KEDARNATH KUNDU Vs. BUILDING TRIBUNAL, CORPORATION OF CALCUTTA
LAWS(CAL)-1975-3-31
HIGH COURT OF CALCUTTA
Decided on March 04,1975

KEDARNATH KUNDU Appellant
VERSUS
BUILDING TRIBUNAL, CORPORATION OF CALCUTTA Respondents


Referred Judgements :-

BRIJ INDAR SINGH V. KANSHI RAM L.R. [REFERRED]
INDRA MOHAN KAPUR VS. COMMISSIONER, CORPORATION OF CALCUTTA [REFERRED]


JUDGEMENT

- (1.)An order dated August 21, 1968, passed by the Building Tribunal, Corporation of Calcutta, rejecting an application by the Appellant-Petitioner under Section 5 of the Limitation Act and disposing of his appeal preferred under Section 414A of the Calcutta Municipal Act, 1951, as barred by limitation, is the subject-matter of challenge in this Rule. The Appellant before the Tribunal is the Petitioner before us.
(2.)For having made some alleged construction at premises No. 2 Mahatma Gandhi Road (referred to as premises No. 3 Mahatma Gandhi Road in the order of the Tribunal), Calcutta, without sanction and in deviation from the building sanction plan a proceeding under Section 414 of the said Act was initiated against the Appellant on a notice dated July 26, 1967. On September 26, 1967, the Commissioner passed at conditional order for demolition. One of the conditions imposed for avoidance of the demolition was to pay a sum of Rs. 60,058 on October 20, 1967, this order was communicated to the Petitioner. On November 13, 1967, the Petitioner on the advice of a lawyer applied for reconsideration of the order before the Commissioner pleading his inability to pay such a huge sum as imposed by the Commissioner by way of condition incorporated in the order. Such a prayer was rejected by the Commissioner on April 25, 1968, but according to the Petitioner the order was communicated to him only on May 24, 1968. The Petitioner then filed the above appeal before the Tribunal on June 24, 1968, with an application under Section 5 of the Limitation Act for condoning the delay in filing the appeal. It is not in dispute that the limitation prescribed for such an appeal is 30 days from the date of the order and that the provisions of Section 5 of the Limitation Act is applicable. In making out sufficient cause for the condonation prayed for, the Petitioner sought for deduction of three periods in calculating time for filing the appeal on threefold grounds, namely, (i) the absence of knowledge of the order from September 26, 1967, to October 20, 1967, (ii) the time spent in bona fide prosecuting a review from November 13, 1967, to May 24, 1968 and (iii) the time lost due to illness incapacitating him from preferring the appeal from May 26, 1968, to June 21, 1968.
(3.)The Tribunal rejected this application holding that the Petitioner had failed to make out any sufficient cause. According to the Tribunal the application for review can hardly be considered as such and the Tribunal further doubted whether the Commissioner had any power to review his own orders in law. It held that if the review was within the powers of the Commissioner the proceeding could not be considered to be a wrong proceeding entitling the Petitioner to claim exclusion of time spent for such proceeding by way of sufficient cause. Alternatively, the Tribunal held that if it be held to be a wrong proceeding, the time spent for such a proceeding could be excluded only in proper circumstances, but no such case had been made out. Lastly, the Tribunal held that even if the entire period from November 13, 1967, to May 24, 1968, be excluded yet the Petitioner not having filed the appeal within six days from May 24, 1968, which was left with him but having filed the appeal 31 days later, the appeal must be held to be clearly barred by limitation. The Tribunal refused to accept the explanation furnished by the Petitioner in respect of this last period and the Petitioner's plea of illness as sufficient cause because, according to the Tribunal, if the Petitioner could write letters to the Commissioner seeking further reconsideration of his order during this period he could have as well filed the appeal. This is the decision which is the subject-matter of challenge before us in this Rule.


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