HARENDRA KRISHNA MOOKERJEE Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) THIS Rule was issued at the instance of the petitioner (who is the administrator pendent elite to the estate of late Debendra nath Dass) against the opposite party, the State of West Bengal, calling upon the latter to show cause why the connected appeal should not be registered, after condoning the delay in the matter of filing of the same under section 5 of the Indian Limitation Act. The application for the Rule was made under the following circumstances: premises No. 93, Ultadanga Main Road, belonging to the estate of late Debendra Nath Dass aforementioned, came to be acquired in connection with the Calcutta Improvement Trust Scheme No. VII-Manicktolla. The Collector made his award in respect of the said acquisition and the petitioner, feeling aggrieved by the said award, which was dated September 18, 1959, applied for and obtained two references- one on valuation and the other for apportionment-under sec. 18 of the Land Acquisition Act. The reference in respect of valuation was registered as case No. 80 of 1960 (V ). On September 26, 1961, the Calcutta Improvement tribunal by its award of that date, allowed the said reference in part and enhanced the Collector's award by a total amount of Rs. 8,414,53 np. The petitioner, however, was not satisfied and, for the purpose of filing an appeal to this Court, he applied, on September 29, 1961, for a certified copy of the aforesaid award. The copy was, eventuality, made ready on November 28, 1961. As. under the law [sec. 77a of the Calcutta Improvement Act,-sub-section (1) (b), to be more precise], a certificate from the President was necessary for filing the appeal to this Court, the same was applied for on January 2, 1962, and it was signed and made ready on the 12th April following and delivered to the petitioner on the 16th next. The instant appeal was filed in this Court on the very next day, namely, the 17th April, 1962.

(2.) THERE is no dispute that, in view, particularly, of section 77a (4) of the Calcutta Improvement Act, the instant appeal is to be governed by Art. 156 of the Indian Limitation Act, under which the period of limitation is 90 (ninety) days and the starting point of limitation is the date of the decree or order appealed from. Obviously, in the present case, the above time or period of limitation has expired long before the appeal was filed, as aforesaid, on April 17, 1962, in this Court and, accordingly, the Stamp Reporter of this Court made an endorsement on the Memorandum of Appeal that the same was in time up to February 21, 1962, taking into account the time, taken, as the time requisite, for obtaining the certified copy of the Tribunal's award, but that it was out of time on April 17, 1962, the date of presentation of the appeal to this Court, by 55 days and made a report that the Memorandum of Appeal was to be returned to the learned Advocate for presentation to Court with an application under section 5 of the Indian Limitation Act. The above report was endorsed on the back of the Memorandum of Appeal on April 18, 1962, and the Memorandum was actually re-presented to the Court on the very same day along with the present application under section 5 of the Indian Limitation Act, on which the instant Rule was issued.

(3.) THERE is no dispute that, if the time, taken for the learned President's certificate, that is, from the date of the application therefor up till the date, on which it was signed and made ready, as aforesaid, be excluded, in addition to the time, taken for obtaining the certified copy of the award, for which the application was made, as aforesaid, on September 29, 1961, and which copy was made ready for delivery on November 28, 1961, the instant appeal would not be time-barred and would be well within the prescribed period of 90 (ninety) days, as required under the aforesaid relevant Article 156 of the Indian Limitation Act.