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1995 DIGILAW 635 (MAD)

The Commissioner of Land Administration, Chepauk, Madras and Others v. The Executive Officer, Arulmighu Theagaraja Swamy Devasthanam, Thiruvarur, Thanjavur and Another

1995-08-07

K.A.SWAMI, RAJU

body1995
Judgment :- Raju, J. The above appeal has been filed against the order of the learned single Judge dated 16. 1994 in W.P. No.3886 of 1985, whereunder the learned single Judge has chosen to allow the writ petition filed by the 1 st respondent, praying for a writ of certiorari to call for and quash the proceedings of the 1 st appellant before this Court dated 111. 1984, rejecting the revision filed by the 1 st respondent against the orders of the 2nd appellant dated 23. 1984 on the grounds of laches and delay. 2. The Village Tiruvarur of Thanjavur District is an Inam Estate taken over on 20.6.1977 under the provisions of Tamil Nadu Inams Estates (Abolition and Conversion into Ryotwari) Act, 1963 and the Tamil Nadu Inam Estates Rules, 1965 (hereinafter referred to as ‘the Act’ and ‘the Rules’ respectively). The proceedings before us has a past history which we consider it unnecessary to be adverted to in detail for the purpose of deciding the issues raised before us. Suffice it to notice that on an earlier occasion, the 1st respondent by his proceedings dated 17. 1983 held that the rejection of the revision petition on the ground of limitation was wrong and remitted the case to the Director of Survey and Settlement for fresh enquiry and disposal on merits. Thereupon, the 2nd appellant entertained the matter and ultimately dismissed the revision petition in R.P.28/83 by his order dated 23. 1984 since the 2nd appellant felt that there no sufficient reasons to interfere on merits with the well considered order of the Settlement Officer, Thanjavur. The order of the Settlement Officer dated 23. 1984 was served by registered post with acknowledgment due on the Advocate appearing for the 1st respondent on 4. 1984. The further revision petition filed by the 1 st respondent which gave raise to the present proceedings was said to have been received in the Office of the 1st appellant on 16. 1984. Since, according to the 1st respondent, who was the revision petitioner before the 1 st appellant, there was a delay of eight days in filing the revision petition, a request was made for condonation of such delay. This was on the assumption of the 1st respondent that the time stipulated for filing an appeal was sixty days. 1984. Since, according to the 1st respondent, who was the revision petitioner before the 1 st appellant, there was a delay of eight days in filing the revision petition, a request was made for condonation of such delay. This was on the assumption of the 1st respondent that the time stipulated for filing an appeal was sixty days. The 1st appellant proceeded upon the assumption that the time limit for filing a further revision petition was thirty days and on that basis, calculated the delay also to be forty-two days and not eight days as claimed in the petition of the 1 st respondent. Not satisfied with the sufficiency of the reasons for the condonation of delay of forty-two days, the 1st appellant rejected the revision petition as time barred. Aggrieved, the 1st respondent has filed the above writ petition. 3. The appellants, who were the respondents in the writ petition, filed a counter-affidavit. Even in the counter-affidavit, it appears that the appellants have proceeded on the basis that the period of limitation was thirty days and, therefore, the view taken by the 1 st appellant was legal and it did not call for interference. The learned single Judge, had specifically adverted to the provisions contained in Rule 8(2) of the Rules, which stipulated in respect of the revision petitions to the erstwhile Board of Revenue, which powers subsequently came to devolve on the 1st respondent in the following terms: "(2) Every such petition shall be preferred within sixty days from the date of communication of the order or proceedings of the Director of Settlements or of a District Collector, as the case may be; Provided that the Board of Revenue may admit a petition preferred after the expiry of the period aforesaid, if it is satisfied that the petitioner had sufficient reason for not preferring the petition within the said period." On the above basis, the learned single Judge was of the view that the period of limitation was sixty days and, therefore, the order of the 1st appellant was wrong and consequently issued a direction to the 1 st respondent to dispose of the application of the 1st respondent and condone the delay in preferring the revision petition by applying the period of limitation of sixty days. As against the same, respondents 1 to 3 have filed the above writ appeal. 4. As against the same, respondents 1 to 3 have filed the above writ appeal. 4. Before us, a new issue relating to the maintainability of the revision petition as also the powers of the 1 st appellant for condonation have been raised at the time of hearing. The learned counsel for the 1st respondent also argued the issue with reference to the new aspects raised and also made further submissions. The learned Government Pleader contended that in the main Act, there was no specific provision stipulating any period of limitation as such and that the subject of limitation was covered only by statutory rules. Pursuing the said submission on behalf of the appellants, our attention was drawn to Rule 54 of the Rules, which reads as hereunder: "Time barred application, appeal or revision petition to be dismissed. (1) Subject to the provisions of the Act and those rules, every application made and every appeal and revision petition presented to the authorities or officers having jurisdiction under the Act and these rules, after the period of limitation prescribed therefor in the Act and these rules, shall be dismissed although limitation has not been set up as a defence. (2) No such application made or appeal and revision petition filed shall be admitted after the period of limitation, prescribed therefor in the Act and these rules on the ground that the applicant or appellant or petitioner had sufficient cause for not preferring the application or appeal or petition within such period, (as subtituted by G.O.Ms. No. 1037, Revenue/dated 15. 1968)." Placing specific reliance upon Sub-rule (2) of Rule 54 it was contended that no application made or appeal or revision petition filed shall be admitted after the period of limitation prescribed therefor in the Act and the Rules on the ground that the applicant or appellant or petitioner had sufficient cause for not preferring the application or appeal or petition within such period. On the above premise, the learned Government Pleader contended that there was no scope for condonation and the proviso to Sub-rule (2) to Rule 8 of the Rules must be taken to have been impliedly repealed after the substitution of new Sub-rule (2) to Rule 54 by G.O.Ms. No. 1037, Revenue, dated 15. 1968. On the above premise, the learned Government Pleader contended that there was no scope for condonation and the proviso to Sub-rule (2) to Rule 8 of the Rules must be taken to have been impliedly repealed after the substitution of new Sub-rule (2) to Rule 54 by G.O.Ms. No. 1037, Revenue, dated 15. 1968. It was contended that the authorities had a duty to dismiss the revision petition presented after the period of limitation prescribed therefor in the Act and the Rules, although limitation has not been set up as a defence. 5. Learned counsel for the 1st respondent contended by placing strong reliance upon the proviso to Rule 8(2) and the absence of any prohibition in Sec.70 against the authorities condoning the delay beyond the prescribed time limit for sufficient reasons. It was also contended by the learned counsel for the 1st respondent that the plea as now sought to be raised was not taken at any time either by the 1 st applicant or before the learned single Judge or even in the grounds of appeal and is being raised for the first time at the time of hearing and therefore ought not to be allowed. Reliance was also placed on Rule 58 to contend that the order of the 2nd appellant under challenge before the 1st appellant was not served in the manner contemplated under Rule 58 and that, therefore, the obstacle of limitation cannot be placed against the 1 st respondent and for this reason also the question of delay cannot at all be placed against the 1st respondent to disable the 1st respondent from obtaining relief on the main revision petition. 6. We have carefully considered the submissions of the learned counsel appearing on either side. No doubt, we find that the appellants have been not diligent in properly projecting the case of the Department at several stages. But the issue being a pure question of law and the factual basis necessary for deciding the said issue being beyond controversy among the parties and the learned counsel for the 1 st respondent having had an opportunity to meet the same, we do not consider it appropriate to reject the plea on such technical ground as sought to be urged on behalf of the 1st respondent. It is a well-known principle of law that if a proceeding instituted is barred by limitation, even the court concerned or the authority before whom such proceedings barred by limitation are instituted itself has a duty and obligation to reject the proceedings as barred by limitation de hors the fact whether such a plea has been set out in defence or not. We find that this well settled principle or pertaining to limitation is found incorporated in Sub-rule (1) of Rule 54 of the Rules. Therefore, we overrule the objection in this regard on behalf of the 1st respondent. 7. Rule 8, as noticed supra, provided for a revision petition being filed by a person aggrieved by any order or proceedings of the Director of Settlement or of a District Collector before the erstwhile Board of Revenue, whose powers have devolved now on the 1st respondent. Sub-rule (2) stipulates that every such petition shall be filed within sixty days from the date of communication of the order or proceedings of the Director of Settlement as the case may be. The proviso enables the revisional authority, such as the 1st appellant, to admit a petition preferred after the expiry of the period aforesaid if it is satisfied that the applicant before it had sufficient reasons for not preferring the petition within the said period. This in substance is the same, in content, as the provisions contained under Sec.5 of the Limitation Act, 1963. Sec.70 of the Act provided for limitation in respect of the proceedings under the Act. While laying down the position that a copy of every decision or order in any proceedings against which an appeal or revision as provided for under the Act shall be communicated in such a manner as may be prescribed, it was stipulated therein that for the purpose of computing the period of limitation in respect of any appeal or application or revision the date of communication of copy of the decision or order to the appellant or applicant shall be deemed to be the date of the decision or order. Sub-sec.(3) of Sec.70 provided that the provisions of Sec.4 and Sub-secs.(1), (2) of Sec. 12 of the Indian Limitation Act, 1908 shall, as far as may be, applied to any appeal or application or revision petition under the Act. Sub-sec.(3) of Sec.70 provided that the provisions of Sec.4 and Sub-secs.(1), (2) of Sec. 12 of the Indian Limitation Act, 1908 shall, as far as may be, applied to any appeal or application or revision petition under the Act. It could be seen on a perusal of the above provision, that consciously and deliberately, the Legislature has avoided reference to Sec.5 of the Limitation Act in Sec.70 of the Act. The fact that it was a conscious omission by the legislature and apparently the Legislature wanted to leave the matter to the discretion of the rule-making authority is made clear from the incorporation of the proviso to Sub-rule (2) of Rule 8 of the Rules which, as noticed supra was almost identical in substance and purport to Sec.5 of the Limitation Act. If the matter stood thus, the 1st respondent would have been well justified in his submission about the powers of the 1st appellant to condone the delay. But unfortunately, for the 1st respondent in 1968 an amendment was introduced in G.O.Ms. No. 1037, Revenue, dated 15. 1968 susbtituting a new Rule 54 in the place of the then existing Rule 54. It may be noticed that a provision in all respects similar and identical to Rule 54 was substituted in Rule 68 was also substituted to the relevant rules also in a pari materia legislation like the Tamil Nadu Minor Inams (Abolition and Conversion into Ryotwari) Rules. The stipulation contained in Sub-rule (2) of Rule 54 makes it beyond doubt or controversy that the revisional authorities shall have no power to condone any delay in filing a revision beyond the period of limitation prescribed therefor in the Act and the Rules on the ground that the revision petitioner had sufficient cause for not preferring the revision petition within such period. Reliance placed by the learned counsel for the 1 st respondent on the proviso to Sub-r.ule (2) to Rule 8, in our view, is inappropriate and futile in the teeth of the amendment introduced in G.O.Ms.No. 1037, Revenue, dated 15. 1968.The newly substituted Rule 54, being the latest in point of time, has to prevail over the proviso to Sub-rule (2) of Rule 8, which has been made at an earlier point of time. 1968.The newly substituted Rule 54, being the latest in point of time, has to prevail over the proviso to Sub-rule (2) of Rule 8, which has been made at an earlier point of time. This Court, even in case of any conflict between the two rules has to interpret them harmoniously to avoid any inconsistency and stalemate arising in the application of the rules in the teeth of the later provision specifically introduced in the form of a new Rule 54 with a specific stipulation as the one contained in Sub-rule (2) of Rule 54 of the Rules and, therefore, it has to be necessarily held that the proviso to Sub-rule (2) of Rule 8 had been impliedly repealed. Such a construction, in our view also is in keeping with the intention of the legislature which deliberately avoided making any reference to Sec.5 of the Limitation Act in Sub-sec.(3) of Sec.70 of the Act. It would have been well for the rule making authority if it had bestowed more care, caution and responsibility while substituting Rule 54 in 1968 to have had formally deleted the proviso to Sub-rule (2) of Rule 8. The fact that it has not been done, more appears to us to be on account of oversight than due to any specific object or purpose inasmuch as the proviso to Sub-rule (2) of Rule 8 cannot stand side by side with the newly substituted Rule 54 of the Rules. The newly substituted Rule 54 also, as noticed supra, casts an obligation on the part of the revisional authority to reject a revision petition presented after the expiry of the period of limitation prescribed therefor whether sufficient cause has been shown or not and whether the plea of limitation has been set up as a defence or not. In the teeth of such a mandatory requirement of the newly substituted Rule 54, the proviso to Sub-rule (2) of Rule 8 can safely and reasonably be held to have stood impliedly repealed with effect from the date of the Government Order made in G.O.Ms.No. 1037, Revenue, dated 15. 1968. 8. In the teeth of such a mandatory requirement of the newly substituted Rule 54, the proviso to Sub-rule (2) of Rule 8 can safely and reasonably be held to have stood impliedly repealed with effect from the date of the Government Order made in G.O.Ms.No. 1037, Revenue, dated 15. 1968. 8. The plea on behalf of the 1st respondent that inasmuch as the order of the Director of Settlement was not served in the manner contemplated under Rule 58 of the Rules, it should be taken as if there was no proper service and, therefore, the limitation could not be allowed to run against the 1st respondent does not merit acceptance in our hands. The learned counsel sought to lay emphasis by impressing upon us to construe clause (a) of sub-rule (1) of Rule 58 which stipulated for service of any order “by delivering or tendering the notice or order to the person concerned or his counsel or authorised agent or some adult member of the family by sending the notice or order to the person concerned by registered post with acknowledgment due” as to mean that in the case of the counsel the order should have been delivered or tendered in person and that the service made on the counsel in the case on hand of the order of the Director of Settlement by registered post with acknowledgment due is not proper or sufficient service. We are unable to construe the rule as submitted by the counsel for the 1st respondent. Adopting such a construction would amount to splitting into piecemeal the provisions contained in Rule 58 and defeating the very object as well as the real purpose of providing for the manner of service by more than one method. Clauses (a) and (b) of Sub-rule (1) of Rule 58 are nothing, but more than one or alternate methods of service provided to ensure effective service and cannot be construed in a truncated manner as is sought to be urged, defeating the real purpose. So long as the factum of service upon the counsel is not indispute, the manner as to how it was served is immaterial for computing limitation. 9. So long as the factum of service upon the counsel is not indispute, the manner as to how it was served is immaterial for computing limitation. 9. For all the reasons stated above, we are of the view that the stand taken at the time of hearing for the appellants that the 1st appellant had no power whatsoever under the statutory Rules to entertain any revision petition filed beyond the period of limitation prescribed therefor even on the ground that the 1st respondent had sufficient cause for not preferring the revision petition within such period is a well merited one. Therefore, in our view the order declining to condone the delay has to stand though not for the reasons stated in the order, but for the reasons noticed supra by us, which goes to the root of jurisdiction of the 1st appellant to entertain even the revision petition or an application for condonation of any delay. The order of the learned single Judge, therefore, is hereby set aside and the writ appeal, therefore, shall stand allowed. But in the circumstances, there will be no order as to costs.