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Official Trustee, West Bengal Vs. Lal Chand Mullick - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies
CourtKolkata High Court
Decided On
Case NumberAppeal No. 90 of 1981, Matter No. 2886 of 1980
Judge
Reported inAIR1982Cal210
ActsLimitation Act, 1963 - Section 5
AppellantOfficial Trustee, West Bengal
RespondentLal Chand Mullick
DispositionApplication allowed
Cases ReferredRamlal v. Rewa Coalfields Ltd.
Excerpt:
- ramendra mohan datta, j.1. this is an application under section 5 of the limitation act, 1963 for condonation of delay in filing the appeal from the order of the court below passed on jan. 7, 1981.2. the matter relates to the trust estate created by raja debendra nath mullick by the deed of trust dated 28th feb., 1919. it is a public charitable trust. the trust comprises of, inter alia, the premises no. 17 sooterkin lane, calcutta now known as 22, prafulla sarkar street, the object of the trust amongst other is for the eradication of leprosy. it is in respect of this trust estate that the order appealed from has been passed by the court below in favour of a member of the settlor's family for his personal benefit. the official trustee of west bengal is one of the trustees in respect of the.....
Judgment:

Ramendra Mohan Datta, J.

1. This is an application under Section 5 of the Limitation Act, 1963 for condonation of delay in filing the appeal from the order of the Court below passed on Jan. 7, 1981.

2. The matter relates to the trust estate created by Raja Debendra Nath Mullick by the deed of trust dated 28th Feb., 1919. It is a public charitable trust. The trust comprises of, inter alia, the premises No. 17 Sooterkin Lane, Calcutta now known as 22, Prafulla Sarkar Street, The object of the trust amongst other is for the eradication of leprosy. It is in respect of this trust estate that the order appealed from has been passed by the Court below in favour of a member of the settlor's family for his personal benefit. The Official Trustee of West Bengal is one of the trustees in respect of the said trust estate of Raja Debendra Nath Mullick. The Official Trustee wants to prefer the appeal herein but is late in doing so by a few days due to default or laches on the part of the dealing assistant.

3. The respondent herein is Lal Chand Mullick. Lal Chand Mullick is a member of the family of the settlor. It appears that he is already a tenant under the appellant Official Trustee in respect of several premises of the said trust estate, namely, premises Nos. 12A to 12F Justice Manmatha Mukherjee Road, 22, Prafulla Sarkar Street and 2 and 2/1 Srinath Babu Lane, Calcutta. The respondent pays a monthly rent of Rs. 707/- to the appellant in respect of the said premises of which he is a tenant including the premises No. 17, Sooterkin Lane now known as 22, Prafulla Sarkar Street, Calcutta,

4. It is stated that the said premises No. 22 Prafulla Sarkar Street is absolutely separated from the land measuring approximately 1100 sq. ft. lying adjacent thereto and numbered as 22/1A, Prafulla Sarkar Street and the tenancy of the respondent Lal Chand, in respect of the said Premises No. 22, Prafulla Sarkar Street, has nothing to do with the said premises No. 22/1A, Prafulla Sarkar Street, Calcutta. The respondent, however, claims that the said premises No. 22/1A, Prafulla Sarkar Street is included in his tenancy under the appellant. The Official Trustee by his letter dated 20th Nov. 1'978 stated that the said premises No. 22/1A, Prafulla Sarkar Street is not included in the tenancy of the said premises No. 22, Prafulla Sarkar Street, Calcutta. The relevant part of the said letter being Annexure 'A' to the said petition is set out below :

'To

Sri Lal Chand Mullick,

25/1A, Debendra Mullick St., Calcutta.

Dear Sir,

With reference to your letter dt. 26-10-197(5 I have to state that you are a tenant of the premises Nos. 12A to F, Justice Manmatha Mukherjee Road, 22, Prafulla Sirkar Street and 2 and 2/1 Srinath' Babu Lane at a rent of Rs. 707/- p.m. The premises No. 22/1A, Prafulla Sirkar St. is not included in the tenancy of this office. As such the question of giving permission by the Official Trustee to construct a building on the land at 22/1A, Prafulla Sirkar St. does not arise at all,

Yours faithfully,

Sd/- A.K. Ghosh,

Official Trustees of West Bengal.'

5. On or about 5th Dec. 1980, the application herein was made on behalf of Lal Chand Mullick for an order on the following prayers:

'(a) leave be granted to your petitioner to construct a four storeyed building at the vacant land measuring about 1100 square feet at premises No. 22/1A, Prafulla Sarkar Street, Calcutta at the costs and expenses of the petitioner and according to the proposed plan annexed hereto subject to the compliance of all appropriate laws relating thereto including Calcutta Municipal Act.

(b) The Official Trustees of West Bengal to grant a lease of the said proposed four storeyed building to be constructed at premises No. 22/1A, Prafulla Sarkar Street, Calcutta to the petitioner for a period of 99 years from the date of completion of the construction of the said proposed building with power to the petitioner to sub-let the said building as a part and/or as a whole.

(c) Upon execution of the said Deed of Lease for 99 years in favour of the petitioner, the petitioner do execute a deed relinquishing all rights, title and interest of ownership of the said building in favour of the said Raja Debendra Mullick Trust except as mentioned in the said Deed of Lease to be executed in terms of prayer (b) above,

(d) The petitioner do pay an increased rent of 15% over and above the present rent payable by the petitioner in respect of the said proposed building on and from the date of completion of construction of the said proposed building;

(e) Leave be given to the petitioner to construct 2 floors over and above the existing structure at premises No. 22, Prafulla Sarkar Street, Calcutta, at the cost and expenses of the petitioner.

(f) The Official Trustee of West Bengal do grant a lease of the said proposed two floors to be constructed over and above the existing structure at the premises No. 22, Prafulla Sarkar Street, Calcutta to the petitioner for a period of 99 years from the date of completion of the construction of the said proposed two floors with power to the petitioner to sublet the said floors as a part and/or as a whole.

(g) Upon execution of the said Deed of Lease for 99 years in favour of the petitioner, the petitioner do execute a Deed relinquishing all right, title and interest of ownership of the said two floors in favour of Raja Debendra Mullick Trust except as mentioned in the said Deed of Lease in terms of prayer (f) above.

(h) The petitioner do pay an increased rent of 20% over and above the present rent payable by the petitioner in respect of the said two floors from the date of completion of construction of the said floors.

(i) Leave be given to your petitioner to carry out the general and essential repairs to the premises No. 22, Prafulla Sarkar Street, Calcutta and the costs for such repair be paid by the Official Trustee of West Bengal to your petitioner out of the funds in his hands.

(j) Cost of and incidental to this application be paid by the Official Trustee of West Bengal to the petitioner.

(k) Further and other order and/or orders be passed direction and/or directions be given as will afford complete relief to your petitioner,'

6. The Official Trustee filed an affidavit and opposed the said prayers. The learned Judge after hearing the parties passed an order on 7th Jan. 1981 inter alia, directing certain terms to be included in the lease to be executed between the parties and certain directions were given by the said order. The order is set out in full as follows ;

'It is ordered that the said petitioner he at liberty to construct a four storeyed building at the vacant land measuring about one thousand one hundred square feet at the premises No. 22/1A, Prafulla Sarkar Street, Calcutta, at the said petitioners own costs and expenses according to the plan annexed to the said petition subject to the compliance of all appropriate laws and subject to the sanction of the plan by the Corporation of Calcutta and it is further ordered that the said Official Trustee of West Bengal do grant a lease of the said proposed four storeyed building to be constructed at the said premises No. 22/1A, Prafulla Sarkar Street, Calcutta to the said petitioner for a period of ninety-nine years from the date of completion of construction of the said building with power to the said petitioner to sublet the proposed building in part or as a whole. And it is further ordered that upon execution of the said deed of lease for ninety-nine years in favour of the said petitioner the said petitioner shall execute a deed of relinquishment of all his right, title and interest of ownership in the said building in favour of the Raja Debendra Mullick Trust except as mentioned in the said deed of lease to be executed as aforesaid and it is further ordered that the said petitioner do pay an increased rent of twenty-five per cent over and above the present rent payable by the said petitioner in respect of the said proposed building on and from the date of completion of construction of the proposed building and that the lease to be executed between the parties shall also include escalation term of such rent at intervals of every eleven years by five per cent and it is further ordered that the said petitioner be also at liberty to construct two floors over and above the existing structure at premises No. 22, Prafulla Sarkar Street, Calcutta, at the costs and expenses of the said petitioner and that lease be given by the Official Trustee of West Bengal above named of the said proposed two floors to be constructed over and above the existing structures at the said premises No. 22, Prafulla Sarkar Street, Calcutta, to the said petitioner for a period of ninety-nine years only from the date of completion of the construction of the said proposed two floors with powers to the said petitioner to sublet the said floors as a part and/or as a whole and it is further ordered that upon execution of the deed of lease in respect of the said two floors to be constructed as aforesaid for ninety-nine years in favour of the said petitioner, the said petitioner shall execute a deed of relinquishment of all his right, title and interest as owner of the said two floors in favour of Raja Debendra Mullick Trust except as mentioned in the said deed of lease and it is further ordered that the said petitioner do pay an increased rent at twenty-five per cent over and above the present rent payable by the said petitioner in respect of the said two floors from the date of completion of construction of the said two floors with escalation of rent at intervals of every eleven years by five per cent and it is further ordered that the said petitioner be at liberty to carry out 'the general and essential repairs to the premises No. 22, Prafulla Sarkar Street, Calcutta and that the costs for such repairs as aforesaid shall be paid by the said Official Trustee of West Bengal to the said petitioner if any fund is available in his hands. And it is further ordered that the 'said petitioner do also bear the increased corporation rates and taxes in respect of the proposed new building as also of the proposed two floors to be constructed on the old building and that both the shares of such taxes shall be paid by the said petitioner. And it is further ordered that the costs of and incidental to this application assessed at Rupees three hundred and forty be paid by the said Official-Trustee of West Bengal to the said petitioner and it is further ordered that the said Official Trustee do also retain and pay his own costs of and incidental to this application out of the funds in his hand and it is further ordered that the Official Trustee of West Bengal do act on a copy of the minutes of this order signed by an officer of this Court being produced before them.'

7. It prima facie appears that, on the lace of it, the said order suffers from certain infirmities being contrary to the provisions of the West Bengal premises Tenancy Act and the said order, if allowed to stand, would be highly prejudicial to the interest of the trust estate as would appear from the minutes of the meeting of the Official Trustee held on 2nd Aug., 1979 which is set out as follows:--

'Meeting held in the Chamber of Official Trustee, West Bengal. Present:-- 1. Sri Roxhomay Mullick

2. Sri Balai Chand Mullick, representing Sri Durga Charan Mullick,

3. Sri Ajit Kumar Ghosh-- Official Trustee.

Official Trustee requests the members present to consider the question of effecting repair to premises No. 22, Prafulla Sarkar Street as requested by Sri Lal Chand Mullick in his letter dated 18-4-79. The members present state that the Official Trustee should not take up the repairs at this stage. They also state that Sri Lal Chand Mullick is utilising the buildings for his own benefit by way of collecting rent from persons inducted by him as tenants in the said buildings. In the circumstances they request the Official Trustee to enquire what amount of rent Sri Lal Chand Mullick is realising from the alleged sub-tenants. Because in terms of the deed rent realised and for any income derived from the buildings should go for charities and that in no case such income should be utilised by any beneficiary for his personal gain. They also request Official Trustee to write to Sri Lal Chand Mullick to supply the names of the persons inducted in all the buildings under his tenancy and the rents paid by such tenants.

Official Trustee states that in his letter dt. 5-7-79 Sri Lal Chand Mullick has sought the permission by Official Trustee for erecting two more floors over the premises No. 22, Prafulla Sarkar Street, The members present are not agreeable to such proposal at the present moment.

There being no other item to be discussed. The meeting ended at 1 p.m. Engaged one hour from 12 Noon to 1 P.M.

Sd/- A.K. Ghosh

Official Trustee of West Bengal.

2-8-79.'

The Official Trustee sent a copy of the said Minute to Sri Lal Chand Mullick by his letter dated 10-8-79, a copy whereof is set out as follows:

'Sri Lal Chand Mullick,

25/1A, Debendra Mullick Street,

Calcutta-700073. Dear Sir,

With reference to your letter dated 1'8; 4-7-79 I have to enclose herewith a copy of the minutes of the meeting held on the 2nd Aug. 1979 in my Chamber with the present senior male members of the family of the settlor of the above-mentioned trust.

Yours faithfully,

Sd/- A. K. Ghosh

Official Trustee of West Bengal.

Thereafter, the Deputy Official Trustee by his letter dated 27-10-78 addressed a letter to Lal Chand Mullick to the following effect :

'To

Sri Lal Chand Mullick,

23/1 A, Debendra Mullick St.,

Calcutta-700073.

Trust Raja D. N. Mullick Charitable Fund.

Re: Premises No. 22, Prafulla Sarkar Street, 12A, Justice Manmatha Nath Mukherjee Road, 2 and 2/1 Sri Nath Babu Lane, Calcutta.

Dear Sir,

Please refer to this office letter No. 2969 dated 19-8-79 with which a copy of the minutes of the proceedings of the meeting held on 2-8-79 was sent to you. But no report as to the names of the subtenants of the above-mentioned, premises and rents paid by them to you has yet been received in this office.

I am directed to request you to send the aforesaid report to this office without further delay.

Yours faithfully,

Sd/- R.N. Mitra,

Dy. Official Trustee of West Bengal.

8. From the above, it appears that even though it was decided in the meeting of the Official Trustee that the prayers of Lal Chand Mullick should not be granted in the interest of the estate yet he pursued the matter and ultimately got the order from the Court below. It appears that the senior male members of the family of the settlor were duly consulted by the Official Trustee and the said members objected to the grant of said prayers of Lal Chand and their complaint was recorded that Lal Chand was utilising the building for his own benefit by way of collecting rent from persons inducted by him as tenants in the said buildings. The names of the sub-tenants were called for but he neither replied thereto nor did he supply those names. In this background he obtained the order from the Court below and the Official Trustee decided that the appeal has to be preferred and sent instructions to the advocate on record to put in a requisition on Jan. 21,-1981. That was after 13 days of the passing of the order. So at the very initial stage the applicant lost 13 days from the period of limitation. On 20th Feb., 1981 the Official Trustee went on leave and joined his office from leave on Mar. 21, 1981. In the meantime on Mar. 2, 1981, the order was completed and drawn up and on Mar. 5, 1981 the certified copy was made ready for delivery by the Department. Accordingly, after deducting the period of time requisite; the time to file the appeal expired on Mar. 22, 1981. The present petition was made ready on Apr. 7, 1981 and on 8th Apr., 1981 it was moved before us.

9. The total period of delay was for about 17 days and the explanation that is required to be given under Section 5 of the Limitation Act is in respect of the period from 22nd Mar., 1981 till 8th Apr., 1981. We gave an opportunity to the applicant Official Trustee to file a supplementary affidavit for explaining the delay for the said period. Pursuant thereto an affidavit has been filed by the Official Trustee as also by the dealing assistant It appears that the affidavit-in-reply was also filed by the dealing assistant, Bishnu Prasad Mullick on May 5, 1981. Bishnu Prasad Mullick' affirmed the supplementary affidavit on May 21', 1981 in addition to the affidavit already affirmed by him on April 7, 1981, giving further facts as to what had happened to him for which the Official Trustee could not file the appeal in time. The further affidavit as directed by this Bench was affirmed by the Official Trustee himself also on 21st May, 1981.

10. From the order as drawn up it does not appear that the Official Trustee used any affidavit-in-opposition before the Court below but only engaged an advocate to appear on his behalf. But actually such an affidavit was filed by the said Bishnu Prasad Mallick. It appears that the learned Judge gave certain directions in addition to the prayers made by the petitioner. The effect of the order, prima facie, appears to be that although the Official Trustee did not consent to the subletting of the premises yet by the Court's directions and orders the same was allowed. It is contended that such directions and orders are contrary to the interest of the estate and the provisions of the West Bengal Premises Tenancy Act, 1956. The allegation of the Official Trustee as against the respondent Lal Chand is that he has illegally sublet the said premises No. 22, Prafulla Sarkar Street, to various persons without the consent of the Official Trustee. The said fact of illegality in subletting the said premises was pointed out at the meeting held on 2nd Aug., 1979 to the Official Trustee by the senior members who are also trustees, namely, Durga Charan Mullick and Rohomoy Mullick. A copy of the said minutes of the meeting was sent to Lal Chand. By a subsequent letter the Deputy Official Trustee also required Lal Chand to furnish the names of the sub-tenants but no reply was received in the office of the Official Trustee in respect thereto.

11. Prima facie, there is a clear picture of illegality in respect of the transaction which is highly prejudicial to the interest of the trust estate. It is highly prejudicial to the interest of the public at large for whose cause the income of the estate has to be spent. Instead, by by-passing the orders of the Official Trustee, Lal Chand has been trying to make use of the profits of the estate for his own benefit by depriving the members of the public in respect thereto. In this proceeding we are not to question how he became a tenant and how he started subletting the same tenanted portion and realising rent for his own use to the detriment of Trust estate. We are now concerned with the proposed tenancy that is sought to be created by the order passed by the Court below. At this stage it is not necessary to make any further comment on the order passed herein except to say that this is a fit case where the Official Trustee should have an opportunity to file the appeal in the interest of the trust estate and in the interest of the public in general,

12. Looking at the background of this case and the facts as disclosed herein, it appears to us that everything is being sought to be legalised, in spite of opposition, by obtaining orders from the Court and in this matter it seems that the dealing assistant has undoubtedly lent a helping hand in allowing the time to file the appeal to pass by. The explanation that he has given is absolutely hopeless. He came to the office but at the same time did not think of looking into this urgent file. His excuse was that he had to go to Alipore Court and from there he had to go back home because of his father's illness. In other words, he was going to office but not looking after his office work entrusted with him. This is nothing but a deliberate attempt on his part to pass over the time for preferring the appeal. He did not bring it to the notice of the Official Trustee as to what was happening in the matter and that the time to prefer the appeal was expiring. He did not even bring it to the notice of the Deputy Official Trustee so that he could come forward and attend to the matter in the absence on leave of the Official Trustee. It is true that no allegation has been made against the dealing assistant to implicate him but it is quite apparent that full advantage has been taken of the absence on leave of the Official Trustee. During the leave taken by the Official Trustee it is not expected that the Official Trustee would always be conscious about the position of each and every file. A big office is being maintained for the purpose of enabling him to know about the urgent matters by putting up the flies before him. It appears that his attention was not drawn to the fact that the appeal was going to be barred by limitation. Before going on leave, on 16-2-81 the Official Trustee instructed the dealing assistant Bishnu Prasad Mullick to contact the Advocate on record who had already been instructed to take steps for obtaining the certified copy of the said order dated 7th Jan., 1981 so that the appeal might be preferred against the said order. The said dealing assistant however contacted the Advo-cate-on-Record of the appellant, Shri K.K. Basu to take necessary steps on the matter only on March 6, 1981. It is stated that from 7th March, 1981 the said dealing assistant could not join his duties as his father became seriously ill and had to go on leave till 18th March, 1981. This again is very significant. If he was on leave somebody else should have been made aware of the position and the file should have been handed over to another dealing assistant with proper instructions or at least that should have been brought to the notice of the Deputy Official Trustee. Even after joining his office he had to go back home to attend to his ailing father and as such he could not contact the Advocate-on-record until 1st April, 1981. That is the explanation with regard to the said period. That was the reason why he could not be aware of the fact that the certified copy was obtained in the meantime, until 1st April, 1981: It is said that on the next day, i.e. 2nd April, 1981, the Official Trustee was told by the said dealing assistant that the dealing assistant came to know that the certified copy in the above matter was obtained by his Advocate-on-record on 17-3-81. In the petition it is stated that immediately thereafter, that means, after 2nd April, 1981, the Official Trustee instructed the Advooate-on-record to brief the counsel for drafting a memorandum of appeal and a petition for condonation of delay in filing the above appeal. 3rd Apr., 1981 was a Bandh day in West Bengal and as such no counsel could be briefed on that day. On 4th April, 1981, counsel could be briefed to draft the necessary petition and memorandum of appeal and the same was returned by the said counsel on 6th April, 1981' to the Advocate-on-record. On 7th April, 1981 the papers were made ready for filing all this will appear from the petition filed by the Official Trustee.

13. The affidavit-in-reply has been filed by Bishnu Prasad Mullick on behalf of the Official Trustee. In the said affidavit he was reiterated the statements made in the petition.

14. As already observed we directed further affidavits to be filed and pursuant thereto both the Official Trustee and Bishnu Prasad Mullick filed separate affidavits. It is necessary to record Bishnu Prasad's own version of how he failed to perform his duties. He said therein that he had to go to Alipore Court everyday from 18th March, 1981 to 51'st March, 1981 in connection with Execution Case No, 3 of 1962. The said Execution case in Alipore Court involved sale of mortgage property for realisation of decretal dues of the mortgage of the Administrator General of West Bengal amounting to Rs. 3,00,000. The auction sale was being conducted by the learned District Judge, Alipore. He had to appear in the Alipore Court for giving instructions to the Advocate appearing on behalf of the Administrator General. At one stage there was talk of compromise and settlement for payments by instalments and the lawyers engaged in the matter specifically directed the deponent to apprise them of all the facts and circumstances of the case. During that period he used to go back home from Alipore Court after taking steps therein as he was in a very disturbed state of mind and as such there was no scope for him to contact the Advocate-on-record during the said period. The deponent said that he received the information that the certified copy was obtained by the Advocate-on-record on 17th March, 1981. He came back to the office to inform the Official Trustee about the said fact but he had to go to Writers Building in connection with some official work. The said fact could not be communicated to the Official Trustee. On the 2nd April, 1981 he informed the Official Trustee about the said fact that the certified copy had already been obtained by him when he was directed immediately to take steps for preparing the appeal and, accordingly, necessary instructions were sent to the Advocate-on-record on that day.

15. In the further affidavit filed by the Official Trustee it is stated that he was on leave with effect from 20th Feb., 1981 to 19th March, 1981 and he joined his duties on Monday, the 21'st March, 1981. 20th March, 1981 was a holiday on account of Doljatra festival. 21st March, 1981 was a Saturday and the office closed at 2 P.M. Much work could not be done except disposing of certain important files and certain routine business. 22nd March, 1981 being a Sunday the office was closed. He stated that on or before going on leave he instructed the dealing assistant Bishnu Prasad 'Mullick who- was looking after the matter to contact the Advocate-on-record to take steps for obtaining the certified copy of the order dated 7th Jan, 1961 so that the appeal might be preferred against the said order. According to the Official Trustee the dealing assistant contacted the Advocate-on-record on several occasions up to 6th March, 1981 but from 7th March, 1981 he could not join his duties and went on leave on the ground of his father's illness. He joined his duties on 18th March, 1981 and had to go to Alipore Court from office almost every day in connection with Execution Case No. 3 of 1962 till 31st March, 1981 during which period he had to go back home from Alipore Court after taking necessary steps as his father was lying ill and as such even though the Official Trustee had earlier instructed him to contact the Advocate-on-record he could, not do so during the said period, The Official Trustee was informed of the fact of obtaining the certified copy by the Advocate-on-record on 17th March, 1981 by the said dealing assistant on 2nd April, 1981. Immediately, he gave instructions to take necessary steps so that the appeal could be filed.

16. We are satisfied that from 2nd April, 1981' till the appeal was made ready on 7th April, 1981 the explanation is satisfactory.

17. With regard to the period from the expiry of the period of limitation till 1st April, 1981 the explanation does not appear to be quite satisfactory. The question before us is whether the said delay in filing the appeal should be condoned or not. The principle has been laid down in several decisions of the Supreme Court, particularly, in Ramlal v. Rewa Coalfields Ltd., : [1962]2SCR762 . The matter relates to a public charity in which public in general is interested and it appears that the public charity has undoubtedly suffered and has been suffering when placed in charge of a dealing assistant whose conduct has been sufficiently highlighted hereinabove to show in what way he has caused tremendous prejudice and hindrance to the filing of this appeal. It appears that full advantage has been taken of the absence of the Official Trustee on leave from Feb. 21, 1981 to Mar. 20, 1981 and the time was allowed to pass. We are of the view that the Official Trustee is not guilty of negligence or inaction in respect of the said period of delay and in a situation like this we should not go to-the extent' of saying that he is responsible for the acts of his employees. It is not the trustee but the trust itself which would otherwise suffer the 'consequences.

18. In the facts and circumstances of this case, should this Court stick to the strict procedural principles and allow the illegality to be perpetrated by refusing this application for the delay of a few days due to such unusual circumstances and cause prejudice to the interest of the general public and of the said trust estate

19. In my opinion, in the special facts and circumstances of this case, as stated hereinabove, the delay from the expiry of the date of preferring the appeal till 1st Apr. 1981 should be condoned. In a few later decisions the Supreme Court has relaxed the principle to some extent considering the special facts and circumstances of such case. In this connection reference may be made to the decision in the case of Sarpanch, Lonand Gram panchayat v. Ramgiri Gosavi, reported in : (1967)IILLJ870SC . Accordingly, in this case, since there are special considerations in condoning the delay, after careful consideration, we have come to the conclusion that the delay for the said period should be condoned.

20. We have gone into the facts and analysed the same in details for the purpose of indicating how in a specially ingenious manner in spite of opposition from the seniormost male members of the family of the Settlor and the minutes of the meeting of the Official Trustee, copy whereof was sent to Lal Chand, a situation has been created where the court could appear to be helpless and would be bound to dismiss an application of this nature. It is no doubt true that the dealing assistant is not supposed to be highly paid employee under the Official Trustee but the way he has acted in this matter does not appear to be above-board. He has to be cautioned for his future actions in dealing with other Estate matters as well. It is because of him that so many others have been faced with embarrassment. Accordingly, even though it might cause hardship to him financially yet we are constrained to order that he must bear a portion of the cost of this application personally to the extent of a sum of Rs. 100/- (Rupees one hundred) and the same would be payable within a month from the date hereof. The balance of the cost of this application would be, borne and paid by the Official Trustee from put of the funds of the trust estate in his hands, such cost is assessed at a total sum of Rs; 250/-. We make it clear that this token cost has been awarded against the dealing assistant, Bishnu Prasad Mullick, so that in future he might be more mindful about his duties and might discharge the same with full responsibility attached to his post,

21. The delay is accordingly condoned in terms of prayer (a) of the application and leave is given to file the memorandum of appeal after condoning the delay. Stay of operation of the order dated 7th Jan. 1981 is to continue for a Week in order to enable the Official Trustee to take necessary action in the matter. The Department will accept the Memorandum of Appeal if it is filed by Friday next. The Department do act on a signed copy of the minutes of this' order. There will be an order accordingly. The Official Trustee will retain his cost from out of the funds of the estate in his hands. The Official Trustee and all parties do act on a signed copy of the minutes of this order.

C.K. Banerji, J.

I agree.


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