CAN 7975 of 2016 in FMAT 1091 of 1982 (CO 5087 of 2001). Case: Serajuddin & Co. Vs Union of India and Ors.. High Court of Calcutta (India)
| Case Number | CAN 7975 of 2016 in FMAT 1091 of 1982 (CO 5087 of 2001) |
| Counsel | For Appellant: D.N. Sharma, Aniruddha Roy, Ratnesh Kumar Rai, Anunoy Basu and Srinjoy Bhattacharya, Advocates |
| Judges | Biswanath Somadder and Sankar Acharyya, JJ. |
| Issue | Limitation Act, 1963 - Section 5; Mines and Minerals (Development and Regulation) Act, 1957 - Sections 5, 5(1), 8(2), 8(3) |
| Judgement Date | February 16, 2017 |
| Court | High Court of Calcutta (India) |
Judgment:
Biswanath Somadder, J.
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This is an application seeking recall of an order of dismissal of an appeal dated 21st June, 2001, upon condonation of delay in preferring the same after a period of more than 15 (fifteen) years.
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Before we proceed to take up the instant application for its consideration on merit, we propose to look into the records of the case. The records reveal that a writ petition was filed by one M/s. Serajuddin & Co. - describing itself to be a partnership firm registered under the Indian Partnership Act - before the First Court sometime in the year 1979. That writ petition was numbered as CR No. 2348 (W) of 1979. A judgment and order was passed by a learned Single Judge on 21st April, 1982, in that writ petition against which an appeal was preferred, being FMAT 1091 of 1982. Consequent upon filing of the appeal, an application for injunction was taken out by the appellant on 29th April, 1982, which was heard for a couple of days - on contest - in May 1982 and was finally dismissed on 12th May, 1982, upon the prayer for stay being refused. Certain directions were also given by the Appeal Court consequent upon dismissal of the application. The order dated 12th May, 1982, reads as follows:
The prayer for stay is refused. The application is dismissed.
Cyclostyled or printed paper books to be filed within six weeks from date. All formalities are dispensed with.
Liberty to mention for early hearing after the paper books are filed.
There shall be an order of stay of operation of this order for ten days from date. But during this ten days the appellant will not be entitled to operate the mines.
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The records further reveal that, let alone six weeks, right until 21st June, 2001 [(i.e., a period of 19 (nineteen) years], the appellant - being a registered partnership firm - did not take a single step in the matter or filed its paper books - either cyclostyled or printed - in terms of the specific directions given by the Court as contained in the order dated 12th May, 1982. Finally, on 21st June, 2001, the Appeal Court passed the following order:
No one appears in support of the appeal when the same is called on for hearing although learned Counsel for the respondent is present.
Accordingly the appeal stands dismissed for default. Interim order, if any, stands vacated.
No order as to costs.
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Now, after a further gap of more than 15 (fifteen) years, the instant application seeking recall of the aforesaid order dated 21st June, 2001, appears to have been filed in the Registry on 4th August, 2016. In the instant application seeking recall of the order dated 21st June, 2001, a prayer for condonation of delay in filing of the same has also been made on the basis of several statements, some of which are quoted hereinbelow:
"6. Your petitioner states that for the purposes of the said appeal, your petitioner consulted and engaged late Shri Balai Roy, Senior Advocate to represent them in the proceedings and as advised by him, a junior Advocate in his chambers, namely, Mr. Sobhan Lal Hazra, Advocate was engaged to act as the junior Advocate for the purposes of the said proceedings. Accordingly, a Vokalatnama was given to and in favour of Mr. Sobhan Lal Hazra and such Vokalatnama was filed by him on behalf of the petitioner in Criminal Case No. 2348 (W) of 1973 as well as subsequently in FMAT No. 1091 of 1982 being the appeal above named.
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Your petitioner states that having engaged the learned Advocates to represent the petitioner in the manner aforesaid particularly for the purpose of FMAT No. 1091 of 1982 your petitioner reasonably believed that all necessary steps as required would thereafter be taken as and when necessary for the preservation and protection of its rights and interests in relation to the said proceedings. It will be apparent from the records of this case hereinbefore summarized that your petitioner at all material times was (and still is) seriously interested to pursue proceedings in connection with the said mining lands and obtain the necessary renewal which it had been seeking for years together as aforesaid.
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Your petitioner bonafide and honestly believed that their rights and interests would be safely and securely protected by the learned Advocates whom they are engaged for the purpose of their representative. At all material times, your petitioner was and still is solely interested to pursue the above appeal and to secure its rights in the appeal by adjudication by this Hon'ble Court.
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However, as it now appears the appeal appeared in the Division Bench of this Hon'ble Court on 21st June, 2001 when it was dismissed for default. You petitioner had no prior intimation of any kind from any one whosoever regarding the appearance of the matter in the peremptory list. Your petitioner is now given to understand that no one representing your petitioner appeared before the Hon'ble Division Bench on the said occasion when the appeal was called on for hearing. Your petitioner is further given to understand that only one of the respondents was casually represented before this Hon'ble Court on the date in question.
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By reason of dismissal of the appeal, the valuable rights of the petitioner were seriously jeopardized and the order if sustained will likely be fatal to the interests of the petitioner. Your petitioner has paramount rights and interests in respect of the mining rights over the concerned lands to the exclusion of all others in the circumstances aforementioned.
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When the petitioner had filed the appeal on April 27, 1982 it had a subsisting lease and the right and the same was also recognized as would be evident from the conduct from the parties as the petitioner was allowed to continue with the mining operations even after expiry of the lease period by virtue of the orders passed by this Hon'ble Court in C.R. No. 3608 (W) of 1973 and C.R. No. 2348 (W) of 1979.
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It is humbly submitted that the State of Orissa had illegally and forcibly taken possession of the leased property on May 28, 1982 during the pendency of the above appeal by using its overwhelming powers. Your petitioner states that it indubitably has the valuable right of first renewal as lessee. Had the vested statutory right of first renewal not been wrongfully dealt with the petitioner would have been in a better position to apply for later and subsequent renewals during the following periods of. However, ignoring the right of renewal, the Central Government malafide took a plea that the area ought to be reserved for exploitation by some public sector enterprise. However, there was no such existing policy when the petitioner had applied for renewal. In fact no such policy has been disclosed till date at all.
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The petitioner has substantial grounds to agitate its general grievances to challenge the impugned action of the Central Government and the State of...
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