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2014 DIGILAW 1562 (ALL)

Harish Chandra v. State of U. P.

2014-05-13

RAM SURAT RAM (MAURYA)

body2014
JUDGMENT Ram Surat Ram (Maurya),J. Heard Sri Buddha Prakash for the petitioner and Sri Ashok Kumar Chaubey for the contesting respondents. 2. Notice on behalf of respondents-1 to 4 has been accepted by the Chief Standing Counsel and on behalf of respondent-5 has been accepted by Sri R.C. Upadhyay. 3. In the facts of the case the contesting respondents do not propose to file counter affidavit. 4. The writ petition has been filed against the order of Board of Revenue dated 2.1.2014, by which revision has been allowed and the order of Additional Commissioner passed in the revision has been set aside. 5. Jogindra and Surendra, respondents-6 and 7 filed an application (registered as Case No.10 of 2003) under Section 198(4) of U.P. Act No.1 of 1951 for cancellation of patta dated 2.2.1990 . Amongst other grounds one of the grounds raised by the respondents was that the land in dispute had already been allotted to them by the Land Management Committee on 27.8.1989 and they were given possession over it as such subsequent allotment was illegal. The case was registered by the Collector and transferred to Additional Collector, Ballia, who by the order dated 30.12.2006 condoned the delay under Section 5 of the Limitation Act on the costs of Rs.100/-. The petitioner filed a revision (registered as Revision no.65/B ) from the aforesaid order which was allowed by the Commissioner by judgment dated 23.11.2007. Although the Commissioner in the judgement dated 23.11.2007 found that the patta was granted on 2.2.1990 and the application for cancellation of the patta was filed on 3.10.2003 as such it was highly time barred and the Collector has not considered the issue relating to limitation, but the Commissioner himself has not gone into the issue relating to limitation and dropped the proceeding by allowing the revision. The order of the Commissioner was challenged in Revision No.136 of 2007-08 before the Board of Revenue, which has been allowed by the Board of Revenue by the impugned order dated 2.1.2014. Hence this writ petition has been filed. 6. The counsel for the petitioner submits that the order of the Board of Revenue is a cryptic order as it has neither considered the case of the parties nor assigned any reason for allowing the revision and setting aside the order of the Commissioner. It is illegal. Hence this writ petition has been filed. 6. The counsel for the petitioner submits that the order of the Board of Revenue is a cryptic order as it has neither considered the case of the parties nor assigned any reason for allowing the revision and setting aside the order of the Commissioner. It is illegal. He submits that earlier the application has been filed for cancellation of the patta, which was got dismissed as withdrawn as such subsequent application was not maintainable and is barred on the principle of res judicata. Otherwise also the patta was granted on 2.2.1990 and the application for cancellation of patta was filed on 3.10.2003 while limitation for issuing notice as provided under Section 198(6)(b) of U.P. Act No.1 of 1951 is five years only as such the application was highly time barred and the Commissioner has rightly dismissed it but the Board of Revenue has illegally interfered in the matter and allowed the revision by a cryptic order. The order of the Board of Revenue is liable to be set aside. 7. In reply to the aforesaid arguments the counsel for the respondents submits that the land in dispute has already been allotted to the contesting respondents on 27.8.1989 and they were in possession over the land in dispute. The land in dispute was not a vacant land as such subsequent allotment dated 2.2.1990 was illegal and on coming to know about the subsequent allotment the application for cancellation of patta has been filed and in the circumstances the Additional Collector has rightly condoned the delay on the costs of Rs.100/- 8. Section 341 of the Act provides that unless otherwise expressly provides by or under this Act, the provisions of the Limitation Act, 1963 including Section 5 thereof shall apply to the proceedings under the Act. Section 5 of the Limitation Act, 1963 is quoted below: - “5. Extension of prescribed period in certain cases.--Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period. Explanation.--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.” 9. Limitation for suits of different natures, appeals and applications have been given in Schedule. First Division of the schedule from Article 1 to 113 prescribes limitation for suit, Second Division of the schedule from Article 114 to 117 prescribes limitation for appeal and Third Division of the schedule from Article 118 to 137 prescribes limitation for applications. Under Section 2 (l) of Limitation Act, 1963 it has been clarified that suit does not include an appeal or an application. Under Section 5 of Limitation Act, 1963 delay can be condoned only in the appeals and applications falling under Second Division and Third Division of the schedule. The case for cancellation of patta as given under Section 198 (4) of the Act cannot be treated as an application as provided under Third Division of the schedule from Article 118 to 137. Section 198 (4) provides the provision of the category of the suit. Section 5 of Limitation Act, 1963 has no application and delay cannot be condoned in exercise of powers under Section 5 of Limitation Act, 1963. 10. Similar controversy came for consideration before Supreme Court in Nasiruddin v. Sita Ram Agarwal, AIR 2003 SC 1543 , in which the provisions of Section 13 (4) of Rajsthan Premises (Control of Rent and Eviction) Act, 1950, which provides 15 days limitation for deposit of rent as determined by the Court. This 15 days limitation can be extended by the Court maximum up to 90 days. Supreme Court held that on perusal of the said section it is evident that the question of application of Section 5 would arise where any appeal or any application may be admitted after the prescribed period, if the appellant or the applicant satisfies the court that he had sufficient cause for not making the appeal or application within such period. Supreme Court held that on perusal of the said section it is evident that the question of application of Section 5 would arise where any appeal or any application may be admitted after the prescribed period, if the appellant or the applicant satisfies the court that he had sufficient cause for not making the appeal or application within such period. Section 13(4) provides that in a suit for eviction on the ground set forth in clause (a) of sub-section (1), the tenant shall on the first date of hearing or on or before such date, the court may on the application fixed in this behalf or within such time the tenant shall deposit in court or pay to the landlord in court as determined under sub-section (3) from the date of such determination or within such further time not exceeding three months as may be extended by the court. Thus, sub-section (4) itself provides for limitation of a specific period within which the deposit has to be made, which cannot be exceeding three months as extended by the court. The matter may be examined from another angle. The deposit by the tenant within 15 days is not an application within the meaning of Section 5 of the Limitation Act, 1963. Since the deposit does not require any application, therefore, the provisions of Section 5 cannot be extended where the default takes place in complying with an order under sub-section (4) of Section 13 of the Act. The provisions of Section 5 of the Limitation Act must be construed having regard to Section 3 thereof. For filing an application after the expiry of the period prescribed under the Limitation Act or any other special statute, a cause of action must arise. Compliance with an order passed by a court of law in terms of a statutory provision does not give rise to a cause of action. On failure to comply with an order passed by a court of law, instant consequences are provided for under the statute. The court can condone the default only when the statute confers such a power on the court and not otherwise. In that view of the matter we have no other option but to hold that Section 5 of the Limitation Act, 1963 has no application in the instant case. 11. The court can condone the default only when the statute confers such a power on the court and not otherwise. In that view of the matter we have no other option but to hold that Section 5 of the Limitation Act, 1963 has no application in the instant case. 11. Thus, Section 5 of the Limitation Act, 1963 has no application as the application for cancellation of patta under Section 198 (4), is the original proceedings of the nature of suit and not an application falling in the categories given from Article 118 to 137. 12. As Limitation Act, 1963 has been applied to the proceedings under the Act, as such in view of Section 2 (j) of the Limitation Act, prescribed period of limitation can be computed according to the provisions as provided from Section 4 to 24 of Limitation Act, 1963. Section 17 of Limitation Act, 1963 provides as follows: - “17. 12. As Limitation Act, 1963 has been applied to the proceedings under the Act, as such in view of Section 2 (j) of the Limitation Act, prescribed period of limitation can be computed according to the provisions as provided from Section 4 to 24 of Limitation Act, 1963. Section 17 of Limitation Act, 1963 provides as follows: - “17. Effect of fraud or mistake.--(1) Where, in the case of any suit or application for which a period of limitation is prescribed by this Act,-- (a) the suit or application is based upon the fraud of the defendant or respondent or his agent; or (b) the knowledge of the right or title on which a suit or application is founded is concealed by the fraud of any such person as aforesaid; or (c) the suit or application is for relief from the consequences of a mistake; or (d) where any document necessary to establish the right of the plaintiff or applicant has been fraudulently concealed from him; the period of limitation shall not begin to run until the plaintiff or applicant has discovered the fraud or the mistake or could, with reasonable diligence, have discovered it, or in the case of a concealed document, until the plaintiff or the applicant first had the means of producing the concealed document or compelling its production: Provided that nothing in this section shall enable any suit to be instituted or application to be made to recover or enforce any charge against, or set aside any transaction affecting, any property which-- (i) in the case of fraud, has been purchased for valuable consideration by a person who was not a party to the fraud and did not at the time of the purchase know, or have reason to believe, that any fraud had been committed, or (ii) in the case of mistake, has been purchased for valuable consideration subsequently to the transaction in which the mistake was made, by a person who did not know, or have reason to believe, that the mistake had been made, or (iii) in the case of a concealed document, has been purchased for valuable consideration by a person who was not a party to the concealment and, did not at the time of purchase know, or have reason to believe, that the document had been concealed. (2) Where a judgment-debtor has, by fraud or force, prevented the execution of a decree or order within the period of limitation, the court may, on the application of the judgment-creditor made after the expiry of the said period extend the period for execution of the decree or order: Provided that such application is made within one year from the date of the discovery of the fraud or the cessation of force, as the case may be. 13. In the cases where fraud has been committed by the defendant or his agent the period of limitation shall not begin to run until the plaintiff or applicant has discovered the fraud or the mistake or could, with reasonable diligence, have discovered it, or in the case of a concealed document, until the plaintiff or the applicant first had the means of producing the concealed document or compelling its production. In this case, it was alleged by the respondents that Land Management Committee granted patta of the land in dispute to them on 24.8.1989 and they were given possession over the land in dispute. Subsequent allotment of the land in dispute to petitioner on 2.2.1990 is vitiated on the ground of fraud/mistake. In such circumstances issue relating to limitation ought to have been framed and decided as preliminary issue after taking evidence of the parties. 14. In the result, the writ petition succeeds and is allowed. The order of the Board of Revenue dated 2.1.2014 is set aside. The matter is remanded to the Additional Collector who shall frame preliminary issues relating to limitation as well as res judicata and after taking evidence of the parties decide the preliminary issues afresh in accordance with law. In the preliminary issues are decided in favour of the respondents then he shall proceed to decide the case on merits.