On the Death of Bijan Lal Choudhury His Wife Rekha Choudhury Vs the State of Assam and 5 Ors.

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GAHC010276922024

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : I.A.(Civil)/4084/2024

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ON THE DEATH OF BIJAN LAL CHOUDHURY HIS WIFE REKHA CHOUDHURY

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W/O- LT BIJAN LAL CHOUDHURY, R/O- H.NO. 3, BYE LANE NO 4, NATUN SARANIA, GANDHI BASTI, CHANDMARI, GHY-3, DIST- KAMRUP (M), ASSAM

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VERSUS

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THE STATE OF ASSAM AND 5 ORS. REP. BY THE CHIEF SECY. TO THE GOVT. OF ASSAM, FINANCE DEPTT., ASSAM SACHIBALAYA, DISPUR, GHY-6

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2:THE REGISTRAR GENERAL GAUHATI HIGH COURT GHY-1

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3:THE PRINCIPAL ACCOUNTANT GENERAL OFFICE OF THE ACCOUNTANT GENERAL (A AND E) ASSAM MAIDAMGAON BELTOLA GHY-29

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4:THE JOINT SECY. TO THE GOVT. OF ASSAM JUDICIAL DEPTT. DISPUR GHY-6 5:THE TREASURY OFFICER KAMRUP (M) GHY-1

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6:THE SENIOR ACCOUNTS OFFICER OFFICE OF THE ACCOUNTANT GENERAL (A AND E) ASSAM MAIDAMGAON BELTOLA GHY-2

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Advocate for the Petitioner : MR B P BORAH, MR B P BORAH,MR P J DUTTA

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Advocate for the Respondent : SC, FINANCE, SC, AG,SC, GHC

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BEFORE HONOURABLE MR. JUSTICE MANISH CHOUDHURY

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ORDER

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06.01.2025

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Heard Mr. B.P. Borah, learned counsel for the petitioner for the applicant; Mr. A. Chaliha, learned Standing Counsel, Finance Department for the opposite party nos. 1 & 5; Ms. P. Sarma, learned counsel representing Mr. T.J. Mahanta, learned Standing Counsel, GHC for the opposite party no. 2; and Mr. R. Boro, learned counsel for Mr. C. Baruah, learned Standing Counsel, Accountant General [A&E] for the opposite party nos. 3 & 6; and Mr. J.K. Goswami, learned Additional Senior Government, Assam for the opposite party no. 4.

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The instant interlocutory application is preferred by the applicant seeking substitution of her name in place of the original writ petitioner in the connected writ petition, W.P.[C] no. 6808 of 2018.

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The original writ petitioner, Bijan Lal Choudhury had preferred the connected writ petition, W.P.[C] no. 6808 of 2018 seeking inter-alia setting aside and quashing of orders whereby recovery has been sought to be made from the retirement benefits of the original writ petitoiner.

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It has been averred that during the pendency of the connected writ petition, the original writ petitioner, Bijan Lal Choudhury expired on 08.02.2022 leaving behind his wife

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and two sons as legal representatives. In support of the said fact, the applicant has annexed a Next-of-Kin certificate issued in her favour by the office of the Deputy Commissioner, Kamrup Metropolitan District on 11.05.2022.

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It has been held in Puran Singh and others vs. State of Punjab and others , reported in [1996] 2 SCC 205, that, though Order 22 of the Code of Civil Procedure [CPC] is not to be applicable to writ proceedings or writ appeals, yet, at the same time, it does not mean that the petitioners or the appellants in such writ petitions or writ appeals can ignore the death of a party if the right to pursue remedy even after death of the party survives. For purpose of holding as to what shall be a reasonable time, the High Court may take note of the period prescribed unde r Article 120 of the Limitation Act for substituting the heirs of the deceased party. It has further been observed that there is no question of automatic abatement of the writ proceedings. It has been further held that even if an application is filed beyond 90 days of the death of a party, the Court can take into consideration the facts and circumstances of a particular case for purpose of condoning the delay in filing the application for substitution of the legal representatives. This power has to be exercised on well known and settled principles in respect of exercise of discretionary power by the High Court. If the High Court is satisfied that delay, if any, in substituting the heirs of the deceased respondent was not intentional, and sufficient cause has been shown for not taking the steps earlier, the High Court can substitute the legal representative and proceed with the hearing of the writ petition or the writ appeal, as the case may be.

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On perusal of the statements and averments made in the instant interlocutory application, it is noticed that there appears to be no statement and averment explaining the reasons for delay of about two years in filing the instant interlocutory application seeking substitution. It is also a settled proposition that for the fault on the part of the learned counsel, the cause of the litigant shall not suffer. Learned counsel for the opposite parties have not made any serious objection to the instant interlocutory application and have conjointly submitted that by allowing the interlocutory application, the connected writ petition can be heard on merits.

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Having regard to the subject-matter involved in the accompanying writ petition and the said legal proposition, indicated above, this Court is of the considered view that for ends of justice, the interlocutory application shall be allowed to prevent further delay in considering the accompanying writ petition. Accordingly, the instant interlocutory application stands allowed.

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The learned counsel for the applicant shall submitted an amended cause-title in terms of the Notification no. 79 dated 19.06.2023 before the Registry within 3 [three] working days from today.

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JUDGE

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Comparing Assistant

On the Death of Bijan Lal Choudhury His Wife Rekha Choudhury v. the State of Assam and 5 Ors.

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On the Death of Bijan Lal Choudhury His Wife Rekha Choudhury v. the State of Assam and 5 Ors.

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