Subhash Chandra Basu & Ors vs Kalpana Das & Ors

Sabyasachi Bhattacharyya, J

The present challenge is directed against an order of eviction passed by the thika tenancy controller, in a proceeding for eviction of bharatias.

The petitioners have admittedly preferred an appeal before the West Bengal Land Reforms and Tenancy Tribunal, along with an application under Section 5 of the Limitation Act, for condonation of delay in preferring the said appeal.

Learned counsel for the petitioners argues that the question as to whether Section 5 of the Limitation Act is applicable to such appeal, is pending for adjudication before the Division Bench of this Court in a different matter. The petitioners filed this application under Article 227 of the Constitution of India against the original order of the thika controller, under the apprehension that the Division Bench might hold that application under Section 5 is not applicable to such appeal, rendering the petitioners remedy-less.

Relying on the principle ubi jus, ibi remedium, learned counsel for the petitioners submits that in such an event, if Section 5 of the Limitation Act is held not to be applicable to the appeal before the tribunal, the petitioners ought to have a remedy under Article 227 of the Constitution of India before this Court, directly against the order of the thika controller.

However, the present application is premature, since no decision has been taken as yet by the Division Bench on the maintainability of an application under Section 5 of the Limitation Act in such matters, or by the tribunal in connection with the appeal filed by the petitioners. Secondly, it is rather doubtful whether, if an appeal is provided for against an order under the same statute which provides for a limitation period for such appeal, there is scope of taking resort to another alternative remedy to by-pass the limitation period. Since an appeal is a creature of statute, it has to be preferred as per the provisions in that regard provided in the statute itself, including limitation.

In such circumstances, the petitioners could not be granted liberty to take out an application under Article 227 of the Constitution of India merely on the pretext that the Division Bench might hold that the application under Section 5 of the Limitation Act is not maintainable in connection with an appeal against an order akin to the present impugned order.

Accordingly, C.O. No. 3529 of 2019 is dismissed without, however, any order as to costs.

However, it is made clear that merits of the matter at hand have not been gone into at all and the present dismissal shall not preclude the petitioners from taking any further steps, if necessary, against the order ultimately passed by the tribunal in connection with the petitioners' application under Section 5 of the Limitation Act.

Urgent photostat certified copy of this order, if applied for, be made available to the petitioners upon compliance of necessary formalities.