Patna High Court
Bimal Chand Bothra And Anr. vs State Of Bihar And Ors. on 2 May, 1978
Equivalent citations: AIR1979PAT185, AIR 1979 PATNA 185, (1978) PAT LJR 622
JUDGMENT P.S. Sahay, J.
1. This application under Articles 226 and 227 of the Constitution of India is for quashing the order dated 3-10-1972 of the Deputy Collector, Supaul (Annexure 3) and the order dated 16-8-1974 passed by the Additional Collector, Saharsa (Annexure 5) under the provisions of the Kosi Area (Restoration of Land to Raiyats) Act, 1951 (hereinafter referred to as the Act), By the above orders, the land, having an area of 39.97 acres, details of which are given hereunder, has been ordered to be restored to Bishwanath Mandal (respondent No. 4) on payment of Rs. 12/- as compensation to Dukha Mandal and Rs. 5984/- to the State of Bihar:
Plot wise area of the lands restored Khata No. Plot No. (Old) Area A. Dec.148 1338
0.57 1337 26.82 1338 0.24 1339 0.10 1340 0.02 1341 0.08 1342 1.49 1337 (?) 10.65 Total 39.97
2. In order to appreciate the points It will be necessary to state some facts. The lands in question belonged to the ancestors of respondent No. 4, and Srlpat Singh and others were the landlords of the same. In the year 1938 the landlords brought Rent Suit 2074 of 1938 against the ancestor of respondent No. 4 which was decreed, and there was an execution case, No. 860 of 1941, The lands were auction sold on 27-6-1941, and it was ultimately confirmed on 13-8-1941 and delivery of possession was obtained by the landlords. Sometime in the year 1941, Mahadeo Mandal, ancestor of respondent No. 4, took settlement of different plots of Khata No. 146. In the year 1949 petitioner No. 2 took settlement of 10.65 acres out of plot No. 1387 and 12.40 acres out of plot No. 1337. Petitioner No. 1 also took settlement, of 8.62 acres out. of plot No. 1337; and those lands were reclaimed by these petitioners and were made fit for cultivation, 5 acres of the total land which was taken settle-ment of by these petitioners was converted into an orchard, after having fenced with barbed wire, in which a pucca well was sunk and about 125 mango saplings were planted. Rent was being paid to the ex landlords and, after the vesting in the state of Bihar, new Jamabandis Nos. 191 and 192 were created in their favour. Petitioner No. 1 in the year 1956 went to Calcutta and joined some service there, and petitioner No. 2 also went there in the year 1962 and started his medical practice there. Mahabir Baitha was looking after their affairs, and they had no place of residence in village Chhatapur,
3. On 27-5-1972 respondent No. 4. Bishwanath Mandal filed an application under Section 3 of the Act for restoring 39.97 acres of land, impleading the petitioners and others as parties, on which a case was registered as Land Restoration Case 409 of 1972. In the aforesaid case, seven persons were opposite party including these two petitioners. Notices were sent to the petitioners by their Chhatapur address, and copies of the said notice have been filed as Annexures ] and 1A to this application. The notices could not be served, and a report was made by the peon that the petitioners had been living in Calcutta and. therefore, the notices were hung up in the house. A copy of the peon's report has been filed marked as Annexures 2 and 2A to this application. Again, notices by resgistered post were sent to the petitioners, and they were returned unserved with a note that the addressees were not rasiding at Chhatapur and, therefore, the letters were being returned. Copies of the report have been filed marked as Annexures 7 and 7A. On 22-8-1972 three of the opposite party, namely, Manik Chand Bothra, Rishav Chand Bothra and Abhai Chand Bothra appeared before respondent No. 3 and filed a petition that they had no concern with the land, and, therefore, they should be expunged from the record. The aforesaid petition was ordered to be kept on the record.
"On 3-10-1972 respondent No. 3, exercising the powers of the Collector under the Act, passed the final order in this case (vide Annexure 3). holding that in spite of service of notice these petitioners had not appeared and that they had actually refused to accept the registered notice sent by post, and, therefore, there was valid service of notice on them. He also considered the case of respondent No. 4 on merit and passed the order in his favour restoring the land. Sometime in Nov. 1972 the petitioners learnt about the ex parte order from their nephew, Rishav Chand Bothra, and they executed a power of attorney in his favour on 3-11-1972 and 7-11-1972 to take necessary action in the matter. Two petitions were filed by Rishav Chand on behalf of the petitioners on 17-11-1972. In one it was prayed that there was standing paddy crop on the land, which was restored in favour of respondent No. 4, and he should be allowed a month's time to bring a stay order, as he wanted to move in revision and, in the meantime, no delivery of possession should be given to respondent No. 4. A copy of the aforesaid application has been filed, marked as Annexure 4. Another application was filed under Order 47, Rule l of the Civil P. C, to review the order passed on 3-10-1972 on the ground that there was no valid service of notice on these petitioners and they being interested in the land, the ex parte order passed in favour of respondent No. 4 was wholly without jurisdiction, illegal and without any justification. A copy of the application is also filed with this application, marked as Annexure 4A, Respondent No. 3 heard the lawyers appearing on behalf of the petitioners and respondent No. 4 on the same data and fixed 23-11-1972 for orders. He, however, on a consideration of the points raised in the application, held that there was valid service of notice on these petitioners and in spite of that they did not appear and, therefore, final order had to be passed which was perfectly legal and valid. It was also held by him that no objection under Section 10 and no appeal under Section 16 had been filed on behalf of the petitioners, and the application for review was also not maintainable. A copy of the aforesaid order has been filed, marked as Annexure 6 to this application. It seems that against the orders dated 3-10-1972 (Annexure 3) and 23-11-1972 (Annexure 6) appeal was filed on 2-1-1973 before respondent No. 2, which was numbered as Land Restoration Appeal 15 of 1972-73. Respondent No. 2 in his detailed order also held that there was valid service of notice on these petitioners and also considered the case on merits and dismissed the appeal on the ground that it was time barred. A copy of the said order has been filed, marked Annexure-5. Respondent No. 4 completed all the formalities as directed by the Court and a writ of delivery of possession was issued on 1-12-1972 and possession was actually delivered on 5-12-1972, which will be clear from the order dated 30-12-1972, After that, no objection was filed by any party, and, therefore, the proceeding was ordered to be closed on 6-1-1973. Being aggrieved by the aforesaid order, the petitioners have moved this Court for quashing An-nexures 3 and 5.
4. Mr. Shreenath Singh, learned counsel appearing for the petitioners has contended that there was no service of notice on the petitioners and respondents 2 and 3 have committed error of record in holding that notices had been served on the petitioners, and thus, according to him, there are errors apparent on the face of the record, and, therefore, the orders passed by the authorities as contained in Annexures 3 and 5 are fit to be set aside. It has also been submitted that Rishav Chand had appeared in the proceeding in his personal capacity and not on behalf of the petitioners, as held by respondent No. 3, and the same mistake has been committed by the appellate Court (respondent No. 2). Mr. Singh has also submitted that the application filed on 17-11-1972 was actually a petition under Section 10 of the Act, though it was wrongly labelled, and the authorities should have considered it as such. Lastly, it has been contended that respondent No. 2 has committed error of law in holding that the appeal was time-barred, and, according to learned counsel, there is no period of limitation prescribed under the law in filing appeal under the aforesaid Act.
5. Mr. K. P. Singh appearing on behalf of respondent No. 4 has supported the orders passed by the authorities which, according to him, are fully justified on the facts and circumstances of the case. He has urged that the points which have been raised on behalf of the petitioners require investigation of facts, and this Court under the writ jurisdiction should not interfere with the orders passed by the authorities. It has also been submitted on behalf of respondent No. 4 that the land has been restored to him 5-12-1972 and that after a lapse of so many years his possession should not be disturbed. The learned Standng Counsel appearing on behalf of the State has submitted that the authorities were perfectly justified in passing the orders and that it has been rightly held that the appeal was time-barred.
6, First of all, I will take up for consideration whether there was valid service of notice on the petitioners. Notices were sent to them by their Chhata-pur address, but they were returned un-served after having been hung on the house with a note that the petitioners were not living there and had shifted to Calcutta, vide peon's reports (Annexures 2 and 2A). Therefore, notices by registered post were sent to the petitioners, and there was a note by the postal peon that the addressees were not available and, therefore, the letters were being returned (vide Annexures 7 and 7A). The question of service of notice has been discussed in detail in para 5 of the order passed by respondent No. 3 (Annexure 3). It has been wrongly stated that according to the report of the postal peon the addressees had refused to accept the letters, which is not true. In the peon's report at one place it has been said 'refused', on which much stress was laid on behalf of respondent No. 4, but from the peon's report itself it is clear that the addressees could not be available as they were not living there, and thus there was no question of their refusal. The same mistake has also been committed in the order, dated 16-8-1974. Learned counsel appearing on behalf of respondent No. 4 has invited our attention to the petition filed by Rishav Chand and two others on 22-8-1972 disclaiming any interest in the property. It has been sought to be argued that Rishav Chand being the nephew of the petitioners must have informed his uncles about the proceedings. No such inference can be drawn. They were parties in their independent capacity and there should have been a valid service of notice on all of them. Therefore, even if three persons, namely, Manik Chand, Rishav Chand and Abhai Chand had appeared and filed petition, the petitioners cannot be said to have the notice of the proceedings, In the order (Annexure 3) it has also been wrongly stated that the lawyer had appeared for opposite party 1 to 5, and this has not been challenged by the counsel appearing on behalf of respondent No. 4. Therefore, I have no hesitation in holding that there was no valid service of notice of the proceedings on the petitioners, and the first contention raised on behalf of the petitioners must be accepted.
7. The next point to be considered is whether the order passed by the authorities is liable to be set aside on the ground of non-service of notice. This requires consideration whether the application filed by the petitioners on 23-11-72 and appeal on 2-1-73 were maintainable or time-barred, as held by the authorities. The order was passed on 3-10-1972 (Annexure 3), of which the petitioners derived knowledge in November 1972 and power of attorney was executed by them in favour of Rishav Chand on 3-11-1972 and 7-11-1972. This Rishav Chand filed two applications on 17-11-1972 one under Order 47, Rule 1 for review of the order passed on 3-11-1972 and the other for stay of the delivery of possession till the filing of revision. Both the applications were rejected on 23-11-1972 (vide Annexure 6). An appeal against the orders dated 3-10-1972 and 23-11-1972 was preferred on 2-1-1973, and the appeal was dismissed on 16-8-1974 (vide Annexure 5) on the ground that Rishav Chand had appeared and the petitioners had also knowledge about the proceedings and the appeal was time-barred. On merit also, respondent No. 3 held that the order was perfectly justified and required no interference.
8. It will be relevant to examine the provisions of the Act. Under Section 3 a petition has to be filed before the authorities, and notices are sent under Section 4, and persons after service of notice can file objections under Section 5, All these objections are considered under Section 5 (2) of the Act. If parties do not appear after due service of notice, then ex parte order is passed under Section 6. Under the provisions of Section 7 the authority has to decide whether the claim made by the petitioner is valid or not and then pass final order in the case, after determining the actual area to be restored under Section 8. Under Section 10, if any person had no notice about the proceedings prior to the delivery of possession of the properties, objection can be filed under Section 10 (1) (a). In case the possession of the land is delivered under Section 10 (1) (b), application should be filed within one month of the date of dispossession. Under Section 10 (2), it will be incumbent upon the officer concerned to make an enquiry and investigate the claim made by the objector and pass necessary orders in the case under Section 10 (3). Any person aggrieved by the aforesaid order can prefer an appeal, as required under Section 16. Thus reading the aforesaid provisions of Section 10, persons not having been served with notice can file petition before the authorities before the delivery of possession, and, in case delivery of possession is made, within one month from the same. And such petitions will be considered and investigated, and, after due notice to the other side, necessary orders are passed. The authorities can also order for giving back the possession of the land, of which delivery of possession had been given. This order is also appealable under Section 16 from which am appeal lies to the prescribed authority, as mentioned in Section 16 (1) (a) and (b).
9. It has been strenuously argued by Mr. Shreenath Singh that the petition filed on 17-11-1972, though wrongly labelled as a petition for review, in pith and substance it was a petition under Section 10 of the Act, and was actually filed before the delivery of possession was effected. On the same day another application was filed not to deliver possession to respondent No. 4 till the matter was decided in revision. Both the prayers were rejected on 24-11-72, and the petitioners did not move any superior Court against the aforesaid order for staying the proceedings and the delivery of possession, though they were aware of the fact that respondent No. 4 was trying his best to take delivery of possession after depositing the amount as per direction of the Court. As I have stated earlier, from the order sheet dated 30-12-72 it is clear that delivery of possession was effected on 5-12-72 and no action had been taken on behalf of anyone under Section 10 of the Act, and the proceeding was closed on 6-1-73. Under Section 10 (1) (b) the petitioners could have filed objections within one month from 5-12-72, and this was never done. Thus, It is clear that the petitioners never cared to take protection under this section, which could have given them an effective remedy. Therefore, in my considered opinion, the petition filed by the petitioners on 17-11-72 could never be treated as an application under Section 10 of the Act. I am also conscious of the fact that mere wrong labelling of the petition cannot be a ground for throwing away the entire petition. All that has to be seen is the substance and not the form. But from the facts which I have stated above, by no stretch of imagination the application dated 17-11-72 could be treated as an application uner Section 10, and the petitioners never insisted for the same at any stage. They had actually appeared in the proceedings but never took any care to see what orders had been passed subsequently and, rather, allowed the delivery of possession to be effected and the proceedings to be closed by the authorities.
10. I will now consider the submis-eion that the appeal before the Additional Collector was not time-barred, as held by respondent No. 2 in his order dated 16-8-74 (Annexure 5), Two orders were passed by respondent No. 3 one on 3-10-72 (Annexure 3) and the other on 23-11-72 (Annexure 6). Against the two aforesaid orders an appeal was filed before respondent No. 2 which was registered as L. Rule A, 15 of 1972-73. From every order passed under the Act, under Section 16 (1) an appeal shall lie, and the appellate authorities are mentioned in Section 16 (1) (a) and (b). It is relevant to quote Sub-section (3) :
"Appeals under this section shall be heard and disposed of in accordance with the prescribed procedure."
Under Section 17 powers have been given to the State Government to frame rules for the purpose of carrying out the provisions of the Act, and under Section 17 (2) (d), rules can be framed for the procedure for hearing and disposal of appeals filed under Section 16. In exercise of the powers conferred under Section 17 of the Act, rules have been framed on 29-5-52, which are known as Kosi Area (Restoration of Land to Raiyats) Rules, 1952. Rule 12 reads as follows :
"An appeal under Section 16 shall be heard and disposed of in the manner as prescribed for hearing and disposal of appeals under the Bihar Tenancy Act."
The period of limitation under the Bihar Tenancy Act is 30 days Under Section 184 (Sch. III).
Learned counsel for the petitioners has contended that under the provisions of the Act no period of limitation has been fixed for filing an appeal under Section 16, and, therefore, there is no limitation for filing the appeal. It has been contended that though under Rule 12, quoted above, appeal has to be preferred within 30 days as under the Bihar Tenancy Act, this is ultra vires in absence of any specific period fixed under the Act. Therefore, according to learned counsel, the appeal which was preferred by the petitioners on 2-1-73 was not time-barred, as held by respondent No. 2.
11. In this connection reliance has been placed on a Bench decision of this Court in the Regional Director, Government of India v. N. G. Iyer (1971 Pat LJR 619) : (1972 Lab IC 784). In that case the Regional Director of the Employees' State Insurance Corporation, Bihar Region, wanted to recover employees' contribution from the employers from 15-12-57 to 31-12-64 under the provisions of Section 75 (2) of the Employees' State Insurance Act, 1948 (ESI Act). It was resisted on the ground that it was time-barred, and the Court held that the Corporation was entitled to contribute from 30-8-63 and not for the period prior to that date. On appeal to the High Court, it was held that no part of the claim was barred under the provisions of Article 137 of the Limitation Act read with Section 77 (1A) of the ESI Act, because the articles of Limitation Act applied only to the cases covered by the Civil P. C., and Rule 77 (1A) had come into force from 28-1-68. On behalf of the employer-respondents reliance was placed on Rule 17. which had been framed fixing a period of limitation of 12 months from the due date, under Section 96 (1) (b) of the ESI Act, which gave power to the State Government (Bihar) to frame rules, and reads as follows : see Section 96 (1) (b) :
"The procedure to be followed in proceedings before such Court, and the execution of orders by such Court."
The different States framed their own rules fixing 12 months period of limitation (sic) were ultimately challenged in the High Courts whether the rules were ultra vires or not. In Employees' State Insurance Corporation v. Madhya Pradesh Government (AIR 1964 Madh Pra 75), Employees' State Insurance Corporation v. Bharat Barrel and Drum Manufacturing Co. (AIR 1967 Bom 472), Solar Works v. Employees' State Insur-
ance Corporation (AIR 1964 Mad 376) end United India Timber Works v. Employees' State Insurance Corporation (AIR 1967 Punj 166 (FB)), it was held that the rules were ultra vires of the powers of the rule-making authority, and a contrary view was taken by a Bench decision of the Allahabad High Court in A. K. Brothers v. Emplo-yees' State Insurance Corporation (AIR 1965 All 410). This Court also held that the rules were ultra vires, because no such power had been given to the rule making authority under any of the provisions of the Act. On the same analogy, it, has been sought to be argued that Rule 12 of the Kosi Area (Restoration of Land to Raiyats) Rules, quoted above, is ultra vires, because no period of limitation could be fixed under this rule. Sub-section (3) of Section 16 is quoted above. The word 'prescribe', according to Cham-bers's Dictionary, is to lay down as a rule or direction -- to give as an order -- to give directions for. as a remedy --to render useless or invalid through lapse of time -- to lay down rules. The word 'procedure', according to Wharton's Law Lexicon Dictionary (20th Edition), is a mode in which the successive steps in litigation are taken. Thus, it will be seen that the language which has been used under Section 96 of the ESI Act is absolutely different from that which has been used in Section 16 (3) of the Act in question Under Section 96 only rules regarding the procedure to be followed in the Court had to be framed by the State Government and certainly it could not give power to fix any period of limitation; whereas, Section 16 (3) of the Act in question clearly lays down that an appeal filed-under the Act shall be heard and disposed of according to the prescribed procedure. There cannot be any hearing unless the appeal is instituted, and for that 30 days' limitation has been prescribed under Section 7 (d) of the Act read with Rule 12 of the Rules. The expression "procedure to be followed" in Section 96 of the ESI Act is certainly of a narrower import and cannot be construed to mean to confer a power on the rule making authority to prescribe limitation for institution of proceedings. According to Halsbury's Law of England, Third Edition, Vol. 24, page 181, para 331. "Those provisions of statute of limitation which bar the remedy and not the right are rules of procedure only and form part of the lex fori". Therefore, Section 16 (3) of the Act gives power to the State Gov-
ernment to frame rules regarding proce-dure for hearing and disposal of the appeal which, in my considered opinion, will also include the period of limitation. No such power, as I have indicated above, had been given under Section 96 of the ESI Act, and. therefore, it was held that the rules framed fixing limitation of twelve months were in excess of the power and, therefore, ultra vires. The instant case is, therefore, clearly distinguishable from the facts of that case.
12. Reliance has also been placed on another decision of the Supreme Court, in Sales Tax Officer, Ponkunnam v. K. I. Abraham, reported in AIR 1967 SC 1823. That was a case relating to Central Sales Tax and the Rules framed by the State of Kerala. Section 8 (4) gave power to State Government to frame such rules and reads as follows (at p. 1824) :
"The provisions of Sub-section (1) shall not apply to any sale in course of interstate trade or commerce unless the dealer selling the goods furnishes to the prescribed authority in the prescribed manner."
Under the aforesaid power, Rule 6 was framed, and the second proviso was inserted by the Government's notification on 16-1-61 and is as follows :
"Provided also that all declaration forms pending submission by dealers on 2nd May 1960 shall be submitted not later than 16th of Feb. 1961."
It was argued on behalf of the Sales Tax Officer that the respondent-assessee had not filed his declaration before 16-2-61 according to the aforesaid proviso, and thus he was not entitled to take any advantage under the rule. It was, however, urged on behalf of the assessee that the proviso to Rule 6 was ultra vires of Section 8 (4) read with Section 13 (4) (e) of the Act. It was held by their Lordships that the phrase "in the prescribed manner" occurring in Section 8 (4) referred to above only conferred power on the rule-making authority to prescribe a rule stating all the particulars which had to be mentioned in the prescribed form, the nature and the value of the goods sold and the persons to whom they had been sold, but certainly the phrase "in the precsrib-ed manner" does not take in the time element, and, threfore, does not authorise the rule-making authority fixing any time limit for filing declaration by the registered dealer. Therefore, in this decision the words "prescribed manner"
used in the context did not give any power to the rule-making authority to fix any date for filing the return.
The language of Section 16 (3) of the Act in question is far wider than the language which has been used in Section 8 (4) of the Central Sales Tax Act and is thus of narrower import which only gave the power to the rule-making authority to state the particulars to be included in the form, and, therefore, it has been held that no time limit should have been fixed under the rules. This decision also in no way helps the petitioners. The order was passed by respondent No. 3 on 3-10-72 and the review petition was also dismissed on 23-11-72. Against both the orders appeal was preferred before respondent No. 2 on 2-1-73, and it was beyond 30 days from both the orders, and it has been rightly held to be time-barred. I have also rejected the contention that there is no period of limitation for filing appeal under this Act, and the petitioners have not been vigilant in pursuing their legal remedies.
13. Learned counsel for the petitioners has submitted that the application for review was maintainable, and in this connection reliance has been placed on a decision of the Supreme Court in Sub-Divisional Officer, Mirzapur v. Raja Srinivas Prasad Singh (AIR 1966 SC 1164). He relied on para 12 of the judgment wherein it has been held that a decision reached behind the back of a necessary party to whom notice must be sent is not binding upon such party, and the Court may in such a case can reopen the proceedings to give the party a chance to state his case. This proposition of law is now well settled and cannot be disputed, because such decisions will be against the well-recognised principles of natural justice. But if a party, having learnt about an adverse order passed against him, as in the instant case, fails to avail the legal remedies, cannot take advantage of his own wrong. I have no doubt held that the petitioners had no notice of the proceeding and the order dated 3-10-72, but certainly they learnt about that in Nov. 1972. Two courses are surely open to them, either to prefer an appeal against the order passed under Section 16 and, if necessary, also to file an application under Section 5 of the Limitation Act for condoning the delay or to file a petition under Section 10 of the Act. But they did not do so and, on the other hand, filed an application for review, for which there was no provision under the Act. The aforesaid decision of the Supreme Court is also of no assistance to the petitioners.
14. The merit of the case has also been discussed in great detail especially in the order passed by respondent No. 3 (vide Annexure 3). This Act is a beneficial piece of legislation for restoring lands to those tenants whose lands had been sold for arrears of rent or they were ejected for arrears of rent which were treated as abandoned during the period between 1st of Jan. 1939 and 31st of Dec. 1950, in absence of raiyats due to floods in the river Kosi. The petitioners claimed to have taken settlement sometime in the year 1949 and converted a portion of the land as an orchard by planting mango saplings. The trees also must have been of very small size and thus they were not entitled to adequate compensation for the same. Moreover, it is also clear that they have left the village Chhatapur and have settled in Calcutta for the last so many years. Equity, therefore is also not in their favour.
15. On a careful consideration of the points raised in the case, I am of the opinion that no ground for interference has been made out, and the application is accordingly dismissed. But in the circumstances of the case there will be no order as to costs.
K.B.N. Singh C.J.
16. I agree.