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2004 DIGILAW 475 (CAL)

KOLKATA MUNICIPAL CORPORATION v. KAMAL HYDER SIDDIQUE

2004-07-16

ALOK KUMAR BASU

body2004
ALOK KUMAR BASU, J. ( 1 ) BOTH sides are present in connection with this hearing which arose out of an application filed under Article 227 of the Constitution of India by the Kolkata municipal Corporation, which shall be referred to hereinafter as the "corporation" for the purpose of brevity. The opposite party No. 1 has filed his written objection and the Corporation has also filed reply thereto and both of them be kept on record. ( 2 ) A very short question has been raised on behalf of the Corporation through the present application as to whether the Municipal Assessment Tribunal, kolkata was legally justified by entertaining the application for condonation of delay in preferring Municipal Assessment Appeal No. 469 of 2002 when admittedly, the said appeal was preferred after a lapse of more than seven years from the statutory period. ( 3 ) THE learned Advocate appearing for the Corporation contends with reference to the impugned order and also the application preferred by the opposite party No. 1 alongwith his oral statement recorded by the Tribunal that the Tribunal in its order although mentioned the legal proposition as decided by the Apex Court, however, did not take the trouble by scanning fact and evidence whether the ratio of the decision could be made applicable in the present case and for that matter the Tribunal squarely failed to discharge its statutory obligation and the Corporation has suffered immensely for that failure to exercise jurisdiction according to law. ( 4 ) THE learned Advocate appearing for the opposite party No. 1 has made two submissions in the alternative. The learned Advocate first contends that the Corporation never confronted the factual aspect which the opposite party no. 1 put forward before the Tribunal as the explanation for the delay and this will lead us to hold that all the facts asserted by the opposite party No. 1 went unchallenged and hence, this cannot be verified any more through further judicial exercise. 1 put forward before the Tribunal as the explanation for the delay and this will lead us to hold that all the facts asserted by the opposite party No. 1 went unchallenged and hence, this cannot be verified any more through further judicial exercise. ( 5 ) IN the above context, the learned Advocate for the opposite party has raised a question about justifiability of exercising power under Article 227 of the Constitution of India in the given fact and circumstances as the Tribunal exercised its power within the statutory ambit and when there is nothing on record to show that Tribunal exceeded his jurisdiction, this Court would not come forward to correct the alleged wrong order by exercising jurisdiction under article 227 of the Constitution of India. ( 6 ) THE alternative submission of the learned Advocate has been that the opposite party himself was deprived of the necessary paper to prefer the appeal as he was not served with all the connected document upon which he could have exercised his power of appeal. The learned Advocate proposes to submit that when there was lacunae on the part of the Corporation in supplying the copy of the impugned order of assessment under the statutory provision the opposite party could not have preferred the appeal well within time. This point should have been considered at the time of condonation of delay and this Court should also take into account that particular point. ( 7 ) HAVING regard to the submissions made on behalf of both the sides and on examination of the impugned order alongwith available material, I am of clear opinion that there is no substance behind the contention of the opposite party as put forward by his learned advocate and there is much substance in the application of the Corporation for the reasons hereinafter given. ( 8 ) THE scope of exercising power under Article 227 of the Constitution of india is very clear and there is no dispute over the legal proposition that once it is found on the face of record that either the subordinate Court or the inferior tribunal failed to exercise its jurisdiction and thereby caused irreparable loss to any party, the Court would come forward and examine the record and also the order to satisfy itself whether the allegation on fact can be accepted or not. ( 9 ) IN that present case, admittedly, there was delay of seven years and admittedly, the legal position is that length of delay is not ground to refuse the prayer of condonation of delay but what accounts for is a reasonable and bona fide explanation. ( 10 ) THE Tribunal has finished its business by merely quoting the observation of the Apex Court, but, it is the duty of the Tribunal to analyse the fact and to hold whether there was bona fide or mala fide intention of the opposite party no. 1. ( 11 ) IT is true that the Corporation did not file any counter-affidavit to controvert the factual aspect, but, it is equally true that Corporation is not an individual, but, it is a statutory body and it cannot have any direct knowledge about the conduct of the opposite party which an individual citizen should have against another individual citizen. Further, had the Corporation filed any counter-affidavit, that would have proved that Corporation based its submission on falsehood. ( 12 ) IN the above background when I look at the contention of opposite party no. 1, I find that by mere mentioning about the illness without producing any iota of paper, he simply wanted to raise the contention which even the Apex court did not consider while giving the above verdict and thereby giving a guidance for liberal approach in the matter of condonation of delay. ( 13 ) ACCORDINGLY, the present petition stands allowed. The order impugned in this application is set aside so far Appeal No. 469 of 2002 is concerned. ( 14 ) THERE will be no order as to costs. ( 15 ) URGENT xerox certified copy of this order, if applied, be supplied expeditiously. A. K. Basu, J. : petition allowed.