Research › Browse › Judgment

Rajasthan High Court · body

1964 DIGILAW 73 (RAJ)

Mst. Badami v. State

1964-04-02

BALWANT SINGH, GAJENDRA SINGH

body1964
The brief facts of the case are that escheat proceedings with regard to Sanwalia were dropped long ago. Mst. Badami widow of Nekram and Mst. Ramdei widow of Murli requested the restoration of the property taken into custody during escheat proceedings. The then Collector Bharatpur vide his order dated 3.12.59 asked both the claimants to obtain the declaration of their rights from the competent civil court. Mst. Ramdei came in appeal before the Board of Revenue. It was then held by the Board of Revenue vide its order dated 24.5.60 that as per provisions of law the property must be restored to the person from whose possession it was taken. The learned Collector heard the parties and came to the conclusion that the property was in possession of Mst. Ramdei when it was taken over. Hence he ordered on 26.4.62 to release the property in favour of Mst. Ramdei. Mst. Badami filed an appeal against this order of the Collector dated 26.4.62 before the Revenue Appellate Authority Kota on 11.6.62 who returned it on 9.8.62 as it was not within his jurisdiction to hear this appeal. Shri Badami therefore presented this appeal before the Board of Revenue on 13.8.63 along with an application under sec. 5 and 14 of the Limitation Act. Amendment to the memo of appeal was allowed under sec. 7 of the Escheat Regulation Act, 1956 which was objected to by the learned counsel for the respondent that the appeal is time barred and sec. 5 and 14 of the Limitation Act are not applicable to this case. In support of their arguments they have cited AIR 1959 Rajasthan page 290, AIR 1962 Calcutta page 253, AIR 1961 Madhya Pradesh page 336. The Rajasthan High Court has held that sec. 5 of the Limitation Act does not apply to the application under O. 41, Rule 19 in connection with an appeal under the Rajasthan Tenancy Act (though sec. 5 of the Limitation Act was made applicable for appeals under the Tenancy Act). The Calcutta and Madhya Pradesh High Courts have also denied the benefit of Sec. 5 and 14 of the Limitation Act where it was not specifically provided for. The learned counsel for the appellants has only pleaded that the appeal was filed by the counsel of the appellant under a bonafide belief according to provisions of Land Revenue Act. The Calcutta and Madhya Pradesh High Courts have also denied the benefit of Sec. 5 and 14 of the Limitation Act where it was not specifically provided for. The learned counsel for the appellants has only pleaded that the appeal was filed by the counsel of the appellant under a bonafide belief according to provisions of Land Revenue Act. The Collector as well as the Board of Revenue derive their jurisdiction not only through specific law but also from the Land Revenue Act which has lawfully established these courts. As such this appeal may be heard under sec. 10 of the Land Revenue Act read with sec. 57 of the Land Revenue Act to which Limitation Act had been made applicable. He has further pointed out that there is no provision in the Escheat Regulation Act or the rules made thereunder to summon the witnesses etc. the Court therefore takes the guidance from the rules made or applied for the trial or revenue cases. After careful perusal of the arguments we are of opinion that there is a clear distinction between sec. 14 and 5 of the Limitation Act. Sec. 14 provides for the exclusion of the time during which another proceedings were pending and is mandatory, whereas sec. 5 affords extension of time for good cause and it is discretionary. Sec. 14 gives exclusion of time in computing the period of limitation prescribed for suits and applications and not for appeals. Hence in this appeal the most important point to be decided is whether sec. 5 of the Limitation Act is applicable or not. Sec. 5 of the Limitation Act is not included in clause (b) to sub-sec. (2) of sec. 29 of the Limitation Act, while sec. 5 itself provides that it can be made applicable when it is specifically provided for in the specific law. The Honourable Judges of the Rajasthan High Court have held that sec. 5 of the Limitation Act does not apply to application under Order 4l, rule 19 C.P.C. in proceedings under the Tenancy Act in which sec. 5 was made applicable vide sec. 214 of the Tenancy Act because it had not been made applicable to all applications. We therefore conclude that as there is no provision in the Escheat Regulation Act for provision of sec. 5 was made applicable vide sec. 214 of the Tenancy Act because it had not been made applicable to all applications. We therefore conclude that as there is no provision in the Escheat Regulation Act for provision of sec. 5 of the Limitation Act we have no power under the said Act to make this section applicable to such cases and extend the period. The appeal therefore stands rejected on point of limitation.