Chandra Sekhar Sarkar vs Baidyanath Ghosh and Others

Sudhindra Mohan Guha, J.—The petitioner herein is the applicant for pre-emption u/s 8 of the Land Reforms Act in respect of the land purchased by the opposite parties on the ground of vicinage. As the application could not be filed within four months of the date of transfer as required by the Section, he filed an application u/s 5 of the Limitation Act for condonation of delay.

The learned Munsif, 2nd Court at Arambagh by an order dated 22-3-1980 held that Section 5 of the Limitation Act had no application in a case u/s 8 of the West Bengal Land Reforms Act particularly when the application is made on the ground of vicinage. So the application u/s 5 of the Limitation Act was rejected.

Mr. Abhijit Kumar Banerjee, the learned Advocate for the petitioner argues that in view of Section 29(2) of the Limitation Act, Section 5 of the Limitation Act is applicable in the instant case. He further contends that there is nothing in the West Bengal Land Reforms Act excluding the provision of Limitation Act. Reference is made to the decision of the Supreme Court in the case of (1) Mangu Ram (2) Mangu Ram Vs. Municipal Corporation of Delhi, . At page 108 of the report Their Lordships observe as follows :--

"There is an important departure made by the Limitation Act, 1983 in so far as the provision contained in Section 29, Sub-section (2) is concerned. Whereas under the Indian Limitation Act, 1908, Section 29. Sub-section (2), Clause (b) provided that for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law the provisions of the Indian Limitation Act, 1908, other than those contained in Sections 4, 9 to 18, and 22 shall not apply and therefore, the applicability of Section 5 was in clear and specific terms excluded. Section 29 sub-section (2) of the Limitation Act 1963 enacts in so many terms that for the purpose of determining the period of limitation prescribed for any suit appeal or application by any special or local law the provisions contained in Sections 4 to 24, which would include Section 5, shall apply in so far as and to the extent to which they are not expressly excluded by such special or local law. Section 29 Sub-section (2) Clause (b) of the Indian Limitation Act 1908 specifically excluded the applicability of Section 5, while Section 29 sub-section (2) of the Limitation Act 1963 in clear and unambiguous terms provides for the applicability of Section 5......"

Sub-section (2) does not stand in the way of the legislature in making of a provision in the Special Act as to applicability of the Limitation Act, where such a provision is made in the local or special Act, Section 29(2) would have no application. Thus where a special or local law provides for any suit, appeal or application a period different from the period therefore by the provisions, and there is also a provision in such Act prohibiting the applicability of the general law of limitation, the provisions of the Limitation Act will not apply.

Mr. Pramatha Nath Palit, the learned Advocate for the opposite parties on the other hand contends that Section 8 of the West Bengal Land Reforms Act clearly specifies that the commencement for the period of limitation for making an application by an adjoining owner would be the date of transfer and the other termini of the said period would be the date of expiry of four months from the date of such transfer. He relies on the Bench decision of this Court in the case of Sm. Ashalata Bairagya v. Gopal Chandra Chakraborty reported in (19751 1 CLJ 494. In this case the point for decision before Their Lordships was whether there was any scope for application of Article 137 of the Limitation Act. 1963 to the period of limitation of four months prescribed in Section 8, commencing from the date of transfer. Their Lordships had no occasion to make any observation as to the maintainability of an application u/s 5 after the introduction of Section 29(2) in the Limitation Act of 1963.

In the above premises it must therefore be held where an application u/s 8 of the West Bengal Land Reforms Act is filed after the coming into force of the Limitation Act 1963. Section 5 will be applicable to the applicant and if he can show that he had sufficient cause for not filing the application within four months, the delay may be condoned.

In this view of the matter, this application succeeds. The Rule is made absolute. The learned Munsif would dispose of the application u/s 5 of the Limitation Act on merits.

Each party to pay and bear its Own costs.