JUDGMENT This is an application under Articles 226 and 227 of the Constitution against the appellate order passed by the Additional Collector of Saharsa on the 3rd October, 1966, in Land Restoration Appeal No. 1 of 1965-66 (Annexure H). 2. The petitioner applied under Section 3 of the Kosi Area (Restoration of lands to Raiyats) Act, 1951 (hereinafter referred to as the Act) for restoration of 91 31 acres of land in village Birpur, police station Bhimnagar, of Saharsa District, alleging that he was the previous raiyat of the holding, that it was sold away for arrears of rent on the 11th July, 1945, and purchased by one Sri Tilakdhari Lal of Madhipura. Opposite party no. 1 Srimati Sushila Devi purchased the property from the said Tilakdhari Lal by a sale deed dated the 1st December, 1948. The petitioner based his claim for restoration on the provisions of the Act which were meant to give relief to those raiyats whose holdings were sold away for arrears of rent due to their inability to pay the same in consequence of the ravages of Kosi river. The application was actually filed on the 27th October, 1957, before the Revenue Officer (Case No.4 of 1957-58). Notices were issued in due course to all the parties concerned. The opposite party no. 1 could possibly urge nothing against the restoration of the holding to the petitioner but filed certain documents with a view to support her claim for compensation for the various improvements effected on the land after it came into her possession. The Revenue Officer, Sri G. Singh, Circle Officer, Birpur, then posted the case for orders on the 17th February. 1958. The operative portion of his order (Annexure B) dated the 17th February, 1958, may be quoted in full : “The petitioner will pay compensation of Rs. 20,000/- to the opposite party in three annual instalments of Rs. 10,000/-, 50001-, and 5000/- respectively. On the payment of first instalment, the entire holding excluding the plots noted above would be restored to the petitioner but the petitioner will have no right to dispose of the holding in full or in part till he ;Jays the entire amount of compensation thus determined. If the petitioner fails to payoff the entire amount within the stipulated time the amount remaining in arrears would be realised by certificate proceeding. If the petitioner fails to payoff the entire amount within the stipulated time the amount remaining in arrears would be realised by certificate proceeding. The date of payment of the first instalment will commence from the 1st March, 1958, and remain valid and operative till the 1st June 1958. If the petitioner fails to pay the first instalment within the specified period then he will loose the benefit of this order of restoration”. In the said order, the learned Circle Officer excepted Plots 664, 665, 666 and 667 on the ground that dwelling houses and other structures for storage of the implements of agriculture had been constructed on them and that it would be inadvisable to evict oppsite party no. 1 from those plots. 3. On 11th August, 1958, opposite party no. 1 filed an appeal (Annexure Y) before the Collector. The grounds of appeal (Annexure Y) show that opposite party no. 1 challenged the quantum of compensation of Rs. 20,000/- fixed for restoration and also that portion of the order of the Circle Officer by which the said four plots amounting in all to 9 acres 25 cents were excluded from the restoration proceedings. On the 28th July, 1959, the appeal was dismissed by the Collector due to the absence of both the parties. Against his order, a revision petition was filed before the Commissioner, who, by his order dated the 7th February, 1961, set aside the order of the Collector and directed the re- hearing of the appeal on merits. Against the order of the Commissioner, opposite party no. 1 filed a writ petition in the High Court, M.J.C. 232 of 1961 (Annexure Z). A Bench of this Court, by its order dated the 30th June, 1964, quashed the order of the Commissioner mainly on the ground that the Commissioner had no jurisdiction to interfere with the appellate order of the Collector. Before the Bench it was further contended on behalf of opposite party no. 1 that the order of the Circle Officer was unjust and arbitrary and that it was otherwise defective in law. The learned Judges disposed of this contention with the following words : “After having read the counter-affidavit of respondent no. Before the Bench it was further contended on behalf of opposite party no. 1 that the order of the Circle Officer was unjust and arbitrary and that it was otherwise defective in law. The learned Judges disposed of this contention with the following words : “After having read the counter-affidavit of respondent no. 1 and also the order of the Circle Officer, Birpur, dated the 17th February, 1958, we are not satisfied that the order of the Circle Officer is arbitrary or defective in law.” There was an unsuccessful attempt to challenge this order of the High Court before the Supreme Court. But the Supreme Court application was dismissed for default on the 27th April, 1965, and the High Court finally disposed of the Supreme Court leave petition on the 9th July, 1965. One important chapter in the litigation between the parties was thus closed finally on the 9th July, 1965. 4. Thereafter, On 15th October, 1965, the petitioner applied to the B.D.O., Birpur, for permission to deposit the entire sum of Rs. 20,000 and prayed that the same may be accepted and the land restored to him by way of implementing the decision of the Circle Officer dated the 17th February, 1958. The B.D.O. (Sri D.C. Srivastava) while signing himself as Circle Officer, by his order elated the 17th November, 1965 (Annexure D) directed opposite party no. 1 to receive the said sum and to appear before him on the 25th November, 1965. On that dated he directed (Annexure E) restoration of the lands to the petitioner excluding of course those lands in which structures had been built and also directed the issue of writ of delivery of possession. By a subsequent order (Annexure G) dated the 27th November, 1965 he rejected the objection of opposite party that the right to deposit the amount was barred by time. Against these orders an appeal was taken up before the additional Collector, who by a lengthy order dated the 3rd October 1966 (Annexure H) reversed the order of the Anchal Adhikari. His main reasons were that the previous litigation fought upto the High Court would operate as res judicata that time was of essence of the order dated the 17th February, 1958 and that inasmuch as the first instalment was not deposited within the period fixed in that order the petitioner lost the benefit of restoration. 5. His main reasons were that the previous litigation fought upto the High Court would operate as res judicata that time was of essence of the order dated the 17th February, 1958 and that inasmuch as the first instalment was not deposited within the period fixed in that order the petitioner lost the benefit of restoration. 5. I may, at the outset, dispose of two preliminary points raised by the parties. 6. It was contended that the provisions of the Act should be struck down as unconstitutional inasmuch as they did not provide for payment of fair and just compensation to the owner of the land and as such contravened Article 31 of the Constitution. Mr. Sanyal for opposite party no. 1, who raised the contention, was conscious of the fact that in (I) Smt. Chhaya Devi V. State of Bihar (A.I.R 1957 Patna 44) the provisions of the Act were held to be constitutional mainly on the ground that though the Act was unconstitutional on the date on which it was passed (1951) it became constitutional when the cloud or eclipse was removed by the Constitution in Fourth Amendment 1955. But he urged that the said decision which was based on the doctrine of Eclipse must be held to be erroneous in view of a later decision of the Supreme Court in (2) Mahendra Lal Jaini V. State of Uttar Pradesh (A.I.R. 1963 Supreme Court 1019), where it was held that the doctrine of eclipse applied only to pre-Constitution Acts and that it could not be resorted to render valid those post-Constitution Acts which were still born. If the constitutional validity of the Act were to depend solely on the reasons which weighed with their lordships in (I) Smt. Chhaya Devi V. State of Bihar (A.I.R 1957 Patna 44) we would be inclined to accept Mr. Sanyal’s argument that that decision must be held to have been impliedly overruled by the decision in (2) Mahendra Lal Jaini V. State of Uttar Pradesh (A.I.R 1963 Supreme Court l019). But Mr. Lal Narain Sinha, who appeared for the petitioner, invited our attention to Article 31 (A) as amended with retrospective effect by the Constitution Fourth Amendment Act, 1955. By virtue of this Amendment no law providing for the extinguishment of rights in any estate shall be deemed to be void on account of its contravention of Articles 14, 19 or 31. Lal Narain Sinha, who appeared for the petitioner, invited our attention to Article 31 (A) as amended with retrospective effect by the Constitution Fourth Amendment Act, 1955. By virtue of this Amendment no law providing for the extinguishment of rights in any estate shall be deemed to be void on account of its contravention of Articles 14, 19 or 31. The expressions “estate” and “rights” in an estate were very widely defined and by virtue of Sub-clause (b) of Clause (2) of that Article even the interest of a raiyat would be “right in relation to an estate.” The essential provisions of the Act deal with the extinguishment of rights of those raiyats who bought the holdings in a rent 5ale and their successors-in-interest. Hence, the Act would obtain the protection of Article 31 (A), even though the doctrine of eclipse may not be applicable to it. 7. It was next contended that Sri D.C. Srivastava, who was working as B.D.O.-cum-Anchal Adhikari of Basantpur was not invested with the powers of a Collector under the Act and that consequently his order dated the 25th November, 1965 (Annexure E) restoring the lands to the petitioner was wholly without jurisdiction. This contention was raised for the first time at a belated stage during the hearing of this writ petition. Annexures D and E show that when he purported to exercise the powers of a Collector his jurisdiction was not challenged on the ground that he was not so invested. Similarly, in the appeal before the Additional Collector (Annexure H) also his jurisdiction to exercise such powers of a Collector under the Act was never challenged. If it is a pure question of jurisdiction without requiring any investigation of facts the party would undoubtedly be entitled to raise it even for the first time in this Court. But, here the question is inextricably mixed up with a question of fact, namely, whether on the 25th November 1965, Sri D.C. Srivastava was invested with the powers of a Collector. But, here the question is inextricably mixed up with a question of fact, namely, whether on the 25th November 1965, Sri D.C. Srivastava was invested with the powers of a Collector. One Sri Kameshwar Prasad, who was working as Deputy Magistrate and Deputy Collector Incharge of the legal section of Saharsa, has sworn an affidavit before us to the effect that during the relevant period Sri Dincsh Chandra Srivastava was working as Circle Officer (Anchal Padadhikari)-cum-B.D.O. (Prakhand Vikash Padadhikari) for Basantpur Block by Government Notification dated the 7th July, 1964, (Annexure I to his affidavit) and that as early as 30th December, 1955 (Annexure II) the Government had conferred powers on all Circle Officers in the district of Saharsa to discharge the functions of a Collector under the Act. He has produced before us both the said notifications which are, I think, conclusive on the subject. It is true that opposite party no. 1 has filed a counter-affidavit challenging the correctness of the statement. But this challenge is based mainly on the interpretation of certain letters from the Government which are, however, not very clear on this question. The Gazette notifications investing all Circle Officers of Saharsa with the powers of a Collector under the Act and the Gazette notification posting Sri D.C. Srivastava (Annexures I and II) as Circle Officer-cum-B.D.O. are, I think, conclusive. It is true that the Gazette notification (Annexure I) is in Hindi and the designation of Sri D.C. Srivastava described therein is Anchal Padadhikari. There is some controversy between the parties as to what this expression meant. The official Glossary of the Hindi expressions equivalent to well–known English terms shows that Anchal Padadhikari means Circle Officer. For the purpose of this writ jurisdiction, therefore, I would accept the affidavit of Sri Kameshwar Prasad and hold that Sri D.C. Srivastava had jurisdiction to pass the order of restoration of possession. 8. There can be no doubt that the judgment of the High Court (Annexure Z) in M.J.C. 232 of 1961 will operate as res judicata in respect of the matters expressly decided in that case, because it is well-settled that the principle of res judicata, applies to writ petitions. 8. There can be no doubt that the judgment of the High Court (Annexure Z) in M.J.C. 232 of 1961 will operate as res judicata in respect of the matters expressly decided in that case, because it is well-settled that the principle of res judicata, applies to writ petitions. By quashing the order of the Commissioner and thereby giving finality to the appellate order of the Collector dismissing the appeal for default, the High Court made the original order of the Circle Officer dated the 17th February, 1958, final. They also observed that the order was not arbitrary and defective in law and they expressly rejected the contention raised by the petitioner that the order for payment of compensation of Rs. 20,000/- was harsh and exorbitant. The petitioner cannot, therefore, re-agitate these matters here. 9. But the main question on which the parties violently differed before us is regarding the true effect of the instalment order. The order expressly stated that the first instalment of Rs. 10,000/- should be paid by the 1st June, 1958, and that if it was not paid within the said period the petitioner will lose the benefit of the order of restoration. If time is held to be of essence of this order, Sri D.C. Srivastava would have no jurisdiction on the 25th November, 1965, more than eight years later, to condone the delay and permit the petitioner to pay the entire sum of Rs. 20,000/- in one instalment. On behalf of the petitioner, however, Mr. Lal Narain Sinha urged that time was not of essence of the order and that by saying that the petitioner “will lose the benefit of the order of restoration” the Circle Officer did not pass a peremptory order but reserved to himself the right to pass an order on a future date if the first instalment was not paid within the time fixed. Mr. Sanyal for opposite party no. 1, however, urged that the petitioner was not entitled to raise this contention now inasmuch as it would be barred by the principles of constructive res judicata, in view of the decision in M.J.C. 232 of 1961 (Annexure Z). It is true, as observed by their Lordships of the Supreme Court in (3) Devilal Modi V. Sales Tax Officer, Ratlam (A.I.R. 1965 S.C. 1150) that the principle of constructive res judicata could also apply in respect of writ petitions. It is true, as observed by their Lordships of the Supreme Court in (3) Devilal Modi V. Sales Tax Officer, Ratlam (A.I.R. 1965 S.C. 1150) that the principle of constructive res judicata could also apply in respect of writ petitions. But the question still arises as to whether the petitioner was bound to raise the question of interpretation of the default clause in the Circle Officer's order in that writ petition. At that time the main controversy was as regards the amount of compensation, namely, Rs. 20,000/-, and the exclusion of some plots containing building from the order of restoration. It is true that the petitioner might also have raised the question about the correct interpretation of the default clause, because at the time the matter was taken up to the High Court in the said writ petition the time for payment of the instalment had expired. But I do not think he was bound to raise the question also at that stage. Such a plea, if raised, could be practically admitting the correctness of the other portion of the order of the Circle Officer regarding the total amount of compensation payable and the exclusion of certain plots from the scope of the order. Though a litigant can take alternative pleas, it is well-settled that so far as constructive res judicata is concerned a litigant is not bound to take a plea which will be incongruous to the subject-matter of the earlier litigation and inconsistent with the earlier plea. I need only refer to (4) Mohomed Ibrahim V. Sheikh Hamju (I.L.R 35 Bombay 507 and (5) Dola Khetaji Wahivatdar V. Belya Kanoo Patel (A.I.R. 1922 Bombay 29). I would, therefore, reject the objection raised by Mr. Sanyal on behalf of opposite party no. 1 to the consideration of this question here. 10. On the other hand, the petitioner can urge with better justification that it was opposite party no. 1 who should have raised this question relating to the interpretation of the default clause both before the Commissioner in the revision petition and also before this Court in M.J.C. 232 of 1961. It is true that it was the petitioner who moved the Commissioner in revision against the appellate order of the Collector dated the 28th July, 1959, dismissing the appeal for default. The petitioner wanted re-hearing of the appeal; but, on the contention now raised by Mr. It is true that it was the petitioner who moved the Commissioner in revision against the appellate order of the Collector dated the 28th July, 1959, dismissing the appeal for default. The petitioner wanted re-hearing of the appeal; but, on the contention now raised by Mr. Sanyal for opposite party no. 1 regarding the interpretation of the default clause even on the date of the filing of the appeal, viz, 11th August, 1958, the petitioner had lost all his rights under the Act by not depositing the first instalment within the prescribed period. Hence, opposite party no. 1 could have urged before the Commissioner that no useful purpose would be served by remanding the appeal for re-hearing, inasmuch as the petitioner had lost all his rights under the Act. Had such a plea been raised, the Commissioner would have been compelled to give his decision on the interpretation of the default clause. Even if he failed to give any such decision, opposite party no. 1 could have taken up that point also in M.J.C. 232 of 1961 in which his main contention was that the Commissioner had no revisional jurisdiction against the appellate order of the Collector. He could have further urged that the remained order of the Commissioner was wholly infructuous, inasmuch as the petitioner had lost all his rights under the Act due to the peremptory nature of the default clause. Thus, for some reason or other, both parties did not raise any question about the interpretation of the default clause in the earlier litigation which was fought out between them from the 11th August 1958, till the 9th July, 1965. This is mainly responsible for the undue delay in making the deposit. 11. The default clause has already been quoted. It does not say that on failure to pay the first instalment within the date fixed the application for the petitioner for restoration shall stand dismissed, thereby making it clear that the Court has nothing more to do in the matter. But, by saying that the petitioner will lose the benefit of the order of restoration the Court still retained jurisdiction to pass a final order, either rejecting or allowing the petition of restoration. Hence, the decision in (6) Ramdhani Ram V. Sital Prasad Ram (A.I.R 1959 Patna 181), on which reliance was placed, must be held to be distinguishable. But, by saying that the petitioner will lose the benefit of the order of restoration the Court still retained jurisdiction to pass a final order, either rejecting or allowing the petition of restoration. Hence, the decision in (6) Ramdhani Ram V. Sital Prasad Ram (A.I.R 1959 Patna 181), on which reliance was placed, must be held to be distinguishable. The present case is somewhat similar to (7) Surajmal Marwari V. Bhubaneshwar Prasad (A.I.R 1940 Patna 50), where it was held that if the default clause was worded as “The plaintiffs must file deficit court fee within a fortnight from to day otherwise they will not be entitled to have the aforesaid decree and the suit will be dismissed” the order was held to be not peremptory. Reliance was placed on the well-known observation of Kekewich J. in (8) Collinson V. Jaffery (1896) 1 Chancery Division 644: “That final stroke has not been delivered, and therefore, in my opinion, the application is properly made and the order asked for may be granted.” In (9) Bokaro and Ramgur Ltd. V. The State of Bihar (A.I.R 1965 Calcutta 308) a distinction was made between an interlocutory order and a final order and it was observed that in respect of an interlocutory order even a peremptory default clause may not stand in the way of the Court granting extension of time, but where such a peremptory clause is found in a final order, no such power will be available to the Court. But the language of the default clause as given in Sub-paragraph (B) of Paragraph 12 is : “In default thereof the suit would stand dismissed”. The difference in the language is very significant. 12. I would, therefore, hold that the Court had power to grant extension of time notwithstanding the expiry of the period fixed for the first instalment by the Circle Officer in his order dated the 17th February, 1958. Hence, it cannot be said that the order of Sri D.C. Srivastava dated the 25th November, 1965 (Annexure E), directing the petitioner to deposit the entire sum of Rs. 20,000/- after the expiry of more than seven years from the date of the original order is without jurisdiction. It is true that he did not expressly grant extension of time, but the prayer of the petitioner (Annexure C) was for according permission to him to deposit the entire sum of Rs. 20,000/- after the expiry of more than seven years from the date of the original order is without jurisdiction. It is true that he did not expressly grant extension of time, but the prayer of the petitioner (Annexure C) was for according permission to him to deposit the entire sum of Rs. 20,000/- and permission was granted as prayed for. It would thus amount to implied extention of time. 13. It was then contended that even if it be assumed that the Circle Officer had jurisdiction to extend the time, nevertheless by virtue of Clause (e) of Sub-section (1) of Section 7 of the Act he cannot grant extension beyond the period of five years from the date of the order, because that was the maximum period to which the payment of the amount by instalment could be extended. On behalf of the petitioner, however, Mr. Lal Narain Sinha urged that Clause (e) would apply only when payment was being made in instalments and that it would not apply where the payment was being made in one lump sum, as provided in Clause (d) of Sub-section (1) of Section 7 of the Act. It is, however, unnecessary to decide this question, because even if it be assumed that the maximum period to which the payment could be extended was only five years, this Court must take notice of the well-known principle that Court's action should not prejudice any party. When M.J.C. 232 of 1961 was filed in this Court on 10th March, 1961, the Commissioner's order remanding the appeal for re-hearing by the Collector was stayed and that stay continued until that miscellaneous judicial case was disposed of on contest by the Court on 30th June, 1964. During this period of three years, three months and twenty days the petitioner was deprived of his right to get the original appeal before the Collector heard on merits and this period must be excluded in computing the total period of five years. When this period is so excluded the application dated the 17th October, 1965, is within the period of five years from the date of the original order. 14. When this period is so excluded the application dated the 17th October, 1965, is within the period of five years from the date of the original order. 14. It was urged that the High Court in M.J.C. 232 of 1961 merely stayed the operation of the Commissioner's order remanding the appeal for re-hearing, and did not in any way restrain the petitioner from depositing the sum as ordered by the original Court on the 17th February 1958. Hence, it was contended that the petitioner could have deposited the entire sum within the period of five years, though under protest, and thus escaped the rule of limitation prescribed in Section 7 (1) (e) of the Act. The petitioner might have done so; but, when the Commissioner's order, by virtue of which he was entitled to have the appeal reheard on merits, was itself stayed by the High Court, the petitioner had good reasons not to make any payment until the writ petition was finally disposed of. So long as there was a reasonable prospect of the appeal being heard on merits and the main question about the quantum of the amount payable and the exclusion of the plots on which structures stood, remained pending for decision, the petitioner could not be expected to jeopardise his interest by paying the entire sum. In any case, after the coming into force of the Limitation Act, 1963, the petitioner had a right to ask the Court concerned to condone the delay in depositing the sum, under Section 5 of that Act. If his application dated the 4th January 1965 to Shri D.C. Srivastava (Annexure C) is carefully scrutinised, especially Paragraph 16, it would be clear that the petitioner wanted the Court to condone the delay solely on the ground that he was “bonafide and diligently proceeding and continuing appeal and other proceedings relating to this matter”, and that the time taken up in the appeal, revision and the writ petition in the High Court should be excluded, and the petitioner should be permitted to deposit the entire sum. The order of the Circle Officer dated the 17th November, 1965 (Annexure D) shows that he granted permission to deposit the sum, thereby impliedly condoning the delay, though he has not expressly said so. The order of the Circle Officer dated the 17th November, 1965 (Annexure D) shows that he granted permission to deposit the sum, thereby impliedly condoning the delay, though he has not expressly said so. Similarly, again, in his subsequent order (Annexure E), he has discussed this question of delay in the following words : “As per Section 7 (e) [(meaning Section 7 (1) (e)] the amount awarded is payable by the raiyat within the period not do as the case was appealed before Collector, Commissioner and the Hon’ble High Court And now when the Hon’ble High Court has given decision on 30.6.64, the applicant was allowed to deposit the amount of compensation......” Though Section 5 of the new Limitation Act has not been expressly referred to by Shri D.C. Srivastava, nevertheless once it is held that it is applicable to an application under the Act, the order of the officer, when scrutinised in the light of the prayer made by the petitioner, should be construed, in substance, as an order condoning the delay mainly because of the stay order passed by the High Court in the writ petition. This Court, in exercise of its jurisdiction, cannot obviously interfere with the exercise of discretion by the authority concerned. 15. Mr. Lal Narain Sinha for the petitioner urged that the order of the Circle Officer dated the 17th February, 1958, was not duly communicated to the petitioner as required by Rule 7 of the Rules made under the Act. He even went to the extent of saying that the order was not in fact passed on that day. It is unnecessary to discuss these points, because admittedly the petitioner got a certified copy of the order on the 10th August, 1958 (see Paragraph 19 of the petition) and all that he can reasonably urge is that the period of five years should count from that date, after excluding the period of stay by the High Court in M.J.C. 232 of 1961. 16. For these reasons, I allow this writ petition, set aside the appellate order of the Collector dated the 3rd October, 1966 (Annexure H) and restore the order of the Circle Officer-cum-Anchal Adhikari dated the 25th November, 1965 Annexure E). Opposite party no. 1 should pay Rs. 200/- as costs to the petitioner. Petition allowed.