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2014 DIGILAW 1695 (ALL)

Jiyachhi v. State of U. P.

2014-05-23

RAM SURAT RAM (MAURYA)

body2014
JUDGMENT Ram Surat Ram (Maurya),J. Heard Sri R.P.S. Chauhan, for the petitioner and Sri R.C. Upadhyay Standing Counsel for Gram Panchayat. 2. This writ petition has been filed for quashing the order dated 22.3.2014 to the extent of remand, passed by the Additional Commissioner, by which the order dated 17.2.2012 was set aside, revision of the petitioner was allowed and the case was remanded to the court below for deciding the case afresh in the light of the observations made in the order. 3. In the proceeding initiated on the complaint of Chandu Das, respondent-5, for cancellation of patta of the petitioner dated 02.01.1987 under Section 198(4) of U.P. Zamindari Abolition & Land Reforms Act, 1950, hereinafter referred to as "the Act", on the allegation that the petitioner was not eligible for granting patta and otherwise also the land was not vacant at the time of allotment, a report was called for from Revenue Inspector who submitted his report on 13.8.2007, which was forwarded to the Additional Collector on 22.8.2007. Both the parties adduced their evidence and on scrutinising the evidence the Additional Collector found that the land in dispute was not vacant at the time of allotment and cancelled the patta of the petitioner by order dated 17.2.2012. The petitioner filed a revision from the aforesaid order before the Additional Commissioner on the ground that report of the Revenue Inspector was based on hearsay as the petitioner was not informed about the visit of Revenue Inspector on the spot and the inordinate delay in filing the application for cancellation of patta could not have been condoned. After hearing both the parties, the order dated 17.2.2012 was set aside and the case was remanded to the court below for taking evidence of the parties and deciding the case afresh. 4. The counsel for the petitioner submits that in the application, the contesting respondent has stated that patta in favour of the petitioner was granted in the year 1987. The application for cancellation of the patta was filed on 20.6.2007. In the present case, limitation of five years, as provided u/s 198(6)(b), is applicable. The application is long barred by time, as such, it was liable to be rejected, but the Additional Collector has illegally taken cognizance of it. The application for cancellation of the patta was filed on 20.6.2007. In the present case, limitation of five years, as provided u/s 198(6)(b), is applicable. The application is long barred by time, as such, it was liable to be rejected, but the Additional Collector has illegally taken cognizance of it. However, the Additional Commissioner has rightly set aside the order dated 17.2.2012 but remanded the case to the court below for deciding the case afresh after hearing the parties, which was not required at all. 5. The counsel for the respondents states that since the case has been remanded to the court below by the Additional Commissioner for decision afresh the petitioner should not be treated as the aggrieved party and should contest the case before the court below. 6. I have considered the arguments of the counsel for the parties and examined the record. 7. Initially in exercise of powers under Section 344 of the Act, U.P. Zamindari Abolition and Land Reforms Rules, 1952 have been framed. Rule 338 read with Appendix III provides limitation for filing various cases/suits under the Act. The cases relating to cancellation of patta were provided under Section 198 (2) of the Act and vide Entry 24 of Appendix III, six month limitation from the date of announcement of allotment by Land Management Committee was provided for the cases, filed by the aggrieved persons and three years limitation from the date when the Collector first knew about the irregular allotment was provided for suo moto action by the Collector. Section 198 of the Act was amended by U.P. Act No. 20 of 1982 and under Section 198 (6) (a) of the Act, two years limitation for issue of notice under Section 198 (5) to the allottee, which is a condition precedent for cancellation of patta, has been provided for patta granted prior to 10.11.1980 and under Section 198 (6) (b) of the Act, five years limitation for cancellation of patta granted after 10.11.1980 has been provided. Thereafter the Act was further amended by U.P. Act No. 24 of 1986 and under Section 198 (6) (a) of the Act, seven years limitation for issue of notice under Section 198 (5) to the allottee, which is a condition precedent for cancellation of patta, has been provided for patta granted prior to 10.11.1980 and under Section 198 (6) (b) of the Act, five years limitation for cancellation of patta granted after to 10.11.1987 has been provided. 8. By the amendment in the Act, by U.P. Act No. 20 of 1982 and U.P. Act No. 24 of 1986, the Act itself provides limitation for initiation of cases for cancellation of patta under Section 198 (4) of the Act, as such the limitation as provided in Appendix III (vide Entry 24) has become redundant. In case of contradiction between the Act and the Rules, the Act will prevail. Section 198 (6) of the Act now uses the words "every notice to show cause", thus different limitation as previously provided for suo motu action under Entry 24 of Appendix III has also came to an end and by using words "every notice to show cause" under Section 198 (6) of the Act, one limitation for the action on the case filed by aggrieved persons as well as suo motu cancellation of patta has been provided. Full Bench of Board of Revenue U.P. in Virendra Singh vs. State of U.P., 1994 RD 540 has not taken notice of legislative change and does not hold the good law. 9. Now the question arises for consideration as to whether delay can be condoned in exercise of powers under Section 5 of Limitation Act, 1963. 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. 10. 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. 11. 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. 12. 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. 12. 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. 13. 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. 13. 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. 14. 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. This Court in Suresh Giri Vs. Board of Revenue U.P., 2010 (109) RD 566 and Dev Sharma Vs. Board of Revenue U.P., 2011 (9) ADJ 716 , has held that in case of fraud, limitation will start from the date of knowledge of fraud. 15. In this case the Additional Commissioner has set aside the order dated 17.02.2012 and remanded to the court below to decide the matter afresh after giving opportunity to the parties to adduce evidence. The petitioner is not aggrieved by the impugned order as he will have ample opportunity to contest the case. The petitioner may file her written statement raising the point of limitation. In case the petitioner raises the point of limitation, the Additional Collector may frame an issue regarding the limitation and after giving opportunity of evidence to the parties, decide it as a preliminary issue. In case he finds that the application is within time, then he shall proceed to decide it on merit. 16. Since the impugned order is a remand order, this Court is not required to interfere in it and the writ petition is dismissed..