High Court Division · Special Original Jurisdiction
Prodeep Kumar Sarker and others v Judge, Arpito Sampatti Pratyarpan Appellate Tribunal, Rajbari and others
Writ Petition 5270/2019 · Decided 11 June 2026
The petitioners claimed land as heirs of the recorded tenant and sued before the Arpita Sampatti Pratyarpan Tribunal, Rajbari to release it from the vested property list. On the same day the Tribunal dismissed their suit but decreed a rival suit over overlapping land. One judge of the Appellate Tribunal rejected the petitioners' appeal in 2018 as four days late, holding that section 18(4) of the 2001 Act excludes section 5 of the Limitation Act, 1908, while another judge dismissed the Government's appeal in the rival case in 2022. The High Court Division held that section 18(4) excludes only section 5, not the whole Limitation Act or the Tribunal's discretion, and does not bar judicial review. The property was listed through a V.P. case of 1974-75, after 23.03.1974, so the inclusion was void and limitation could not run on that nullity. The two appeals should also have been heard together under section 20(4). The Court condoned the delay, set aside the order and remanded the appeal for hearing on merits.
- Q1
Whether section 18(4) of the Arpita Sampatti Pratyarpan Ain, 2001 barred the High Court Division from relieving the petitioners of a four-day delay in filing their vested property appeal.
- Q2
Whether appeals concerning the same property had to be heard together under section 20(4) of the 2001 Act.
- Q3
Whether limitation can bar a challenge to the inclusion of property in the vested property list made after 23.03.1974.
- Section 18(4) of the Arpita Sampatti Pratyarpan Ain, 2001 excludes only section 5 of the Limitation Act, 1908, not the whole Act or the Appellate Tribunal's discretion, and does not bar judicial review.
- The time limits in section 18(5) for disposal of appeals carry no consequence of abatement and are treated as directory.
- Where several appeals concern the same property, section 20(4) of the 2001 Act requires the Appellate Tribunal to hear and dispose of them together, and failure to do so caused a miscarriage of justice.
- Inclusion of property in the vested property list after 23.03.1974 is void ab initio, and limitation cannot run against such a nullity.
- The four-day delay was condoned, the order rejecting the appeal was declared without lawful authority, and the appeal was remanded for hearing on the merits within the time prescribed by section 18(5).
Sub-section 4 of Section 18 only makes inapplicable the provision of Section 5 of the Limitation Act, 1908, not the whole Limitation Act, nor the discretion of the Appellate Tribunal.
In the court’s own words.
Writ Petition 5270/2019, as published by the Supreme Court of Bangladesh. 26 pages, with paragraph numbers for citing.
1IN THE SUPREME COURT OF BANGLADESH
2HIGH COURT DIVISION
3(SPECIAL ORIGINAL JURISDICTION)
Present:
4Mr. Justice Bhishmadev Chakrabortty
-And-
5Mr. Justice Abdur Rahman
6WRIT PETITION NO. 5270 of 2019
7IN THE MATTER OF:
8An application under Article 102 of the Constitution of the
9People's Republic of Bangladesh
-And-
10IN THE MATTER OF:
11Prodeep Kumar Sarker and others.
…. Petitioners
-versus-
12Judge, Arpito Sampatti Pratyarpan, Appellate
13Tribunal, Rajbari and others
…. Respondents
14Mr. Purnindu Bikash Das, Advocate
…. For the petitioner
15Mr. Mohammad Imam Hossain, Deputy Attorney
16General
…for respondent 3
17No one appears
….for respondent 4 and 5
18Date of Hearing & Judgment: 11.06.2026 A.D.
Thursday, 28 Jyashtha 1433 B.S.
JUDGMENT:
19Abdur Rahman, J:
20This Rule was issued at the instance of the petitioners under Article 102 of the Constitution of the People's Republic of Bangladesh in the following terms:
21"Let a Rule Nisi be issued calling upon the respondents to
22show cause as to why the judgment and order dated
2318.07.2018 passed by the learned Judge, Arpito Sompatti
24Prottorpon Appeal Tribunal, Rajbari in Vested Property
25Appeal No. 111 of 2017 (Annexure-B and Bl to the writ
26petition respectively) dismissing the same as being time
27barred and thereby affirming the judgment and decree
28dated 23.04.2017, (decree signed on 27.04.2017) passed
29by the Arpito Sompatti Prottorpon Tribunal, Rajbari in
30Vested Property Suit No.158 of 2013, dismissing the same
31should not be declared to have been passed without lawful
32authority and is of no legal effect and/or pass such other or
33further order or orders as to this Court may seem fit and
34proper."
35The nub of facts leading to the issuance of this Rule Nisi, in brief, is that one Padmaboti Sarker was the S.A. recorded tenant
of the suit property. Padmaboti died issueless, leaving behind her husband's grandfather's full brother's grandsons, Profulla Kumar and Bijoy Nath Kumar. Thereafter, Bijoy Kumar died unmarried, leaving behind his brother Profulla Kumar Sarker, who died, leaving behind three sons, the plaintiffs 1 and 2, and Proshanto Kumar Sarker, the father of plaintiff 3. Thus, the plaintiffs have been possessing the suit land as the successive heirs of the S.A. recorded tenant. Once, the Government was trying to settle the property elsewhere, claiming it as vested property. Then, Profullah Kumar Sarker, in order to avoid settlement in another location, avoid further civil litigation, and protect his possession, took settlement of the suit property in the name of his sons through Lease Case No. XII-VP/36/74-75. The family cremation ground is situated on the Southern side of R.S. Plot 767. That the rest of the suit land has been possessed by the plaintiff by cultivating themselves and through bargaining within the knowledge of the defendants and others. The S.A. recorded tenants were the permanent citizens of this country. She died in the country, and she never left this country for India. The suit property was not listed in the census. To release the suit
36property from the Arpita Sampatti Prottayarpan List, the plaintiffs filed the instant suit.
37Thereafter, the defendant entered an appearance and contested the suit by filing a written statement denying all material allegations set forth in the plaint. That is the case of the defendant: Padmaboti Sarker was the S.A. recorded tenant. As stated, Padmaboti left the Country for India anytime between 06.09.1965 and 16.02.1969, resided there permanently, the suit property vested in the government by operation of law, and accordingly, the suit property appeared in the census list as vested property. The suit property is in the control of the defendant, and, as such, the government has leased the suit property to the plaintiff 2 through Lease Case No. XII-VP-136/74- 75. During the B.S. operation, the land of R.S. Plot Nos. 625, 623, 681 and 767 recorded to B.S. Plot Nos. 771, 775, 749 and 750 under B.S. Khatian No. 1/1 in the name of the Government. The lessee of the suit land has been in possession of the suit land by regularly paying the lease money to the Government. The suit property is very valuable, and, as such, to obtain the suit property, the plaintiff has executed certain documents in
respect of the suit land. The plaintiff's case is false and, as such, the suit is liable to dismissal.
38Thereafter, the learned trial Tribunal, the respondent 2, in order to try the suit, has framed as many as four issues, and in the course of the trial, the plaintiffs have adduced two witnesses and exhibited some documents in support of their claim, but the defendant neither adduced any oral evidence nor exhibited any document in support of his claim. The learned trial judge, without considering the evidence, both oral and documentary, and other materials on record, took an erroneous view and dismissed the suit by judgment and decree dated 23.04.2017 and 27.04.2017 respectively (Annexure-B and B-1).
39Being aggrieved by and dissatisfied with the aforesaid judgment and decree, the plaintiffs preferred Vested Property Tribunal Appeal 111 of 2017 before the Arpito Sompatti Prottorpon Appeal Tribunal, Rajbari, with an application for condonation of delay. The Respondent 1, without considering the case on merit, disallowed the said appeal on the point of limitation by the impugned judgment and order dated 18.07.2018 (Annexure-A). Hereinafter, the petitioner, finding no
other alternatives or equal efficacious remedy, invoked this jurisdiction.
40Conversely, the respondents 4 and 5, who were added, did not file any Affidavit-in-opposition; thus, in the application for addition of parties, it was stated that the learned Arpita Sampatti Pratyarpan Tribunal, upon due consideration of the evidence on record, rightly delivered the judgment and decree dated 23.4.2017 in favour of the applicant-respondents in V.P. Suit No. 17 of 2014. They further stated that the Judge of the Arpita Sampatti Pratyarpan Tribunal, Rajbari, directed to release the property from the V.P. List in respect of 1.55 acres of land of Mouza: Maliyat, Serial No. 608 of S.A. Khatian No. 368, Plot Nos. 681 and 767 in favour of them.
41Thereafter, the Deputy Commissioner, Rajbari, being aggrieved by and dissatisfied with the judgment and decree of the said Tribunal, preferred an appeal, being No. 131 of 2017, before the Arpita Sampatti Prattyarpan Appeal Tribunal, Rajbari, and after hearing, the learned Appellate Tribunal was pleased to dismiss the same on 17.08.2022, by upholding the judgment and
decree of the trial Tribunal. Accordingly, the instant Rule is liable to be discharged.
42Learned Counsel, Mr. Purnindu Bikash Das, appearing on behalf of the petitioner, has submitted that the tribunal ought to have considered that the inclusion of the property in question in the alleged vested property 'Ka' scheduled list is ex-facie illegal as the same has been included after 23.03.1974 and the Government failed to prove that the recorded tenant leave the Country to India during 06.09.1965 to 16.02.1969; without considering such legal aspect the tribunal dismissed the suit and as such the same has got no legal effect.
43Learned Counsel has further submitted that in the course of trial, the petitioners categorically proved that they are the 'cosharer in possession by lease and in accordance with the definition of Section 2(Da), the petitioners are 'Malik' of the suit property, but the tribunal, without considering such legal aspect, dismissed the suit and as such the same has no legal effect.
44Learned Counsel has further submitted that it is a settled principle of law that in a vested property case, the Government has to prove that the recorded tenant leaves the Country
permanently during the tenure of the ordinance No. XXII of 1965, and as such, the property was enlisted in the list of vested property. But in the instant case, even the tribunal found that the Government failed to prove its case by producing any document, though the tribunal dismissed the suit, and the Appellate Tribunal did not entertain the appeal because of 04 (four) days delay, and as such, the same has occasioned failure of justice.
45Learned Counsel has further submitted that the Respondent 2 in order to pass its judgment found that the plaintiffs are not able to prove that they are the citizen of Bangladesh, but defendant in its written objection did not raise any question in respect of citizenship of the plaintiffs, moreover in the cause title of the plaint the plaintiffs used their permanent address which seems they are the citizen of Bangladesh and as such the judgment and decree passed by the Respondent 1 is not sustainable.
46Learned Counsel has finally submitted that it transpires from the written statement, the Government claimed that the suit property was included in the vested property (VP) list
through V.P Case No. 136/74-75, so it is apparent that the instant V.P Case was initiated after 23.03.1974 and as such the alleged V.P Case is ex-facie illegal but the tribunal without considering such legal aspect dismissed the suit and the Appellate Tribunal did not entertain the appeal on point of delay of 04 days. So, the judgment and decree passed by both the Tribunal and the Appellate Tribunal are illegal and have no legal effect. He also posited that, the fundamental right conferred by Article 42 of the Constitution of the People's Republic of Bangladesh, Part III, will not be vitiated by the procedural mistake. The petitioners have right and title over the property in question by way of inheritance, which cannot be quashed on account of a procedural mistake; as such, the impugned judgment and decree are liable to be called for interference.
47None appears on behalf of the added Respondents 4 and 5 at the time of hearing.
48Mr. Mohammad Imam Hossain, learned Deputy Attorney General for respondent 3, submits that there is no room to condone delay as per the provision of Section 18(4) of the Awc©Z m¤úwË cÖZ¨vc©Y AvBb, 2001 (ms‡kvwaZ-2011), and thereby the learned
Arpita Sampatti Prattyarpan Tribunal, Rajbari, rightly rejected the appeal on the ground of limitation; consequently, the instant Rule is liable to be discharged.
49We have heard the learned Counsel for the petitioner and the learned Deputy Attorney General for Bangladesh, and also perused the writ petition and all annexures appended thereto.
50At this juncture, it is apposite to address the fundamental legal propositions relating to vested property, we found that on the backdrop of armed conflict between India and Pakistan in 6 September 1965 to 23 September 1965, a State of Emergency was proclaimed by the Government of Pakistan by Defence of Pakistan Ordinance, 1965 (Ordinance No. XXIII of 1965) whereunder Defence of Pakistan Rules 1965 (1965 Rules) was promulgated. In the pretext of powers under the 1965 Rules, the Government of Pakistan indiscriminately took over the properties of Hindus as being enemies or enemy subjects or anyone who appears to the Pakistan Government to be associated with enemies in the then East Pakistan. Although the armed conflict between India and Pakistan ended in 1965, the State of Emergency continued up until 16 February 1969, on
which date the Government of Pakistan promulgated the Enemy Property (Continuance of Emergency Provisions) Ordinance, 1969 by operation of which the provisions relating to vesting of 'Enemy Property' contained in the 1965 Rules continued to be in force until the magnificent liberation war of 1971, the arbitrary and discriminate confiscation of properties belonging to the Hindus and other enemies of the then East Pakistan continued by the Government of Pakistan. On 10 April 1971, the Laws of Continuance Enforcement Order, 1971, was promulgated, purporting to keep in force all Pakistani laws in force in the then East Pakistan on or before 25 March 1971, that were not in conflict with the proclamation of Independence. Bangladesh was not a successor state to Pakistan but rather emerged from a war of liberation against Pakistan. Immediately after liberation, on 26 March 1972, the Government of Bangladesh promulgated the Bangladesh (Vesting of Property and Assets) Order, 1972 (P.O. No.29 of 1972). By this order, all properties situated in East Pakistan that belonged to the Government of Pakistan were vested in the People's Republic of Bangladesh. Accordingly, all Government properties, including, but not limited to, Khaas land, rivers, and Enemy Properties listed under the 1965 and 1969
51Ordinances, became vested in Bangladesh. Although by the operation of the Proclamation of Independence and the Laws of Continuance Enforcement Order, 1971, the 1969 Ordinance lost its applicability in the People's Republic of Bangladesh, in 1974 the Government of Bangladesh, for ensuring further equality of all the citizens promulgated the Enemy Property (Continuance of Emergency Provisions) (Repeal) Act, 1974 (Act XLV of 1974), expressly repealing Ordinance Ⅰ of 1969. This Act ensured that no property shall be included after 23.03.1974 as vested property.
52The case at hand confirms that the suit property was included in the vested property (VP) list under V.P Case No. 136/74-75, and it is apparent that the instant V.P Case was initiated after 23.03.1974. But both the Subordinate Tribunals failed to observe these cardinal points of law in the petitioners' case.
53Earlier, a Division Bench of the Supreme Court of Bangladesh in Writ Petition 168 of 2021 (Government of Bangladesh, represented by the Deputy Commissioner, Rajbari – Versus- Md. Moniruddin Zoaddar and others) held that,
"The purpose of the Awc©Z m¤úwË cÖZ¨vc©Y AvBb, 2001 (ms‡kvwaZ-
542011), manifestly indicates that the rightful claimants likely
55original owner, or his Bangladeshi heirs or their successor-in-
56interest shall be entitled to have the properties which had
57been included during the period of 06.09.1965 to 23.03.1974,
58under the authority of the Defense of Pakistan Ordinance,
591965 (Ordinance No. XXIII of 1965), and the Defense of
60Pakistan Rules, 1965 and the other included properties
61beyond those period need not be declared to be released,
62rather be considered as void inclusion, per se."
63However, if we look into the preamble of the Awc©Z m¤úwË cÖZ¨vc©Y AvBb, 2001 (ms‡kvwaZ-2011), it might be found that-“ যেহত অিপত স ি িহসােব তািলকাভ কিতপয় স ি বাংলােদশী মূল মািলক বা তাহার বাংলােদশী উ রািধকারী বা উ মূল মািলক বা উ রািধকারীর বাংলােদশী াথািধকারী (Successor-in-interest) এর িনকট #ত$পণ এবং আনুষংিগক িবষয়ািদ স েক িবধান #ণয়ন সমীচীন ও #েয়াজনীয়”, which unequivocally reflects that the beneficiaries contemplated by the statute are the original owner of the property, or, in his absence, his Bangladeshi heirs, successors-in-interest, assigns, or persons claiming through a valid chain of title, who shall be legally entitled to obtain restitution and restoration of those properties that were
included, enlisted, or deemed vested during the period from 06.09.1965 to 23.03.1974. The said provision leaves little room for doubt that the legislative objective is to safeguard the proprietary rights of the true owners and their lawful successors by facilitating the return of such properties upon proof of lawful entitlement.
64Now the case in our hand unveiled that, the judgment and decree dated 23.04.2017, passed by the learned Judge of the Arpita Sampatti Pratyarpan Tribunal, Rajbari, passed in Arpita Sampatti Pratyarpan Suit 17 of 2014 (Respondents 4 and 5's case), decreeing the suit on contest, directed the defendant to release 155 out of 167 decimals of scheduled land in favour of the plaintiffs/applicants. On the same date, the learned Tribunal dismissed the Arpita Sampatti Pratyarpan Suit 158 of 2013 (petitioners' case) in respect of 193 decimals of scheduled land. Thereafter, the defendant Deputy Commissioner preferred an Appeal, being No. 131 of 2017, before the Arpita Sampatti Pratyarpan Appellate Tribunal, Rajbari, and after hearing the said appeal, Ms Jannatun Lilifa Akter Ja, learned Judge of Appellate Tribunal vide her judgment dated 17.08.2022, disallowed the
appeal by affirming the judgment and decree of the learned Arpita Sampatti Pratyarpan Tribunal, Rajbari, passed in V.P. Suit 17 of 2014.
65On the other hand, the instant petitioners as appellants filed V.P. Appeal 111 of 2017 against the judgment and decree dated 23.04.2017 passed in V.P. suit 158 of 2013, and after hearing the said appeal, Mr Md. Aminul Hoq, learned Judge of Appellate Tribunal vide his judgment dated 18.07.2018, disposed of the appeal as being not maintainable on the ground of delay of 4(four) days.
66From the aforementioned discussions, it is clear to us that during the trial, both suits were heard by a single Tribunal, and both the judgments were delivered on 23.04.2017. But the 2 Appeals were heard by different judges, with similar properties in the original suits, thereby violating the provisions of Section 20(4) of the Awc©Z m¤úwË cÖZ¨vc©Y AvBb, 2001 (ms‡kvwaZ-2011). For better understanding, the provisions of Section 20(4) of the said Act are reproduced below:
67“(৪) একই স ি র ব$াপাের একািধক আপীল দােয়র হইেল আপীল /াইবু$নাল
68একেযােগ ঐ সকল আপীল 1নানী ও িন2ি কিরেব এবং #েয়াজনেবােধ এক3ট
69রায় 4ারা উহািদগেক িন2ি কিরেত পািরেব৷”
70This clearly indicates that the Appellate Tribunal erred by failing to apply the mandatory instruction of law, thereby causing a miscarriage of justice in respect of similar appeals arising out of the same properties.
71However, the learned Appellate Tribunal specifically observed and decided that,
“অিপত স ি #ত$পন আইন ২০০১ এর ১৮(৪) ধারা মেত িস:া; বা
72রায় #দােনর ৪৫ (পয়তাি=শ) িদেনর মেধ$ আপীল দােয়র করেত হেব। এে?ে@
73The Limitation Act, 1908 (Act IX of 1908) এর Section-5 #েযাজ$ হেব
74না।
ইিতপূেব উে=খ করা হেয়েছ য, অ@ আপীল মাকDমা3ট দােয়েরর
75?ে@ ০৪ িদন তামািদ রেয়েছ। এে?ে@ তামািদ মাজনার কান সুেযাগ নই।
76অিপত স ি #ত$পন আইন, ২০০১ এর ১৮(৪) ধারার িবধান মেত তামািদ
77মাজনার আইনতঃ কান সুেযাগ নই, ইহা আইেনর সুFG িবধান। GgZve¯’vq
78আপীল$াH-দরখাIকারী প? কতৃক আনীত তামাদী মওকুেফর দরখাI3ট
79অLাহ$ করা হেলা।
উি=িখত পযােলাচনার আেলােক অ@ িভ,িপ, আপীল মাকDমা
80িবেশষভােব তামািদর আইনগত #েM Lহনেযাগ$ নয় মেম অLাহ$ করতঃ
81িনFি করা হেলা।“
In this context, we need to examine the provisions of Section 18 of the Awc©Z m¤úwË cÖZ¨vc©Y AvBb, 2001 (ms‡kvwaZ-2011), which are reproduced as follows: “ আ পীল: ১৮৷ (১) উপ-ধারা (২) এ উি=িখত /াইবু$নােলর িস:া;সমূেহর িবRে: 1ধুমা@ আপীল /াইবু$নােল আপীল দােয়র করা যাইেব; /াইবু$নােলর অন$ কান িস:াে;র িবRে: আপীল /াইবু$নােল বা অন$ কান আদালেত বা কতৃপে?র িনকট উ িস:াে;র Tবধতা, যথাথতা বা স3ঠকতা স েক কান #M উWাপন করা যাইেব না, এবং তাহা করা হইেল আপীল /াইবু$নাল বা উ অন$ আদালত বা কতৃপ? সরাসির নাকচ কিরয়া িদেব৷ (২) /াইবু$নােলর wb¤œewY©Z িস:াে;র িবRে: আপীল /াইবু$নােল আেবদনকারী বা #িতপ? আপীল দােয়র কিরেত পািরেবন:- (ক) ধারা ১০ এর উপ-ধারা (১), (২) বা (৪) এর অধীেন কান আেবদন 1নানীর জন$ Lহণ না কিরয়া সরাসির নাকেচর িস:া;; (খ) একতরফা বা দাতরফা 1নানী অে; ধারা ১০ এর উপ-ধারা (১) বা (২) এর অধীেন #ত$পণেযাগ$ স ি #ত$পণ বা ?িতপূরেণর টাকা পাওয়ার আেবদন gÄyi বা bvgÄyi কিরয়া #দ রায়; গ) একতরফা বা দাতরফা 1নানী অে; ধারা ১০(৩)] এর অধীেন উপ[ািপত অবমু করেণর আেবদন gÄyi বা bvgÄyi কিরয়া #দ রায়: তেব শত থােক য, এই উপ-ধারায় উি=িখত /াইবু$নােলর িস:া; বা রােয়র পূেব #দ এমন অ;বত\ আেদেশর ব$াপাের আপীেল #M উWাপন করা যাইেব যাহার িভি েত /াইবু$নাল উ িস:া; বা রায় #দান কিরয়ােছ৷
82(৩) /াইবু$নাল কান আেবদন ধারা ২৩(৩) এর অধীেন খািরজ কিরেল সই আেদেশর িবRে: আপীল করা যাইেব না৷ (৪) উপ-ধারা (২) এ উি=িখত িস:া; বা রায় #দােনর ৪৫ (পঁয়তাি=শ) িদেনর মেধ$ আপীল দােয়র কিরেত হইেব এবং এই সময়সীমা বৃ^: করার ?ে@ Limitation Act, 1908 (IX of 1908) এর Section 5 #েযাজ$ হইেব না৷ (৫) আপীল /াইবু$নাল উভয় প?েক 1নানীর সুেযাগ #দানপূবক আপীল দােয়েরর ৩০০ (িতনশত) িদেনর মেধ$ উহার রায় #দান কিরেবঃ তেব শত থােক য, কান অিনবায কারেণ উ ময়ােদর মেধ$ কান আপীল িন2ি করা সrব না হইেল, আপীল /াইবু$নাল কারণ িলিপব: কিরয়া অিতির ৬০(ষাট) িদেনর মেধ$ আপীল িন2ি কিরেত পািরেব: আরও শত থােক য, উি=িখত বিধত সমেয়র মেধ$ও যিদ যু^ সtত কান কারেণ কান আপীল িন2ি করা সrব না হয়, তাহা হইেল আপীল /াইবু$নাল উহার কারণ িলিপব: কিরয়া আেবদন3ট িন2ি র জন$ সবেশষ আেরা ৩০(^@শ) িদন সময় বিধত কিরেত পািরেব। (৬) কান প?েক 1নানী অে; আপীল /াইবু$নাল আপীল gÄyi বা bvgÄyi কিরয়া িস:া; #দান কিরেল উহার িভি েত ৭ (সাত) িদেনর মেধ$ এক3ট িডwী #xত কিরেব এবং #েয়াজনীয় ব$ব[া Lহেণর উেDেশ$ অিবলেy উ রায় ও িড^wর অনুিলিপ /াইবু$নাল ও জলা #শাসেকর িনকট #রণ কিরেব৷”
83From a plain reading of the aforesaid provisions of Section 18, it is obvious that Sub-section 4 of Section 18 only makes inapplicable the provision of Section 5 of the Limitation Act, 1908, not the whole Limitation Act, nor the discretion of the Appellate Tribunal. Accordingly, the provisions of Section 18(4) of
the said Act shall not be a bar to the exercise of the power of judicial review.
84Now to examine the objective view of whether the provisions of Section 18(4) are a rigid, stringent or absolute one. If we consider the provisions of Section 18(1) and 18(3), which denote the exclusion of the parties to prefer an appeal, whereas the provisions of Section 18(4) and 18(5) are procedural matters of the Appellate Tribunal. The provisions of Section 18(5) specifically endorsed that the Appellate Tribunal shall, after affording an opportunity of hearing to both parties, dispose of the appeal by delivering its judgment within 300 (three hundred) days from the date of filing of the appeal. Provided that, where, for any unavoidable reason, it is not possible to dispose of the appeal within the aforesaid period, the Appellate Tribunal may, for reasons to be recorded in writing, dispose of the appeal within a further period not exceeding 60 (sixty) days. Provided further that, if, for any reasonable cause, the appeal cannot be disposed of even within the said extended period, the Appellate Tribunal may, for reasons to be recorded in writing, extend the time, as a final extension, by a further period not exceeding 30
(thirty) days for disposal of the appeal. So, the Appellate Tribunal must conclude the formalities and deliver the judgment within 390 days, i.e., not more than 1(one) year and 25 (twenty-five) days. Whereas the appeal of Respondent 4-5 was filed in 2017, being Appeal No. 131 of 2017, and the judgment was passed on 28.07.2022, i.e., more or less after 5 years of filing it. This clearly indicates that the Act itself does not provide for any consequence for the abatement of an appeal after the specified time, and the Appellate Tribunal exercises its discretion, considering the said provisions as directory.
85By reason of necessity, we need to examine the provisions of Section 14 of the Limitation Act, 1908, which are reproduced below:
86"14. (1) In computing the period of limitation prescribed
87for any suit, the time during which the plaintiff has been
88prosecuting with due diligence another civil proceeding,
89whether in a Court of first instance or in a Court of appeal,
90against the defendant, shall be excluded, where the
91proceeding is founded upon the same cause of action and
92is prosecuted in good faith in a Court which, from defect of
jurisdiction, or other cause of a like nature, is unable to
93entertain it.
94(2) In computing the period of limitation prescribed for
95any application, the time during which the applicant has
96been prosecuting with due diligence another civil
97proceeding, whether in a Court of first instance or in a
98Court of appeal, against the same party for the same relief
99shall be excluded, where such proceeding is prosecuted in
100good faith in a Court which, from defect of jurisdiction, or
101other cause of a like nature, is unable to entertain it."
[Emphasis supplied]
102From the above provisions, it may be postulated that the Court or Tribunal has the discretion to assess the wrong forum and other causes in a like manner. Generally, litigants rely on Advocates who are recognized as officers of the Court or Tribunal. The Advocates may be reluctant to file suit or appeal on time, or wrongly count the time to file suit or appeal. In that case, to alleviate the sufferings of the litigants, a reasonable time may be condoned by the discretion of the Court or Tribunal if satisfied by the causes of a like nature are found as denoted in
the aforesaid provisions of Section 14 of the Limitation Act, 1908.
103However, the case in our hand demonstrates that the Appellate Court refused the Appeal 111 of 2017 on the ground of a 4(four) day delay, as it was barred by law. Whereas, both the Tribunals vehemently overlooked the filing of the suit of the Respondents 4 and 5, who filed the V.P. case 17 of 2014 on 11.03.2014 (Annexure-A1 to the Supplementary Affidavit of Respondent 4), which was beyond the time, i.e. 31.12.2013, as per the provision of Section 10(1) of the Awc©Z m¤úwË cÖZ¨vc©Y AvBb, 2001 (ms‡kvwaZ-2011). The best reasons are unknown to us.
104However, we deem it appropriate to respond to the purposes of the Awc©Z m¤úwË cÖZ¨vc©Y AvBb, 2001 (ms‡kvwaZ-2011), regarding the identification of the "real owners, heirs or successors-in-interest" in respect of the suit property. It is to be noted that no provision of the Awc©Z m¤úwË cÖZ¨vc©Y AvBb, 2001 imposes any obligation upon the Tribunal to adjudicate or determine title to the property in question except to prima facie, chain of documents, and its authenticity. The statutory mandate of the Tribunal is confined to the release of the property in
favour of the original owner(s), their heirs, or lawful successorsin-interest. Any dispute or question pertaining to inheritance, succession, or title of the released property squarely falls within the jurisdiction of the competent civil court for proper adjudication.
105In the aforesaid premises, we noticed that 193 decimals of S.A. Khatian Nos. 33 and 368 have been included in the vested property (VP) list through V.P Case No. 136/74-75, so it is apparent that the instant V.P Case was initiated after 23.03.1974. The learned Tribunal found grounds to release 155 decimals of the respondents' land through V.P. Case 17 of 2014, and those finding confirmed by the learned Appellate Tribunal in V.P. Appeal 131 of 2017. At the same time, the learned Tribunal rejected the claim in V.P. case 158 of 2013, preferred by the petitioners, which was left unheard in V.P. Appeal 111 of 2017 due to the time bar.
106Bearing in mind the aforementioned scenario, we are of the view that the inclusion of the instant suit property was after 23.03.1974, which was beyond the sanctioned period; accordingly, where an act, order, decree, proceeding, or
transaction is patently void ab initio, being a complete nullity in the eye of law and devoid of any legal efficacy from its very inception, no question of limitation can arise in respect thereof. A void act neither creates nor extinguishes any right, title, interest, obligation, or liability capable of attracting the operation of any statutory period of limitation. Since the law treats such an act as non-existent (void ab initio pro non scripto habetur), the passage of time cannot breathe life into that which was legally dead from the beginning. Consequently, the bar of limitation, founded upon the existence of a legally cognizable cause of action or enforceable legal relationship, cannot operate to validate, perpetuate, or protect an act that is inherently void. In other words, limitation cannot run upon a nullity, nor can the efflux of time cure an incurable defect of jurisdiction or legality. So, in any matter that is patently void ab initio, the limitation period cannot run thereon.
107Upon a careful consideration of the aforesaid facts and the governing law, we are constrained to hold that the V.P. Appeals 111 of 2017 and 131 of 2017 were heard by different judges, with similar properties in the original suits, violating the
provisions of Section 20(4) of the Awc©Z m¤úwË cÖZ¨vc©Y AvBb, 2001 (ms‡kvwaZ-2011), and without considering the period of initiation of the V.P. case. However, the 4(four) days' delay in filing V.P. Appeal No. 111 of 2017 is hereby condoned, and the judgment and order dated 18.07.2018, passed by the learned Appellate Tribunal in the said appeal, is herewith declared to have been passed without lawful authority and is of no legal effect, and the matter is sent back on remand for hearing the appeal on merit.
108Accordingly, the Rule is disposed of with the above observations and directions.
109There is no order as to costs.
110The learned Judge, Arpita Sampatti Pratyarpan Appeal Tribunal, Rajbari, is hereby directed to dispose of the V.P. Appeal 111 of 2017 as per the above observations and proposition of law, within the period as prescribed in Section 18(5) of the Awc©Z m¤úwË cÖZ¨vc©Y AvBb, 2001 (ms‡kvwaZ-2011), from the date of receipt of a copy of this judgment and order, without fail.
111The order of status quo granted earlier by this Court is hereby recalled and vacated.
112The office is directed to communicate this judgment and order forthwith.
( Abdur Rahman, J )
113Bhishmadev Chakrabortty, J:
I agree
(Bhishmadev Chakrabortty, J)
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