowing the appeal to this Court,
HELD : It is not possible to lay down
precisely as to what facts or matters would constitute 'sufficient cause' under
s. 5 of the Limitation Act. But those words should be liberally construed so as
to advance substantial justice when no negligence or any inaction or want of
bona fides is imputable to a party; that is, the delay in filing an.
appeal should not have been for reasons which
indicate the party's negligence in not taking necessary steps which he could
have or should have taken. What would be 'such necessary steps will again
depend upon the circumstances of a particular case. The High Court in the
present case was certainly not bound to accept readily whatever has been stated
on behalf of the State to explain the delay. But, it was the duty of the High
Court to have scrutinised the reasons given by the State and considered the
same on merits. The circumstance that the appellant discovered that no appeal
was filed only in March 1965 and that thereafter diligent steps were taken by
filing the application under Art. 227 and the appeal show that it is not
possible to impute to the appellant want of bona fides or such inaction.
or negligence as would deprive them of the
protection of s.5 of the Limitation Act. Even if filing the application under
Act. 227 was not a proper step, if a party had acted in a particular manner on
the wrong advice given by his legal adviser he cannot be held guilty of
negligence so as to dissentitle him to plead 'sufficient cause' under s. 5 of
the Limitation Act. [883 B-D, H; 888 E-G; 889 B-C] 875 Ramlal, Motilal and
Chhotelal v. Rewa Coalfields Ltd. [1962] 2 S.C.R. 762. Shakuntala Devi Jain v.
Kuntal Kumari & ors.
[1969] 1 S.C.R. 1006 Ran, Narain Joshi v.
Parmeshwar Narain Mahta & Ors., 30 I.A. 20 and Kunwar Rajendra Singh v. Rai
Rajeshwar Bali & Ors., A.I.R. 1937 276, referred to.
CIVIL APPELLATE JURISDICTION: Civil Appeals
Nos. 821 to 823 of 1968.
Appeals by special leave from the order dated
August 18, 1966 of the Calcutta High Court in Civil Rules Nos. 1827(F) to
1829(F) of 1966.
Jagadish Swarup' Solicitor-General of India,
P. Chatterjee and P. K. Chakravarti, for the appellant (in all the appeals).
D. Mookherjee and S. C. Majumdar, for
respondent No. 1 (in C.As. Nos. 821 and 823 of 1968).
D. N. Mukherjee and G. K. Deb, for
respondents Nos. 2 to 4 (in C.As. Nos. 821, and 823 of 1968) and the
respondents (in C.A. No. 882 of 1968).
The Judgment of the Court was delivered by
Vaidiyalingam, J. These three appeals, by special leave, are directed against
the common judgment and order dated August 18, 1966 of the Calcutta High Court
dismissing Civil Rule Nos 827(F) to 829(F) of 1966, which were applications
'filed by the appellant under s. 5 of the Limitation Act, 1963, to excuse the
delay in filing three appeals against the decision of the Additional District
Judge, Howrah, dated June 27, 1963, in three Land Acquisition Reference Cases.
In this judgment we are referring the ranks
of the.parties AS in Civil Appeal No. 821 of 1968. "Thee first respondent
is the Howrah Municipality. The second respondent had taken a lease of about 21
bighas 9 kotas of land from the first respondent and respondents Nos. 3 and 4
have taken a sublease from the second respondent of the said area.
The circumstances leading up to the order of
the High Court may be stated : About 41 bighas of land situated in Salkia it
Howrah were acquired by the Government of West Bengal for the purpose of
utilising the same as market place at Howrah.
After, the acquisition, the entire land was
placed at the disposal of the first respondent the Municipality, Howrah, on the
specific condition that the said land was to be used for establishing a public
market and that it would not be used for any other purpose without the
permission of the Government. According to the appellant them was also an
agreement that the land would be resumed in the event of a public market not being
established within a reasonable time.
877 the appellant. On January 25, 1960, the
suit filed by the second respondent, namely, T.S..No. 15 of 1999 was decreed
and the suit, No. 10 of 1959 filed by the Municipality was dismissed. It is,
claimed by the appellant that T. S. No. 34 of 1961 for possession of 4 1 bighas
was decreed on July 21, 196 1. We are particularly referring, to this aspect
'because considerable argument was advanced before us, particularly on behalf
of the respondents Nos. 2 to 4 regarding the binding nature of thisjudgment.
Mr. D. N. Mukherji, learned counsel for
respondents Nos. 2 to 4 urged that as the name of respondent No. 2 had been
struck off from the array of defendants in the; said suit, the decree therein
is not binding either on the second respondent or% his sub-lessees, respondents
Nos. 3 and 4.
According to him, even on the basis that the
decree isbinding on the Municipality, that decree wilt have no effect so far as
the properties which have been sub-leased. by the Municipality in favour of
respondent No. 2, are concerned.
On the other hand, it was the contention of
the learned Solicitor' General that the decree in the suit clearly shows that
the' appellant was entitled to recover the entire area of' 41 big has And odd with
included the portion leased out by the, Municipality to respondent No. 2. Once
the right of the Government to resume the entire area was recognised by the,
Court, the second respondent has no further tight on the basis of the lease
granted in his favour by the first respondent and that the position is not in
any manner altered by the second respondent having. ceased to be in the.: array
of attendants. In the said suit. It is not necessary for us to go' into all
these aspects more especially when it is brought to our notice that the 1st
respondent has filed an appeal against this decree,, which is pending in the
High Court as First Appeal No. 135 of 1963.
On June 27,1963, the Additional District
Judge, Howrah, decided the three Land Acquisition References and made the
appellant liable to pay compensation of the sum of about Rs.
16,00,000. The decrees in these references
were signed on September 21 1963. According to, the appellant, when in the
title suit No, 34 of. 1961, which has 'been decreed on July"21, 1961, it
has being held that the State is entitled to recover possession of the entire
area, the Award. made in the Land Acquisition Cases on June 27, 1963, in favour
of respondents Nos. 1 to 4 is 'illegal and without jurisdiction as the
respondents are mere trespassers, who have no right, title or interest in the lands
concerned. It is the further averment of the State that in: view of the
enormous amount awarded in the Land Acquisition References, the;
first respondent is purposely delaying taking
further steps in prosecution of first Appeal No. 135 of 1963. This attitude,
the State avers, is due to the fact that if the Municipality is able to
withdraw the huge amount of compensation awarded, it will have no further
interest in prosecuting the appeal against the decree in Title Suit No.
34 of 1961.
878 The second respondent on the basis of the
Award, levied execution and the appellant filed objection on August 27, 1964
under s. 47 C.P.C. on the ground that the Award is not executable in view of
the decree in Title Suit No. 34 of 1961. According to the appellant, the
Department of Land Acquisition at Howrah did not known about the proceedings in
Title Suit No. 34 of 1961 as the latter related ' to another Department of the
Government. When the objections filed regarding the executability of the Award
were rejected, the matter was referred to the Legal Remembrancer, West Bengal,
for taking necessary action. It was on March 4, 1965, that it was discovered
that the judgment of the Additional District Judge in the three Land
Acquisition References had not been appealed against. As the reasons for the
appeals not being filed, were not clear, they were investigated by the Legal
Adviser of the State. On or about April 15, 1965, the State Lawyer in the High
Court advised the State to move the High Court under Art. 227 of the
Constitution to quash the judgment of the Addl. District Judge dated June 27,
1963 in the three Land Acquisition References, as the time for filing appeals
had expired.
Accordingly writ petitions under Art. 227 of
the Constitution west filed in the High Court on May 17, 1965 to quash the
judgment of the Addl. District Judge in the Land Acquisition References. On the
same day the learned Judges while declining to issue a Rule, however, granted stay
of execution of the Award for one mouth with a direction that appeals should be
filed with proper applications against the Award in Miscellaneous Cases Nos. 21
40 of 1958 and 13 of 1959 within a month. The learned Judges granted further
two weeks' time on June 17, 1965 and also extended the period of stay by two
weeks. A further order was passed on July 1, 1965 to obtain the necessary
orders of stay regarding the execution of the Award from the appropriate Beach
dealing with the appeals. Three appeals against the three Land Acquisition
References Nos. 21 and 40 of 1958 and 13 of 1959 were filed in the High Court
on July 3, 1965.
The appeals on being returned by the High
Court Office on July 5, 1965 with the endorsement that the is a delay of one
year seven months and twenty two days, were represented on July 7, 1965 with
the necessary, applications under s. 5 of the Limitation Act, 1963. All the
above facts were set out in the applications for excusing the delay and praying
that impartable loss and injury would be caused to the, State, if nearly
16,00,000 have to be paid to persons who have been held to be in wrongful
possession of the land and against whom a decree in Title Suit No. 34 of 1961
for eviction had been passed on July 21,1961. It was further submitted that in
view of the various matters mentioned in the applications filed under s. 5 of
the Limitation Act, sufficient cause has been shown for excusing the delay in
filing the appeals.
879 The High Court on July 7, 1965 issued
notice to the respondents to show cause why the delay should not be condoned
and the appeals taken on file. After the issue of the notice, the appellant,
filed an additional affidavit on January 18, 1966 referring to the: relevant
provisions of the Legal Remembrancer Manual in West Bengal regarding the
procedure to be followed by its Legal Officer& in cases where appeals have
to be filed. The State also referred to the letters written by the Collector of
Howrah on December 18,1965 and January 5, 1966 to the Advocate, who was at the
material time Government Pleader asking for his explanation as to why' the
Government was not advised by him regarding the filing of appeals against the
Land Acquisition References.
On January-' 21, 1966, the High Court passed
the following order "On the present materials before us we are not
satisfied that sufficient cause has been made out to explain the delay of over
a year and a half in filing of the connected appeals. Mr. Chakrabarty expressed
his inability to produce better materials on information, at present available
to him. In the circumstances, we have no option but to discharge these Rules.
Liberty is, however, given to the petitioner
to apply for reconsideration or modification of this order on further and
better materials.
There will be no order as to costs in any of
these Rules." Later on, the appellant received a reply dated January 29,
1966 from their Ex. Government Pleader and filed the three applications in
question requesting the High Court to reconsider its previous order dated
January 21, 1966 and to excuse the delay under s. 5 of the Limitation Act in
filing the three appeals.
The High Court, on June 3, 1966 issued notice
to the respondents. After hearing the respondents, the High Court assesed by
the' common order in question on August 18, 1966 dismissing the applications
filed by the appellant for excusing the delay under s. 5 of the Limitation Act
in filing the three appeals. In the order it is stated that though the decrees,
under appeal were passed as early as September 21, 1963, the appeals were filed
along with the applications under s. 5 of the Limitation Act only on July 3,
1965 the interval being over one year and nine months.
The High Court, no doubt, states that there
were previous proceedings, but it is not necessary to refer to them.
Ultimately, the High Court in its brief order
is of the view that the State has not sufficiently explained the delay during
the period August 27, 1964 and July 3, 1965. The former is the dam on which the
State filed under s. 47 C.P.C. to the executability of the Land Acquisition 880
Award, in view of the decree in Title-Suit No. 34 of 1961.
Regarding the period anterior to August 27,
1964, so far as we could see the High Court. does not put it against the
appellant and in fact it does not seem to give much importance to that period.
On the other hand,, the view of the High Court is.: "These applications
must fail for the 1 unexplained delay between the two dates, August 27, 1964
and July 3, 1965." Ultimately, the learned Judges dismissed-the
application for excusing the delay..
There is a further direction given by the
High Court that the writ petitions filed by the appellant under Art.' 227 of
Constitution on May 17., 1965 be taken up by 'the 'appropriate Bench for
disposal. There is also further direction that the order of stay of execution
of the Award will continue for a fortnight with liberty to the State to apply
for its continuance before the; Bench, which is to take up the writ petitions.
It may be mentioned at this stage that the
writ petitions filed under Art. 227 on May 17, 1965 and in which stay had been
granted and which stay was 'continued till the disposal of the applications
filed under s. was actually withdrawn only on September 28, 1966 as having
become infructuous.
The learned Solicitor General, on behalf of
the appellant rather strenuously urged that it was the duty of the High Court
to consider on the materials, placed before it whether sufficient cause for
excusing the delay had been made out by the appellant. Though the decision in
the Land Acquisition Cases was given on June 27, 1963, and the award signed on
September-21 1963,the High Court" as prepared to proceed on, the basis, in
view of the averment made in the a ffidavit of the appellant that, the, delay
between September 2 1, 1963 and August 27, 1964 has been properly explained. At
any rate, the Solicitor General pointed out the High Court has not put that
period against the appellant. On the other hand, the High Court has held that
there is an unexplained delay from August 27, 1964, the date on which the State
filed objections under s. 47 C.P.C. to the execution of the decree under the
Award and July 3, 1965, the date on which the appeals were filed, and on this
ground the applications have been dismisissed.
The learned Solicitor General further pointed
out that there is no proper consideration of the various matters, referred to
in the affidavit, which according to him have not been controverted by the
respondents. He has further urged that the judicial power and discretion to
excuse the delay given to the Courts under s. 5 of the Limitation Act, should
be exercised to advance substantial justice, ,especially when the appellants
has not been held. guilty of any negligence or inaction. The learned Solicitor
General further pointed.
out that the High Court has not disbelieved
any of the facts 881 mentioned in the affidavits. filed on behalf of the
appellant, regarding the circumstances under which the appeals came to be filed
beyond the period 4 limitation.
On the other hand, Mr. D. Mukherji, learned
counsel for the first respondent, Howrah Municipality, urged that the question
whether a party has made out a sufficient cause for excusing the delay in
filing the appeals is a pure question of' fact and it was. within the exclusive
jurisdiction of the High Court to decide it one way or the other. In this case,
the counsel pointed out, that after a consideration of the reasons given by the
appellant, the High Court has come to the conclusion that the delay during the
period August 27, 1964 and July 3, 1965 has not been properly accounted for In
fact, the counsel pointed out the appellant should have been called upon to
explain the delay even from September 21, 1963 and the High Court has been very
considerate in reducing the period upto August 27, 1964.
Mr. Mukherji further pointed out that the
period of limitation applicable both to a private litigant as well as to the
State is the same and the same principles are applicable to both the parties in
considering whether sufficient cause has been shown for excusing the delay in
filing an appeal beyond the period of limitation. Mr. Mukherji further urged
that the same Government Pleader was appearing on behalf of the State both in
the title suit No. 34 of 1961 and in the Land Acquisition Proceedings and
therefore it is idle for the State to contend that it was not aware that an appeal
had not been filed against the decision in Land Acquisition References till
March 4, 1965.
The fact that one Department may be dealing
with Land Acquisition matters and another Department may be dealing with
Ordinary Civil Suits, is not a sufficient excuse which will be accepted by the
courts to justify an application under s. 5 of the Limitation Act.
Mr. D. N. Mukherji, learned counsel for the
respondents Nos. 2 to 4, in particular, attempted to argue about the binding
nature against his clients of the decree obtained by the State against the
Municipality in Title Suit No. 34 of 1961. He also relied on the decision in
the said suit to controvert the averment of the State that the Municipality has
been held to be a trespasser without any rights in the land in question.
The learned Solicitor General has also
referred: us to the various aspects dealt within the said judgment. According:
to him the effect of the said judgment is
that the respondents are all trespassers having no rights' in. the land and
therefore they are not entitled to receive the compensation, amount. He. has
also stated that if the decrees in the. Land Acquisition Reference Cases are
allowed to stand, the respondents, who are in possession as trespassers without
any title or right in the properties, will have to be paid by the State nearly
about Rs 16,00,000 882 We have only referred above to the various matters
placed before us. We expressed no opinion whatsoever regarding those aspects.
As and when occasion arises, it is open to the parties concerned to raise any
contention that may be available to them in 'law or on facts.
We have already referred to the fact that on
the first occasion when the High Court dealt with the applications under s. 5
of the Limitation Act it had passed an order on January 21, 1966, Which we have
extracted in the earlier part of this judgment. That itself was a brief order.
But that order clearly indicates that the learned Judges were not inclined to
close the proceedings once and for all. In fact, they have given a further
opportunity to the State to move for reconsideration of the order or
modification of the order on better materials.
The order dated August 18, 1966,
unfortunately, is very brief and does not give the reasons as to why the High
Court has come to the conclusion that the delay between August 27, 1964 and
July 3, 1965 has not been explained by the appellant. There is only a brief
statement to the effect that on the first on the above dates, i.e. August 27,
1964, the appellant filed objections under s. 47 C.P.C.
to the execution of the decree under Award.
Though the respondents urged that the delay is really from September 21, 1963,
we are not inclined to accept that contention, especially when the High Court
itself has not given any importance to the period prior to August 27, 1964. In
view of the nature of the order passed 'by the High Court without an investigation
into the facts and without giving reasons, we would have normally remanded the
proceedings to the High Court for a fresh consideration. But we are not
adopting that procedure in view of the fact that considerable time has already
elapsed and if the matter is remanded, it will give rise again to a further
challenge by way of appeal to this Court, whatever the decision of the High
Court may be.
Hence, we proceed to consider the matter and
adjudicate upon the question Whether the High Court was justified in rejecting
the applications filed by the appellant under s. 5 of the Limitation Act.
One feature that strikes us on a perusal of
the judgment of the High Court is, that there is absolutely no indication that
it has disbelieved any of the averments made in the affidavits filed on behalf
of the appellant. If the High Court had considered the reasons given by the
appellant, and rejected them as false or if the High ,Court had hold that there
has been such total inaction or negligence on the part of the appellant as
would deprive the State of the protection under s. 5 of the Limitation Act, the
position would be different. We do not have the benefit of the views of the
High 883 Court, one way or the other, on these aspects. At any rate, it has not
held that the appellant is guilty of negligence or that the applications lack
in bona fides.
The legal position when a question arises
under s. 5 of the Limitation Act is fairly well-settled. It is not possible to
lay down precisely as to what facts or matters would constitute
"sufficient cause" under s. 5, of the Limitation Act. But it may be
safely stated that the delay in filing an appeal should not have been for
reasons which indicate the party's negligence in not taking necessary steps,
which he could have or should have taken. Here again, what would be such
necessary steps will again depend upon the circumstances of a particular case
and each case will have to be decided by the courts on the facts and
circumstances of the case. Any observation of an illustrative circumstance or
fact, will only tend to be a curb on the free exercise of the judicial mind by
the Court in determining whether the facts and circumstances of a particular
case amount to "sufficient cause" or not. It is needless to emphasise
that courts have to use their judicial discretion in the matter soundly in the
interest of justice.
Mr. D. Mukerji learned counsel for the first
respondent is certainly well-founded in his contention that the expression
" sufficient cause" cannot be construed too liberally, merely because
the party in default is the Government. It is no doubt true that whether it is
a Government or a private party, the provisions of law applicable are the same,
unless the Statute itself makes any distinction. But it cannot also be gainsaid
that the same consideration that will be shown by courts to a private party
when he claims the protection of s. 5 of the Limitation Act should also be
available to the State.
In the case before us, it must be stated in
fairness to the learned Solicitor General that he has not contended that the
State must be treated differently. On the other hand, his contention is that
the reasons given by the appellant, which, according to him will establish
"sufficient cause" have not at all been adverted to, much less,
considered by the High Court. In our opinion, the contention of the learned Solicitor
General is perfectly justified in the circumstances of this case. The High
Court, certainly, was not bound to accept readily whatever has been stated on
'behalf of the State to explain the delay. But, it was the duty of the High
Court to have scrutinised the reasons given by the State and considered the
same on merits and expressed an opinion, one way or the other. That,
unfortunately, is lacking in this case.
884 It has been pointed out by this Court
in-Ramlal, Motilal and Chhotelal v. Rewa Coalfields Ltd. (1) as follows:
"In construing s. 5 it is relevant to
bear in mind two important considerations. The first consideration is that the
expiration of the period of limitation prescribed for or making an appeal gives
rise to a right in favour of the decree-holder to treat the decree as binding
between the parties. In other words, when the period of limitation prescribed
has expired the decree holder has obtained a benefit under the law of
limitation to treat the decree as beyond challenge, and this legal right which
has accrued to the decree-holder by lapse of time should not be lightheartedly
disturbed. The other consideration which cannot be ignored is that if
sufficient cause for excusing delay is shown discretion is given to the Court
to condone delay and admit the appeal. This discretion has been deliberately
conferred on the Court in order that judicial power and discretion in that
behalf should be, exercised to advance substantial justice.' As has been
observed by the Madras High Court in Krishna v. Chattappan(2) s. 5 gives the
Court a discretion which in respect of jurisdi ction is to be exercised in the
way in which judicial power and discretion ought to be exercised, upon
principles which are well understood; the words 'sufficient cause receiving a
liberal construction go as to advance substantial justice when no negligence
for inaction nor want of bona fide is. imputable to the appellant." From
the above observations it is clear that the words "sufficient cause"
should receive a liberal construction so, as to advance substantial justice
when no negligence nor inaction nor is, imputable to a party.
No doubt, Mr. D. Mukherji drew our attention
to the observations at page 771 to the effect "The proof of a sufficient
chase, is condition precedent for the exercise of the discretionary
jurisdiction vested in the court by s.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" That is according to Mr. Mukherji as, the
Appellant has not shown sufficient cause in, this matter,. the only course open
is to dismiss the applications, as has been done by the High Court. That, in
our opinion,, is over simplifying the matter, and begging the (1) [1962] 2
S.C.R. 762 (2) [1890] 1 L.R. 13 Mad. 269.
885 question. That point really is whether on
the facts stated by the appellant, it can be held that it had shown sufficient
cause for filing the appeals beyond the period of limitation.
The observations of the Madras High Court,
extracted in the above decision, have again been quoted with approval in
Shakuntala Devi Jain v. Kuntal Kumari and others(1). On the particular facts of
the case, this Court held in the said decision that it was not a case where it
was possible to impute to the appellant therein want of bonafide or such
inaction or negligence as would deprive a party of the protection of s. 5 of
the Limitation Act, 1963.
Mr. D. N. Mukherji learned counsel for the
respondents Nos. 2 to 4 invited our attention to the decision of the Judicial
committee in Ram Narain Joshi v. Parmeshwar Narain Mahta and, others(1), where
the Judicial Committee declined to interfere with the order of the High Court
declining to excuse the delay in filing an appeal under s. 5 of the Limitation
Act on the ground that no sufficient cause was shown by the party concerned.
The judgment of the High Court, which was under appeal before the Judicial
Committee, is contained in the report. The High Court had considered the
reasons given by the party for filing the appeal out of time. After a full and
detailed consideration of the reasons given by the party, the High Court had
come to the conclusion that the party had not shown due diligence in the matter
of filing appeal and, therefore, if was further held that no sufficient cause
had been shown for not having filed the appeal within time. The Judicial
Committee after a consideration of the reasons given by the High Court declined
to interfere on the ground that they were satisfied that the refusal by the
High Court to admit the appeal after the period of limitation was over, was
justified. This decision does not help the respondents in view of the fact that
there has been no such proper consideration by the High Court in the case
before us. We have already stated that the High Court has neither adverted to
the reasons given by the appellant; nor has the High Court expressed its views
on them.
Bearing in mind the principles, referred to
by us earlier, we proceed to consider the facts in the case on hand. We do not
think it necessary to refer very elaborately to the affidavits filed on both
sides because they contain a lot of material relating to the various
litigations, referred to above , as well as the legal consequences flowing from
them.
As stated earlier, we do not propose to go
into those matters in these appeals.
Though originally when the High Court dealt
with the applications under S. 5 of the Limitation Act, on January 21, 1966, it
was of the view that there has been a delay of over one and a half, year(1)
[1969] 1 S.C.R. 1006.
(2) 30 I.A. 20.
-L736SupCI/72 886 in filing the appeals,
nevertheless, in the present order, which is under attack, the High Court has
rejected the applications on the ground that there is an unexplained delay
during the period August 27, 1964 and July 3, 1965.
Therefore, even according to the High Court
the appellant has been able to satisfactorily explain the delay upto August 27,
1964 and therefore the period of delay has been very much narrowed down.
On behalf of the appellant it had been
categorically stated in the affidavit filed in support of the applications
under S. 5 of the Limitation Act, to excuse the delay, that when the objections
filed by the State under s. 47 C.P.C.
regarding executability of the Award in the
Land Acquisition Cases were dismissed on January 30, 1965, the matter was
referred to the Legal Remembrancer West Bengal, for taking necessary action. It
has been further stated that it was on March 4, 1965, that it became known that
the judgment of the Addl. District Judge, dated September 21, 1963 in the three
Land Acquisition Cases had not been appealed from. It must be noted that the
objections to the execution were filed by the State in Reference No. 21 of
1958, which was one of the cases covered by the judgment of the Addl. District
Judge, and in which execution was taken for realising the compensation amount.
It has been further stated that the counsel for the State in the High Court
persued all the papers and consulted the officers of the Land Acquisition
Department, Howrah, to consider the steps to be taken to challenge the decision
of the Addl. District Judge in the Land Acquisition Reference Cases. It was
only on April 15, 1965, that the State was advised by its lawyer in the High
Court to move applications under Art. 227 of the Constitution to quash the
judgment of the Addl. District Judge in the Land Acquisition Reference Cases.
Admittedly, writ petitions under Art. 227 were filed on May 17, 1965, in which
the High Court granted stay of execution of the decree under the Award. We have
already referred to the fact that these writ petitions were kept pending till
September 28, 1966. It may be, that the State was not properly advised
regarding the remedy to be adopted to challenge the judgment in the Land
Acquisition Reference Cases. But, as pointed out by the Judicial Committee in
Kunwar Rajendra Singh v. Rai Rajeshwar Bali and others(1), if a party had acted
in a particular manner on a wrong advice given by his Legal Adviser, he cannot
be held guilty of negligence so as to disentitle the party to plead sufficient
cause under s. 5 of the Limitation Act. In fact the Judicial Committee observes
as follows :
"Mistaken advice given by a legal
practitioner may in the circumstances of a particular case give rise to
sufficient cause within the section though there is certainly (1) A.I.R. 1937
P.C. 276.
887 .lm15 no general doctrine which saves
parties from the results of wrong advice." The advice given by the lawyer
to file applications under Art. 227, in our opinion, is also a circumstance to
be taken into account in considering whether the appellant has shown sufficient
cause.
In the additional affidavit filed on behalf
of the State on January 18, 1966, after a reference to the provisions of the
Legal Remembrancer's Manual in West Bengal, it has been stated that the
Government Pleader at Howrah omitted and neglected to send any proposal,
according to the Rules, advising the Government to file appeal against the
decision of the Addl. District Judge in the Land Acquisition Reference Cases.
In support of the application filed on behalf of the State, copies of the
letters written by the Collector dated December 18, 1965 and January 5, 1966 to
the Ex. Government Pleader as well as the copy of the latter's reply dated
January 29, 1966 were also filed in the High Court. In the letter dated
December 18, 1965, the Collector, after a reference to the relevant provisions
of the Legal Remembrancer's Manual informed the Ex. Government Pleader that the
latter had not complied with those provisions inasmuch as he had not obtained
the certified copies of the judgment and decree and forwarded them to the
Collector with his opinion in the case specially when the decision was adverse
to the Government.
In the counter-affidavit filed on behalf of
the respondents, there is no specific denial of the fact that the Government
came to know only on March 4, 1965 that no appeals had been filed against the
decision of the Addl. District Judge in the Land Acquisition Reference Cases.
On the other hand, the main stand taken by them is that inasmuch as the State
filed objections under s. 47 C.P.C. on August 27, 1964, regarding excitability
of the Award, in view of the decree in Title Suit No. 34 of 1961, the
Government had become fully aware that, it was imperative that appeals should
be filed against the decision in the Land Acquisition Reference Cases, It was
also emphasised that the same Law Officer, who appeared in the Land Acquisition
Reference Cases and represented the Government, had appeared on behalf of the
State in the Title Suit No. 34 of 1961. It is also averred that the opinion of
the Government Pleader regarding the necessity of filing appeals against the decision
of the Addl. District Judge in the Land Acquisition Reference Cases had been
furnished to the Government even in 1963. In view of all these circumstances,
it is pointed out on behalf of the respondents that the Government is guilty of
,negligence and inaction in not having filed the appeals immediately after
August 27, 1964.
888 We have already referred to the fact that
the High Court itself did not attach any importance to the period anterior to
August 27, 1964. It has dismissed the applications of the State on the ground
that there is unexplained delay between the period August 27, 1964 and July 3,
1965.
We have already referred to the fact that the
High Court does not disbelieve the statement in the affidavit filed on behalf
of the State that it was only on March 4, 1965 that it was known that no appeal
had been filed against the decision of the Addl. District Judge in the Land
Acquisition Reference Cases. We have already pointed out that even this fact is
not denied in the counter-affidavits filed on behalf of the respondents. If
that is so, it follows that the High Court was not justified in holding, at any
rate, that there was an unexplained delay from August 27, 1964 upto March 4,
1965. The date, August 27, 1964, is a date prior to the date of the knowledge
of the Legal Remembrancer, namely, March 4, 1965, that no appeal has been filed
against the Award.
Then the question arises whether the
appellant has taken diligent after March 4, 1965. It has been stated in the
affidavit filed on behalf of the State that immediately after March 4, 1965,
the matter was investigated and the question of the remedy to be persued for
challenging the judgment in the Land Acquisition Reference Cases was
immediately taken on hand. According to the State, papers were entrusted to the
Lawyer in the High Court for giving advice regarding the procedure and that the
State Lawyer in the High Court on April 15, 1965, advised the appellant to file
an application in the High Court under Art. 227. The averment that the State
was so advised on April 15, 1965, by the State Lawyer has neither been disputed
nor denied by the respondents. The High Court also has not disbelieved this
plea of the State. That writ petitions were filed under Art. 227 on May 17,
1965, is clear from the proceedings, referred to earlier. In fact we have also
stated that the High Court granted in the said proceedings stay of execution of
the decree under the Award and the writ petitions were pending till September
28, 1966. No doubt, it may be a wrong advice on the part of the State Counsel;
but the fact that the State acted upon that advice cannot be considered to be a
circumstance showing negligence on the part of the State. At the utmost what
could be said is that they were misguided by a wrong advice given by its
counsel.
Even as late as June 17, 1965, the High Court
in the writ petitions extended the stay and granted further time to the
appellant to file regular appeals together with applications under S. 5 of the Limitation
Act. Again, even on July 1, 1965, the High Court in the writ petitions further
extended the stay and directed the 889 appellant to get appropriate orders from
the Bench dealing with the regular appeals. On July 3, 1965, the appeals were
filed along with the applications for excusing the delay.
In view of the circumstances mentioned above,
which, unfortunately, have not been adverted to and touched upon by the Hip-II
Court, we are of the opinion that after March 4, 1965 the appellant had been
taking diligent and active steps to challenge the decision of the Addl.
District Judge in the Land Acquisition Reference Cases. We are satisfied that
in the circumstances of this case, the appellant has shown sufficient cause and
it is not possible to impute to the appellant want of bona fides or such
inaction or negligence as would-deprive them of the protection of S. 5 of the Limitation
Act. We are, therefore, inclined to allow the three applications filed by. the
appellant in the High Court under s. 5 of the Limitation Act and to condone the
delay in filing the three appeals.
In the result, we set aside the judgment and
order of the High Court dated August 18, 1966 and allow the appeals. The
applications filed by the appellant under S. 5 of the Limitation Act are
allowed. The High Court will take up the three appeals on its file and dispose
them of according to law. The appellant will pay the taxed costs separately of
the first respondent and respondents Nos. 2 to 4 in all these three appeals in
this Court. The appellant will also pay the separate costs of respondent No. 1
and respondents Nos. 2 to 4 as taxed by the High Court in all the proceedings
filed by the appellant under S. 5 of the Limitation Act.
It is needless to state that the High Court
will consider the question of giving a very early disposal to the appeals.
It is open to the High Court to give
appropriate directions regarding the land acquisition amount.
V.P.S. Appeals allowed.
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