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1987 DIGILAW 104 (GUJ)

HIMATLAL J. VAKHARIA v. URBAN LAND CEILING TRIBUNAL

1987-09-23

A.P.RAVANI

body1987
A. P. RAVANI, J. ( 1 ) WHICH is the starting point of limitation in cases wherein an order passed by the Competent Authority is corrected under the provisions of Sec. 45 of the Urban Land (Ceiling and Regulation) Act 1976 This in short in the question which calls for examination and answer ( 2 ) THE petitioner is holder of vacant land situated in the urban agglomeration area of Rajkot. In respect of the land held by him the petitioner filled in form under Sec. 6 of the Act and thereafter final statement under Sec 9 of the Act was issued on 30/09/1979 The petitioner in fact consented and thereafter the final statement was issued. In the final statement instead of Survey No. 489 by mistake Survey No. 89 was mentioned. The mistake was corrected as per order dated 24/02/1984 The petitioner preferred appeal under Sec. 33 of the Act on 26/03/1984 The petitioner contended that the appeal was within time because the starting point of limitation should be February 24 J984 and not 30/09/1979 when the original order was passed. After considering the facts of the case the Urban Land Appellate Tribunal held that there was gross delay in filing the appeal. The prescribed period of limitation started from 30/09/1979 the date on which the final statement was issued and not from the date of order i. e. 24/02/1984 correcting the mistake. That the original order was passed with the consent of the parties and there was no justifiable reason to condone the delay. Hence the appellate authority rejected the appeal on the ground of delay alone as per its order dated 12/11/1984 The petitioner has challenged the legality and validity of the aforesaid order by invoking the provisions of Art. 227 of the Constitution of India. ( 3 ) BE it noted that the petitioner knew and also understood that he held the land of Survey No 489 of Rajkot and not that of S. No. 89. The petitioner had filled in the form mentioning therein that the land held by him was that of S No. 489. The petitioner did not hold any land of S. No. 89. The petitioner in fact applied for permission under Sec. 26 of the Act for sale of the land. The petitioner had filled in the form mentioning therein that the land held by him was that of S No. 489. The petitioner did not hold any land of S. No. 89. The petitioner in fact applied for permission under Sec. 26 of the Act for sale of the land. It was at the request of and by the consent of the petitioner that the proceedings under Sec. 6 of the Act were hastened and the final statement under Sec. 9 of the Act was passed with the consent of the petitioner In the form the petitioner described the land retainable by him. Therein the petitioner mentioned that he wanted to retain 13nd of S No. 489. However typographical error crept in the final statement in respect of land and instead of S. No. 489 it was written S. No. 89. The mistake remained as it is till the same was corrected as per order dated 24/02/1984 Meanwhile the petitioner took advantage of the order passed by the Competent Authority. He even obtained permission for sale of the land under Sec. 26 of the Act. It appears that at the stage when Notifications under Sec. 10 were issued the mistake was detected and the same was sought to be corrected. The petitioner did not even raise objections when the mistake was corrected. In this connection the Tribunal has observed as follows:"the clerical error in showing the suit land as Survey No. 89 in the Draft Statement was not objected to by the appellant and the said error has been corrected under Sec. 45. "the aforesaid statement of fact which occurs in para 7 of the judgment of the Tribunal is neither disputed nor controverted by the learned Counsel for the petitioner. The only point raised at the time of hearing of the petition is that if the period of limitation is calculated from the date of the order correcting the mistake then the appeal is within time. In his submission the period of limitation should start from the date of the order directing correction to be made in the original order. ( 4 ) SECTION 45 of the Act reads as follows:"sec. 45. In his submission the period of limitation should start from the date of the order directing correction to be made in the original order. ( 4 ) SECTION 45 of the Act reads as follows:"sec. 45. Clerical or arithmetical mistakes in any order passed by any officer or authority under this Act or errors arising therein from any accidental slip or omission may at any time be corrected by such officer or authority either on his or its own motion or on an application received in this behalf from any of the parties. "the aforesaid Section is in para materia with Sec. 152 of the Civil Procedure Code 1908 The underlying object behind making provisions of Sec. 45 of the Act is to see that whenever on account of clerical or arithmetical mistake intention of the authority is left in doubt or not properly articulated the same should be corrected. Rather it is the duty of the authority concerned to rectify the clerical error arising from an accidental slip or omission. When such mistakes are corrected the original order passed by the authority is not replaced or superseded nor the same is materially altered by correction of mistake. All that is done by the authority is that the appended anamoly arising out of error or mistake is removed. But the substance of he judgment or order originally passed remains the same. Different considerations may arise when an order is reviewed and at the end of review proceedings a new judgment or order comes into existence superseding the original one. But that is not the case in so far as the facts of this matter are concerned. ( 5 ) IN this connection reference may be made to a decision of the Division Bench of the Punjab High Court in the case of Suba Singh Sadhu Singh reported in AIR 1566 Punjab 518. After considering the case law on the point in paragraph 16 of the judgment it is observed that correction of a mistake or an error under the provisions of Sec. 152 of C. P. Code does not supersede the original judgment or decree. After considering the case law on the point in paragraph 16 of the judgment it is observed that correction of a mistake or an error under the provisions of Sec. 152 of C. P. Code does not supersede the original judgment or decree. All that the Court does is to rectify a clerical error arising from an accidental slip or omission and it is the duty of the Court to correct it whenever it comes to its notice or is brought to its notice by any of the parties. In case the intention of the Court is quite clear and if by some clerical error or omission that intention is left in doubt or is not properly effectuated then use can be made of the powers under Sec. 152 of the Civil Procedure Code and indeed the Court is bound to correct such errors or mistakes which fall within the ambit of Sec. 152 of Civil Procedure Code. Same principle would apply in cases falling within the purview of Sec. 45 of the Act. ( 6 ) IN above view of the matter it has got to be held that the subsequent order correcting the mistake instead of `s. No. 89 mentioning S. No. 489 was within the purview of Sec. 45 of the Act and by correcting the mistake the Competent Authority did not supersed the original order nor did the authority alter the order in any manner. But it merely removed the clerical mistake which was even not objected to by the petitioner. Thus cause for filing appeal remained the same that is the original order. Therefore it has got to be held that the limitation started to run from the date of the original order i. e. 30/09/1979 ( 7 ) EXCEPT the aforesaid argument no cause much less `sufficient cause for condoning such in ordinate delay is made out. However the learned Counsel for the petitioner relied upon the decision of the Supreme Court in the case of Collector Land Acquisition Anantnag and Another v. Kataji and Others reported in AIR 1987 SC 1353 and submitted that the phrase `sufficient cause should be interpreted liberally. The learned Counsel for the petitioner submitted that it should be held that the petitioner did Dot intend to give up his right of appeal and he should be given an opportunity to agitate the appeal on merits. The learned Counsel for the petitioner submitted that it should be held that the petitioner did Dot intend to give up his right of appeal and he should be given an opportunity to agitate the appeal on merits. After the aforesaid decision of the Supreme Court it would be difficult to discover a case which would not come within the sweep of sufficient cause as enunciated by the Supreme Court. But this is one of such rarest of rare case which would not come within the sweep of widest possible meaning of the phrase sufficient cause as held by the Supreme Court in the aforesaid decision. The petitioner filled in the form mentioning therein that the land held by him was that of S. No. 489 The petitioner in fact did not hold any land bearing S. No. 89. The petitioner consented to the order being passed by the Competent Authority under Sec. 9 of the Act. In fact the petitioner hastened up the proceedings. The petitioner applied under Sec. 26 of the Act for sale of the land. He even submitted indemnity bond for the purpose of selling away part of the land retainable by him. Thus he had no grievance against the order passed by the Competent Authority. It is not the case of the petitioner that he had no grievance against the order because it contained typographical error and that he was also misled by the error. ( 8 ) FROM the facts and circumstances of the case an irresistible inference has to be drawn that the petitioner wishes to take advantage of the mistake which had crept in the original order dated 30/09/1979 and which has been corrected as per order dated 24/02/1984 In the facts and circumstances of the case it is difficult to believe that the petitioner did not know nor did he understand that the land comprised in the order dated 30/09/1979 was that of S. No. 489 and not that of S. No. 89. By order dated 24/02/1984 merely a typographical mistake has been corrected and the original order remains as it is. In view of this position the petitioner should have rendered sufficient explanation for not preferring the appeal within the period of limitation against the order passed on 30/09/1979 There is no explanation for not preferring appeal within limitation calculated from the date of original order. In view of this position the petitioner should have rendered sufficient explanation for not preferring the appeal within the period of limitation against the order passed on 30/09/1979 There is no explanation for not preferring appeal within limitation calculated from the date of original order. Hence the only inference that can be drawn is that the petitioner after taking advantage of the order passed on 30/09/1979 wishes to get reopened the entire case. The petitioners action lacks bona fide and honesty. Therefore the principles laid down in the aforesaid decision of the Supreme Court do not help the petitioner. The Urban Land Appellate Tribunal was justified in rejecting the appeal on the ground of delay alone. ( 9 ) NO other contention is raised. There is no substance in the petition. Hence the petition is rejected. Notice discharged. Ad interim relief granted earlier stands vacated. Rule discharged. .