# 8i4 STATE OF WEST BENGAL v. ADMINISTRATOR, HOWRAH MUNICIPALITY & ORS - **Citation:** [1972] 2 S.C.R. 874 - **Court:** Supreme Court of India - **Decided:** 1971-12-14 - **Bench:** C. A. Vaidialingam, K. K. Mathew - **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/8i4-state-of-west-bengal-v-administrator-howrah-municipality-ors-5578 - **Pages:** 16 ## Headnote Lilnitcuiun Act, 1963, s. 5-'Su:fficient cc.:use' and 'necessary stieps', '"'P'' of-Party acting on advice of legal adviser-If sufficient cause. B In certain land acquisition references the District Judge passed an order in 1963 awarding compensation to be paid by the appellant to the C first respondent. Wi1en the first respondent levied execution the appellant filed objections on August 27, 1964, under s. 47, Civil Procedure Code, but the objection petitions were dismissed in January 1965. On March 4, 1965, it was discovered that no appeal was filed against the .arder of the district judge awarding compensation. Thereafter the appellant took dilil!llnt and active steps to challenge the de~sion of the district judge. On the advice of the legal adviser an application under Art. 227 was filed on May 17, 1965 and on July 4. 1965 appeals were filed g. against the decision of the district judge with an application under s. 5 ot' the Limitation Act, 1963, praying that the delay in filing the appeal may he excused. In that application after stating the above facts it was also overred that the delay was caused by the omission and neglect of the Government Pleader to advise the appellant. The High Court held that the appellant had not sufficiently explained the delay during the period between August 27, 1964 ""d July 3, 1965 but gave no reasons for its conclusion. E Allowing the appeal to this Court, HELD : It is not possible to lay down precisely as to what facts or matters WGuld 2, Slwk1mtala Devi Jain v. Kuntc./ K11mari & Ors. [1969]1 S.C.R. 1006, Rmn Narain Joshi v. Par111esln11ar Narain Maltta & Ors .. 30 I.A. 20 and Kunwar Rajendra Singh v. Rai Rc.jeshwar Bali & Ors., A.l.R. 1937 P.C. 27~. referred to. CIVIL APPELLATE JURISDICTI0'.11 : Civil Appeals Nos. 821 to 823 of 1968. Appeals by special leave from the order dated, A11gust 18, 1966 of the. Calcutta High Court in Civil Rules Nos. 1827 (F) to 1S29(F) of 1966. Jagadish Swarup, Solicitor-General of India, P. Chatterjee C a1'd P. K. Chakravarti, for the appellant (in all the appeals). D. Mookherjee and S. C. Majumdar, for respondent No. 1 (in C.As. Nos. 821 and 823 of 1968). - D. N. Mukherjee and G. K. Deb, for respondents Nos. 2 to 4 (ia C.As. Nos. 821 a.nd 823 of 1968) and the respondents (in D C.A. No. 882 of 1968). The Judgment of the_ Court was delivered by Vaidialingam, J. These th ## Text _Characters 0–39,665 of 44,788. This is a partial read: ask again with offset=39665 for what follows._ 8i4 STATE OF WEST BENGAL v. ADMINISTRATOR, HOWRAH MUNICIPALITY & ORS. December 14, 1971 (C. A. VAIDIALINGAM AND K. K. MATHEW, JJ.) Lilnitcuiun Act, 1963, s. 5-'Su:fficient cc.:use' and 'necessary stieps', '"'P'' of-Party acting on advice of legal adviser-If sufficient cause. B In certain land acquisition references the District Judge passed an order in 1963 awarding compensation to be paid by the appellant to the C first respondent. Wi1en the first respondent levied execution the appellant filed objections on August 27, 1964, under s. 47, Civil Procedure Code, but the objection petitions were dismissed in January 1965. On March 4, 1965, it was discovered that no appeal was filed against the .arder of the district judge awarding compensation. Thereafter the appellant took dilil!llnt and active steps to challenge the de~sion of the district judge. On the advice of the legal adviser an application under Art. 227 was filed on May 17, 1965 and on July 4. 1965 appeals were filed g. against the decision of the district judge with an application under s. 5 ot' the Limitation Act, 1963, praying that the delay in filing the appeal may he excused. In that application after stating the above facts it was also overred that the delay was caused by the omission and neglect of the Government Pleader to advise the appellant. The High Court held that the appellant had not sufficiently explained the delay during the period between August 27, 1964 ""d July 3, 1965 but gave no reasons for its conclusion. E Allowing the appeal to this Court, HELD : It is not possible to lay down precisely as to what facts or matters WGuld 2, Slwk1mtala Devi Jain v. Kuntc./ K11mari & Ors. [1969]1 S.C.R. 1006, Rmn Narain Joshi v. Par111esln11ar Narain Maltta & Ors .. 30 I.A. 20 and Kunwar Rajendra Singh v. Rai Rc.jeshwar Bali & Ors., A.l.R. 1937 P.C. 27~. referred to. CIVIL APPELLATE JURISDICTI0'.11 : Civil Appeals Nos. 821 to 823 of 1968. Appeals by special leave from the order dated, A11gust 18, 1966 of the. Calcutta High Court in Civil Rules Nos. 1827 (F) to 1S29(F) of 1966. Jagadish Swarup, Solicitor-General of India, P. Chatterjee C a1'd P. K. Chakravarti, for the appellant (in all the appeals). D. Mookherjee and S. C. Majumdar, for respondent No. 1 (in C.As. Nos. 821 and 823 of 1968). - D. N. Mukherjee and G. K. Deb, for respondents Nos. 2 to 4 (ia C.As. Nos. 821 a.nd 823 of 1968) and the respondents (in D C.A. No. 882 of 1968). The Judgment of the_ Court was delivered by Vaidialingam, J. These three appeals, by special leave, are directed against the comon judgment and order dated August Iii, 1966 of the Calcutta High Court dismissing Civil Rule Nos. 827(F) to 829(F) of 1966, which were applications filed by E the. appellant under s. 5 of the Limitation Act, 1963, to excuse lhe delay in filing three appeals against the decision of the Addit;onal District Judge, Howrah. dated June 27, 1963, in three Land Acquisition Reference Cases. In this judgment we are referring the ranks of the parties as in F Civil Appeal No. 821 of 1968. The first respondent is the Howrah Municipality. The ~econd respondent had taken a lease of about 21 bighas 9 kolas of land from the first respondent and respondents Nos. 3 and 4 have taken a su!l'-lease from the second res- .p:;ndent of the said area. G H The circumstances leading up to the order of the High Court may be stated : About 41 bighas of land situated in Salkia at 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 tlw respondent the_Municipality, Howrah, on the specific condition that the said land was to be used for estab/lishing a public market a.nd that it would not be used for any other purpose without the permission of the Government. According to the appellant there "-O~ also an agreement that the land would be resumed in the event of a public market not being established within a reasonable tiine. SUPREME COURT REPORTS {1972)2 S.C.R. In or about 1952, the first respondent passed a resolution Jea:;iug out an extent of about 21 bighas and 9 kotas, from and out of tlie above land, in favour .of the second respondent and communicat~d the said resolution to the appellant on February 12, 1953. The first respondent executed a lease deed on March '27, 1953 in favour of the second respondent in respect of 21 bighas and 9 kotas. The second re'Spondent in turn sub-leased to respondents 3 and 4 the entire land taken on lease by him from the first respondent. On April 12, 1954, the appellant passed an order under s. 586(1 J of the Bengal Municipalities Act, 1932, annulling the resolution of the first respondent, dated November 28, 1952. The first respondent called upon the second respondent to surrender possession of the property, which led to the latter instituting title suit No. 15 of 1959 against the Municipality and the appellant for a declaration that the lease in his favour is valid and the order of the Government dated April 12, 1954 annulling the resolution oi the Municipality is illegal and void. The first respondent in turn filed title suit No. l 0 df 1959 against the second respondent for reco\1ry of possession of the property together with mesne profits. In the me for excusing the delay and praying that irreparable loss and injury would be caused to the State, if nearly R~. 16,00.000 have to be paid to persons who have been held to be .in wrongful possession of the land and agaip.st whom a decree in Title Suit No. 34 oi 1961 for eviction had been passed on July 21, 1961. It was further submitted that in view of the various m;itlers mentioned in the applications filed under s. 5 of the Limi· talion Act, sujficient cause has rJeen shown for excusing the delay in filing the appeals. B c D g G H A B c D F G H WEST BENGAL v. HOWRAH MUNIC. (Vaidialingam, J.) 87!> The High Court on July 7, 1965 issued notice to the respondents to show cause why the delay should not be condoned and the appeals taken on file. After the issue of the notice, the appe!fant filed an additional affidavit on January 18, 1966 referring to the relevant provisions of the Legal Remembrancer Manual in West Bengal regarding the procedure to be followed by its Legal Officers 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 explanatioo 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. Lilierty 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 applicationsin question requesting the High Court to reconsider its previous crder dated January 21, 1966 and to excuse the delay under s. 5 of the Limitation Act in filing the three appeals. The High Court, on June 3, 1966 issued notice to the respondents. After hearing the respondents, the High Court passed thcr ccmmon order in question on August 18, 1966 dismissing the applications filed by the appellant for excusing the delay under s. 5 of the Limitation Act in filing the three appeals. In the order it is stated that though the decrees, under appeal, were passed as early as September 21, 1963, the appeals were filed along with the applications under s. 5 of the Limitation Act only on July 3, J 965, the interval being over one year and nine months. The High Court, no doubt, states that there were previous proceedings, but it is not necessary to refer to them. Ultimately, the High Court in its brief order is of the view that the State has not sufficiently explained the delay during the period August 27, 1964 an<) July 3, 1965. The former is the date on which the State filed objectio~ under s. 47 C.P.C. to the executability of the Land Acquisition 8:80 SUPREME COURT REPORTS [1972] 2 S.C.R. Award; in view of the decree in Title Suit No. 34 of 1961. Regarding the period anterior to August 27, 1964, so far as we could see the High Court does not put it against the appellant and in fact it does not seem to give much importance to that period. On the other band,. the view of the High Court is : "These applications must fail for the unexplained delay between the two dates, August 27, 1964 and July 3, 1965." Ultimately, the lea med Judges dismissed the application for excusing the delay. There is a further direction given by the High Court that the writ petitions filed by the appellant under Art, 227 of Constitution 65, the date on which the appeals were filed, and on this gr0und the applications have been dismissed. 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 l:leen controverted by the respondents. He has further urged that the judicial power anti discretion to excuse the. delay given to the Courts under s. 5 of the Limitation Act, should be exercised to advance substantial justice, especially when the appellant has not been held guilty of any negligence or inaction. The learned Solicitor General further pointed out that the High Court has not disbelieved any of the facts B 0 D • G H A B c D E F G H WEST BENGAL v. HOWRAH MUNJC. (Vaidia/ingam, J.) 881 mentioned in the affidavits filed on behalf of the appellant, regarding the circumstances under which the appeals came to be filed beyond the period oi limitation. On the other hand, Mr. D, Mukherji, learned counsel for the first respondent Howrah Municipality, urged that the question whether ·a party has made out a sufficient cause for excusing the delay in filing the appeals is a pure question of fact and it was within the exclusive jurisdiction of the High Court to decide it one way or the other. In this case, the counsel pointed out, that after a consideration of the reasons given by the appellant, the High Ccurt has come to the conclusion that the delay during the period August 27, 1964 and July 3, 1965 has not been properly accounted fer. In fact, the counsel poin'ted out the appellant should have been called upon to explain the delay even from September 21, 1963 and the High Court has been very considerate in reducing the period upto August 27, 1964. Mr. Mukherji further pointed out thJt the period of Iimltation applicable both to a private litigant as well as to the State is the same and the same prinCiples are applicable to both the parties in considering whether sufficient cause has ~en shown for excusing the delay in filing an appeal beyond the period of limi'tation. Mr. Mukherji further urged that the same Gc\·ernment Pleader was appearing on behalf of the State both in the title suit No. 34 of 1961 and in the Land Acquisition Proceedings and therefore it is idle for the State to contend that it was not aware that an appeal had not been filed against the decision in Land Acquisition References till March 4, 1965. The fact that one Department may be dealing with Land Acquisition matters and another Department may be dealing with Ordinary Civil Suits, is not a sufficient excuse which will be accepted by tne courts to justify an application under s. 5 of the Limitation Act. Mr. D. N. Mukherji, learned counsel for the respondents Nos. 2 to 4, in particular, attempted to argue about the binding nature against his clients o.f 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 als::i referred us to the various a>pects 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 jlroperties, will have to be paid by the State re2rly about Rs. 16,00,000. 882 SUl'RF:Mll COURT REPORTS (1972] 2 S.C.R. We have only referred ablove to the vari<;>us matters placed before us. We expressed no opinion whatsoever regarding thos;: 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 occasion when the High Court dealt with the applications under s. 5 oi the Limitation Act it had passed an order on January 21, 1966, which we have extracted in the earlier part of this judgment. That itse:f was a brief order. But that order clearly indicates that the leacneJ Judges were not inclined to close the proceedings once and for aU. In fact, they have given a further opportunity to the State 'to move for re-consideration of the order or modification of the order on better materials. · The order dated August 18, 1966, unfortunately, is very brief and doe§ not give the reasons as to why the High Court has come to the conclusion that the delay between August 27, 1964 and July 3, 1965 has not been .explained by the appellant. There is mly a brief sta'tement to the effect that on the first of the abo\'e dates, i.e. August 27, 1964, the. appellant filed objections under A B c D E s. 47 C.P.C. to the execution of the decree under Award. Though the respondents urged that the delay is really from September 21, 1963, we are not inclined to accept that contention, especially when the High Court itself has not given an)( importance to the period prior to August 27, 1964. In view of the nature of the order passed " by the High Court without an inventigation into the facts and without giving reasons, we would have normally remanded the proceedings· to the High Court. for a fresh consideration. · But we are not adopting that procedure in view of the fact that considerabk time has already elapsed and if the matter is remanded, it will give rise again to a further challenge by way of appeal to this Court. whatever the decision of the High Court may be. Hence, we proceed to consider the matter and adjudicate upon the question whether the High Court was justified in rejecting the applications filed by the appellam under s. 5 of the Limitation Act. F One feature that strikes us on a perusal of the judgment of th~ High Court is that there is absolutely no indication that it has disbelieved any o( the averments made in the affidavits filed on behal' of the appellant. If the High Court had considered the reason' given by the appellant, and rejectgd them as false or if the High Court had held that there has been such total inaction or negligence on the part of the appeUant'c as would deprive the State of the protection under s. 5 of the Limitation Act, the position would be different. We do not have the benefit of the views of the Higl' G H B c 0 F G H WEST BENGAL v. HOWllAH MUNIC. (Vaidia/ingam, J.) St~ 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 bonafides. The legal position when a question arises under s. 5 of the Limitalion 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 ne{;essary 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 partfoular case and each case will have to be decided by the courts on the iac'ts and circumstances of the case. Any observation of an illustrative circumstance or fact, will only tend to b~ 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 needle5s to emphasise that courts have to use their judicial discretion in 11le matter soundly in the interest of justice. Mr. D. Mukerji learned counsel for the first respondant is certainly well-founded in his contention that the expression "sufficient cause" cannot be construed too liberally, merely because the party in default is the Government. It is no doubt true that whether it is a Government or a private party, the provisions of law applicable are the same, unless the Statute itself makes any distinction. But it cannot also be gainsaid that the same consideration that will be shown by courts to a private party when he ctaims the protection of s. 5 of the Limitation Act should also be available t'.l the State. In the case before us, it must be stated in fairness to the learned Solicitor General that he has not contended that the State must be treated differently. On the other hand, his contention is that the reasons given by the appellant, which, according to him will establish "sufficient cause" have not at all been adverted to, much less. considered bly the High Court. In our opinion, the contention of the learned Solicitor General is perfectly justified in the circumstances of this case. The High Court, certainly, was not bound t0 accept readily whatever has been stated on behalf of the State w explain the delay. But, it was the duty of the High Court to have scrutinised the reasons given by the State and considered the same on merits and expressed an opinion, one way or the other. Th'at, unfortunately, is lacking in this case. 884 SUPREME COURT REPORTS [1972] 2 S.C.R . It has been pointed out by this Court in Ramlal, Motilal and Chhotelal v. Rewa Coalfields Ltd. ( 1) as follows : "In construing s. 5 it is relevant to bear in mind two important considera'tions. The first consideration is that the expiration of the period of limitation prescribed for making im appeal gives rise to a right in favour of the decree-holder to treat the decree as binding .between the parties: In other weirds, when the period of !imitation prescribed has expired the decree holder has obtained a benefit under the law of limitation to treat the decree as beyond challenge, and this ·1egal right which has accrued B lo the decree-holder by lapse of time should not be lighthe~rtedly disturbed. The other consideration which. cannot be ignored is that if sufficient cause for excusing delay is shown discretion is given to the Court to condone delay and admit the appeal. This discretion has been 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 lhe Madras High Court in Krish11a v. Chattappan{') s. 5 gives the Court a discretion which in respect of jurisdiction 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 so as to advance .substantial justice when no negligence nor inaction nor want of bona fide is imputable to the appellant." c From the above obl;ervations it is clear that the words "sufficient came" should receive a liberal construction so as to advance substantial justice when no negligence or inaction or want of bona fide is imputable to a party. No doubt. Mr. D. Mukherji drew our attention to the observations at page· 771 to the effect : "The procf of a sufficient cause is a condition precedent for the exercise of the descretionary ·jurisdiction vested in the Court bv s. 5. If sufficient cause is not proved nothing further has to be done; the application for condoning delay has to be dismiss.ed on that ground alone." D E F G That is. according to Mr. Mukherji as the appellant has not shown sufficient cause in this matter, the only course open is to dismiss 1he applications, as has been done by the High Court. That, H in om· opinion, is, over-simplifying the matter and begging the (I) [I %2] 2 S.C.R. 762. (2) [1890] I L.R. 13 Mad. 269. A B c D E F WEST BENGAL v. HOWRAH MUNIC. (Vaidialingam, J.) 885 question. That point really is whether on the facts stated by the appellant, it can be held that it had shoWlll sufficient cause for filing the appeals beyond the period of limitation. The observations of the Madras High Court, extracted in the abl:>ve decision, have again been quoted with approval in Shakuntala Devi Jain v. Kuntal Kumar; and others(!). On the particular facts of the case, this Court held in the said decision that it was not a case where it was possible to impute to the appellant therein want of bonafide or such inaction or negligence as would deprive a party of the protection of s. 5 of the Limitation Act, 1963. Mr. D. N. Mukherji, learned counsel for the respondents Nos. 2 to 4 invited our attention to the decision of th~ Judicial Committee in Ram Narain Joshi v. Parmeshwar Narain Mahta afi