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Niranjan Singh Vs. the Board of Revenue, M.P. and anr. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtMadhya Pradesh High Court
Decided On
Case NumberMiscellaneous Petn. No. 576 of 1972
Judge
Reported inAIR1975MP27; 1974MPLJ526
ActsLimitation Act, 1963 - Sections 5
AppellantNiranjan Singh
RespondentThe Board of Revenue, M.P. and anr.
Appellant AdvocateA.R. Choubey, ;K.N. Agrawal and ;S.C. Chaturvedi, Advs.
Respondent AdvocateK.K. Adhikari, Dy. Govt. Adv.
DispositionPetition allowed
Cases ReferredKunwar Rajendra Bahadur Singh v. Rai Rajeshwar Bali
Excerpt:
- - ceiling on agricultural holdings act, 1960, is the relevant provision relating to appeals and if an appeal was accordingly filed underthat section, well within limitation, no mala fides could be imputed to the petitioner or his counsel......41 of the act, which is included in chapter vii. section 41 of the act makes every order of a revenue officer or competent authority under the act appealable according to section 44 (1) of the m. p. land revenue code, 1959, except where the provisions of this act provide otherwise. therefore, if one is not very careful and if one does not go through all the provisions of the said act, one is likely to be misled that the provision regarding an appeal being in chapter vii, vide section 41 of the act, an appeal will lie to the collector. however, sub-section (3) of section 4 of the act being a provision to the contrary, it is clear that an appeal against an order of the competent officer passed under sub-section (1) of section 4 of the act will lie before the board of revenue directly......
Judgment:

Tare, C. J.

1. This is a petition underArticles 226 and 227 of the Constitution of India, directed against the order of the Board of Revenue, dated 26-7-1972 (Petitioner's Annexure-A/10), holding that the petitioner could not be given the benefit of Section 14 of the Limitation Act, 1963.

2. The question whether the lands held by the petitioner exceeded the ceiling limit as per the Madhya Pradesh Ceiling on Agricultural Holdings Act, 1960, (No. 20 of 1960), came up for consideration before the Sub-Divisional Officer, Gadarwara acting as Competent Authority. The learned Sub-Divisional Officer passed an order, dated 26-5-1965 (Petitioner's Annexure-A/1). It is not necessary to know the details of the said order as we are not concerned with the merits of the case, but only with the question of limitation.

3. Against the said order of the Sub-Divisional Officer, the petitioner purported to file an appeal before the Collector, who, vide, order dated 15-9-65 (Petitioner's Annexure-A/3), dismissed the appeal and thereby upheld the order of the Competent authority.

4. Against the appellate order of the Collector, the petitioner filed a second appeal before the Commissioner. The said appeal came to be decided by the Additional Commissioner, Jabalpur Division, who, by order, dated 7-7-1966 (Petitioner's An-nexure-A/5), dismissed the appeal. Against the said second appellate order, the petitioner filed a revision before the Board of Revenue. The learned Member of the Board of Revenue, by order, dated 27-1-1968 (Petitioner's Annexure-A/7) remanded the case to the Competent authority with a direction that it should direct the applicant to apply to the Collector for validation of the transfer and proceed to take further action in thelight of the order that the Collector may pass on merits.

5. In pursuance of the remand order passed by the Board of Revenue, the Sub-Divisional Officer passed a fresh order on 9-7-1969 (Petitioner's Annexure-A/8). At this stage it was realised by the petitioner that the original order of the Competent authority, dated 26-5-1965, was appealable before the Board of Revenue, as per Section 4, Sub-section (3) of the M. P. Ceiling on Agricultural Holdings Act, 1960. Accordingly, an appeal was filed before the Board of He-venue along with an application for extension of time under Section 5 read with Section 14 of the Limitation Act, 1963. The learned Member of the Board of Revenue, by order, dated 26-7-1972 (Petitioner's Annexure-A/10) held that the petitioner could not be given the benefit of Section 14 of the Limitation Act.

6. At the outset, we may observe that it is only Section 5 of the Limitation Act, 1963, which can be invoked by a party in the matter of extension of time regarding an appeal filed beyond limitation. Section 14 of the Limitation Act, 1963, applies to suits only, although its principle has been applied by law Courts to appeals, but the resort is necessarily to Section 5 of the Limitation Act, 1963.

7. The scheme of the M. P. Ceiling on Agricultural Holdings Act, 1960, is rather curious. Section 4 of the Act relates to transfers or partitions made after the publication of the bill, but before the commencement of this Act.

Ordinarily, if one looks into the description of the different Sections, none will have an idea unless one studies Section 4 of the Act minutely, that Sub-section (3) of the said Section provides for an appeal against the order of the Competent Officer directly before the Board of Revenue. As regards the appeals in general, the provision is made in Section 41 of the Act, which is included in Chapter VII. Section 41 of the Act makes every order of a revenue officer or Competent authority under the Act appealable according to Section 44 (1) of the M. P. Land Revenue Code, 1959, except where the provisions of this Act provide otherwise. Therefore, if one is not very careful and if one does not go through all the provisions of the said Act, one is likely to be misled that the provision regarding an appeal being in Chapter VII, vide Section 41 of the Act, an appeal will lie to the Collector. However, Sub-section (3) of Section 4 of the Act being a provision to the contrary, it is clear that an appeal against an order of the Competent officer passed under Sub-section (1) of Section 4 of the Act will lie before the Board of Revenue directly. There can be no doubt about that position and the learned counsel for the petitioner as much conceded to that effect. However, the contention of the learned counsel for the petitioner was that on account of the arrangement ofdifferent Sections and also the description given with reference to Section 4 of the Act, even a careful lawyer might be misled and he might look to the provisions relating to the appeals generally and, therefore, the probability would not be ruled out that looking to Section 41 of the Act, the lawyer might advise his client to file an appeal against an order of the Competent authority before the Collector, as per Sub-clause (a) of the said Section, thinking that Section 44 (1) of the M. P. Land Revenue Code, 1959, will govern such a matter. We think that there is substance in this contention urged on behalf of the petitioner. In support of this, the learned counsel for the petitioner invited our attention to the pronouncement of their Lordships of the Supreme Court in Mata Din v. A. Narayanan, AIR 1970 SC 1953 and in The State of West Bengal v. The Administrator, Howrah Municipality, (1972) 1 SCC 366 - (AIR 1972 SC 749).

8. As against this, the learned Dy. Government Advocate Shri K. K. Adhi-kari, invited attention to the observations of a Division Bench of this Court in Pandit Krishna Rao v. Trimbak, ILR (1938) Nag 409 -- (AIR 1938 Nag 156) and the observations of a Special Bench of this Court in Mariambai v. Hanifabai, 1966 MPLJ 739 = (AIR 1967 Madh Pra 107). It is true that the view has been expressed not only by a Division Bench of this Court, but also by a Special Bench of this Court to the effect that a lawyer's mistake or an agent's mistake would not be condonable if it is found that he had not acted with due care and attention. As to what is to be the standard of due care and attention has been a debatable matter, which has been discussed in the majority judgments as also in the minority judgment in the case of 1966 MPLJ 739 = (AIR 1967 Madh Pra 107) (supra). However, the test as laid down by their Lordships of the Supreme Court in (1972) 1 SCC 366 = (AIR 1972 SC 749) (supra), lays down the following propositions: (i) that the delay in filing an appeal should not have been for reasons which indicate the party's negli-fence in not taking necessary steps, which e could have or should have taken. What would be such necessary steps will depend upon the circumstances of a particular case and each case will have to be decided by the Courts on the facts and circumstances of the case. Any observation of an illustrative circumstance of^fact will only tend to be a curb on the free exercise of the judicial mind by the Court in determining whether the facts and circumstances of a particular case amount to sufficient cause or not. It is for the Court to exercise its judicial discretion soundly in the interest of justice. Their Lordships also observed that the expression 'sufficient cause' cannot be construed too liberally, merely because the party in default is the Government. It cannot also be gainsaid that the same consideration that will be shown by Courts to a privateparty when he claims the protection of Section 5 of the Limitation Act should also be available to the State. However, according to their Lordships, the expression 'sufficient cause'' should receive a liberal construction so as to advance substantial justice when no negligence or inaction or want of bona fide is imputable to a party. Their Lordships reaffirmed the view as expressed in the earlier case of Ramlal, Motilal and Chhotelal v. Rewa Coal Fields Ltd., (1962) 2 SCR 762 = (AIR 1962 SC 361). It is further to be noted that their Lordships laid down that if a party acts in a particular manner on a wrong advice given by his legal adviser, he cannot be held guilty of negligence so as to disentitle him to plead sufficient cause under Section 5 of the Limitation Act. In that particular case their Lordships noted that the advice given by the lawyer to file the application under Article 227 of the Constitution of India was also a circumstance to be taken into account in consider-ing whether the appellant had shown sufficient cause. The fact that the State acted upon the advice of the State counsel, could not be considered to be a circumstance showing negligence on the part of the State. At the most what could be said was that they were misguided on the wrong advice given by the counsel. As regards the sufficient cause, their Lordships laid down that if it be not possible to impute to a party want of bona fides or such inaction or negligence as would deprive it of the protection of Section 5 of the Limitation Act, the benefit of the Section ought to be given to the parties concerned. However, their Lordships of the Supreme Court approved of the pronouncement of their Lordships of the Pirvy Council in Kunwar Rajendra Bahadur Singh v. Rai Rajeshwar Bali, AIR 1937 PC 276.

9. In view of the authoritative pronouncement of their Lordships of the Supreme Court with reference to the question of sufficiency of cause upon a wrong legal advice given by a counsel, we may observe that the Division Bench case of this Court in ILR (1938) Nag 409 = (AIR 1938 Nag 156) (supra) and the Special Bench case of this Court, namely, 1966 MPLJ 739 = (AIR 1967 Madh Pra 107) (supra) would stand overruled on account of their Lordships' pronouncement. The tests as applied by the Division Bench of this Court as also by the Special Bench of this Court can no more be relevant and valid factors. But the tests as laid down by their Lordships of the Supreme Court in the said case would have to be applied to each particular case.

10. Applying the said tests to the present case, we might observe that even a lawyer on account of the arrangement of the Sections might be misled into thinking that Section 41 of the M. P. Ceiling on Agricultural Holdings Act, 1960, is the relevant provision relating to appeals and if an appeal was accordingly filed underthat Section, well within limitation, no mala fides could be imputed to the petitioner or his counsel. We may observe that not only the petitioner or his counsel, but even three Tribunals were led into thinking that Section 41 of the Act governed the matter. The Collector entertained the appeal and decided it on merits. The Additional Commissioner similarly entertained the Second Appeal and decided it on merits and the Board of Revenue also entertained the revision and decided it on merits and remanded the case. It was thereafter that it was discovered that not Section 41, but Section 4, Sub-section (3) of the Act governed the matter and an appeal lay to the Board of Revenue directly against the order of the Competent officer. These facts by 'themselves would, in our opinion, make mis an eminent case for invoking the aid of Section 5 of the Limitation Act, in order to hold that there was sufficient cause as the petitioner was misled by the advice given by his counsel, which could not be said to be without due care and attention. Thus, if the three revisional Courts could be misled into thinking that Section 41 of the Act governed the matter, the petitioner or his counsel could not be blamed for entertaining that idea and in resorting to an appeal, Second Appeal and a revision. Therefore, we are of opinion that the Revenue Board was in error in holding that the petitioner could not be given the benefit of Section 5 of the Limitation Act, 1963. It was, therefore, necessary for the Board of Revenue to have decided the appeal on merits by giving to the petitioner the benefit of Section 5 of the Act, as the present case would fall within the principles laid down by their Lordships of the Supreme Court in (1972) 1 SCC 366 = (AIR 1972 SC 749) (supra).

11. As a result of the discussion aforesaid, we quash the order of the Board of Revenue (Petitioner's Annexure-A/10) and remand the appeal to the Board of Revenue for a decision on merits, observing that the petitioner is entitled to extension of time under Section 5 of the Limitation Act, 1963 However, as this was a debatable matter, we direct that there shall be no order as to costs of this Court. The petition is accordingly allowed. The outstanding amount of the security deposit be refunded to the petitioner.


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