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Judgment
Heard the learned Advocates appearing for the parties.
In the instant case, the order dated 28th May, 2001 passed by the learned Additional District Judge, Jalpaiguri in Misc. Appeal No. 21 of 1998 is under challenge whereby and whereunder the order of confiscation of the vehicle charged with an offence of committing breach of Forest Act was set aside and quashed.
Before going into the merits of the case as raised by the parties it appears that the misc. appeal was preferred assailing the order of authorized officer and Deputy Field Director, Buxa Tiger Reserve (West), Jalpaiguri along with an application u/s 5 of the Limitation Act as there was a delay in preferring the appeal. By the order dated 10th November, 1998 the learned District Judge aforesaid admitted the misc. appeal provisionally subject to disposal of the application u/s 5 of the Limitation Act during the hearing of the misc. appeal. To resist the application u/s 5 of the Limitation Act the petitioner herein took a point that the misc. appeal was time-barred as the order impugned was received by the appellant of misc. appeal by 10th October, 1998, which, however, was denied by the appellant of the misc. appeal by contending, inter alia, that the name of the addressee in the envelope which carried the impugned order was wrongly addressed by different name. The petitioner herein urged the point that through the constituted attorney the impugned order was served and accordingly the name of the owner was not reflected in the envelope. The learned Court below as it appears from the order dated 10th November, 1998 has kept the matter pending for decision. The relevant portion of the order dated 10"'' November, 1998 reads to this effect:
It appears that the applicant has filed a petition u/s 5 of the Limitation Act supported by an affidavit coupled with xerox copy of an empty envelope containing the name of one Ram Kumar Prosad of Gossaigaon, District Kokrajhar, Assam in compliance with the report submitted by the office that the said misc. appeal has been filed beyond the statutory period.
The learned Advocate submits that the petitioner received the copy of the order on 10.10.98 and hence the delay in filing the misc. appeal. In support of his submission he places his reliance on the envelope contending that the same was sent on 7.10.98 and it was received by the petitioner on 10.10.98.
I am unable to place any reliance upon the empty envelope since it contains the name of Ram Kumar Prosad while the petitioner is Harbans Lal son of Madanlal. So by any stretch of imagination it cannot be said that this envelope was received by the petitioner containing the copy of the order passed by the authorised officer.
The learned Advocate at this stage, submits that Ram Kumar Prosad was the constituted attorney of the petitioner and as such the envelope bore his name as a constituted attorney the petitioner.
Be that as it may, considering the other submissions relating to the admission of the misc. appeal on behalf of the petitioner, the misc. appeal is provisionally admitted subject to the disposal of the application u/s 5 of the Limitation Act during hearing of the misc. appeal....
On a bare reading of the said order it appears that application u/s 5 of the Limitation Act was kept pending for a decision along with misc. appeal finally. From the impugned order assailed hereto it appears that the misc. appeal was allowed without disposing of the application u/s 5 of the Limitation Act in terms of the aforesaid order. As the application u/s 5 of the Limitation Act remain undisposed on deciding the objection as raised by the petitioner about service of the impugned order under appeal to the competent person in due time, the impugned decision is vitiated by taking away the substantial right of the petitioner herein to agitate the limitation point. Non-compliance of such is touching the root of jurisdiction of the learned Court below as so long there would be no disposal of application u/s 5 of the Limitation Act condoning the delay in preferring the misc. appeal, it will be deemed under the provision of law that there was no proper misc. appeal and hence the learned Court below whose order is under challenge herein passed the impugned order by exercising the power as an appellate authority under the Act though there was no appeal on condoning delay to file allowing Section 5 application. The learned Advocate for the opposite parties herein, however, has referred to a judgment of the Apex Court passed in the case of Hindustan Construction Co. Ltd. and Anr. v. Gopal Krishna Sengupta and Ors. reported in 2004 SCC 81, to contend that the application u/s 5 of the Limitation Act practically was made infructuous in view of the provisional admission of the appeal subject to final decision of the application while hearing of the misc. appeal. From the judgment as referred to by the Apex Court such proposition of law as argued is not being established. In the judgment as referred to there was practically no hearing of the application u/s 5 of the Limitation Act and there was even no order passed and considering the special facts of the case as at the first time in the review application the said point was urged, the Court passed the decision which could be considered as a decision on the particular factual matrix of the case and will not take the shape of a ratio decidendi of the matter. It is a settled law that a judgment will be a binding precedent if any only if the factual, matrix as considered on the reflection of the question of law involved thereto are identical. It is also a settled law that mere change of any fact and/or addition of the new fact or any new word would not make the judgment as the binding precedent for the purpose of identifying the judgment as ratio decidendi in the field in question. Reliance may be placed to the judgment passed in the case of Regional Manager v. Pawan Kumar Dubey reported in AIR 1976 SC 1716, a judgment of three-Judges Bench as has been relied upon in the judgment in the case Chandra Prakash Shahi v. State of U.P. and Ors. reported in AIR 2000 SC 1706, where the Apex Court held:
it is the rule deducible from the application of law to the facts and circumstances of a case which constitutes its ratio decidendi and not some conclusion based upon the fact which may appear to similar. One additional or different fact can make a world of difference between conclusion in two cases, even when the same principles are applied in each case to the similar facts..
Even a Constitution Bench held in the case of State of Punjab Vs. Baldev Singh, , to this effect :
A decision is an authority for what it decides and not that everything said therein constitutes a precedent. The Court are obliged to employ an intelligent technique in the use of precedent bearing it in mind that a decision of the Court takes its colour from the question involved in the case in which it was rendered.
Having regard to the aforesaid settled legal position, this Court is of the view that the judgment as referred to by the learned Advocate for the opposite parties in the case Hindustan Construction Co. Ltd. (supra) was passed on the basis of the factual matrix of that case wherein no objection was raised about maintainability of the application on the ground of limitation and in that view when subsequently that point was taken, the Court decided otherwise in view of the findings of the High Court as passed. In the instant case, the factual matrix is completely different. Here, the learned Court below admitted appeal provisionally subject to the decision of the application u/s 5 of the Limitation Act. Hence, there is a judicial order being the order dated 10th November, 1998 for due consideration of the application u/s 5 of the Limitation Act along with misc. appeal itself. But from the impugned order of this application it appears that the pending application u/s 5 of the Limitation Act was not at all decided and disposed of and as such, the learned Court below had no jurisdiction to decide and dispose of the misc. appeal itself as the misc. appeal was not in order on condoning the delay in preferring such misc. appeal in terms of the specific statutory provision prescribing the time limit to prefer an appeal. Hence, here from the special facts it appears that even the misc. appeal which provisionally admitted subject to the adjudication of the application u/s 5 of the Limitation Act was allowed without any decision of the application u/s 5 of the Limitation Act. This Court cannot presume that Section 5 application accordingly disposed of in favour of the opposite parties, the appellants of the misc. appeal as the misc. appeal was allowed. No such presumption would be valid and legal in view of the specific order of the learned Court below dated 10th November, 1998 as quoted above. Furthermore, there is no scope to inject any presumption in the impugned order by this Court itself.
Having regard to such state of affairs, as this matter touches the root of the jurisdiction of the learned Court below to dispose of the main appeal in view of the pendency of the application u/s 5 of the Limitation Act without disposing of which there was no scope to dispose of any misc. appeal by allowing the same, this Court feels that it is a fit case to entertain under the supervisory jurisdiction of Article 227 of the Constitution of India. Considering this, the impugned order is set aside and quashed and the application is allowed. The learned Court below is directed to decide and dispose of the pending application u/s 5 of the Limitation Act on hearing the parties first and thereafter to dispose of the misc. appeal in the event the application u/s 5 of the Limitation Act is allowed on merit on hearing the parties.
Since the matter is pending for a considerable period, the learned Court below is directed to dispose of the application u/s 5 of the Limitation Act on merit within two months from the date of communication of this order upon hearing all the parties and in the event the application u/s 5 of the Limitation Act is allowed on merit, to dispose of the misc. appeal on merit on hearing the parties within a period of further two months from that date.
It is made clear that this Court has not gone into the merits of the application u/s 5 of Limitation Act and misc. appeal itself and all points are kept open for decision including with reference to the application u/s 5 of the Limitation Act.
Let urgent xerox certified copy of this order, if applied for, be given to the learned Advocates appearing for the parties expeditiously.