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1992 DIGILAW 67 (CAL)

Hanuman Koiri v. State

1992-02-12

Amulya Kumar Nandi

body1992
Judgment 1. THIS is an application under Article 227 of the Constitution of India preferred against order dated 25-4-1989 passed in Misc. Appeal No. 1 of 1985 by the Sub-divisional Magistrate, asansol. This was a proceeding under Section 4of West Bengal Restoration of alienated Land Act of 1973, hereinafter referred to as the said Act. The opposite party had transferred the disputed land to the petitioner on 28-8-1969. The opposite party had filed an application under Section 4 of the said Act asking for restoration of the land. Both the authorities below held in favour of the opposite party. So the transferee has preferred this application under Article 227 of the Constitution of India. 2. THE findings of facts of the two authorities below are not under challenge. Mr. Sirkar has taken a plea of limitation the Act came in force on 5-5-1973. It engulfed within its fold all transactions held on or after 1-1-1968. The transferor was liable to file an application for restoration within two years from the date of commencement of the Act. Therefore, the transferor was liable to file an application for restoration by 4-5-1975. In the instant case the transferor had filed his application under Section 4 of the said Act on 31-1-1983. Mr. Sarkar then contends that on account of retrospective operation of the Act the cause of action in the instant case would have occurred within two years from the date of disputed transaction on 28-8-1969. In other words, he means to say that the transferor's claim became time barred on the expiry of 27-8-1971. 1 shall come to the question of limitation so far as the first part of the Mr. Sirkar's argument is concerned. With respect to second part of Mr. Sirkar's argument I may say that I cannot persuade myself to agree with Mr. Sirkar for the simple reason that the construction as sought to be made by Mr. Sirkar would be against the legislative intent. By incorporation of the provision of Section 4 (a) the Legislature intended to affect all transactions occurring after 1-1 -1968. Therefore if on account of retrospective operation of the Statute claims two years prior to 5-5-1973 would be barred, then no relief would be available for any transaction prior to 4-5-1971 although the Legislature intended to confer benefit upon transactions since 1-1-1968. This part of the argument of Mr. Sirkar therefore fails. Therefore if on account of retrospective operation of the Statute claims two years prior to 5-5-1973 would be barred, then no relief would be available for any transaction prior to 4-5-1971 although the Legislature intended to confer benefit upon transactions since 1-1-1968. This part of the argument of Mr. Sirkar therefore fails. It maybe pointed out that the initial period of limitation of two years from the date of commencement of the Statute was extended to four years by virtue of an amendment in 1976 which came in force on 1-4-1976. The said period of 4 years was enlarged to a period of ten years by virtue of another amendment of 1980 which was published on 20-8-1981. Therefore, the limitation for an action under the Act was extended upto 4-5-1983. Mr. Bhattacharjee, appearing for the opposite party contends that his claim preferred on 31 -1 -83 is therefore evidently not time barred. in this connection he places reliance upon the decision in Shyam Rao vs. Parulekar, AIR 1952 SC 324 . Emphasis is particularly laid upon the observation in paragraph 7 of the said decision. A Bench of Five Judges were pleased to fold that an amendment should be so construed as to obliterate the earlier provision. In other words by a fiction it shall be accepted that the repealed provision was never in the Statute book. Mr. Sirkar contends that in the said case the entire Statute was given a fresh lease of life and in such circumstances the Court relied upon the extended period of the Statute. In our case also the period of limitation as embodied in the Statute was given a fresh lease of life from time to time. Mr. Sirkar relies upon the decision of Mahadeolal Kanodia us. Administrator General of West Bengal AIR I960 SC 936 to contend that Court has laid down certain guidelines for construction of amended provisions. What happened in that case is that a certain benevolent provision standing in favour of a tenant in calcutta Thika Tenancy Act was deleted during the pendency of an application under that benevolent provision. Supreme Court opined that despite pendency of such an application under that benevolent provision the Court must take into account the state of law as on the date of order or judgment and give effect to the provision. Supreme Court opined that despite pendency of such an application under that benevolent provision the Court must take into account the state of law as on the date of order or judgment and give effect to the provision. The guidelines laid down by the Supreme Court, to my mind, do not much assist the petitioner in this case. On the contrary, it may lend support to a contention that the Court must take into account the law as it stands on the date of judgment. It may be that if the petitioner would have filed an application under the Act before the amendment of 1980 his claim would be time barred. But on the date of his application on 31-1-83 the limitation as prescribed by the Statute then obtaining was 10 years. In such circumstances the Court by no means could overlook the law then obtaining and say that the claim was time barred. It is well settled that the Court will take notice of any amendment that may come in operation during the pendency of suit or an appeal. In the instant case, however, the amendment was effected long before the action was initiated. Therefore, there is no reason as to why the law then prevailing would not be applicable in the instant case. In view of my forgoing reasons I find that the claim of the opposite party before the authorities below was not time barred. 3. MR. Bhattacharjee, appearing for the transferor opposite party attacks the application under Article 227 of the Constitution of India from another point. His contention is that the transferee cannot ask for a remedy under article 227 of the Constitution of India once he has exhausted his remedy in another jurisdiction of this Court. He seeks to impress upon this court that any judgment that had been passed by the High Court in exercise of another jurisdiction operates as resjudicata in this proceeding. There is no controversy that the petitioner-transferee had filed an application under Article-226 of the constitution of India. That was an inter- parties judgment. In C. O. No. 7477(w) of 1989 K. M. Yusuf, J. , dismissed the application saying "the application is dismissed" It does not appear from the said order that the application was dismissed for default. The presence of the learned Counsel of both the sides has been recorded. In this connection Mr. That was an inter- parties judgment. In C. O. No. 7477(w) of 1989 K. M. Yusuf, J. , dismissed the application saying "the application is dismissed" It does not appear from the said order that the application was dismissed for default. The presence of the learned Counsel of both the sides has been recorded. In this connection Mr. Bhattacharjee relies upon the decision in Sankar Ramchandra vs. Krishnaji Duttatraya, AIR 1970 SC 1 . In the said case the petitioner had exhausted his remedy under Section 115 of the civil Procedure Code. The Supreme Court held that thereafter the petitioner could not seek any remedy under Article 1226 or 227 of the Constitution of India. What the Supreme Court meant to say is that once a party exhausts his remedy in a certain jurisdiction of the High Court he can not fall back upon an alternative remedy in the other jurisdiction of the High Court. If he does so, according to the Supreme Court, it will be an abuse of the process of the Court. Therefore, the question of res judicata decs not come up for consideration before me. It is an abuse of the process of the Court. On this account alone the petitioner's application shall liable to be dismissed in limine. 4. MR. Sirkar contends that the petitioner's application cannot be held to be barred by res judicata as urged by Mr. Bhattacharjee on behalf of the transferor-opposite party. In this connection Mr. Sirkar relies upon a Five-Judge judgment of the Supreme Court in Joseph Pothen vs. Slate of Kerala, AIR 1965 SC 1514 . 1 am quite in agreement with Mr. Sirkar that the decision in the case under Article 226 of the Constitution of India will not operate as res judicata in the instant case. The reason is that there was no decision and no finding so as to operate as res judicata in this proceeding. It Is not the result but the decision that operates as res judicata in a proceeding. As a matter of fact, no decision was given in the proceeding under Article 226 of the constitution of India. Therefore no plea of res judicata will be of any avail in this case. In vie of the foregoing reasons I am unable to interfere with the impugned orders. The application accordingly fails. Application rejected.