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JAI PRATAP SINGH & OTHERS versus STATE OF U.P. & OTHERS

High Court of Judicature at Allahabad

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Jai Pratap Singh & Others v. State Of U.P. & Others - WRIT - B No. 47503 of 2006 [2006] RD-AH 15567 (7 September 2006)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

Court No. 5

Civil Misc. Writ Petition No. 47503 of 2006

Jai Pratap Singh and others   ............................... Petitioners

Versus

State of U.P. and others .................. Respondents

---------

Hon'ble Janardan Sahai, J

The only question, which arises in this writ petition, is whether the provisions of Section 5 of the Indian Limitation Act are applicable to a first appeal filed under the U.P. Land Revenue Act. The appeal in this case was filed by respondent nos. 4 and 5 before the Sub Divisional Officer against an order of mutation passed by the Tehsildar. The appeal was admitted.  The Sub Divisional Officer took the view that provisions of Section 5 of the Limitation Act were applicable to the appeal. The petitioner filed a revision and the Commissioner disagreeing with the view taken by the Sub Divisional Officer made a recommendation to the Board of Revenue for setting aside his order. The Board of Revenue originally accepted the reference but the review application filed by the respondents has been allowed and it has been held that the provisions of Section 5 of the Limitation Act are applicable.

I have heard Shri Radhey Shyam learned counsel for the petitioners and Shri H.N. Shukla counsel for respondents.

Section 29 (2) of the Limitation Act 1963 reads as follows:-

"29. savings (1) xxx xxx

(2) 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 Section 4 to 24 (inclusive) shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law."

Sections 211 of the U.P. Land Revenue Act provides for an appeal against an order under the Act not made final, to a court authorized to hear appeals under Section 210 of the Act.

The contention of Shri Radhey Shyam is that in view of language of Section 214 of the U.P. Land Revenue Act, 1901 the applicability of provisions of Section 5 of the Limitation Act is excluded   That provision reads as under:-

"214. No appeal shall be brought after the expiration of 30 days from the date of the order complained of, unless otherwise expressly provided in this Act."

It is also submitted that the U.P. Land Revenue Act is an exhaustive self-contained code and there being no provision applying Sections 4 to 24 of the Limitation Act these provisions cannot be applied by invoking Section 29 (2) of the Limitation Act. In support of his contention he has placed reliance upon the decision of the Apex Court in Hukumdev Narain Yadav Vs. Lalit Narain Mishra [AIR 1974 SC 480].  The question in that case was whether provisions of Section 5 of the Limitation Act are applicable to an election petition filed under the Representation of the People Act. The Apex Court took the view that even in case where the special law does not exclude the provisions of Ss 4 to 24 of the Limitation Act by an express reference, it would nonetheless be open to the Court to examine whether and to what extent the nature of the provisions of the special law or the nature of the subject matter and scheme of the special law exclude their operation.  The Apex Court held that provisions of Section 29(2) of the Limitation Act were not applicable to an election petition filed under the Representation of the People Act. In holding so the Apex Court placed reliance upon Sections 81 and 86 of the Representation of the People Act. Section 81, provides for a period of limitation of 30 days and in case the election petition is not brought in accordance with that Section the consequence is provided under Section 86 of the Act, which requires the High Court to dismiss the petition. In my view the decision of the Supreme Court in Hukumdev's case is not applicable to an appeal under the U.P. Land Revenue Act. Section 215 of the U.P. Land Revenue Act provides that no appeal shall lie against an order admitting an appeal on the grounds specified in Section 5 of the Indian Limitation Act, 1908. It is implicit in this provision that an appeal can be admitted giving the benefit of grounds given in Section 5 of the Limitation Act. If the submission of the counsel for the petitioners is accepted, Section 215 of the U.P. Land Revenue Act, 1901 would be made redundant.  Indeed Sri Radhey Shyam contended that the provision of Section 215 of the U.P. Land Revenue Act is redundant in view of deletion of the provisions for second appeal and third appeal for the areas to which U.P. Zamindari Abolition & Land Reforms Act is applicable.  Even if that be so the provision would not be redundant as it would apply to other areas. Moreover in this petition we are concerned with a first appeal.  It is well settled that an interpretation, which leads to make redundant a provision of the Statute is to be avoided and there is nothing in the U.P. Land Revenue Act, which may compel the court to adopt that interpretation. That apart it does not appear that the U.P. Land Revenue Act is an exhaustive code of the provisions relating to limitation.  The only provision relating to limitation in the Act is Section 214, which provides a period of 30 days limitation for an appeal unless otherwise expressly provided in the Act. The Act does not deal with any of the situations covered under Sections 4 to 24 of the Limitation Act. For example if more than 30 days time is spent in obtaining copy of the order against which the appeal is preferred, there shall be no exclusion of the time spent in obtaining copy of the order if recourse to Section 12 of the Limitation Act is excluded. Litigation under the U.P. Land Revenue Act pertains to the rural areas where people are illiterate and have little knowledge of the rules and the laws of limitation and if the view is taken that Section 5 is not applicable it would cause much hardship. I am not inclined to accept the submission that the scheme of the U.P. Land Revenue Act excludes the application of Section 29 (2) of the Indian Limitation Act.

It was then submitted that the Sub Divisional Officer while deciding an appeal in a mutation case is not a Court but is a Record Officer and for this reason Section 5 of the Limitation Act is not applicable. It is really not necessary to go into this contention because as already noticed it is implicit in Section 215 of the U.P. Land Revenue Act that the benefit of Section 5 of the Limitation Act can be given. However, the contention even otherwise does not appear to be correct.  An appeal against an order passed in any proceeding under the U.P. Land Revenue Act, unless the order has been made final lies under Section 211 to a court authorized to hear appeals under Section 210. Thus an appeal against an order of mutation also lies under Section 211. The heading of Section 210 of the U.P. Land Revenue Act is "Courts to which appeals lie". Section 211 also provides for a First Appeal to the Court authorized under Section 210.  A revenue court has been defined under Section 4 (8) of the Act.  It includes amongst other authorities Assistant Record Officer, Tehsildar, Assistant Collectors, Additional Collectors and Collector. An Assistant Collector in charge of a sub division is a Sub Divisional Officer. Revenue Courts under the Land Revenue Act have been given power to decide the dispute between the parties. They have also the power to take evidence in view of Section 193 of the U.P. Land Revenue Act. Section 199 of the U.P. Land Revenue Act provides procedure for procuring attendance of witness and reads as follows:-

"199. Procedure for procuring attendance of witnesses  - If in any proceeding of a judicial nature pending before any Revenue Court, either party desires the attendance of witnesses, he shall follow the procedure prescribed by the Order XVI, Rules 2 to 4 of the Code of Civil Procedure, 1908."

For  the reasons given above it appears that the Sub Divisional Officer while deciding an appeal is a court and the contention of the petitioner that Section 5 of the Limitation Act is not applicable to the appeals under the U.P. Land Revenue Act does not appear to be correct.

The petition is dismissed.

Dt. 7.9.2006

Sn


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