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2013 DIGILAW 818 (PAT)

Sukh Bilas Roy v. State of Bihar

2013-07-16

BIRENDRA PRASAD VERMA

body2013
ORAL ORDER In both the writ petitions along with their respective Interlocutory Applications, common and identical issues of fact and law are involved. Therefore, with consent of learned counsels appearing for the parties, both the matters were heard together at great length and are being disposed of together by this common judgment/order. 2. Both the writ petitions filed under Articles 226 and 227 of the Constitution of India arise out of consolidation proceedings under the provisions of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956 (in short “Consolidation Act”). 3. In C.W.J.C. No. 2864 of 1984, altogether 7 petitioners have assailed the validity and correctness of the order dated 9.3.1984 passed in Revision Case No. 174 of 1979, as contained in Annexure-3 to the writ petition, by the respondent Joint Director of Consolidation, Patna, allowing the claims of the private respondents with respect to the lands under dispute. Similarly, in C.W.J.C. No. 10390 of 1993, altogether ten petitioners have assailed the validity and correctness of the order dated 9.7.1993 (Annexure-3) passed in Revision Case No. 984 of 1989 by the respondent Joint Director of Consolidation, Muzaffarpur, allowing the claims of the contesting private respondents with respect to the lands under dispute. 4. In both the writ petitions, either some of the petitioners or/and some of the respondents have died during the pendency of the main writ petitions. Therefore, separate interlocutory applications in the nature of substitution petitions have been filed on behalf of the petitioners in both the cases. 5. In C.W.J.C. No. 2864 of 1984, Interlocutory Application No. 6042 of 2012 has been filed on behalf of the petitioners stating therein that during the pendency of the main writ petition, petitioner no.2 Most. Brij Kumari died on 21.1.2003, petitioner no. 3 Parsuram Roy died on 29.7.1995, petitioner no.4 Jagarnath Roy died on 5.10.1987, petitioner no. 5 Raj Bans Roy died on 19.2.2012, petitioner no.6 Kailash Roy died on 20.9.1987, petitioner no. 7 Jag Narain Roy died on 2.7.1987, respondent no. 5 Ramayan Upadhya died on 29.7.2011, respondent no. 6 Sheo Bachan Upadhya died in the year 2002 (specific date of death not disclosed), respondent no. 7 Karesan Upadhya died in the year 1996 (specific date of death not disclosed) and respondent no. 7 Jag Narain Roy died on 2.7.1987, respondent no. 5 Ramayan Upadhya died on 29.7.2011, respondent no. 6 Sheo Bachan Upadhya died in the year 2002 (specific date of death not disclosed), respondent no. 7 Karesan Upadhya died in the year 1996 (specific date of death not disclosed) and respondent no. 9 Deo Sakal Upadhya died in the year 1995 (again specific date of death not disclosed), leaving behind them their respective heirs and legal representatives, fully detailed in the aforesaid Interlocutory Application No. 6042 of 2012 in different paragraphs. The aforesaid Interlocutory Application was filed on 11.9.2012. 6. In C.W.J.C. No.10390 of 1993, Interlocutory Application No. 8578 of 2010 was filed on 28.9.2010 stating therein that during the pendency of the main writ petition, petitioner no.1 Jage Rai died on 13.3.2008, petitioner no.2 Jaibir Rai died on 3.1.1998, petitioner no.3 Yogendra Rai died on 12.9.2005, respondent no. 12 Saukhi Rai died on 30.8.2009 and respondent no. 17 Kalpat Devi died on 21.4.2008, leaving behind them their respective heirs and legal representatives, who have been fully detailed in the aforesaid Interlocutory Application No. 8578 of 2010 in different paragraphs. 7. From the averments made in the aforesaid two Interlocutory Applications with respect to the aforesaid two writ petitions, it is apparent that steps for substitution of the heirs and legal representatives with respect to some of the deceased petitioners and/or some of the deceased respondents were not taken within a reasonable period of time, and, in fact, in some of the cases for a long period of about 20 to 25 years. In that view of the matter, an objection has been taken by the respondents in both the cases that in view of law laid down by the Hon’ble Apex Court in the case of Puran Singh Vs. State of Punjab ( (1996) 2 SCC 205 ), the prayer for substitution made on behalf of the petitioners or the proposed heirs and legal representatives of deceased persons cannot be allowed at this stage, as the substitution petitions have not been filed within a reasonable period of time, as a result of which both the writ petitions have abated and the contesting private respondents or the heirs and legal representatives of the deceased respondents cannot be compelled to contest their claims, which due to abatement of the aforesaid writ petitions have become final in their favour. 8. 8. Learned Senior counsel appearing on behalf of the petitioners in both the writ petitions has very fairly conceded that though with respect to several deceased writ petitioners and several deceased respondents steps for substitution were not taken within a reasonable period of time, but with respect to some other deceased petitioners or the deceased respondents, the Interlocutory Applications in the nature of substitution petition have been filed within a reasonable period of time. 9. It was next contended on behalf of the petitioners that even if steps for substitution with respect to the deceased petitioners or the deceased respondents were not taken earlier, then in that case also the prayer for substitution is fit to be allowed. According to him, the judgment of the Hon’ble Apex Court in the case of Puran Singh Vs. State of Punjab (Supra) is per incurium, as it has not taken into consideration the earlier judgments of the Hon’ble Apex Court in the cases of The State of Punjab Vs. Shamlal Murari [ (1976) 1 SCC 719 = AIR 1976 SC 1177 ], Ram Sumiran Vs. D.D.C [ AIR 1985 SC 606 ] and Collector, Land Acquisition, Anantnag Vs. Mst. Katiji [ AIR 1987 SC 1353 ]. It was further submitted on behalf of the petitioners that on the ground of infraction of procedure and on the ground of non-filing of a substitution petition within a reasonable period of time, the whole writ petition may not be held to be incompetent. 10. Learned counsel appearing on behalf of the contesting respondents while placing heavy reliance on the judgment of the Hon’ble Apex Court in the case of Puran Singh Vs. State of Punjab(Supra), has further submitted that law of limitation is not a procedural law, rather it is a substantive law. Section 3 of The Limitation Act, 1963 creates a bar and it provides that every suit instituted, appeal preferred and application made after prescribed period, subject to provisions of Sections 4 to 24, shall be dismissed although limitation has not been set up as a defence. By referring to Section 27 of the Limitation Act, it was submitted that if no lis is brought by an aggrieved party within a period of limitation, then his right to such property shall be extinguished. By referring to Section 27 of the Limitation Act, it was submitted that if no lis is brought by an aggrieved party within a period of limitation, then his right to such property shall be extinguished. It was next contended that the decisions cited by learned counsel appearing on behalf of the petitioners in both the cases are not applicable in the proceedings under Article 226 and 227 of the Constitution of India, as the judgments cited on behalf of the petitioners were relating to the proceedings under Order 22 of the Code of Civil Procedure (In short “C.P.C.”) and according to him, as per Section 141- Explanation of the C.P.C., the provisions of C.P.C. do not apply to a proceeding under Article 226 of the Constitution of India. It was also submitted that if the lis is one and non-separable from others, then there cannot be conflicting judgments in one and same litigation as it has become final with respect to the dead persons. In support of his above contention, he has placed reliance on the judgments of Hon’ble Apex Court in the cases of State of Punjab Vs. Nathu Ram [ AIR 1962 SC 89 ], Ram Sarup Vs. Munshi [ AIR 1963 SC 553 ], Sri Chand Vs. Jagdish Parshad Kishan Chand [ AIR 1966 SC 1427 ] and Kishun @ Ram Kishun Vs. Bihari [ AIR 2005 SC 3799 = 2005 AIR SCW 3823]. 11. In order to appreciate the rival submissions and the issues raised on behalf of the parties, it would be appropriate to reproduce Paragraph 12 of the judgment in the case of Puran Singh Vs. State of Punjab (Supra), which reads as follows:- “As such even if it is held that Order 22 of the Code is not applicable to writ proceedings or writ appeals, it does not mean that the petitioner or the appellant in such writ petition or appeal can ignore the death of the respondent if the right to pursue remedy even after death of the respondent survives. After the death of the respondent it is incumbent on the part of the petitioner or the appellant to substitute the heirs of such respondent within a reasonable time. After the death of the respondent it is incumbent on the part of the petitioner or the appellant to substitute the heirs of such respondent within a reasonable time. For purpose of holding as to what shall be a reasonable time, the High Court may take note of the period prescribed under Article 120 of the Limitation Act for substituting the heirs of the deceased defendant or the respondent. However, there is no question of automatic abatement of the writ proceedings. Even if an application is filed beyond 90 days of the death of such respondent, the Court can take into consideration the facts and circumstances of a particular case for purpose of condoning the delay in filing the application for substitution of the legal representative. This power has to be exercised on well-known and settled principles in respect of exercise of discretionary power by the High Court. If the High Court is satisfied that delay, if any, in substituting the heirs of the deceased respondent was not intentional, and sufficient cause has been shown for not taking the steps earlier, the High Court can substitute the legal representative and proceed with the hearing of the writ petition or the writ appeal, as the case may be. At the same time the High Court has to be conscious that after lapse of time a valuable right accrues to the legal representative of the deceased respondent and he should not be compelled to contest a claim which due to the inaction of the petitioner or the appellant has become final.” (Emphasis supplied) 12. It would be relevant to mention here that in Puran Singh Vs. State of Punjab (Supra) the facts of that case have been noticed in paragraph 2 of the said judgment, from perusal of which it is apparent that one Bir Singh, respondent no.2 of that case, died on 9.12.1971 and steps for substitution were not taken till 14.3.1975 by the petitioner. Therefore, learned Single Judge of Punjab and Haryana High Court had dismissed the writ petition. In the said case, steps for substitution were not taken for a period of 3 years 3 months (approximately) and on that ground alone, the matter was not considered on merit and the writ petition was dismissed by the learned Single Judge of Punjab and Haryana High Court. In the said case, steps for substitution were not taken for a period of 3 years 3 months (approximately) and on that ground alone, the matter was not considered on merit and the writ petition was dismissed by the learned Single Judge of Punjab and Haryana High Court. Letters Patent Appeal filed against the said order was also dismissed by a Division Bench with an observation that since the appellant did not take steps for bringing the legal representatives of deceased Bir Singh on record, therefore, the writ petition had abated. The Hon’ble Apex Court has laid down the principles in paragraph 12 of the aforesaid judgment, reproduced above, affirming the judgment of the learned Single Judge as also the L.P.A. Court. The Hon’ble Apex Court has held that if death takes place of a party in a proceeding under Article 226 of the Constitution of India, then steps are required to be taken within a reasonable time for substitution of the heirs and legal representatives of the deceased. 13. A question arises as to what would be the reasonable time for taking steps for substitution. Article 120 of The Limitation Act, 1963 provides a period of 90 days for substitution of the legal representatives under the Code of Civil Procedure. It is true that the provisions of the Code of Civil Procedure cannot be strictly applied in a proceeding under Article 226 of the Constitution of India, in view of the provisions contained in Section-141- Explanation of the C.P.C., but benefits of the principles can be taken and analogy of the provisions of the C.P.C. can be drawn in a proceeding under Article 226 of the Constitution of India. 14. Coming once again to the provisions of the Limitation Act, this Court finds that under Article 137 a period of 3 years has been prescribed for filing any application for which no period of limitation has been provided. The period of 3 years is a long period. If death of a party takes place, then the petitioner/appellant of writ petition/writ Appeal/L.P.A. or the proposed heirs may not be required to file a substitution petition strictly within a period of 90 days, but he/she is required to take steps for substitution within a reasonable period of time. The period of 3 years is a long period. If death of a party takes place, then the petitioner/appellant of writ petition/writ Appeal/L.P.A. or the proposed heirs may not be required to file a substitution petition strictly within a period of 90 days, but he/she is required to take steps for substitution within a reasonable period of time. In the considered opinion of this Court, if the steps are not taken within a maximum period of 3 years, then the prayer for substitution cannot be allowed and the legal rights accrued to the successful respondents or the heirs and legal representatives of a deceased respondent cannot be taken away in a mechanical manner and further they cannot be compelled to contest such proceeding, which has abated due to non-substitution of the heirs and legal representatives of the deceased within a reasonable period of time of 3 years. 15. For coming to the conclusion that a period of three years would be a reasonable maximum period of time for taking steps for substitution of the heirs and legal representatives of a deceased party, I am fortified by a judgment of a Division Bench of this Court (Coram: L.M.Sharma & Manoranjan Prasad JJ.) in the case of Harakh Nath Singh Vs. Lodha Singh [1978 B.B.C.J. 481]. In that case the issue involved was that what would be the period of limitation for filing a substitution petition for substituting the heirs and legal representatives of a deceased party in a Civil Revision application filed under Section 115 C.P.C. and further as to whether the provisions of Order 22 of the Code of Civil Procedure apply and, therefore, whether in terms of Article 120 of The Limitation Act, 1963, a substitution petition is required to be filed within a period of ninety days. After considering large number of judgments, the Division Bench of our own High Court taking a cue from Article 137 of The Limitation Act came to a conclusion that the period of limitation for allowing the prayer for substitution would be three years, as the provisions of Order 22 of the Code of Civil Procedure do not apply to a substitution application in civil revision applications filed under Section 115 of the Code. For better appreciation, I am tempted to quote Paragraph 13 of the aforesaid judgment handed down by the aforesaid Division Bench, which reads as follows:- “In the result it has to be held that the provisions of the Order 22 of the Code of Civil Procedure do not apply to a substitution application in Civil Revision application filed under Section 115 of the Code. An order of substitution can be passed by the Court either under Section 146 or under its inherent powers and in both these cases the period of limitation would be three years under article 137 of the Limitation Act. Since the present application was filed within six months of the death of the opposite party, and on the very next day of the admission of the case, it is difficult to hold that the petitioners were guilty of such delay which should not be ignored in the Courts discretion.” 16. Coming to the present proceedings, this Court finds that in C.W.J.C. No. 2864 of 1984 petitioner no. 3 Parsuram Roy died on 29.7.1995. Petitioner No. 4 Jagarnath Roy died on 5.10.1987, petitioner no. 6 Raj Bans Roy died on 20.9.1987, petitioner no. 7 Jag Narain Roy died on 2.9.1987, respondent no. 6 Sheobachan Upadhya died in the year 2002, respondent no.7 Karesan Upadhya died in the year 1996 and respondent no. 9 Deo Sakal Upadhya died in the year 1995 and Interlocutory Application no. 6042 of 2012 was filed on 11.9.2012. Obviously, there is a long delay in filing the aforesaid substitution petition ranging from 10 to 25 years. By no stretch of imagination it can be said that steps for substitution have been taken within a reasonable period of time with respect to aforesaid deceased persons, as has been mandated by the Hon’ble Apex Court in the case of Puran Singh Vs. State of Punjab (Supra) . However, so far petitioner No. 5 Raj Bans Roy died on 19.2.2012, and respondent no. 5 Ramayan Upadhya died on 29.7.2011 are concerned, steps can be said to have been taken for substitution of their heirs and legal representatives within a reasonable period of time. 17. Similarly, in C.W.J.C. no. 10390 of 1993, Interlocutory Application no. 8578 of 2010 was filed on 28.9.2010 wherein it has been stated that petitioner no.2 Jaibir Rai died on 3.1.1998 and petitioner no. 17. Similarly, in C.W.J.C. no. 10390 of 1993, Interlocutory Application no. 8578 of 2010 was filed on 28.9.2010 wherein it has been stated that petitioner no.2 Jaibir Rai died on 3.1.1998 and petitioner no. 3 Yogendra Rai died on 12.9.2005, leaving behind them their heirs and legal representatives. Obviously, substitution petition has been filed after a long delay ranging from 5 to 12 years and by no stretch of imagination it can be said that substitution petition was filed within a reasonable period of time with respect to aforesaid deceased persons. However, so far petitioner no. 1 Jage Rai, respondent no. 12 Soukhi Rai and respondent no. 17 Kalapat Devi are concerned, steps for substitution of their heirs and legal representatives can be said to have been taken within a reasonable period of time. 18. Now, a question arises as to whether both the writ petitions have become incompetent due to their abatement with respect to deceased petitioners and/or deceased respondents, as detailed above, on account of not taking steps for substitution within a reasonable period of time of three years, as has been concluded by me in the preceding paragraphs in the light of ratio laid down by the Hon’ble Apex Court in the case of Puran Singh Vs. State of Punjab (Supra)? The answer would, certainly, be in affirmative. It is well established that no judgment and decree can be passed either against or in favour of a dead person, as has been reiterated recently by the Hon’ble Apex Court in the case of Kishun @ Ram Kishun Vs. Bihari (Supra). If legal rights have accrued to the respondents or the heirs and legal representatives of the deceased respondents over the lands under dispute, due to abatement of the writ petitions, then such rights cannot be taken away mechanically and arbitrarily. 19. So far judgments cited by learned counsel appearing on behalf of the petitioners are concerned, this Court finds that judgments in the cases of The State of Punjab Vs. Shamlal Murari (Supra) and Collector, Land Acquisition, Anantnag Vs. Mst. Katiji (Supra) are not at all relevant for the purposes of issues involved in the present proceedings. However, so far the judgment of the Hon’ble Apex Court in the case of Ram Sumiran Vs. Shamlal Murari (Supra) and Collector, Land Acquisition, Anantnag Vs. Mst. Katiji (Supra) are not at all relevant for the purposes of issues involved in the present proceedings. However, so far the judgment of the Hon’ble Apex Court in the case of Ram Sumiran Vs. D.D.C. (Supra) is concerned, that was handed down by two Hon’ble Judges of the Hon’ble Apex Court in terms of Article 142 of the Constitution of India for doing complete justice between the parties. The aforesaid judgment cannot be said to be a law declared by the Supreme Court under Article 141 of the Constitution of India. Further, this Court finds that the judgment in Puran Singh Vs. State of Punjab (Supra) was also handed down by two Hon’ble Judges of the Hon’ble Apex Court and this is the latter judgment pronouncing the law in terms of Article 141 of the Constitution of India after taking into consideration large number of judgments of the Hon’ble Apex Court as also of different High Courts. 20. A question arises that if there is conflict in the ratio laid down by the Hon’ble Apex Court in the case of Ram Sumiran Vs. D.D.C. (Supra) and in the case of Puran Singh Vs. State of Punjab (Supra), then which judgment should be followed. A Full Bench of 5 Judges of Karnataka High Court in the case of Govindanaik G. Kalaghatiji Vs. West Patent Press Co. Ltd. [AIR 1980 Karnataka 92] has resolved the controversy and has held that if two decisions of the Supreme Court on a question of law cannot be reconciled and both Benches of the Supreme Court consist of equal number of Judges, then the latter of the two decisions should be followed by High Courts and other Courts. 21. For the discussions made above, this Court is bound to follow the decision of the Hon’ble Apex Court in Puran Singh Vs. State of Punjab (Supra) because this has also been handed down by two Judges of the Hon’ble Apex Court and it is a latter judgment. 22. In view of discussions made above, and in view of law laid down by the Hon’ble Apex Court in Puran Singh Vs. State of Punjab (Supra), it cannot be said that steps for substitution were taken within a reasonable period of time with respect to several deceased petitioners and/or several deceased respondents, as indicated above. 22. In view of discussions made above, and in view of law laid down by the Hon’ble Apex Court in Puran Singh Vs. State of Punjab (Supra), it cannot be said that steps for substitution were taken within a reasonable period of time with respect to several deceased petitioners and/or several deceased respondents, as indicated above. Therefore, in the considered opinion of this Court, the heirs and legal representatives of the aforesaid deceased petitioners cannot be permitted to prosecute this litigation any further and the private respondents or the heirs and legal representatives of the deceased respondents cannot be compelled to contest their claims, which have become final in their favour, due to abatement of the aforesaid two writ petitions. 23. In the result, the prayer for substitution made on behalf of the petitioners or the proposed heirs and legal representatives of the deceased petitioners with respect to deceased petitioners and/or deceased respondents, whose death has taken place more than three years earlier from the date of filing of the Interlocutory Applications, is rejected. 24. Consequently, Interlocutory Application No. 6042 of 2012 and Interlocutory Application No. 8578 of 2010, filed in C.W.J.C. No. 2864 of 1984 and C.W.J.C. No. 10390 of 1993 respectively with respect to the deceased petitioners and/or deceased respondents, whose death has taken place more than three year earlier from the date of filing of the aforesaid Interlocutory Applications stand dismissed 25. In view of abatement of the aforesaid writ petitions on account of non-substitution of heirs and legal representatives of the deceased petitioners or deceased respondents within a reasonable period of time of three years, both the writ petitions have become incompetent and cannot proceed further, since there cannot be conflicting judgments with respect to a dead person and surviving person in a common lis. 26. In the result, both the writ petitions fail and are hereby dismissed. No costs.