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Rajasthan High Court · body

2000 DIGILAW 950 (RAJ)

Hiralal Loonkaransar, Bikaner v. Board of Revenue Ajmer

2000-08-01

RAJESH BALIA

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Honble BALIA, J.–Heard learned counsel for the petitioner. (2). None present for the respondent. (3). The petitioner challenges the order of Board of Revenue dt. 18.9.90 (Annex.6) and order of Assistant Colonisation Commissioner, Indira Gandhi Canal Project, Chhatargarh dt. 13.2.85 (Annex.4) by which land in question which is a part of Muraba No. 51/38 of Chak No. 14 LKD was allotted in favour of the respondent No.4 Bhagirath. (4). The brief facts necessary for the present purposes are that in the first instance by order dt. 27.4.1983, 13 bighas 8 biswas land was allotted in favour of Bhagirath as a land-less person. Out of these land 5 bighas 14 biswas land in command area and 7 bighas and 14 biswas land in uncommand area. On 27.03.1984 said Bhagirath Singh applied for being landless person and has been allotted land less than the measurement of land which he is entitled held additional allotment in favour of additional can be made whose land in dispute measuring 8 bighas was allotted to said Bhagirath on 13.2.1985 by the Competent Officer. (5). Against this order of allotment of 8 bighas land on 13.2.85 the present petitioner preferred an appeal before the Revenue Appellate Authority on 29.10.87 inter alia on the ground that he has applied for being a Khatedar tenant of land u/S. 15AA (3) of the Rajasthan Tenancy Act, 1955 and excluding the land allotted vide impugned order because it was not adjacent to the land already allotted to the respondent-Bhagirath. The same could not be allotted to him under the Rules. (6). The Revenue Appellate Authority vide its order dt. 23.05.1988 found that in fact present petitioner Hiralal had come to know about the order of impugned allotment on 15.11.85 and the appeal has been filed on 29.10.87, almost two years after he had come to know about the order. Yet for no reason he thought it fit not to dismiss the appeal on the grounds of limitation and allowed the appeal on merit. (7). The order of the Revenue Appellate Authority was challenged by the allottee Bhagirath before the Board of Revenue by way of revision. Yet for no reason he thought it fit not to dismiss the appeal on the grounds of limitation and allowed the appeal on merit. (7). The order of the Revenue Appellate Authority was challenged by the allottee Bhagirath before the Board of Revenue by way of revision. Learned Member of the Board found there being no cause shown which prevented the present petitioner from filing appeal within time, much less sufficient cause for not filing the appeal within limitation, the exercise of power by the Revenue Appellate Authority in condoning the delay was not judicious but was on extraneous consideration. (8). On this finding Board of Revenue was of the opinion that appeal of the petitioner-Hiralal ought to have been rejected on the ground of limitation alone. (9). On the merit also it was found by the learned Member of the Board of Revenue that allotment made in favour of the said Bhagirath could not be said to be nullity which from the inception could be ignored. In these circumstances at the instance of the present petitioner said allotment could not have been set at naught. It was also found by the Board that application for declaration of his Khatedari rights by the applicant u/S. 15AA(3) was not in respect of particular land in question. Therefore his application could not come in the way of treating the application of another-applicant for allotment of additional land, which could be allotted to him under the Rules of 1975. It was also pointed out by the Revenue that while allowing the appeal no application for allotment of land in question on behalf of present petition was pending under the Rules of 1975 and therefore pendency of petitioners application u/S. 15AA(3) of Rajasthan Tenancy Act could not come in the way of treating the application for allotment of the land which was recorded as `rakba-raj to the respondent-Bhagirath. It was also found that merely because land allotted to Bhagirath later on was not already adjacent to the allottee in 1983 would not affect the later allotment. It was also found that merely because land allotted to Bhagirath later on was not already adjacent to the allottee in 1983 would not affect the later allotment. Because it is not the essential requirement that land of which allotment is made to make good the holdings of landless person upto permissible limit, must be situated adjacent to lands already held by or allotted to such landless person or that allotment of distant land in favour of the said allottee to the extent permissible to hold under the Rules will make the allotment invalid. (10). Aggrieved with the order of Board of Revenue dt. 18.10.90 the petitioner has filed this petition. (11). Heard learned counsel for the petitioner and perused the material placed before the Court I am of the opinion that Board was right in holding that the application for condonation of delay u/S. 5 of the Limitation Act could not have been allowed by the Revenue Appellate Authority in the circumstances. Having come to the conclusion that appellant has come to know about the impugned order dt. 15.11.85 and has not filed until 29.1.87, there being no cause whatever explaining delay in filing the appeal after he has come to know about the impugned allotment order, the Revenue Appellate Authority could not have condoned the delay unless satisfied about existence of the sufficient cause which prevented the appellant from filing the appeal within limitation. (12). Sec. 5 of the Limitation Act, which empowers a Court to admit any appeal or application after expiry of the period of limitation is pre-conditioned with satisfaction of that Court about existence of sufficient cause, that could have prevented the appellant/applicant from filing the appeal or application as the case may be. Such satisfaction can only be reached on existence of some objective material. When the Court is empowered to exercise certain discretion on satisfying itself about existence of certain circumstances it does not depend on subjective satisfaction of the Court but on objective material and objective assessment of material before it after hearing both the sides, lis between whom it has to decide. The Court does not enjoy the power of deciding the issue about admitting the appeal, application or suits beyond period of limitation unless and except subject to conditions prescribed under the law. (13). The Court does not enjoy the power of deciding the issue about admitting the appeal, application or suits beyond period of limitation unless and except subject to conditions prescribed under the law. (13). In this connection reference may be made to P.K. Ramachandran vs. State of Kerala & another (1). It was a case in which State of Kerala filed a first appeal before the High Court, which was barred by limitation. An application for condonation of delay was also filed along with application. The High Court allowed the application for condonation of delay with the following order: ``This is an application to condone the delay of 565 days in filing an appeal. The petition is seriously opposed by the respondent. But taking into consideration the averments contained in the affidavit filed in support of the petition condone the delay, we are inclined to allow the petition. The petition stands allowed. (14). The Apex Court reversed the order. It observed: ``It would be noticed from a perusal of the impugned order that the court has not recorded any satisfaction that the explanation for the delay was either reasonable or satisfactory, which is an essential pre—requisite to condonation of delay.................................................. Law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribes and the courts have no power to extend the period of limitation on equitable grounds. The discretion exercised by the High Court was, thus, neither proper nor judicious. The order condoning the delay cannot be sustained. (15). The petition deserves to be dismissed on this ground alone. (16). Even on merit I am in agreement with the conclusion of the Board that order of allotment could not be said to be for any reason void ab initio so as could be ignored. Therefore, rights which have accrued to the allottee could not be disturbed at the instant of negligent litigant particularly when he does not himself has vested right to the land in question. (17). Accordingly this petition fails and is hereby dismissed with no order as to costs.