Skip to content


Jamsetjee Jeejeebhoy and ors. Vs. Bapurao Krishnaji Bhonsale and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty;Limitation
CourtMumbai High Court
Decided On
Case NumberMisc. Petn. No. 175 of 1976
Judge
Reported inAIR1980Bom302
ActsBombay City (Inami and Special Tenures) Abolition Rules, 1972 - Rules 4 and 12; Limitation Act, 1963 - Sections 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 29(2), 81, 82, 86 and 117; Bombay City (Inami and Special Tenures) Abolition Act - Sections 2 and 4(1); Maharashtra Land Revenue Code (Amendment) Act, 1969; Code of Civil Procedure (CPC), 1908 - Order XXI; Sales Tax Act, 1946 - Sections 23 and 34; Sales Tax (Amendment) Act, 1953; Sales Tax (Amendment) Act, 1959; Representation of the People Act, 1951
AppellantJamsetjee Jeejeebhoy and ors.
RespondentBapurao Krishnaji Bhonsale and anr.
Appellant AdvocateGanesh and;R.J. Joshi, Advs.
Respondent AdvocateS.M. Shah, Adv.
Excerpt:
.....to the inamdar. in not disposing of the petitioners' application for condonation of delay on merits, the tribunal failed to exercise jurisdiction and discretion which it had. true, the 1st respondent was under no obligation to necessarily allow the trustees' application unless of course he was satisfied as to its merits. however, what is more important is that in any event, in passing the impugned order, the 1st respondent failed to exercise jurisdiction vested in him......act reads thus:--'where any special or local law prescribed 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 24 (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.'9. the present controversy between the parties is set at rest by a decision of the division bench of this court in vasanji ghela v. state of maharashtra, (1967) 69 bom lr 598. in that case the sales tax.....
Judgment:
ORDER

1. This petition was initially filed by the three Trustees of a Trust known as 'Jehangir Hormusjee Cama Trust' (referred to hereafter as 'the Trust'), constituted under a Deed of Settlement dated 21st Oct. 1918. The original 1st petitioner was also a beneficiary under the Trust. During the pendency of the petition, the original 1st and 2nd petitioners died and in their place the present newly-added Trustees, viz., petitioners 1 (a) to 1 (c) were brought on record. The 1st respondent is the Deputy Collector, Inami and Special Tenures Abolition Branch, Bombay City. The 2nd respondent is the State of Maharashtra.

2. Under the Second Inami Grant dated 29th May 1828, referred to in Section 2 (xiii) of the Bombay City (Inami and Special Tenures) Abolition and Maharashtra Land Revenue Code (Amendment) Act, 1969 (referred to hereafter as 'the Act'), the Trustees held Inami Tenure land bearing Cadastral Survey No. 150 of Parel-Sewri Division, admeasuring about 1821.91 square metres (equivalent to 2179.89 square yards), and are the superior holders within the meaning of Section 2 (xvi) of the Act. As such superior holders, the Trustees were entitled to recover land revenue in respect of these inami lands. By Section 4 (1) of the Act, with effect from the appointed day, viz. 1st Aug. 1971, the right of the Inamdar to recover land revenue in respect of the Inami land under the Second Inam Grant was extinguished and all Inami lands, etc. became liable to payment of land revenue to the State Government in accordance with the provisions of the Act and in the case of land held by the superior holders under the Second Inam Grant, the person in possession of such land and liable to pay rent and assessment to the superior holders under the terms of that grant immediately before the appointed day became primarily liable to the State Government for the payment of land revenue due in respect of such land. Under Section 5 of the Act, the Trustees were required to file a return to the Collector in respect of the said Inami land within 6 months from the appointed day, viz. 1st Aug. 1971. Section 6 provides for imposition of a penalty of Rs. 50 for failure to comply with the provisions of Section 5. Sections 11 to 13 deal with payment of compensation to the Inamdar. Section 14 deals with the method of awarding compensation to any person aggrieved by the provisions of the Act as abolishing, extinguishing, or modifying any of his rights to or interest in the property. Under that section such person was required to apply to the Collector for compensation within the prescribed period in the prescribed form. The effect of the Act was that the right of the Inamdar to recover land revenue in respect of the Inami land was extinguished in lieu whereof payment of compensation was provided under the Act. On 14th Jan. 1972, the Bombay City (Inami and Special Tenures) Abolition Rules, 1972, were published, Under Rule 4, the return under Section 5 was required to be made within 6 months from the appointed day, i.e., 1st Aug. 1971. This period was extended till 1st February 1973. Under Rule 12, the application for compensation under Section 14 was required to be made within one year from the date of the commencement of the Rules, i. e., by 14th Jan. 1973.

3. On 10th Sept. 1974, the Trustees submitted their application under Section 14 of the Act claiming compensation in the sum of Rs. 3,83,157 and also prayed for condonation of delay (viz. of a year and eight months) in making that application, 'owing to unavoidable circumstances'. On 11th Sept. 1974, the consultants of the Trust also addressed a letter to the Deputy Collector (viz. the 1st respondent) enclosing therewith in duplicate in the prescribed form the claim of the Trust for compensation. By this letter it was requested that the delay in the submission of the claim be condoned as the same was due to 'unavoidable circumstances'. On 3rd Oct. 1974 the 1st respondent issued a show-cause notice calling upon the Trustees to explain why their application should not be summarily dismissed as it was time-barred. Thereupon on 5th Oct. 1974, the consultants of the Trust addressed a letter to the 1st respondent stating that a representation was being made by the Trust to Government for granting of extension of time so that the application of the Trust for compensation under Section 14 would not be time-barred. By this letter the Deputy Collector was requested to differ action until Government passed its orders on the representation to be made by the Trust. On 10th Oct. 1974 the Trustees through their consultants submitted to the 1st respondent an amended claim for compensation under Section 14 in the sum of Rs. 4,68,371 based on the correct area of the land, viz. 2179 square yards. It was pointed out to the 1st respondent that in the original application dated 10th Sept. 1974 the area was mistakenly shown as 1780 square yards. The compensation came to Rs. 4,68,371 and the 1st respondent was once again requested to condone the delay which was 'owing to unavoidable circumstances'. On 14th Oct. 1974 the Trustees addressed a letter to the Minister for Revenue, Rehabilitation and Khar Lands, asking for condonation of delay in filing the application for compensation under Section 14 of the Act. By this letter the petitioners also asked for extension of the period allowed under Rule 12 for submitting the application for compensation. The reasons why the application for compensation could not be filed within the prescribed period of one year were set out by the Trustees in this letter. On 29th Oct. 1974, the 1st respondent addressed a letter to the Trust fixing the hearing of the petitioners' application for compensation on 8th Nov. 1974 and stated that a decision regarding the delay in making the same would be taken at a later date. At the hearing on 8th Nov. 1974 the 1st respondent directed the Trust's consultants to file certified extracts from the City Survey Register, which was one on 5th Dec. 1974. On 9th Dec. 1974 a letter was addressed by the Revenue and Forest Departments to the Trustees to the effect that their representation dated 14th Oct. 1'974 was receiving the attention of Government. On 10th Dec. 1974 the 1st respondent addressed a letter to the Trust's consultants stating that if Government order condoning delay was not produced, before him within 15 days, the Trust's application for compensation would be dismissed. Thereupon on 16th Dec. 1974 the consultants addressed a letter to the 1st respondent requesting him to stay his hands as the matter was receiving the attention of Government as stated in the letter dated 9th Dec. 1974 of the Revenue and Forest Department. On 26th Sept. 1975 the 1st respondent passed his impugned order dismissing the Trust's application for compensation on the ground that the delay had not so far been condoned (meaning thereby, by Government).

4. To complete the narration of events, on 10th Sept. 1974, the Trustees had submitted their return under Section 5 Of the Act. On 8th Oct. 1974 the 1st respondent issued a show cause notice under Section 6 of the Act calling upon the Trustees to explain why action should not be taken for delayed submission of its return under Section 5. On 18th Jan. 1975 the 1st respondent issued a notice to the Trustees calling upon them to show cause why penalty should not be imposed on them for the late filing of the return under Section 5. Penalty of Rs. 50 was thereafter imposed on 5th Feb. 1975. Though the penalty proceedings have also been impugned in the present petition, the same was not pressed at the hearing of the petition. Thus the petitioner's challenge is now restricted only to the impugned order dated 26th Sept. 1975.

5. It was urged by Mr. Ganesh, the learned counsel appearing on behalf of the petitioners, that an application for compensation made under Section 14 of the Act is an application covered by Section 29(2) of the Limitation Act, 1963, and hence Section 5 of the Limitation Act would be applicable to such an application. Mr. Ganesh further urged that the 1st respondent should have applied his mind to and considered the question of condonation of delay in the Trustees filing their application for compensation. On the other hand, it was urged by Mr. Shah, the learned counsel appearing on behalf of the respondents, that there is no provision in the Act or the Rules empowering the Collector or the 1st respondent to condone the delay in making the application for compensation. In support of this contention reliance was placed by Mr. Shah on Rule 12. It was also urged by him that the Trustees had not exhausted the remedy available to them by way of appeal before the Maharashtra Revenue Tribunal and hence on this ground also the petition was liable to be dismissed.

6. In order to appreciate the rival contentions of the parties reference may be made to Rule 12 and Sections 5 and 29(2) of the Limitation Act. Rule 12 pertains to the form and period within which application for compensation is to be made under Section 14 of the Act and reads as under:--

'Form and period within which application for compensation is to be made under Section 14. The form of an application for compensation under Section 14, shall be in Form VI, and one year from the commencement of these rules shall be the period within which such application may be made.'

7. Section 5 of the Limitation Act provides for extension of prescribed period in certain cases and states that any appeal or any application other than an application under any of the provisions of Order XXI of the Civil P. C., 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.

8. Section 29(2) of the Limitation Act reads thus:--

'Where any special or local law prescribed 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 24 (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.'

9. The present controversy between the parties is set at rest by a decision of the Division Bench of this Court in Vasanji Ghela v. State of Maharashtra, (1967) 69 Bom LR 598. In that case the Sales Tax Officer passed an assessment order disallowing certain sales on the ground that they did not appear to be genuine transactions. Against that assessment order, the petitioners filed an appeal which was disposed of by the appellate authority against the petitioners. They thereupon filed a revision application which was decided by the Deputy Commissioner of Sales Tax who also found against the petitioners. They thereupon filed a revision application before the Maharashtra Sales Tax Tribunal which was decided by the Tribunal against the petitioners. The petitioners thereupon made an application to the Tribunal that a question of law had arisen out of the Tribunal's order and that the same should be referred by the Tribunal to the High Court. Under Sections 23 and 34 of the Sales Tax Act, respectively of 1946 and 1953 the time prescribed for application to the Tribunal for making a reference to the High Court was respectively 60 days and 90 days from the date of the decision of the Tribunal. By their application, the petitioners submitted that they were under the impression that the time for filing application for reference was 90 days from the date of the receipt of the judgment and that in connection with their application they were governed by the 1953 or 1959 Sales Tax Act. On that and other grounds the petitioners submitted that the delay in filing the application be condoned. The Tribunal declined to condone the delay on the ground that it had no power to do so and that the application being barred by limitation was liable to be rejected on that ground. On behalf of the petitioners, it was urged before the Division Bench that under Section 5 read with Section 29 of the Limitation Act, 1963, the Tribunal had jurisdiction to condone delay. On the other hand, on behalf of the department, it was urged that the sections of the Limitation Act relate and apply only to civil proceedings which originate in a Civil Court and that the provisions of the Limitation Act cannot apply to applications for reference to the High Court made under the Sales Tax Act. Upholding the contention urged by the petitioners, it was observed by the Division Bench at page 601 of the Report that-

'It is clear that Sub-section (2) of Section 29 of the 1963 Act provides that in determining the period of limitation under a special law, the provisions contained in Sections 4 to 24 of the Limitation Act shall apply. It is, however, true that these sections will not be applicable in so far as, and to the extent to which, they are expressly excluded by such special laws.

'Nothing has been shown to us and it has not been contended that by the 1946 Sales Tax Act application of the above Sections 4 to 24 or any of them has been excluded in respect of applications for reference made under Section 23 of that Act. Having regard to the unambiguous and clear language of Sub-section (2) of Section 29 it is clear that the Tribunal was not right in proceeding to decide the petitioners' application on the footing that the provisions of Section 5 of the Limitation Act of 1963 were not applicable.'

It was further observed at page 603 of the Report as under:--

'The Tribunal was accordingly not right when it observed that it had no power to condone the delay in filing the reference application beyond the period of limitation provided by law. In not disposing of the petitioners' application for condonation of delay on merits, the Tribunal failed to exercise jurisdiction and discretion which it had.'

This decision of the Division Bench establishes in ample measure that the 1st respondent had authority and jurisdiction to consider the Trustees' application for condonation of delay. There is nothing in Rule 12 which expressly excludes the provisions of Sections 4 to 24 of the Limitation Act. Nor was any other rule or section of the Act referred to in order to show the express exclusion of the provisions of Sections 4 to 24 of the Limitation Act. True, the 1st respondent was under no obligation to necessarily allow the Trustees' application unless of course he was satisfied as to its merits. That however would be entirely different from the 1st respondent not even applying his mind on the question of condonation of delay and rejecting it out of hand as was done by him. Reliance was however placed by Mr. Shah on two decisions of the Supreme Court in Hukumdev Narain Yadav v. Lalit Narain, : [1974]3SCR31 and S. T. Commr., U. P. v. Parson Tools & Plants, Kanpur, : [1975]3SCR743 . Those decisions can avail the respondents nothing. In Yadav's case, which was under the Representation of the People Act, 1951, it was held by the Supreme Court that even in a case where the special law does not exclude the provisions of Sections 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. It was further held that what the Court has to see is whether the scheme of the special law and the nature of the remedy provided therein are such that the Legislature intended it to be a complete Code, and that if on an examination of the relevant provisions it is clear that the provisions of the Limitation Act are necessarily excluded, then the benefits conferred therein cannot be called in aid to supplement the provisions of the special Act. It was observed at page 490 of the Report:--

'The provisions of Section 3 of the Limitation Act that a suit instituted, appeal preferred and application made after the prescribed period shall be dismissed are provided for in Section 86 of the Act which gives a peremptory command that the High Court shall dismiss an election petition which does not comply with the provisions of Sections 81, 82 or 117.' (The underlining is mine).

In the matter before me, there is nothing in Rule 12 from which can be gathered any 'peremptory command' inhibiting the concerned authority from entertaining an application for condoning delay. There is nothing in Rule 12 from which it can be gathered that it would not be even open to the concerned authority to entertain an application for condonation of delay and to give his decision of that aspect on its own merits. No other rule and no section of the Act was relied on from which any such 'peremptory command' could be gathered or from which it could be held that the provisions of the Limitation Act are necessarily excluded.

10. The Parson Tools case relied on by Mr. Shah also carries the matter no further. In that case the Supreme Court held that if the Legislature in a special statute prescribes a certain period of limitation for filing a particular application thereunder and provides in clear terms that such period on sufficient cause being shown may be extended in the maximum, only up to a specified time limit and no further, then the Tribunal concerned has no jurisdiction to treat within limitation, an application filed before it beyond such maximum time-limit specified in the statute.

11. It is, therefore, clear that the doctrine of 'peremptory command' enunciated by the Supreme Court in its earlier decision in Yadav's case, has been brought into effect in Parson Tools case by reason of the express injunction in the special law against any extension of time beyond the maximum time limit provided therein. In the present Rule 12 before me, it is not possible to read either, in the words of the Supreme Court, a 'peremptory command' as in Yadav's case, or an express injunction as in Parson Tools case forbidding the concerned authority even from entertaining on merits the Trustees' application for condonation of delay as prayed for by them. Once again, no other rule or no section of the Act was relied on from which any express injunction could be gathered or from which it could be held that the provisions of the Limitation Act are necessarily excluded.

12. Hence this ground of challenge urged on behalf of the petitioners must succeed.

13. The next ground on which Mr. Shah invited me to dismiss the petition was that the Trustees had not exhausted their alternative remedy under Section 16 of the Act which provides for appeal to the Maharashtra Revenue Tribunal against the Collector's award. On the other hand, Mr. Ganesh urged that the impugned order passed by the 1st respondent cannot be called an award, with the result that the question of attracting the provisions of Section 16 does not arise. In so urging Mr. Ganesh may not be entirely incorrect, for all that the 1st respondent has done is not even to entertain the question of delay. However, what is more important is that in any event, in passing the impugned order, the 1st respondent failed to exercise jurisdiction vested in him. with the result that interference is called for.

14. In para 6 of the petition, reasons have been given why the delay should be condoned. In exercise of writ jurisdiction, it is not for me to enter into the merits of those reasons.. That is within the competence of the concerned authority before whom the petitioners shall be at liberty to urge those reasons and such other grounds as they may deem fit and which shall be decided by the authority on merits.

15. In the result, the petition is partly allowed and the impugned order dated 26th Sept. 1975 is set aside and the Rule is made absolute accordingly. The matter is remanded back to the proper authority for disposing on merits the question of condonation of delay in the light of this judgment and in accordance with the law. There will be no order as to the costs of the petition.

16. Petition partly allowed.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //