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1961 DIGILAW 384 (ALL)

Onkar Nath v. Raj Deo

1961-12-08

M.C.DESAI, S.D.SINGH

body1961
JUDGMENT M. C. Desai, C. J. - The short question that arises before us is of the interpretation of Section 12 of the U.P. Consolidation of Holdings Act, 1953 which is to the effect that "Every person interested in disputing the correctness or nature of an entry in the statement published under Section 11 shall within thirty days of the publication of the statement under sub-sec. (2) of Section 11 file objection." 2. Sec. 11 by sub-sec. (1) lays down that the Assistant Consolidation Officer shall prepare a statement containing certain particulars and by sub-sec. (2) it lays down that "the statement shall be published in the village along with a notice calling upon all persons interested to file objections, if disputing the correctness....." and that "a copy of notice together with relevant extracts, from the statement shall also be served on each tenure holder in the village." What happened in this case is that the statement referred to in sub-sec. (1) was published in the village on the 31st March, 1957, along with the required notice, a copy of the notice was served upon the respondents on the 12th April, 1957, and they filed an objection under Section 12 on the 7th May, 1957. The date of the objection was more than thirty days after the date of publication of the statement but within thirty days of the date of the service of a copy of the notice and the question at once arose whether it was barred by time or not. Our brother Tandon held that it was not barred by time and that the period of thirty days prescribed by Section 12 was to be computed from the date of the service of a copy of the notice and this view is challenged before us. 3. After hearing counsel we have no hesitation in saying that 31st March, 1957, was the date of publication of the statement within the meaning of Section 12 and that the period of limitation for the objection commenced on it. Sec. 12, clearly lays down that the limitation runs from the date of publication of the statement, and all that the court has to determine is on what date the statement was published. Sec. 12, clearly lays down that the limitation runs from the date of publication of the statement, and all that the court has to determine is on what date the statement was published. Sub-Sec. (2) of Section 11 requires in all three acts to be done, (1) publishing the statement, (2) publishing a notice inviting objections and (3) serving a copy of the notice on each tenure-holder. There are two things to be published, the statement and a notice; they are required to be published simultaneously, but none the less they are two publications. Publication of the statement, therefore, is distinct from publication of a notice and the period of limitation has been made to run from the date of publication of the statement. It is immaterial that on account of a notice having been published simultaneously with the statement that would also be the date of publication of the notice, but what the court has to consider under Section 12 is the date of publication of the statement and not that of the notice. In this case a notice was published simultaneously with the statement, but if it had not been published at all had been published not simultaneously but some time after the publication of the statement, the period of limitation would have run from the date of publication of the statement. When the date of publication of a notice is not to be considered in deciding when the period of limitation runs, the date of service of a copy of the notice, which is an altogether different act, would still less have to be considered. 4. The act of serving a copy of the notice on each tenure-holder is evidently an act different from the act of publication of the statement and of the notice and not a part of it. It is an act to be done in addition to the act of publication and what has to be done in addition can never be a part. It is quite irrelevant to go into the question of the reason for the provision regarding service of a copy of the notice. It is an act to be done in addition to the act of publication and what has to be done in addition can never be a part. It is quite irrelevant to go into the question of the reason for the provision regarding service of a copy of the notice. It may be to bring to the knowledge of each tenure-holder individually the fact that the statement has been published on a certain date and that he should file an objection, if any, within a certain time, but it does not follow that a service of a copy of the notice is included in, or forms a part of, the act of publication of the statement. It does not form a part of even the act of publishing the notice; how can it form a part of the act of publishing the statement ? A copy of the notice that is to be served on each tenure-holder itself states the date of publication of the statement and calls upon him to file an objection, if any, within thirty days thereof. It is impossible for him to contend still that he can file an objection on any date before the expiry of thirty days from the service of the copy of the notice upon him. 5. In the normal course copies of a notice will be served upon the tenure-holders some time after the publication of the statement and the notice. The notice is required to be published along with the statement, but the service would be effected some time later. The Legislature has deliberately made the period of limitation for an objection to commence on the date of the publication of the statement and this date could not be the date of service of a copy of the notice. After all what is meant by publication of the statement is to be gathered from the language used in sub-sec. (2) itself. Whatever may be the reason for service of a copy of the notice on each tenure-holder, if the publication of the statement and the notice is not followed by service, the publication will not cease to be publication. When the statement and the notice are published, the publication becomes an accomplished fact and will remain a fact even if the service of a copy of the notice is not effected on each tenure-holder. When the statement and the notice are published, the publication becomes an accomplished fact and will remain a fact even if the service of a copy of the notice is not effected on each tenure-holder. Thus even if there has been no service of a copy of the notice, the period of limitation will commence on the date of publication of the statement and the position will not be different if service of a copy of the notice is effected. The words used in Section 12 must be understood in the same sense in which they are used in Sec. 11(2) and if publication of the statement within the meaning of the latter provision does not include service of a copy of the notice publication of the statement within the meaning of the former provision also does not include it. "Service" is different from "publication" and "notice" is different from "statement"; we are at a loss to understand how service of a copy of the notice can be said to be included in the act of publication of the statement, even if along with the notice. We hold that the objection of the respondents was barred by time. 6. Sri R.N. Shukla next claimed the benefit of Section 5 of the Limitation Act. The respondents themselves had applied for extending the period of limitation for their objection under Section 5 of the Limitation Act. The Assistant Consolidation Officer refused to consider the application on the sole ground that it was filed not along with the objection but sometime later. This was certainly wrong; he should have considered it on merits. In appeal the Settlement Officer went into the merits and held that it was not a fit case for extending the period of limitation for the objection. This view of the Settlement Officer could not be quashed by certiorari because it was not patently illegal. In exercising jurisdiction under Article 226 of the Constitution this Court does not act as a court of appeal but only sees that the inferior court has acted within the limits of its jurisdiction and has not refused to exercise jurisdiction vested in it. It is not possible for this Court to grant the benefit of Section 5 of the Limitation Act. 7. In the result we allow this appeal, set aside the order of our brother Tandon and dismiss the petition for certiorari. It is not possible for this Court to grant the benefit of Section 5 of the Limitation Act. 7. In the result we allow this appeal, set aside the order of our brother Tandon and dismiss the petition for certiorari. The appellant will get his costs from the respondents.