TMI Blog1971 (12) TMI 106X X X X Extracts X X X X X X X X Extracts X X X X ..... and 4 have taken a sublease from the second respondent of the said area. The circumstances leading up to the order of the High Court may be stated : About 41 bighas of land situated in Salkia it Howrah were acquired by the Government of West Bengal for the purpose 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, Howrah, on th e 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 them was also an agreement that the land would be resumed in the event of a public market not being established within a reasonable time. the appellant. On January 25, 1960, the suit filed by the second respondent, namely, T.S..No. 15 of 1999 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 4 1 bighas was decreed,.on July 21, 196 1. We are particularly referring, to this aspect because considerable argument was advanced before us, partic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Appeal No. 135 of 1963. This attitude, the State avers, is due to the fact that if the Municipality is able to withdraw the huge amount of compensation awarded, it will have no further interest in prosecuting the appeal against the decree in Title Suit No. 34 of 1961. The second respondent on the basis of the Award, levied execution and the appellant filed objection on August 27, 1964 under s. 47 C.P.C. on the ground that the Award is not executable in view of the decree in Title Suit No. 34 of 1961. According to the appellant, the Department of Land Acquisition at Howrah did not known about the proceedings in Title Suit No. 34 of 1961 as the latter related to another Department of the Government. When the objections filed regarding the executability of the Award were rejected, the matter was referred to the Legal Remembrancer, West Bengal, for taking necessary action. It was on March 4, 1965, that it was discovered that the judgment of the Additional District Judge in the three Land Acquisition References had not been appealed against. As the reasons for the appeals not being filed, were not clear, they were investigated by the Legal Adviser of the State. On or about April 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by its Legal Officer in cases where appeals have to be filed. The State also referred to the letters written by the Collector of Howrah on December 18,1965 and January 5, 1966 to the Advocate, who was at the material time Government Pleader asking for his explanation as to why the Government was not advised by him regarding the filing of appeals against the Land Acquisition References. On January- 21, 1966, the High Court passed the following order On the present materials before us we are not satisfied that sufficient cause has been made out to explain the delay of over a year and a half in filing of the connected appeals. Mr. Chakrabarty expressed his inability to produce better materials on information, at present available to him. In the circumstances, we have no option but to discharge these Rules. Liberty is, however, given to the petitioner to apply for reconsideration or modification of this order on further and better materials. There will be no order as to costs in any of these Rules. Later on, the appellant received a reply dated January 29, 1966 from their Ex. Government Pleader and filed the three applications in question requesting the High Court to recon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enuously urged that it was the duty of the High Court to consider on the materials, placed before it whether sufficient cause for excusing the delay had been made out by the appellant. Though the decision in the Land Acquisition Cases was given on June 27, 1963, and the award signed on September-21 1963,the High Court as prepared to proceed on, the basis, in- view of the averment made in the a ffidavit of the appellant that, the, delay between September 2 1, 1963 and August 27, 1964 has been properly explained. At any rate, the Solicitor General pointed out the High Court has not put that period against the appellant. On the other hand, the High Court has held that there is an unexplained delay from August 27, 1964, the date on which the State filed objections under s. 47 C.P.C. to the execution of the decree under the Award and July 3, 1965, the date on which the appeals were filed, and on this ground the applications have been dismisissed. The learned Solicitor General further pointed out that there is no proper consideration of the various matters, referred to in the affidavit, which according to him have not been controverted by the respondents. He has further urged that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... against his clients of the decree obtained by the State against the Municipality in Title Suit No. 34 of 1961. He also relied on the decision in the said suit to controvert the averment of the State that the Municipality has been held to be a trespasser without any rights in the land in question. The learned Solicitor General has also referred: us to the various aspects dealt within the said judgment. According: to him the effect of the said judgment is that the respondents are all trespassers having no rights in. the land and therefore they are. not entitled to receive the compensation, amount. He. has also stated that if the decrees in the. Land Acquisition Reference Cases are allowed to stand, the respondents, who are in possession as trespassers without any title or right in the properties, will have to be paid by the State nearly about Rs.. 16,00,000 We have only referred above to the various matters placed before us. We expressed 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. We have already referred to the fact that on the first ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 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. 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 party s 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 circumstance 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 emphasise that courts have to use their judicial discretion i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en deliberately conferred on the Court in order that judicial power and discretion in that behalf should be, exercised to advance substantial justice. As has been observed by the Madras High Court in Krishna v. Chattappan(2) s. 5 gives the Court a discretion which in respect of jurisdi ction is to be exercised in the way in which judicial power and discretion ought to be exercised, upon principles which are well understood; the words sufficient cause receiving a liberal construction go as to advance substantial justice when no negligence for inaction nor want of bona fide is. imputable to the appellant. 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 nor inaction nor is, imputable to a party. No doubt, Mr. D. Mukherji drew our attention to the observations at page 771 to the effect The proof of a sufficient chase, is condition precedent for the exercise of the discretionary jurisdiction vested in the court by s.5 if sufficient cause is not proved, nothing further has to be done; the application for condoning delay has to be dismissed on that ground a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has neither adverted to the reasons given by the appellant; nor has the High Court expressed its views on them. 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 these appeals. Though originally when the High Court dealt with the applications under S. 5 of the Limitation Act, on January 21, 1966, it was of the view that there has been a delay of over one and a half, year- (2) 30 I.A. 20. in filing the appeals, nevertheless, in the present order, which is under attack, the High Court has rejected the applications on the ground that there is an unexplained delay during the period August 27, 1964 and July 3, 1965. Therefore, even according to the High Court the appellant has been able to satisfactorily explain the delay upto August 27, 1964 and therefore the period of delay has been very much narrowed down. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there is cer tainly no general doctrine which saves parties from the results of wrong advice. The advice given by the lawyer to file applications under Art. 227, in our opinion, is also a circumstance to be taken into account in considering whether the appellant has shown sufficient cause. In the additional affidavit filed on behalf of the State on January 18, 1966, after a reference to the provisions of the Legal Remembrancer s Manual in West Bengal, it has been stated that the Government Pleader at Howrah omitted and neglected to send any proposal, according to the Rules, advising the Government to file appeal against the decision of the Addl. District Judge in the Land Acquisition Reference Cases. In support of the application filed on behalf of the State, copies of the letters written by the Collector dated December 18, 1965 and January 5, 1966 to the Ex. Government Pleader as well as the copy of the latter s reply dated January 29, 1966 were also filed in the High Court. In the letter dated December 18, 1965, the Collector, after a reference to the relevant provisions of the Legal Remembrancer s Manual informed the Ex. Government Pleader that the latter had not complied ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. Then the question arises whether the appellant has taken diligent 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 persued 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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