Patna High Court
Bhuneshwar Bhagat vs State Of Bihar And Ors. on 11 December, 1987
Equivalent citations: 1988(36)BLJR516
Author: S.B. Sinha
Bench: S.B. Sinha
JUDGMENT S.B. Sinha, J.
1. In this petition, the petitioner has challenged the order dated 2-12-1980 passed by respondent No. 3 the Collector of Siwan, as contained in Annexure-10 ; the order dated 5-8-1981 passed by the said respondent No. 3 as contained in Annexure-11, the order dated 6-3-1982 passed in revision case No. 232 of 1981, by the Additional Member, Board of Revenue (respondent No. 2), as contained in Annexure-l2 and also the order dated 28-6-1982 passed by the Additional Collector, Siwan (respondent No. 4) as contained in Annexure-13 to the writ petition,
2. Before adverting to the facts of the case, it may be noted that the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 (hereinafter to be referred to for the sake of brevity as 'the Act') came into force on 19-4-1962, and the period appearing in Section 5 (5) of the said Act* as it then stood, was of 'six months' in order to enable the landholder to transfer their lands, to certain categories of persons mentioned therein, but the said period was extended to 'one year' by Bihar Act 12 of 1962.
3. The facts of the case lie in a very narrow compass and are not much in dispute. The Guru of the petitioner Mahanth Shiv Goswami executed a deed of gift in favour of the petitioner on 20-9-1962, in respect of the lands in question As noticed hereinbefore any transfer inter alia by gift could have been made under the law by the land-holder up to 18-4-1963. Thereafter in the year 1975, a proceeding in terms of the Act was initiated against the aforesaid Mahanth Shiv Goswami (respondent No. 5), which was registered as Land Ceiling Case No. 6 of 1975-76. In the said proceeding, the Additional Collector, Siwan, by his order dated 25-8-1975 (Annexure-4) held that the transfer made to the petitioner by the Mahanth (respondent No. 5) was invalid. On 30th of June, 1976 the aforementioned Mabanth Shiv Goswami allegedly made voluntary surrender of 19 Bighas 18 Kathas and 12 Dhurs of land, as contained in Annexure-1,
4. The petitioner preferred an appeal against the aforementioned order dated 23-8-1975 (Annexure-4) which was dismissed by the appellate authority by its order dated 16-8-1976 (Annexure-5). It is alleged that on 27-8-1976 the signature of the Mahanth Shiv Goswami was obtained by use of force on the so-called surrender of 25 Acres of land including the land in question measuring 9.72 Acres of land of the petitioner covered by the deed of gift executed in his favour by the Mahanth Shiv Goswami.
5. A representation with the aforementioned facts was made by the Mahanth Shiv Goswami, to all concerned including the Prime Minister and the Chief Minister. On the basis of the said representation a direction was made by the Revenue Commissioner on 24-11-1976 with regard to forcible surrender dated 27-8-1976. In the mean time the petitioner preferred revision against the order dated 16-8-1976 (Annexure-5), which was also dismissed by the Additional Member, Board of Revenue by his order dated 10-6-1977, as contained in Annexure-6.
6. Thereafter the petitioner came to this court in writ jurisdiction, being C.W.J.C. No. 1353 of 1977. By a judgment dated 9-1-1978, a Division Bench of this Court allowed the said writ application and quashed the orders passed by the Additional Collector dated 25-8-1975, the order dated 16-8-l976 passed by the appellate authority and the order dated 10-6-1977 passed by the Additional Member, Board of Revenue, as contained in Annexures 2, 3 and 4 of that writ application. The relevant portion of the judgment passed in the aforementioned writ application may be noticed hereunder :
4. Only two grounds which have been given for holding the transfer in question was benami, or in other words, a paper transaction are already noticed. But in view of the fact that the petitioner was chela of the Mahanth, which is established by the document itself, it cannot be said that the mere fact that the transfer was in favour of a chela shows that it was of a benami character. The other fact that the transfer in question was made after 22-9-1959 does not necessarily lead to the conclusion that the transfer was fit to be annulled. There is no enquiry or determination of the question whether after the transfer the Mabanth was continuing to be in possession of the gifted property. In case of this nature the question of possession is of special importance. In considering the question of possession, however, relationship of the parties should also be taken into consideration. Taking all these facts into consideration we remand the case to the learned Additional Collector for rehearing and consideration of the case in accordance with law after giving the parties including the State, opportunity to lead such further evidence as they may be advised,
5. In the result, this application is allowed. The orders contained in Annexure 2, 3 and 4 are quashed. The petitioner must appear before the Additional Collector on the 10th of February, 1976. On that date another date should be fixed for hearing and disposal of the proceeding in question. In the circumstances, there will be no order as to costs.
7. From a perusal of the aforementioned judgment it would appear that the said judgment was passed in presence of the State of Bihar, and the parties were directed to appear before the Additional Collector on 10-2-1978, It is admitted that in pursuance of the aforementioned direction to the Additional Collector, he considered the question with regard to possession of the petitioner on the lands in question and after considering the evidence by way of affidavits sworn by 11 persons out of whom five witnesses were examined and cross-examined, the Additional Collector (respondent No. 4) by his order dated 18-4-1978 came to the conclusion that the lands in question were in possession of the petitioner ; and in that view of the matter and in terras of the judgment of this Court in C. W. J. C, No. 1353 of 1977, the deed of gift dated 20th of September, 1962 executed by respondent No. 5 in favour of the petitioner was held to be a valid one.
8. The State of Bihar, although was required to prefer an appeal within 30 days from the date of the said order of the respondent No. 4, i.e. 18-4-1978 (Annexure-8), did not do so within the prescribed period, but filed the said appeal only on 30-9-1980.
In this connection provisions for appeal is contained in Section 30 of the 1961 Act (Bihar Act 12 of 1962) and also the provision as has been substituted by Act 55 of 1982 in the said Act may be noticed which is as under:
Section 30 of Bihar Act 12 of 1962 :
Appeals...(1) An appeal from any final order made by the Collector under this Act, except an order under Section 8 or Sub-section (5) of Section 28, if preferred within sixty days of the date of such order, shall lie to the prescribed authority :
Provided any such appeal may be admitted after sixty days of the date of the order appealed against, if the appellate authority is satisfied that the appellant was prevented by sufficient cause from preferring the appeal within such period.
Section 30 of the said Act as amended by Act 55 of 1982 :
Appeals.- (1) (a) An appeal shall lie from any final order passed by any officer vested with the power of Collector of the District or any other officer specially authorised in this behalf of the State Government within thirty days, of such an order.
(b) An appeal shall lie from any final order passed by the Collector of the District to the Commissioner of the Division within thirty days of such orders :
...
From a perusal of the provisions of Section 30 (old Act) before the same was amended by Act 55 of 1982, it would appear that 60 days was prescribed for appeal, but in the said provision, power was conferred upon the appellate authority to condone the delay in filing the appeal beyond sixty days, on sufficient cause being shown by the appellant. However, the said provision of Section 30 of the Act now stands amended by Act 55 of 1982, as a result whereof at present, power to condone the delay in filing the appeal does not exist.
9. Respondent No. 3, the Collector, by order dated 2-12-1980, as contained in Annexure-10 to the writ petition, provisionally admitted the appeal filed by the State against the order of the Additional Collector dated 18-4-1978 (Annexure-8), but directed that the matter relating to the condonation of delay shall be considered after hearing the opposite party (i.e. the petitioner in the instant case) after his appearance
10. Respondent No. 3, the Collector of Siwan by his order dated 5-8-1981, as contained in Annexure-11 to the writ petition, omitted to consider the said question of limitation on the ground that the appeal was already admitted, but by the said order he remitted the case to the Additional Collector (respondent No. 4) for a fresh disposal in accordance with law after setting aside his order dated 18-4-1978 (Annexure-8).
10-A. The petitioner, preferred a revision petition before the Additional Member, Board of Revenue against the order of the Collector (Annexure-11) under Section 32 of the Act, who by his order dated 6-3-1982 (Annexure-12) held that although the order dated 5-8-1981 (Annexure-11) was void, but according to him, as the appeal was pending on 9-4-1981, i.e. when the Bihar Ordinance No. 66 of 1981 came into force, as such the appeal should have abated. He, therefore, directed that the matter should be considered afresh from the stage of Section 10 of the Act.
Pursuant to the aforementioned order (Annexure-12), respondent No. 4 by order dated 28-6-1982, as contained in Annexure-13 to the writ petition, held that the transfer to the petitioner was farzi in nature and was made in order to defeat the provisions of the Act.
11. Mr. Thakur Prasad, learned senior Counsel appearing on behalf of the petitioner has raised a short but an interesting question of law.
He firstly submitted that the order of the Collector (respondent No. 3) dated 2-12-1980, as contained in Annexure-10 to the writ petition itself, was bad inasmuch as the respondent No. 3 without condoning the delay, admitted the appeal. He further submitted that in any event respondent No. 3 in the aforementioned order dated 2-12-1980 (Annexure-10), having directed that the matter relating to condonation of delay shall be considered upon appearance of the opposite party thereof, namely, the petitioner of this writ petition, he should not nave heard and allowed such an appeal and remitted back the matter to respondent No. 4 without considering first as to whether the State had made out a sufficient cause for condonation of delay or not. Learned Counsel further submitted in this connection that the Collector had also no jurisdiction to condone the delay in filing the appeal, inasmuch as Section 5 of the Limitation Act, 1963 has no application in relation to proceedings under Section 30 of the said Act. In this connection reference has been made to the decision of the Supreme Court in Sakuru v, Tanaji and the decision of this Court in Hukumdeo Narain Yadav v. Lalit Narain Mishra 1974 B.B.C.J. 251.
12. The provisions of the said Act have been enacted for fixation of ceiling, restriction on sub-letting and resumption of certain raiyats, for personal cultivation of land, acquisition of status of raiyat by certain under-raiyats and acquisition of surplus land by the State in the State of Bihar and matters connected therewith. The said Act is a self-contained Code and provides for the power and procedures of the authorities mentioned therein and also lays down the procedure so far as the conduct thereof before the authorities are concerned. In terms of the provision of Section 45 of the said Act, the State of Bihar has been empowered to frame rules. Section 3 of the said Act provides for a non-obstante clause as the said Act would have application notwithstanding anything contrary in any other law, custom, usage or agreement, for the time being in force or any decree or order of any Court.
13. From a perusal of the provision of Section 30 of the said Act, as it originally stood, it would appear that not only the period of limitation was prescribed for preferring an appeal, but power to condone the delay in filing the memorandum of appeal beyond sixty days was also conferred upon the appellate authority. Such power for condonation of delay appears to have been deliberately omitted by reason of the Amending Act 55 of 1982, It is, therefore, obvious that the Collector while exercising power under Section 30 of the said Act cannot condone the delay in terms of the provision thereof. The only question, therefore, which is required to be considered is whether the application for condonation of delay in filing the appeal purported to have been filed under Section 5 of the Limitation Act by the State of Bihar was rightly allowed by the Collector or not. Learned Counsel for the petitioner submitted that the impugned orders are ex-fade illegal as Section 5 of the Limitation Act, 1963, will have no application inspite of existence of Section 29 (2) therein. Section 29 (2) of the Limitation Act reads as under:
Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4 to 25 (inclusive) shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special or local law.
However, it is now well settled that Section 29 (2) of the said Act applies only to proceedings before a 'court' and not before any quasi-judicial tribunals or executive authorities.
14. Mrs. Indu Prabha Singh, learned Government Pleader No. VI appearing on behalf of the State, however, contended that in view of Section 29 (2) of the Limitation Act, the provisions of Section 5 of the said Act would ipso facto apply to all proceedings under the provisions of the said Act. According to the learned Counsel, the omission relating to the power of the Collector to condone the delay in filing the appeal is wholly immaterial inasmuch as the said power to condone the delay must be found to be existing in Section 5 of the Limitation Act which, according to the learned Counsel applies before a Collector in appeal under Section 30 of the said Act. The question as to whether the provisions of Section 5 of the Limitation Act would apply before a Collector or not primarily depends upon the answer to the question as to whether a Collector under the said Act is a Court or not.
There is no doubt that the appellate authority and the revisional authoritv are all creatures of the said Act itself. While exercising the power conferred upon the said authorities, they have certain powers of civil courts also, but only because a statutory authority exercises some powers of civil court, the same may not by itself convert a statutory tribunal into a court.
15. In the case of Bharat Bank v. Employees of Bharat Bank it has been held by Kania, C.J., that the Labour Courts which are constituted under the provisions of the Industrial Disputes Act, 1947 and have similar powers and although have trappings of courts, but still are not courts. In the said judgment in paragraph 2 it has been held as follows:
(2) In my opinion, the functions and duties of the Industrial Tribunal are very much like those of a body discharging judicial functions although it is not a Court. The rules framed by the Tribunals require evidence to be taken and witnesses to be examined, cross examined and re-examined. The Act constituting the Tribunal impose penalties for incorrect statements made before the Tribunal. While the powers of the Industrial Tribunals in some respect are different from those of an ordinary Civil Court and it has jurisdictions and powers to give reliefs which a Civil Court administering the law of the land (for instance, ordering the reinstatement of a workman) does not possess in the discharge of its duties it is essentially working as a judicial body. The fact that its determination has to be followed by an order of the Government which makes the award binding, or that in cases where Government is a party the Legislature is permitted to review the decision, or that the Government is empowered to fix the period of the operation of the award do not, in my mind, alter the nature and the character of the functions of the Tribunal. Having considered all the provisions of the Act it seems to me clear that the Tribunal is discharging functions very near those of a Court, although it is not a Court in the technical sense of the word.
16. Under the provisions of the said Act also, the powers of the Collector under the said Act-appellate authorities and the revisional authorities sometimes may be subject to the directions given by the State Government. The State Government under certain circumstances, has the final say in relation to a matter under the said Act, as is evident from Section 45-B of the said Act, A Collector under the said Act be the appellate or revisional authority, although performing judicial functions under the provisions of the said Act, but in view of Section 45-B of the said Act their say may not be the last one. Reference in this connection may be made to the case of Sakuru v. Tanaji(supra). In the said judgment, the position of law in relation to the aforementioned question has been laid down in paragraph 3 thereof, which runs as follows :
3. After hearing both sides we have unhesitatingly come to the conclusion that there is no substance in this appeal and that the view taken by the Division Bench in Venkaiaah's case is perfectly correct and sound. It is well settled by the decisions of this Court in Town Municipal Council, Athani v. Presiding Officer, Labour Court Hubli ; Niiyananda M. Joshi v. Life Insurance Corporation of India and Sushila Devi v. Ramanandan Prasad , that the provisions of the Limitation Act, 1963 apply only to proceedings in "Courts" and not to appeals or applications before bodies other than Courts such as quasi-judicial Tribunals or executive authorities, notwithstanding the fact that such bodies or authorities may be vested with certain specified power conferred on Courts under the Code of Civil or Criminal Procedure. The Collector before whom the appeal was preferred by the appellant herein under Section 90 of the Act not being a Court, the Limitation Act, as such, had no applicability to the proceedings before him. But even in such a situation the relevant special statute may contain an express provision conferring on the appellate authority, such as the Collector, the power to extend the prescribed period of limitation on sufficient cause being shown by laying down that the provisions of Section 5 of the Limitation Act shall be applicable to such proceedings. Hence, it becomes necessary to examine whether the Act contains any such provision entitling the Collector to invoke the provisions of Section 5 of the Limitation Act for condonation of the delay in the filing of the appeal. The only provision relied on by the appellant in this connection is Section 93 of the Act which, as it stood at the relevant time, was in the following terms :
93. Limitation. Every appeal and every application for revision under this Act shall be filed within sixty days from the date of the order against which the appeal or application is filed and the provisions of the Indian Limitation Act, 1908 shall apply for the purpose of the computation of the said period.
On a plain reading of the section it is absolutely clear that its effect is only to render applicable the proceedings before the Collector, the provisions of the Limitation Act relating to computation of the period of limitation. The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 including in Part III of the Limitation Act, 1963. Section 5 is not a provision dealing with computation of the period of limitation. It is only after the process of computation is completed and it is found that an appeal or application has been filed after expiry of the prescribed period that the question of extension of the period under Section 5 can arise. We are, therefore, in complete agreement with the view expressed by the Division Bench of the High Court in Venkaiah's case that Section 93 of the Act did not have the effect of rendering the provision of Section 5 of the Limitation Act, 1963 applicable to the proceedings before the Collector.'
17. In view of the aforementioned authoritative judgment of the Supreme Court, in my opinion, there is absolutely no doubt that Section 29 (2) of the Limitation Act will have no application in relation to proceedings before the Collector under the said Act. Necessarily, therefore, it may be held that Section 5 of the Limitation Act cannot also apply in a proceeding under Section 30 of the said Act.
18. In the case of Hukumdeo Narain Yadav v. Lalit Narain Mishra (supra), the Supreme Court while dealing with an election matter held that Section 5 of the Limitation Act is not applicable to election petition. In the said judgment, it has been held that right to challenge an election being not a new right, and such a right having been conferred subsequently upon the aggrieved person under the provisions of the Representation of the People Act, 1951 the provisions of Section 29 (2) of the Limitation Act will have no application in relation to an election petition. In my view, however, it is not necessary to lay down the law as to whether the authorities under the said Act are Courts or not, as this petition can be disposed of on another point.
19. Assuming that the Collector had the power to condone the delay, as noticed hereinbefore, he, while passing the order dated 5-8-1981 (Annexure-11), refused to consider the said question only on the ground that the appeal already stood admitted and a long time has passed from the date of such admission. It is now well known that even in a case where the authorities choose to exercise its jurisdiction for condonation of delay, its jurisdiction to condone the delay emanates from existence of sufficient grounds on the part of the party not being able to prefer the appeal within the period prescribed.
In Ramlal and Ors. v. Rewa Coal Fields the Supreme Court has held that the jurisdiction of the Court to condone the delay in terms of Section 5 of the Limitation Act arises only when there exists sufficient cause therefor. Necessarily, therefore, it must be held that such power to condone the delay can be exercised if the appellate authority comes to the conclusion on the basis of the materials brought before it that there existed sufficient cause for a party seeking indulgence of the Court for condonation of delay as he could not prefer the appeal within the prescribed period.
20. In the instant case obviously the Collector while passing the order (Annexure-11) did not advert himself to the aforementioned question involving jurisdictional facts. He, therefore, in my opinion, acted illegally and wholly without jurisdiction in passing the order (Annexure-11) and remanding the case without expressly condoning the delay in filing the appeal by the State of Bihar.
Reference in this connection may be made to the cases of Maqbool Ahmad and Ors. v. Omkar Pratap Narain Singh and Ors. 1936 P.C. 85 (88).
Rajendra Singh and Ors. v. Santa Singh and Ors. ; Chhanga Mal v. State of Bihar and Ors. 1979 B.B.C.J. 291 (para 5) and Bihar State Board of Swetamber Jain and Anr. v. Mahipal Bahadur Singh and Ors. 1981 B.L.T. (Rep ) 284 (HC).
21. Mrs. Indu Prabha Singh the learned Government Pleader-VI, on the other hand, submitted that in certain circumstances a Court may presume that the delay stands condoned. In this connection learned Counsel cited two decisions of this Court, namely, Srichand Sao v. Indradeo Prasad and Ors. 1979 B.B.C.J. 202 and Banwarilal Newatia v. Under Secretary to Govt. of India and Ors. 1982 B.L T. (Rep.) 311 (para 8).
However, from a perusal of the said decisions it would appear that the said decisions were rendered in different situations.
21. In the said decisions in term of the provisions of the Act under consideration, the appellate authority and the revisional authority could exercise their respective appellate or revisional power suo motu. In those cases the petitioners thereof did not challenge the order condoning the delay. In such a situation it has been held that sometimes although the order condoning the delay may not be expressly passed, but it may be presumed that the same has been so done, but such is not the case here. As a matter of fact, in the instant case, the Collector by his order dated 2-12-1980 (Annexure-10) directed that the matter relating to condonation of delay shall be taken into consideration only after appearance of the petitioner. Such an order was perfectly in accordance with law, as has been held in the case of Krishnaswami Panikordar v. Ramasami Chettear 1917 P.C. 179.
22. After taking into consideration the submissions of learned Counsel for the parties, I am of the view that the impugned order dated 5-8-1981 passed by the Collector, Siwan, as contained in Annexure-11 to the writ petition cannot be sustained. The Collector had no jurisdiction to pass the said order and in that view of the matter the same was a nullity. Consequently, it must be held that the order dated 6-3-1982 passed by the respondent No. 2 the Additional Member, Board of Revenue, as contained in Annexure-12 and the order dated 28-6-1982 passed by the Additional Collector (respondent No. 5) as contained in Annexure-13 must also fail.
23. In the result, the application is allowed and the impugned orders as contained in Annexures 10, 11, 12, and 13 to this application are hereby quashed, and the order dated 19-4-1978 of the Additional Collector, Siwan, (Annexure-8) is hereby restored. However, the Collector may proceed with the appeal after condoning the delay, if any, in accordance with law. In the facts and circumstances of the case, there shall be no order as to costs.