Case: State Of West Bengal Vs. Administrator, Howrah Municipality &amp; Ors

2. In this judgment we are referring the ranks of the parties as in Civil Appeal No. 821 of 1968. The 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 sub-lease from the second respondent of the said area.3. The circumstances leading up to the order of the High Court may be stated; About 41 bighas of land situated in Salkia at Howrah were acquired by the Government of west Bengal for the purposes 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. Howarh 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 there was also an agreement that the land would be resumed in the event of a public market not being established within a reasonable time In or about 1952, the first respondent passed a resolution leasing out an extent of about 21 bighas and 9 kotas, from and out of the above land, in favour of the second respondent and communicated the said resolution to the appellant on February 12, 1953. The first respondent executed a lease deed on March 27, 1953 in favour of the second respondent in respect of 21 bighas and 9 kotas. The second respondent in turn sub-leased to respondents 3 and 4 the entire land taken on lease by him from the first respondent. On April 12, 1954, the appellant passed an order under Section 586 (1) of the Begla Municipalities Act, 1932, annulling the resolution of the first respondent, dated November 28, 1952. The first respondent called upon the second respondent to surrender possession of the property, which led to the latter instituting title suit No. 15 of 1959 against the Municipality and the appellant for a declaration that the lease in his favour in valid and the order of the Government dated April 2, 1954 annulling the resolution of the Municipality is illegal and void. The first respondent in turn filed title suit No. 10 of 1959 against the second respondent for recovery of possession of the property together with mesne profits.4. In the meanwhile the appellant issued two notifications under Section 4 of the Land Acquisition Act. in November, 1955 and March 1966, regarding the acquisition of 8. 44 acres if land comprised in 41 bighas and odd of land given to the Municipality for putting up a public market. It also included a part of the land leased by the first respondent to the second respondent, who in turn had sub-leased them to the respondents Nos. 3 and 4. The Land Acquisition Collector in June, 1958 passed an Award in favour of respondents. Nos. 1 to 4.5. Out of the said Award three References arose under Section 18 of the Land Acquisition Act, being Miscellaneous Cases Nos. 21 and 40 of 1958 and 13 of 1959. The respondents Nos. 1 to 4 made claims for increased compensation and also claimed exclusive title.6. On March 10, 1959 the appellant filed title suit No. 16 of 1959 against the respondents Nos. 1 and 2 for recovery of possession of 41 bighas of land. The said suit was later on renumbered as Title Suit No. 34 of 1961. The There is no controversy that during the pendency of the suit, the second respondent was struck off from the array of defendants. This title suit was instituted by the appellant for recovery of possession together with mesne profits on ground that as no market place was established by the Municipality as agreed upon, the appellant was entitled to resume the same. The action of the Municipality by way of leasing a part of the property to the second respondent was also alleged to be in clear violation of the agreement and that the said transaction was not binding on the appellant. On January 25, 1960, the suit filed by the second respondent, namely T. S. No. 15 of 1959 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 41 bighas was decreed on July 21, 1961. 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 this judgment.

Reasoning: 26. 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 partys 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 circumstances 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 emphasis that courts have to use their judicial discretion in the matter soundly in the interest of justice.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.Then the question arises whetherthe appellant has taken diligent steps 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 pursued 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 circumstances 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.43. 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 only July 1, 1965, the High Court in the writ petitions further extended the stay and directed the 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.44. In view of the circumstances mentioned above, which, unfortunately, have not been adverted to and touched upon by the High Court, we are of the opinion that after March 4, 1965 that 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 to 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.We have only referred above to the various matters placed before us. We express 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.23. 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 forof the order or modification of the order on better materials.24. 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 of 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 the High Court may be. Hence, we proceed to consider the matter and adjudicate upon the question whetherAct.25. One feature that strikes us on a perusal of the judgment of the High Court is that there as 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, are rejected them as false or if the High Court had held 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 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.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 or inaction or want of bona fide is imputable to a party.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 theseadvice given by the lawyer to file application under Article 227, in our opinion, is also a circumstance to be taken into account in considering whether the appellant has shown sufficient cause.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 thefiled 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.