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Gauhati High Court · body

1969 DIGILAW 5 (GAU)

Md. Tafazzul Hussain v. Priyabala Sarkar

1969-02-19

P.K.GOSWAMI

body1969
This is an appeal by the plaintiffs having lost in both the courts be­low. 2. The plaintiffs instituted a suit under Section 103 (1) of the Goalpara Tenancy Act, 1929, hereinafter referred to as 'the Act', for correction of an entry in the re­cord-of-rights prepared during settlement operations in Goalpara District. 3. It is admitted by both sides that the final publication of the record-of-rights was made on 5th January, 1961 and the suit was instituted on 23rd June, 1961, beyond four months mentioned in Section 103 of the Act The court below, therefore, dismissed the suit on the ground of limitation as the suit was filed more than four months after the date of final publication of the record-of-rights. This view was taken relying on the provisions of section 103 (1) of the Act. 4. Mr. Sarma, the learned counsel for the appellants, submits that both the courts below erred in law in holding that the suit was barred by limitation. He relied on Clause 2 of the Goalpara Tenancy (Emer­gency Provisions) Ordinance, 1961 (Assam Ordinance No. III of 1961), hereinafter refer­red to as 'the Ordinance', which, according to him, extends the period of limitation and submits that the suit was, therefore, within time. 5. The only point, therefore, which re­quires consideration is whether the suit is Barred by limitation under Section 103 (1) of the Act and whether at has been saved by Clause 2 of the Ordinance. Mr. Sen, the learned Counsel for the 'respondent, submits that the Ordinance does not come to the aid of the present plaintiffs who had filed their suit on 23rd June 1961, more than four months after the final publication of the re-cord-of-rights. According to Counsel, the only persons who are benefited by this Ordi­nance are those who would have filed their suits within three months after the coming into force of this Ordinance and whose re-cord-of-rights had been published at a time which was within the four months' limit next preceding the date of the Ordinance. In order to appreciate the rival contentions we should read Section 103 of the Act: "103. In order to appreciate the rival contentions we should read Section 103 of the Act: "103. (1) In proceedings under this chap­ter, a suit may be instituted before a Reve­nue Officer, at any time within four months from the date of certificate of the final publication of the record-of-rights under sub­section (2) of Section 99, for the decision of any dispute regarding any entry, which a Revenue Officer has made in, or any omis­sion which he has made from, the record, whether such dispute be- * * * * * * This section comes in the midst of a fascicle of sections commencing with Section 97 of Part II of Chapter X, which relates to the record-of-rights, after making provisions about the manner in which the record-of-rights has to be made after preliminary publi­cation, amendment and final publication of the record-of-rights. Section 100 provides as follows: "100. (1) When a record-of-rights has been finally published under Section 99, the Reve­nue Officer shall, within such time as the Commissioner may, by general or special order, direct, make a certificate stating the fact of such final publication and the date thereof, and shall date and subscribe the same with his name and official title. (2) The certificate of final publication or, in the absence of such certificate, a certifi­cate signed by the Deputy Commissioner, stating that a record-of-rights has been finally published on a specified date, shall be conclusive proof of such publication, and the date thereof. (3) The Provincial Government may, by notification declare, with regard to any speci­fied area, that a record-of-rights has been finally published for every village included in such area, and such notification shall be conclusive proof of such publication. (4) In any suit or other proceeding in which a record-of-rights prepared and published under this Chapter, or a duly certified copy thereof or extract therefrom is pro­duced, such record-of-rights shall be pre­sumed to have been finally published unless such publication is expressly denied. (4) In any suit or other proceeding in which a record-of-rights prepared and published under this Chapter, or a duly certified copy thereof or extract therefrom is pro­duced, such record-of-rights shall be pre­sumed to have been finally published unless such publication is expressly denied. (5) Every entry in a record-of-rights final­ly published shall be evidence of the matter referred to in such entry, and shall be pre­sumed to be correct until it is proved by evidence to be incorrect." Having made provision regarding pre­sumption of record-of-rights, a right is given to the persons interested, who may be ag­grieved by these entries, to file suits before the Revenue Officer within four months from the date of certificate of the final publica­tion. The certificate, therefore, is a very important piece of evidence showing the date of publication of the record-of-rights. It is difficult to appreciate the submission made by Mr. Sen that since there is a scope for several publications of record-of-rights, the Ordinance was meant to refer to only those publications within four months next before its promulgation. The scheme and purpose of the Ordinance clearly run counter to such a submission. The record-of-rights is prepared by following a specified proce­dure laid down in the Act and when the final publication is made of the record-of-rights after disposal of objections against prelimi­nary publication, a certificate of final publi­cation giving a seal of approval to the record-of-rights is made. A special proce­dure thereafter is laid down enabling ag­grieved persons to agitate against those en­tries within four months of the date of such publication. The date of final publication, therefore, is very important as limitation be­gins to run from that day which, in the nature of things, cannot be variable. It is now admitted that the date of final publi­cation is 5th January, 1961 in this parti­cular case. If there were no Ordinance, the present suit would have been barred under Section 103 (1) of the Act. The whole ques­tion is whether the Ordinance has saved this suit from being barred by limitation. 6. The short title of the Ordinance is "The Goalpara Tenancy (Emergency Provi­sions) Ordinance, 1961 and the long title is "An Ordinance to extend the period o{ limitation under the Goalpara Tenancy Act; 1929". The whole ques­tion is whether the Ordinance has saved this suit from being barred by limitation. 6. The short title of the Ordinance is "The Goalpara Tenancy (Emergency Provi­sions) Ordinance, 1961 and the long title is "An Ordinance to extend the period o{ limitation under the Goalpara Tenancy Act; 1929". The preamble states- "Whereas the Legislature of the State of Assam is not in session: And whereas it is necessary to extend the period of limitation under Section 103 of the Goalpara Tenancy Act 1929, in the matter of institution of suits before a Revenue Of­ficer: And whereas the Governor of Assam is satisfied that circumstances exist which render it necessary for him to take immediate action: Now, therefore, in exercise of the powers conferred by Clause (1) of Article 213 of 1969 the Constitution of India, the Governor is pleased to promulgate in the Twelfth Year of the Republic of India, the following Ordi­nance:- Under sub-clause (2) of Clause 1, it shall come into force at once and Clause 2 provides as follows: "Notwithstanding anything contained in sub-section (1) of Section 103 of the Goal-para Tenancy Act; /1929, a suit under the said section may be filed within three months of the coming into force of this Ordinance, even if the period of four months prescribed under the said section has expired and any suit so instituted shall be deemed to have been instituted within time." The object and purpose of the Ordinance, therefore, is to revive certain stale claims with regard to the correction of record-of-rights etc. The four months' time which is given under section 103 (1) must have been for very good reasons considered inadequate and the Ordinance was promulgated in order to remedy the hardship that might be caused to a large section of the people who would otherwise be deprived of the opportunity to question the entries, the presumption of correctness being attached to them (Section 100, sub-section (5)) and the jurisdiction of Civil Court as well being barred in such matters (Section 108). 7. Clause 2 of the Ordinance clearly indi­cates for whose benefit this Ordinance had to be promulgated even without waiting for the Legislature to sit in session for. such a piece of legislation. It must have been con­sidered very urgent to come in aid of all those people who might have grievance against the record-of-rights. 7. Clause 2 of the Ordinance clearly indi­cates for whose benefit this Ordinance had to be promulgated even without waiting for the Legislature to sit in session for. such a piece of legislation. It must have been con­sidered very urgent to come in aid of all those people who might have grievance against the record-of-rights. It is in this context that the Ordinance was promulgated, which was entirely for the benefit of the people whose record-of-rights had been pre­pared and who might have objections against entries in those record-of-rights. Clause 2 is a deeming provision. It clearly states that any suit so instituted shall be deemed to have been instituted within four months of the date of final publication of the record-of-rights. This Ordinance has given a fur­ther lease of life to various claims for insti­tuting suits within three months of the com­ing into force of the Ordinance on 16th November, 1961. Clause 2 clearly takes note of the contingency of such suits having not been filed within four months as requir­ed under Section 103 (1) of the Act. The expression used in the clause is "even if the period of four months prescribed under the said section has expired" and, therefore, on 16th November, 1961, when it was clearly known that the period of four months had already expired on 4th May, 1961, the Ordi­nance could only be pressed in service for helping those persons who could not insti­tute their suits within that date. If this interpretation is not given to Clause 2, the Ordinance will be sterile and will not come to the benefit of those for whom it was intended. I am unable to accept the submission of Mr. Sen that this Ordinance is not re­trospective and was only meant for those persons who would be able to institute their suits within three months of the Ordinance promulgated on 16th November, 1961. This could not be the intention of the Ordinance because its very object is to benefit all per­sons who would require to question the re­cord-of-rights by means of suits. It is only to help those persons who could not bring their suits within four months as required under Section 103 (1) of the Act, that the Ordinance was promulgated. This could not be the intention of the Ordinance because its very object is to benefit all per­sons who would require to question the re­cord-of-rights by means of suits. It is only to help those persons who could not bring their suits within four months as required under Section 103 (1) of the Act, that the Ordinance was promulgated. Clause 2 it­self clearly provides that suits even if filed within three months of the coming into force of the Ordinance shall be deemed to have been instituted within the time as required under Section 103 (1) of the Act. I am clearly of the opinion that Clause 2 is intend­ed to benefit all those persons who for some reason or other could not file suits within the time laid down under section 103 (1) of the Act. The whole aim of this beneficial legislation is to validate the otherwise stale claims instituted beyond the time-limit laid down under Section 103 (1) of the Act. By a clear ex post facto provision in Clause 2, suits filed within three months of the passing of the Ordinance are treated as if instituted within four months of the date of final publi­cation of the record-of-rights, that is to say by virtue of Clause 2, the present suit filed on 23rd June 1961 will be deemed to have been instituted within 4th May 1961. In terms, Clause 2 is a retrospective provision. Retrospectively is the breath and soul of the Ordinance, but for which it would be meaningless and illustory. It is apparent these plaintiffs were unable to institute the suit within four months of the date of publication of the record-of-rights. Merely because they had instituted the suit on 23rd June 1961, prior to the Ordinance, they cannot suffer while if they waited to file the same after 16th November, 1961 within the next three months, their suit would have been within time. An interpretation which leads to such unreasonableness and absurdity cannot be given. 8. The Goalpara Tenancy (Emergency Provisions) Act, 1962 (Assam Act No. XXV of 1962), which replaced the Ordinance in September 1962, was for a temporary period of four months. An interpretation which leads to such unreasonableness and absurdity cannot be given. 8. The Goalpara Tenancy (Emergency Provisions) Act, 1962 (Assam Act No. XXV of 1962), which replaced the Ordinance in September 1962, was for a temporary period of four months. This Act similarly was meant to come to the aid of various classes of persons for a short period of time and the benefit which is given to the persons cannot be lost merely because they had filed their suits prior to the Ordinance or the Ac) replacing it. It is true, but for the Ordi­nance and the Act, suits filed after 4th May 1961 will be clearly barred under S. 103 (1) of the Act. But promulgation of the Ordi­nance has given life to the present suit and at the time when the matter was considered by the Court, the suit was well alive under the provisions of the Ordinance which ap­plied in the instant case. This type of suit is also intended to be saved by the provisions of the Goalpara Tenancy (Emergency Provi­sions) Act, 1962. The preamble of this Act makes the point beyond any doubt. It says, "Whereas it was not practicable for the people to file suit for the decision of any dispute in respect of records-pf-rights within the period of limitation…...." The learned court below, therefore, erred in holding that the suit was barred by limitation. That find­ing is set aside and it is held that the suit is well within time. 8. The appeal is accordingly allowed and the judgment and decree of the Court below are set aside. The appeal will now go back to the learned court below for disposal of the same in accordance with law in respect of the other issues raised since the issue re­garding limitation is answered in favour of the plaintiffs. I must now, however, be as­sumed to have expressed any opinion on the merits of the other issues. There will be no order as to costs in this appeal. Appeal allowed.