Tirath Raji v. State of U. P — 1980 DIGILAW 424 (ALL)

ORDER M.P. Mehrotra, J. -These eight writ petitions are connected and they arise out of the proceedings under the U. P. Imposition of Ceiling on Land Holdings Act, 1960. 2. The facts, in brief, are these. One Anshuman Pandey, is alleged to have died in 1953. He had two daughters Smt. Ishwari Dei and Smt. Tirath Raji. It is stated that Smt. Ishwari Dei died in the lifetime of Anshuman Pandey and she left her son Jagdambika. It is claimed that on the death of Anshuman Pandey, his land was inherited by his daughter Smt. Tirath Raji under S. 171 of the U. P. Act No. 1 of 1951. However, the name of Sri Jagdambika was mutated in the revenue records. 3. Ceiling proceedings started against Jagdambika and the notice under S. 10 (2) of the Act was issued to him. He did not file any objections, therefore, an order under S. 11 (1) of the Act was passed against him on 15-6-1976. A true copy of the said order is Annexure 1 to the petition. It seems that thereafter, the petitioners before me in different petitions, moved separate applications before the Prescribed Authority. These applications were interpreted by the lower appellate court in Revenue Appeal No. 159 of 1976 to be applications under S. 11 (2) of the Act. These applications were rejected by the Prescribed Authority. It seems that the applications were made by the transferees of Smt. Tirath Raji on 24-9-1976 and the same were rejected on the said date. Thereafter, such transferees filed separate but identical appeals against the order dated 24-9-1976 rejecting their applications under S. 11 (2) of the Act. The appellate Court by its judgment dated 10-12-1977, which is stated to be identical in all the appeals of the transferees, allowed the said appeals. The appellate court directed in these words:- "The case is remanded back to the learned Prescribed Authority with direction to entertain the application dated 24-9-1976 moved by the appellant under S. 11 (2) of the Act and decide the same in accordance with the law. The learned Prescribed Authority shall first decide whether the appellant is entitled to the benefit of S. 5 of the Limitation Act for delay in moving the application beyond 30 days from 15-6-1976. The learned Prescribed Authority shall first decide whether the appellant is entitled to the benefit of S. 5 of the Limitation Act for delay in moving the application beyond 30 days from 15-6-1976. If he condones the delay under S. 5 of the Limitation Act then he shall take up the matter for setting aside the order dated 15-6-76 under Section 11 (2) of the Act and shall dispose of the matter in accordance with the law." Thereafter, the transferees applications under Section 11 (2) of the Act along with the applications under S. 5 of the Limitation Act, were decided by the Prescribed Authority by his order dated 6-7-1977, a true copy whereof is Annexure 6 to the writ petition of Smt. Tirath Raji (Civil Misc. Writ Petition No. 4922 of 1978). The applications under S. 5 of the Limitation Act were rejected by the said order. Thereafter, the said transferees filed separate but similar appeals. I may here mention that Smt. Tirath Raji herself moved a similar application before the Prescribed Authority, which was dated 4-4-1977. It was rejected by the Prescribed Authority by his order dated 6-7-1977, a certified copy of which order has been filed by the petitioner in Civil Misc. Writ Petition No. 4922 of 1978. A certified copy of the said application along with the certified copy of the supporting affidavit has also been filed in the said writ petition. Smt. Tirath Raji also claimed the benefit of S. 5 of the Limitation Act and contended that she came to know of the Ceiling Proceedings against Jagdambika for the first time on 1-4-1977. 4. It will thus be seen that on 6-7-77, the Prescribed Authority passed two separate orders one in the case of Smt. Tirath Raji and the other in the ease of the transferees. I have already stated above that the order, which was passed in the case of the transferees, was passed in the light of the remand order, which had been passed by the appellate court on 10th Dec. 1976 in the appeals, which had been preferred against the order dated 24-9-76 whereby the Prescribed Authority had rejected the applications of the transferees under S. 11 (2) of the Act. Against the aforesaid two orders of the Prescribed Authority both dated 6-7-77 the transferees and Smt. Tirath Raji went up in appeal. 1976 in the appeals, which had been preferred against the order dated 24-9-76 whereby the Prescribed Authority had rejected the applications of the transferees under S. 11 (2) of the Act. Against the aforesaid two orders of the Prescribed Authority both dated 6-7-77 the transferees and Smt. Tirath Raji went up in appeal. In all eight appeals were filed and they were heard as connected appeals and dismissed by one common judgment on 7-4-1978, a true copy whereof is Annexure 7 to the Civil Misc. Writ Petition No. 4922 of 1978. 5. Now the said Smt. Tirath Raji and the transferees have come up in these separate writ petitions and in support thereof, I have heard Sri V.C. Misra, learned counsel for the petitioner. Civil Misc. Writ Petition No. 4922 of 1978 has been filed by Smt. Tirath Raji and the other petitions are filed by her transferees. The question involved is a common one. The grievance is that the Prescribed Authority wrongly denied the benefit of S. 5 of the Limitation Act, in connection with the application under S. 11 (2) of the Act which had been filed by the petitioners. In the case of Smt. Tirath Raji, the benefit was denied merely on the ground that the application was a very belated one and the delay was not sufficiently explained. In the case of the transferees, the applications were similarly rejected. 6. The appellate court in its impugned judgment dated 7-4-1978 dismissed the appeals and held that the benefit of S. 5 of the Limitation Act was rightly not given to the said Smt. Tirath Raji and the said transferees. Normally, in view of the law laid down by the Supreme Court in Manindra Land and Building Corporation Ltd. v. Bhutnath Banerjee ( AIR 1964 SC 1336 ), this Court cannot interfere in a finding about the sufficiency or insufficiency of cause under S. 5 of the Limitation Act as the same does not raise any question of jurisdiction. However, in the instant case, it has seemed to me that the appellate court decided the appeals on irrelevant considerations. It observed that the affidavits were filed by the transferees after the case had been remanded by the appellate court. In my view, this could hardly be said to be a ground for rejecting the application. However, in the instant case, it has seemed to me that the appellate court decided the appeals on irrelevant considerations. It observed that the affidavits were filed by the transferees after the case had been remanded by the appellate court. In my view, this could hardly be said to be a ground for rejecting the application. The appellate court has made certain observations about the suit under S. 229-R of the Act under which decrees were passed therein. It was emphasised that it was an ex parte decree. It was further emphasised that Smt. Tirath Raji had executed the sale deeds in 1975 after the passing of the ex parte decrees. All this was hardly relevant at the stage when applications under S. 5 of the Limitation Act were considered. The appellate Court further was at pains to emphasise that each days delay had not been explained. It has seemed to me that the appellate court was not right in its approach. Each days delay has to tie explained when any appeal or application has to be preferred after the expiry of the period of limitation. However, in the facts of the instant case, the vital point to be decided was whether the application under S. 11 (2) of the Act had been moved within 30 days of the knowledge of the ceiling proceedings having come into the possession of the petitioners. It should be emphasised that when an application under S. 11 (2) of the Act is moved by a (person to) whom no notice had been issued under S. 10 (2) of the Act, then in the case of such a person, the relevant consideration should be the date on which he came to know of the ceiling proceedings. Obviously when no notice has been issued to him under S. 10 (2) of the Act, it will not be correct that his prayer should be thrown out on the ground that his application under S. 11 (2) of the Act is beyond 30 days of the passing of the order under S. 11 (1) of the Act. Obviously when no notice has been issued to him under S. 10 (2) of the Act, it will not be correct that his prayer should be thrown out on the ground that his application under S. 11 (2) of the Act is beyond 30 days of the passing of the order under S. 11 (1) of the Act. The date of the said order will be relevant in the case of one to whom the notice under S. 10 (2) of the Act had been issued, but a person to whom no such notice was issued and who claims to be the real tenure-holder, even though unrecorded, the relevant date for computing the period of limitation should be the date when such a person comes to know of the ceiling proceedings and of such an order having been passed for whose setting aside he moved the Prescribed Authority under S. 11 (2) of the Act. In my view, if this interpretation is not placed on Section 11 (2) of the Act, then big detriment is likely to be caused to the non-recorded tenure-holders, who claimed to be the real tenure-holders of some land which stands recorded in the names of others-Therefore, if the petitioners before me were to be believed in their allegations as to the dates when they first came to know about the aforesaid ex parte order dated 15-6-76 on 1st Apr., 1977. They moved the Prescribed Authority under S. 11 (2) of the Act within 30 days of the aforesaid dates. There was no question of explaining each days delay if the aforesaid allegations made by the transferees and by Smt. Tirath Raji were to be accepted. However, it is not for this court to say whether the allegations made by the said persons should or should not be accepted by the appellate court. This is a function which has to be done by the said Court. However, only relevant considerations should weigh while deciding the said controversy. I have felt that in the instant case, the appellate courts judgment dated 7-4-1978 is based on patently irrelevant considerations and on a misconception about the starting point of limitation in respect of the application under S. 11 (2) of the Act moved by a person who has been no party to the proceedings under S. 11 (2) of the Act. Therefore, I hold that if I allow these petitions, it will not be violative of the law laid down by the Supreme Court in the aforesaid case Manindra Land and Building Corporation Ltd. v. Bhuthnath Banerjee ( AIR 1964 SC 1336 ) (supra). 7. Accordingly, these petitions are allowed and the judgment of the appellate court dated 7-4-1978 is quashed. The case is remanded to the appellate court tor a fresh decision of the aforesaid eight connected appeals in the light of the observations which have been made above. In the circumstances, there will be no order as to costs.