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Allahabad High Court · body

1979 DIGILAW 1350 (ALL)

Ramanandi v. 7th Additional District Judge, Meerut

1979-12-17

M.P.MEHROTRA

body1979
ORDER M.P. Mehrotra, J. - This petition arises out of the proceedings under the U.P. Imposition of Ceiling on Land Holdings Act, 1960. 2. The facts, in brief are these. The petitioner No. 1 Smt. Rama Nandi is the daughter of one Girwar Singh deceased and the other petitioners are the grandsons of the said deceased tenure-holder. 3. A notice dated 22-4-1975, was issued to the said tenure-holder Girwar Singh under Section 10 (2) of the Act and objections were filed to the said notice. By his order dated 18-3-1975, the Prescribed Authority allowed the objections and discharged the notice under Section 10 (2) of the Act. A true copy of the said order dated 18-3-1975, is Annexure 1 to the petition. Thereafter, in January 1976, another notice under Section 10 (2) of the Act was issued to the said tenure-holder. A notice under Section 10 (2) of the Act was also issued to the petitioner No. 1. The notice, which was issued to Girwar Singh, the deceased tenure-holder, was served on 21-1-1976, on Satyapal Singh who was the son-in-law of the said tenure-holder. It is stated in para 4 of the petition "the said Girwar Singh had died almost one year before the notice". 4. On 28-2-1976, the petitioners filed objections along with an application under Section 5 Limitation Act praying for condonation of delay in filing the objections. It would be seen that in the the notice under Section 18 (2) of the Act, the objections were invited within 15 days of the service of notice. As the objections were being filed beyond the said period of 15 days, therefore, an application supported by an affidavit was filed seeking the condonation of delay. Annexure 2 is a true copy of the objections which were filed by the petitioners. Annexure 3 is a copy of the application whereby permission was sought by tne petitioner No. 1 to file objections beyond the aforesaid period of 15 days. Annexure 4 is the true copy of the affidavit which was filed by the son of the petitioner No. 1 in support of the said application of the petitioner No. 1 seeking permission of file the objections beyond the said period of 15 days. Annexure 4 is the true copy of the affidavit which was filed by the son of the petitioner No. 1 in support of the said application of the petitioner No. 1 seeking permission of file the objections beyond the said period of 15 days. The Prescribed Authority by his order dated 26-4-1976, rejected the application under Section 5 of the Limitation Act, and therefore, the objections were not entertained and the notice under Section 10 (2) was confirmed. Thereafter, an appeal was filed but the same was dismissed by the appellate court by its judgment dated 3rd April, 1978, a true copy whereof is Annexure 7 to the petition. The appellate court observed: "In this view of the matter, the learned Prescribed Authority rightly rejected the application for condonation of delay under Section 5 Limitation Act and this appeal has no force and is liable to be dismissed". Now the petitioners have come up in the instant petition and in support there of I have heard Sri S. S. Bhatnagar, learned counsel for the petitioners. In I opposition, the learned Standing Counsel has made his submissions. 5. Sri Bhatnagar, placed three contentions before me. This first contention is that in the facts of the instant case, the application under Section 5 of the Limitation Act was misconceived as there is no period of limitation prescribed for the filing of the objections under Section 10 (2) of the Act. In this view of the matter, it was contended that neither Section 3 nor Section 5 of the Limitation Act was applicable to the facts of the case. Learned counsel contended that under Section 37 of the U. P. Imposition of Ceiling on Land Holdings Act, 1960, the Prescribed Authority has the powers and privileges of Civil Court and the procedure laid down in the C. P. C. for trial and disposal of suits relating to immovable property is applicable to the enquiry and hearing of objections under the Ceiling Act also. In this view of the matter, it was contended that the Prescribed Authority was entitled to extent the period of 15 days fixed in the notice in view of Section 148 C. P. C. Both the Prescribed Authority and the appellate court were, therefore, wrong in thinking that the controversy had to be decided in the light of the provisions contained under Section 5 of the Limitation Act. Both of them misdirected themselves in law inasmuch as the correct provision, which was applicable to the facts of the case, was the one contained in Section 148 C. P. C. and not in Section 3 or 5 of the Limitation Act. 6. Sri Bhatnagar next contended that Rule 6 of the Imposition of Ceiling on Land Holdings Rules, 1961 which mentioned a period of 15 days from the date of the service of the notice, for filing of objections under Section 10 (2) of the Act does not lay down a period of limitation. It is a directory provision and not mandatory one and its aim is to enable the Prescribed Authorities to give a uniform 15 days period to the tenure-holders to file their objections. It should be seen that in Section 10 (2) of the Act, there is a clear direction that the period to be given by the notice for filing the objections shall not be less than 10 days lest individual Prescribed Authorities might overlook this provision, it was thought convenient that a form of notice under Section 10 (2) of the Act should be prescribed and the period of 15 days be inserted therein so that there might be no infringement of the aforesaid provision contained under Section 10 (2) of the Act laying down that the period to be specified in the notice should not be less than 10 days from the date of the service of the notice. In other words, it was in the nature of an exercise for the convenience of the Prescribed Authority and with a view to introduce uniformity so far as the tenure-holders are concerned, but the insertion of period of 15 days in the notice was not meant to prescribe a period of limitation which would attract the applicability of Section 3 and Section 5 of the Limitation Act. The learned counsel emphasised that it was certainly not meant to take away the power of the Prescribed Authority to extend the period for the filing of objections from time to time. 7. The learned counsel emphasised that it was certainly not meant to take away the power of the Prescribed Authority to extend the period for the filing of objections from time to time. 7. Lastly in the alternative, Sri Bhatnagar contended that if Rule 8 be interpreted as prescribing a period of limitation for filing of the objections under Section 10 (2) of the Act, then the said rule to the extent as it prescribed the period of limitation, should be held to be invalid and ultra vires inasmuch as it-runs counter to the legislative intention contained in Section 10 (2) of the Act and also inasmuch as the said prescription of a period of limitation will not come within the rule making power as conferred by Section 44 of the Act. Sri Bhatnagar in support of his aforesaid contentions placed reliance on the following cases: 1. Tharoo Mal v. Puran Chand Pandey ( AIR 1978 SC 306 ); 2. M/s. Bharat Barel & Drum Mfg. Co. (P) Ltd. v. The Employees Estate Insurance Corporation ( AIR 1972 SC 1935 ); 3. Pioneer Motor (P.) Ltd. v. Municipal Council, Nagercoil ( AIR 1967 SC 684 ); 4. Ram Chandra Keshav v. Govind Joti Chavare ( AIR 1975 SC 915 ); 5. Kesar Sugar Works Ltd. v. State of U. P. (1967 All LJ 551); 6. Upper Ganges Sugar Mills Ltd. v. Civil Judge (1969 All LJ 556) (FB). 8. On the other hand, the learned standing Counsel contended that S. 148 C. P. C. envisages the enlargement of time when any period has been fixed or granted by the court for doing of any act prescribed or allowed by the Code. Here the time for filing the objections had not been fixed by the Prescribed Authority but it stood fixed under R. 8 of the Rules framed under the Act. It was, therefore, contended that the period of 15 days could be extended by the Prescribed Authority only with the aid of Section 5 of the Limitation Act and not under Section 148 C. P. C. Reliance was placed on the following cases:- 1. Bagesheshri Devi v. Shahsi Bind Narain Sewak, (1965 All LJ 756); 2. Nand Lal v. Mst. Siddiquan ( AIR 1957 All 558 ); 3. Vaithianatha Aiyar v. Kochi S. Vaithianatha Aiyar ( AIR 1932 Mad 112 ). 9. Bagesheshri Devi v. Shahsi Bind Narain Sewak, (1965 All LJ 756); 2. Nand Lal v. Mst. Siddiquan ( AIR 1957 All 558 ); 3. Vaithianatha Aiyar v. Kochi S. Vaithianatha Aiyar ( AIR 1932 Mad 112 ). 9. I have noticed and stated the rival' contentions and in my opinion the contentions raised on behalf of the petitioners have merit in them. 10. Section 10 of the Act lays down as under:- "10. Notice to tenure-holders failing to submit a statement or submitting an incomplete or incorrect statement - (1) In every case where a tenure-holder fails to submit a statement or submits an incomplete or incorrect statement, required to be submitted under Section 9 the Prescribed Authority shall, after making such enquiry as he may consider necessary either by himself or by any person subordinate to him, cause to be prepared a statement containing such particulars as may be prescribed. The statement shall in particular indicate the land, if any, exempted under (Section 6) and the plot or plots proposed to be declared as surplus land. (2) The Prescribed Authority shall thereupon cause to be served upon every such tenure-holder in such manner as may be prescribed, a notice together with a copy of the statement prepared under sub-section (1) calling upon him to show cause within a period specified in the notice, why the statement be not taken as correct. The period specified shall not be less than 10 days from the date of service of the notice." 11. Both in sub-section (1) and in sub-section (2) of the Act the expression prescribed has been used. In Section 3 (12) of the Act it has been laid down that 'prescribed means "prescribed by rules made under this Act." It should be thus seen that in sub-section (1) it has been laid down that the statement to be prepared shall be such and shall contain such particulars "as may be prescribed." In other words form of the statement and the particulars to be included therein shall be prescribed by the rules. In sub-section (2) it has been laid down that the manner in which the notice, together with the copy of the aforesaid statement, shall be served upon the tenure-holder, shall be prescribed. It is only the manner which is to be prescribed by the rules under the said provision. In sub-section (2) it has been laid down that the manner in which the notice, together with the copy of the aforesaid statement, shall be served upon the tenure-holder, shall be prescribed. It is only the manner which is to be prescribed by the rules under the said provision. The manner of service will certainly not take in a provision prescribing a period of limitation. In this connection (see AIR 1972 SC 1935 , Bharat Barrel & Drum Mfg. Co. (P.) Ltd. v. Employees Estate Insurance Corporation). It is again significant that in sub-sec. (2) of Section 10 of the Act while the minimum of 10 days from the date of service of the notice has been laid down, there is no laying down the maximum of such period. The central idea seems to have been that there could be no fetter on the power of the Prescribed Authority to grant time and to extend the same for the filing of objections. It is not laid down in sub-section (2) of the Act that the period for filing objections is to be prescribed. On the other hand the expression used is "period specified in the notice." In my view, therefore, it was not contemplated that the period for the filing of objections under Section 10 (2) of the Act should be prescribed by any rule framed under the Act. In this view of the matter, Section 5 of the Limitation Act will not stand attracted because there is no period of limitation prescribed for the filing of such objections. 12. Section 42 of the Imposition of Ceiling on Land Holdings Act, 1960 has made the provision of Sections 4, 5 and 12 of the Limitation Act, 1963 applicable to all proceedings under the Ceiling Act. including the proceedings, appeals, applications, and objections under the said Act. 13. I accept the contention of Sri Bhatnagar that the mentioning of the period of 15 days in Rule 8 of the Rules framed under the Act cannot be construed as the prescription of any period of limitation. The said prescribed period of 15 days is only by way of an exercise in convenience and uniformity and thereafter, by its very nature, the said provision is directory and not mandatory. The said prescribed period of 15 days is only by way of an exercise in convenience and uniformity and thereafter, by its very nature, the said provision is directory and not mandatory. In this connection a reference may be made to Pioneer Motor (P.) Ltd. v. Municipal Council, Nagercoil (supra) where the provision of Section 78 of the Tranvancore District Municipalities Act was held to be directory and not mandatory. The said proviso requires that the notice to be published in the Government Gazette should give reasonable period not being less than 1 month for the filing of the objections. In Ram Chandra Keshav v. Govind Joti Chavare (supra) the following observations of Lord Campbell in Liverpool Borough Bank v. Turner (1860) 30 LJ Ch 379 at p. 380 Craies on Statute Law 7th Edn. were, relied:- "No universal rule can be laid down as to whether mandatory enactments shall be considered directory only or obligatory with an implied nullification for disobedience, it is the duty of Courts of Justice to try to get at the real intention of the legislature by carefully attending to the whole scope." The Supreme Court further laid down: "Such intention of the legislature is therefore, to be ascertained upon a review of the language to the subject matter and importance of the provision in relation to the general object intended to be secured, the mischief if any, to be prevented and the remedy to be promoted by the Act." Lastly, it should be seen that under Section 44 (1) of Act the State Government has been given the power to make rules for carrying out purposes of the Act. In sub-section (2) it is laid down as follows :- "(2) In particular and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely - (a) the manner in which any notice or order under this Act may be served or published; (b) the procedure which the Collector shall follow while exercising powers conferred by this Act; (bb) conditions pertaining to the grant of permission to transfer land under subsection (2) of Section 6; (c) the manner and the principle under which expenses referred to in subsection (3) of Section 15 shall be calculated; (d) the fees payable on a petitioner on appeal under this Act; and (e) the matters which are to be and may be prescribed." I do not find any provision which enables the Government to prescribe a period of limitation in respect of the objections to be filed under Section 10 (2) of the Act. I have already discussed the scheme of Section 10 (2) of the Act read with the provision contained in Section 10 (1) and, in my opinion the legislative intention was clear that while every tenure-holder was to be given a minimum 10 days time from the date of service of notice to file this objections, it was not intended that the Prescribed Authority should not have any discretion in the matter to extend the period specified in the notice, it was also not the intention that a period of limitation, though not prescribed under Section 10 (2) of the Act, should be prescribed by the rules to be framed under the Act. In this view of the matter, if Rule 8 be interpreted as laying down a mandatory period of limitation, when I (would hold the said rule in so far as it be interpreted as prescribing a period of limitation of 15 days for the filing of objections to be invalid and ultra vires. However, as I have indicated above, I would prefer to hold the said rule to be directory and not mandatory in so far as the said period of 15 days had been laid down there and in the light of such interpretation, the rule or any part thereof need not be held to be invalid or ultra vires. 14. However, as I have indicated above, I would prefer to hold the said rule to be directory and not mandatory in so far as the said period of 15 days had been laid down there and in the light of such interpretation, the rule or any part thereof need not be held to be invalid or ultra vires. 14. Now adverting to the contention of the learned standing counsel that Section 148 C. P. C. does not get attracted because the period for the filing of objections is not fixed by the Prescribed Authority but gets fixed by virtue of the provisions contained in Rule 8, it has to be seen that this submission depends for its validity on the premise' that the said rule prescribed a period of limitation. However, I have rejected the Jsaid interpretation of Rule 8. I have 'clearly held that rule mentions the period of 15 days as a matter of convenience and not as a mandatory provision prescribing a period of limitation. It is within the power of the Prescribed Authority to extend the said period from time to time. There is no rigidity about the said period. The only mandatory requirement is that in the notice the period for the filing of the objections should not be less than 10 days. Otherwise, the power of the Prescribed Authority so far as the fixation of the period is concerned, or so far as the power to extend the said period from time to time is concerned, the same is not qualified in any manner whatsoever. In this light of the interpretation of Rule 8 in my view, the period specified in the notice has to be held to be fixed by the Prescribed Authority and the prescription of the period cannot be interpreted to be by law. It is obvious that if Section 5 of the Limitation Act is ruled out on the ground that there is no period of limitation prescribed for the filing of the objections then undoubtedly the Prescribed Authority will have the jurisdiction to extend the period from time to time. Even if in terms Section 148 C. P. Code were to be held to be not applicable, still, the Prescribed Authority will have the inherent power which inheres in every court and authority to extend the period fixed by it for the doing of any act. 15. Even if in terms Section 148 C. P. Code were to be held to be not applicable, still, the Prescribed Authority will have the inherent power which inheres in every court and authority to extend the period fixed by it for the doing of any act. 15. So far as the cases relied on by the learned standing counsel are concerned, in my view they are distinguishable on the facts of each case. In Vaithianatha Aiyar v. Kothi S. Vaithianatha Aiyar (supra) it was laid down that Section 148 C. P. C. does not apply to the time limit fixed by the Statute. I have already emphasised above that no such time limit has been fixed in Section 10 (2) of the Act save that there is a clear direction in the said sub-section that not less than 10 days time shall be granted to every tenure-holder to file the objections. Nand Lal v. Mst. Siddiquan (supra) considered the question of the applicability of Section 148 C. P. C. to the provisions contained in Order 21, Rule 85, C. P. C. Order 21, Rule 86, C. P. C. was relied on and it was held that the same was mandatory and therefore, when there is a failure to deposit the purchase money within 15 days, the said period cannot be extended. So far as Bageshwari Devi v. Shahsi Bind Narain Sewak (supra) is concerned, it should be seen that this case was overruled to a great extent in Full Bench decision in Upper Ganges Sugar Mills Ltd. v. Civil Judge (supra). 16. In my view, the view expressed by Mr. Justice Satish Chandra (as he then was) in Kesar Sugar Works Ltd. v. State of U. P. (supra) should be preferred. It was laid down in the said case that the Prescribed Authority can extend the period for the filing of objections under Section 10 (2) of the Act in view of the fact that Section 148, C. P. Code will be applicable to him by virtue of Section 37 of the U. P. Imposition of Ceiling on Land Holdings Act, 1961. It is true that the said decision was also overruled to some extent in the aforesaid Full Bench decision in Upper Ganges Sugar Mills Ltd. v. Civil Judge (supra) but that overruling was to the extent that Hon'ble Satish Chandra, J, had laid down that only a recorded tenure-holder to whom the notice under Section 10 (2) was issued was entitled to. file the objections under Section 10 (2) of the Act and not those who were unrecorded tenure-holders. So far as the controversy at hand is concerned Mr. Justice Satish Chandras interpretation of Section 10 (2) of the Act regarding the Dower of the Prescribed Authority to extend the time for the filing of the objections was not overruled. 17. Accordingly, I allow this petition and quash the judgment of the appellate court dated 3-4-1978 and the order of the Prescribed Authority dated 24-4-1976 and I remand the case to the Prescribed Authority for a fresh decision of the prayer of the petitioners to be allowed to file objections even though the period of 15 days had passed. The Prescribed Authority will now consider the said controversy in the light of Section 148, C. P. C. or in the light of his inherent powers to extend the period for filing the objections. There will be no question of applying Section 5 of the Limitation Act. I should like to emphasise here for the benefit of the Prescribed Authority that there is a significant difference between the powers of the Court to act under Section 148, C. P. C. and the powers of the Court to invoke the aid of Section 5 of the Limitation Act. While considering the applicability of Section 5 of the Limitation Act, it should be seen that by the expiry of the period of limitation a valuable right gets accrued to the other party, and therefore, while deciding an application for condonation of delay under Section 5 of the Limitation Act, the court has to be clearly satisfied with the sufficiency of cause for the condonation of the delay taking into consideration the fact that a valuable right has accrued to the other side by the expiry of the period of limitation. There is no such consideration while dealing with a prayer under Section 148, C. P. C. This is an important I distinction between the two provisions and it was emphasised in Tharoo Mal v. Puran Chand Pandey (supra) ( AIR 1978 SC 306 Para 4 at p. 308). The Prescribed Authority will accordingly bear this aspect in mind while dealing with the prayer of the petitioner for being permitted to file objections by extending to them the benefit of Section 148, C. P. C. or under the inherent powers of the Court. In the circumstances, there will be no order as to costs.