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Judgment
Sabyasachi Bhattacharyya, J
Re: CAN 6372 of 2019
CAN 6372 of 2019 has been filed for addition of party in C. O. No. 1394 of 2019, which has been filed against the rejection of an application of the petitioner in C. O. No. 1394 of 2019 under Section 5 of the Limitation Act, accompanying an appeal.
Learned counsel for the applicant in the addition of party application submits that the applicant has valuable rights in the suit property, being the successful bidder in connection with the property-in-question.
However, whatever may be the rights claimed by the applicant, those can be canvassed before the appellate court in the event the petitioner succeeds in C. O. No. 1394 of 2019 and its application for condonation of delay is at all allowed.
As such, CAN 6372 of 2019 is dismissed upon hearing all the parties without any order as to costs, by giving the applicant opportunity to approach the appellate court in the event the petitioner in C. O. No. 1394 of 2019 succeeds in the said revisional application and if the petitioner's application for condonation of delay of the concerned appeal is at all allowed.
If such an application is made before the appellate court, it will be open to all the parties to urge their respective points on the merits of such application for addition of party and the appellate court will consider those prior to deciding the application for addition of party, which may be made by the present applicant.
The main revisional application is now taken up for hearing.
The present revision is directed against an order whereby a challenge taken out by the petitioner under Section 44(3) of the West Bengal Estate Acquisition Act, 1953 was dismissed on the ground that the same was time-barred, upon prior rejection of an application for condonation of delay in filing the same.
Learned senior counsel appearing for the petitioner submits that the basis of the impugned order could be found in paragraph 9 thereof, from which it is evident that the appellate authority proceeded on the premise that the notices, as contemplated in Section 44(2a) of the 1953 Act, were issued to Binapani Basu and Hirendra Nath Basu, respectively in case nos. 20 of 1992 and 21 of 1992, pertaining to the present proceeding, by the Special Revenue Officer.
It is further recorded in paragraph 9 of the impugned order that the service report showed that the process server went to the given address but nobody took interest to meet with the raiyat or his legal heirs. The present petitioner, in its rejoinder, specifically took a point that both Binapani Basu and Hirendra Nath Basu had died much prior to the issuance of such notice and filed the relevant death certificates along with firisti before the appellate forum. However, the appellate forum proceeded on the premise that the legal heirs of the said Binapani Basu and Hirendra Nath Basu ought to have come forward to challenge the service of notice. In the absence of such challenge, it was held that the present petitioner, who is the successor-in-interest of the said heirs, does not have a right to challenge the said proceeding after such a long period.
The premise of the claim of the present petitioner is a deed of lease which was executed in its favour in the year 1995 by the legal heirs of the said Binapani Basu and Hirendra Nath Basu (both since deceased). It is further submitted on behalf of the petitioner that it was put in possession of the disputed property much prior to the grant of the lease. It is submitted that, in the absence of any knowledge as to such order of vesting, or the final publication of record of rights, the petitioner could not have come up earlier with the present challenge.
While controverting such submissions, learned counsel for the opposite parties submits that the absence of any right of the petitioner in the property-in-question was settled by a Division Bench Judgment dated December 21, 2018 passed in MAT 1550 of 2017, which was heard along with CAN 9002 of 2017 and CAN 10695 of 2017, wherein it was observed, inter alia, that it was not clear from the orders produced before the Division Bench as to how such orders can assist the case of the appellant therein (present petitioner) in establishing its right in the waterbody. It was further observed in the said Division Bench judgment that while it might be correct that the appellant (present petitioner) had been using the waterbody as a tank fishery for a substantial period of time (as had also been recorded in the impugned judgment therein), the mere fact of possession would not preclude the State from correcting its records. As such, it is submitted that the petitioner has no locus standi to prefer the challenge under Section 44 (3) of the 1953 Act at all and as such, the present adjudication as to the appellate forum being within jurisdiction, to reject the application for condonation of delay in preferring the said challenge, would only be an academic exercise.
In reply, learned senior counsel appearing for the petitioner points out from the observations made in paragraph 19 of the aforementioned Division Bench judgement that the Division Bench was of the view that the appellant (present petitioner) was at liberty to challenge the order passed by the Special Revenue Officer under Section 57A read with Section 44(2A) of the 1953 Act before the appropriate authority in accordance with law, as rightly being observed by the first court therein.
Relying on such observations, learned senior counsel submits that the cause of action for the challenge preferred by the petitioner under Section 44(3) of 1953 Act ripened and attained finality only on the said Division Bench judgment, that is, on December 21, 2018. It is further submitted that immediately thereafter, that is, in the month of January, 2019, the challenge under Section 44(3) of the 1953 Act was preferred, for abundant caution, with the application for condonation of delay in filing the challenge.
Upon hearing both sides and going through the relevant provisions of law, it is evident that, Rule 31 of the West Bengal Estates Acquisition Rules 1954, in particular the proviso to sub-Rule (2) of Rule 31, stipulates that an appeal under Section 44(3) may be admitted after the statutory period of one month from the date of passing of the order appealed against, when the appellant satisfies the tribunal that it had sufficient cause for not preferring the appeal within the said period.
It is evident from paragraph 9 of the order impugned herein, that the reasons attributed by the appellate forum, for disbelieving the cause shown by the petitioner for preferring the challenge, were not valid in the eye of law. Irrespective of the legal heirs of Binapani Basu and Hirendra Nath Basu, who were the predecessors-in-interest of the present petitioner, having not come forward to challenge the non-service of notice as contemplated in Section 44 (2a) of the 1953 Act, the same could not be a deterrent for a challenge by the petitioner, upon the petitioner coming to know of the relevant order and the consequential publication of records of rights.
Since it is clear from the materials on record that both Binapani Basu and Hirendra Nath Basu were already deceased at the juncture when the purported notice was sought to be served under Sub-Section 2(a) of Section 44, the appellate forum acted without jurisdiction in overlooking the death certificates produced by the petitioner in arriving at the conclusion that the legal heirs of the said two deceased persons ought to have preferred a challenge to the notice. It is rather obvious that, when no notice has been served at all on the interested persons, they could not prefer a challenge to the insufficiency of such notice, simply because the said interested persons (here the legal heirs of Binapani Basu and Hirendra Nath Basu) would not be aware of the attempt to serve such notice and the connected proceedings at all. Thus, there was no inaction on the part of the legal heirs of Binapani Basu and Hirendra Nath Basu, through whom the present petitioner claims right to the property-in-dispute, in not preferring such challenge.
Moreover, since the inchoate right of the petitioner to challenge the publication, in an appeal under Section 44(3), was finalized by virtue of the judgment of the Division Bench dated December 21, 2018, and the petitioner preferred the said challenge at the earliest thereafter, that is, in January, 2019, the appellate forum acted palpably without jurisdiction in refusing to condone the delay in preferring the challenge under Section 44(3) of the 1953 Act. However, the merits of the said challenge cannot be gone into at this stage, since the appellate forum had dismissed the challenge merely on the ground of bar of time.
Accordingly, C.O. 1394 of 2019 is allowed, thereby setting aside the impugned order dated April 2, 2019 passed by the Additional District Judge, First Court at Barasat, District-North 24 Parganas in E.A. No.01 of 2019, thereby condoning the delay in preferring E.A. No.01 of 2019 and directing the Additional District Judge, First Court at Barasat, District-North 24 Parganas to rehear E.A. No.01 of 2019 on its merits, in accordance with law and upon giving sufficient right of hearing to all the concerned parties and upon taking into consideration any application for addition of party, if filed by any person interested, upon a proper adjudication of such application(s), if filed, on merits. It is expected that the Additional District Judge shall make all endeavours to dispose of the said proceeding as expeditiously as possible, preferably within six months from the date of communication of this order to the Additional District Judge.
There will be no order as to costs.
Urgent certified website copies of this order, if applied for, be given to the parties upon compliance of all requisite formalities.