TMI Blog1999 (3) TMI 673X X X X Extracts X X X X X X X X Extracts X X X X ..... trary decisions are Chandra Sekhar Sarkar v. Baidyanath Ghosh : AIR1982Cal6 where Guha-J took the view that section 5 applied to applications under section 8 of the WBLRA and Minor Subir Ranjan Mandal v. Sttanath Mukherjee: (1994) 1 CLJ 106 where T. Chatterjee-J held that section 5 of the Limitation Act did not apply to applications under section 8 of the WBLRA. 3. Chatterjee J. distinguished the view of Guha J. in Chandra Sekhar Sarkar v. Baidyanath Ghosh (supra) on the ground that Guha J. had not considered the view of the Supreme Court in Hukumdev Narayan Yadav v. Lalit Narayan Mishra : [1974]3SCR31 nor the scheme of the Act nor the provisions of section 29(2) of the Limitation Act. Chatterjee J. also said that Guha J had overlooked the decision of Chittatosh Mukherjee J. (as His Lordship then was) in Sm. Ashalata Balrogya v. Gopal Chandra Chakraborty : 1975 (1) CLJ 494 in which it has been held that the statutory right under section 8 had to be exercised strictly in accordance with the provisions of section 8. 4. In addition Chatterjee-J held that an application under section 8 cannot be considered to be an application within section 5 of the Limitation Act. According t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his views on the question of the applicability of the provisions of the Limitation Act to applications under section 8 in Dasarath Bhunia v. Haripada Bhunia : 1996 (11] CHN 8. The decision of another learned single Judge in Ananda Mohan Khara v. Jaladhar Mondal (1998 WBLR Cal 369) which followed Chatterjee J.'s view in Subir Ranjan Mondal v. Sitanath Mukherjee, we are told, is the subject matter of a special leave petition pending before the Supreme Court. 7. It is debatable whether there is an extant conflict of Judicial opinion on the issue which requires resolution by a larger Bench. That situation normally arises when one decision is delivered without considering the other. Chatterjee J. had considered and distinguished the view expressed by Guha J. in Chandra Sekhar Sarkar v. Baidyanath Ghosh (supra). What we are really called upon to consider is whether Chatterjee J. was correct in so distinguishing the earlier view. 8. Before expressing any opinion in the matter we would like to express out indebtedness and appreciation for the invaluable assistance rendered by the learned counsel appearing for the parties, viz. Mr. Gopal Chandra Mukherjee for the pre-emptor/petit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h provides: 29. Savings. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in section 4 to 24 (Inclusive) shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special or local law. 13. Analysed, the section will apply if (i) The special or local law prescribes a period of limitation; and (ii) The period of limitation is different from that prescribed in the Schedule to the Limitation Act; and (iii) The provisions of sections 3, 4-24 are not expressly excluded by the special or local law. 14. In this case section 8 of WBLRA fulfils conditions (I) and (II). But this is not enough. In determining whether and to what extent section 8 of the WBLRA excludes the application of the Limitation Act, it is necessary to resolve what the words expressl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ause section 29(2) of the Indian Limitation Act. 1908 did not include section 5 as one of the provisions to be applied to special or local laws. In the Limitation Act, 1963, section 5 has been included in section 29(2) as one of the provisions which would apply to special and local laws. Therefore when the Rent Act of 1965 was enacted it was not necessary to include an express provision incorporating the provisions of section 5 of the Limitation Act, because by virtue of section 29(2) the provisions of section 5 would get automatically attracted. 20. In Rathinasamy v. Kamalavalli: AIR 1983 Madras 4 the provisions of the Limitation Act were held to be applicable to appeals under the Rent Act because there is no provision in the section dealing with appeals excluding the application of section 5 of the Limitation Act just as there is a specific exclusion in section 25 (which deals with revision petitions). 21. The words specific exclusion referred to in section 25 were in fact an implied exclusion. This is clear from the following passage of the judgment : Therefore, section 5 of the Limitation Act cannot be invoked to a revision petition filed in the High Court under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of section 5 of the Limitation Act to proceedings under section 8 before the Munsiff. 26. We see no reason to differ from the view taken by Chatterjee J. The scheme of the WBLRA clearly shows that the right of preemption must be exercised within the time specified in the section as noted by Chatterjee J. The provisions of section 5 of the Limitation Act, 1963 have been made expressly applicable to appeals under section 14H and appeals preferred under section 19 of the WBLRA. Other provisions have incorporated the principles of section 5 by words within such further time as the appellate authority may, on sufficient cause being shown, allow (see for example section 140). Section 51A deals with the preparation of the record of rights by the Revenue Officer. The Revenue Officer also has the power to dispose of an application for revisions of the Record of Rights. Section 51A gives the power of appeal from an order passed by the Revenue Officer disposing of an application for revision, to a prescribed authority. Rule 26 of the West Bengal Land Reforms Rules, 1965 provides that every appeal under section 51A must be preferred within one month from the date of passing of the order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 81 CWN 586 (DB); Kaltdast Nath v. Obedullah Sheikh : 81 CWN 866(DB); Smr. Karuna Sardar v. Sri Gopal Sardar : 1997 (1) CLJ 289 and therefore it was not necessary to provide separately for the application of section 5. 32. The distinction sought to be drawn does not correctly reflect the facts. Even when applications under section 8 and appeals under section 9 were to be heard by a revenue Officer or authority prescribed by the Government, the legislature had not included the provisions of section 5 to applications under section 8. The legislature had drawn a distinction even then between proceedings under section 8 and other proceedings before the Revenue Officer. This fact alone would be sufficient to indicate the intention of the legislature to treat applications under section 8 in a different category. That is why in construing section 8 as it stood prior to its amendment the Division Bench in Smt. Ashalata Bairagya v. Gopal Chandra Chakraborty : 1975 (1) CLJ 494 said : The right conferred under section 8 is a statutory right and therefore, it has to be exercised strictly in accordance with the provisions of section 8 and obviously no question of equity arise. 33. A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ependent or complete proceeding. An application in the sense used in the Limitation Act thus falls within the second class of proceeding. 37. An application under the Limitation Act also does not initiate an action. The sections of the Limitation Act namely, sections 4, 6, 7, 11, 15, 16, 17, 21 and 31 all talk of institution of suits and making of applications. An appeal is preferred. The meaning of the word Institute is to begin or originate. Therefore a proceeding under the Limitation Act can be initiated or begun and the machinery of law set in motion only by a suit not by an application. 38. The other distinction between suits and applications which appears from the Limitation Act is that suits primarily decide issues or causes of action. For example, section 14 of the Limitation Act grants exclusion of time in suits when the same matter is in issue or prosecuted in goods faith in a Court which from defect f Jurisdiction etc. is unable to entertain it. Sub-section (2) of section 14 however allows an exclusion of time in an application, if the applicant has been prosecuting another civil proceeding for the same relief (See S.K. Dutt. v. Punachandra Sinha : AIR 1949 Cal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the parties are described as plaintiff and defendant respectively. Similarly, matrimonial suits under the Indian Divorce Act, 1869 are originated by filing a petition (Vide Chapter XXXVA of the Original Side Rules of this Court). A testamentary suit is also initiated by an application for grant of probate or letters of administration iVIde Rules 4(1) and 28 of Chapter XXXV of the Original Side Rules of this Court], An Originating Summons suit is initialed by summons supported by an affidavit and is filed and numbered as an ordinary suit (Vide Chapter XIII of the Original Side Rules of this Court ). 46. Even section 26 of the Code of Civil Procedure, 1908 provides that every suit shall be instituted by the presentation of a plaint or in such other manner as may be prescribed . 47. It is true that the Privy Council decision in Hansaraj v. Dehradun Mussoorie Electric Tramway Co. Ltd. said : The word 'suit' ordinarily means, and apart from some context must be taken to mean, a civil proceeding instituted by the presentation of a plaint. 48. The decision was rendered in the context of the Limitation Act, 1908. Besides the observation expressly recognises that a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Singh Ors. v. Joginder Singh Ors.: : (1997)10SCC195 that the right of pre-emption under the Punjab Pre-emption Act, 1913 is to be filed by making an application for pre-emption. Significantly holding that the right of preemption in favour of Kingsfolk was unconstitutional in Atamprakash v. State of Haryana: [1986]1SCR399 the proceedings have been referred to as suits [See also Ramjilal v. Ghisaram (supra)]. 55. The distinction between suit and application do not appear to have been argued and as such not decided in the Kerala State Electricity Board, Trivandrum v. T.P. Kunhalliumma : [1977]1SCR996 when it observed : The changed definition of the words 'applicant' and 'application' contained in section 2(a) and 2(b) of the 1963 Limitation Act indicates the object of the Limitation Act to include petitions, original or otherwise, under special laws. 56. The appellant emphasised the use of the word original in this sentence. The sentence cannot be construed as a statute [See M/s. Amar Nath Omprakash v. State of Punjab ; [1985]2SCR72 : Gasket Radiators Private Limited v. Employees State insurance Corporation : 1985 (2) SCC 681. The observation mu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... section 8 every application pending before the Revenue Officer after the commencement of section 7 of the West Bengal Land Reforms Act, 1972 (Amendment Act) stood transferred to and was to be disposed of by the Munsiff having Jurisdiction in relation to the are in which the land is situated and on such transfer every such application is to be dealt with from the stage at which it was so transferred and shall be disposed of in accordance with the provisions of the WBLRA, as amended by the West Bengal Land Reforms (Amendment) Act, 1972. it was submitted that it is clear therefore that the application before the Munsiff is nothing but the same application or nature of application before the Revenue Officer, otherwise the phrase from the stage at which it was so transferred would not have been used. it is said that this clearly proves that the said application under section 8 is not a suit. 62. The submission is misconceived. A proceeding may change its nature with the forum. For example with the creation of Administrative Tribunals under the Administrative Tribunals Act, 1985 all pending proceedings including applications under Article 226 covering matters over which the Tribuna ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
