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Kulamani Kar and ors. Vs. Orissa Land Reforms Tribunal-cum-subordinate Judge and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtOrissa High Court
Decided On
Case NumberO.J.C. No. 135 of 1981
Judge
Reported inAIR1983Ori63
ActsOrissa Land Reforms Act, 1969 - Sections 57A and 57A(3); Limitation Act, 1963 - Sections 5
AppellantKulamani Kar and ors.
RespondentOrissa Land Reforms Tribunal-cum-subordinate Judge and ors.
Appellant AdvocateS. Mirsa (2), ;K. Kar and ;N.K. Acharya, Advs.
Respondent AdvocateAddl. Govt. Adv., ;S. Misra (1), ;J.M. Mohanty, ;G.P. Mohapatra, ;B. Panda, ;S.K. Nayak (2), ;R. Saha, ;S. Mantry, ;R. Ch. Rath, ;S. Mohanty and ;A.S. Naidu, Advs.
DispositionPetition allowed
Cases ReferredState of Kerala v. Ayilammal Syamala Thamburatti
Excerpt:
.....amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory..........19163 provides:--'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 purchase of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, be previsions 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.'(underlining is ours)the relevant aspect for consideration, therefore, is whether the orissa land reforms act expressly excludes application of sections 4 to 24 of the limitation act.admittedly, the relevant.....
Judgment:

R.N. Misra, C.J.

1. Challenge in this application for a writ of certiorari is to the order made by the Tribunal constituted under Section 57-A of the Orissa Land Reforms Act (hereafter referred to as the 'Act') accepting an application of opposite parties 4 to 7. The ground on which challenge has been laid is that the application under Sub-section (3) of Section 57-A of the Act was barred by limitation and the Tribunal had, therefore, no jurisdiction to entertain the application and give relief on its basis,

2. Section 57-A (3) of the Act provides:--

'Any trustee or trustees desiring to get any trust declared to be a religious or charitable trust of a public nature under Sub-clause (e) of Clause (24) of Section 2 may make an application to the Tribunal in such form and containing such particulars as may be prescribed.

Provided that no application under this sub-section shall be maintainable if,--

(a) xx xx xx xx

(b) it is filed after the date of expiry of a period of six months from the date of commencement of the Orissa Land Reforms (Second Amendment) Act, 1976: XX XX XX XX.'

The Amending Act of l976 referred to above came into force on 25-10-1976. The application of the opposite parties was filed on 20-2-1978. The opposite parties-applicants moved the Tribunal to condone the delay by making an application under Section 5 of the Limitation Act as admittedly the last date for presentation of the application was 25-4-1977 in view of the Proviso quoted above and the application was made about 10 months beyond the last date.

The petitioners have contended that Section 5 of the Limitation Act had no application and the Tribunal had, therefore, no jurisdiction to condone the delay. Ordinarily, the exercise of discretion vested in a court for condoning delay would not be the subject-matter of an application for a writ of certiorari, but since the challenge is on the ground of want of jurisdiction on the footing that Section 5 of the Limitation Act has no application to a proceeding of this type, the matter requires examination.

3. Section 29(2) of the Limitation Act of 19163 provides:--

'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 purchase of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, be previsions 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.'

(Underlining is ours)

The relevant aspect for consideration, therefore, is whether the Orissa Land Reforms Act expressly excludes application of Sections 4 to 24 of the Limitation Act.

Admittedly, the relevant Proviso to Section 57-A of the Orissa Land Reforms Act does not expressly exclude the application of Section 4 to 24 of the Limitation Act. Reliance is placed by the petitioners' counsel on two decisions of the Supreme Court in support of his contention that no express exclusion is necessary and on a construction of the Statute and its spirit it is open to the Court to examine and come to a conclusion whether the provisions of the Limitation Act are applicable or their application stands excluded. The first case on which reliance has been placed is the case of Hukumdev Narain v. Lalit Narain, AIR 1974 SC 480 where a Bench of 3 learned Judges was considering whether the limitation provided in the Representation of the People Act constituted express exclusion of Sections 4 to 24 of the Limitation Act. In paragraph 17 of the judgment, the Court :

'............ It is contended before us that the words 'expressly excluded'

would mean that there must be an express reference made in the special or local law to the specific provisions of the Limitation Act of which the operation is to be excluded. As usual, the meaning given in the dictionary has been relied upon, but what we have to see is whether the scheme of the special law, that is, in this case the Act, and the nature of the remedy provided therein are such that the Legislature intended it to be a complete code by itself which alone should govern the several matters provided by it. 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 Act. In our view, 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 those provisions or the nature of the subject-matter and scheme of the special law exclude their operation.' The Court again referred to the several provisions of the Representation of the People Act and came to the conclusion:--

'For all these reasons, we have come to the conclusion that the provisions of Section 5 of the Limitation Act do not govern the filing of election petitions or their trial and in this view, it is unnecessary to consider whether there are any merits in. the application for condonation of delay.'

The same question arose again before another 3-Judge Bench of the Supreme Court in the case of Commr. of Sales Tax, U. P., Lucknow v. Parson Tools &. Plants, AIR 1975 SC 1039, and on this occasion the point arose with reference to application of Section 14 of the Limitation Act in the matter of filing of a revision under the Taxing Act. Section 10(3B) of the Taxing Act provides (at p. 1043):--

'The application under Sub-section (3) shall be made within one year from the date of service of the order complained of but the Revising Authority may on proof of sufficient cause entertain an application within a further period of six months.'

The Court then proceeded to observe (at p. 1043):--

'Three features of the scheme of the above provision are noteworthy. The first is that no limitation has been prescribed for the suo motu exercise of its jurisdiction by the Revising Authority. The second is that the period of one year prescribed as limitation for filing an application for revision by the aggrieved party is unusually long. The third is that the Revising Authority has no discretion to extend this period beyond a further period of six months even on sufficient cause shown. As rightly pointed out in the minority judgment of the High Court, pendency of proceedings of the nature contemplated by Section 14 (2) of the Limitation Act may amount to a sufficient cause for condoning the delay and extending the limitation for filing a revision application, but Section 10(3-B) of the Sales Tax Act gives no jurisdiction to the Revising Authority to extend the limitation, even in such a case, for a further period of more than six months.

9. The three stark features of the scheme and language of the above Provision unmistakably show that the legislature has deliberately excluded the application of the principles underlying Sections 5 and 14 of the Limitation Act, except to the extent and in the truncated form embodied in Sub-section (3-B) of Section 10 of the Sales Tax Act. Delay in disposal of revenue matters adversely affects the steady inflow of revenues and the financial stability of the State. Section 10 is therefore, designed to ensure speedy and final determination of fiscal matters within a reasonablycertain time-schedule

xx xx xx XX XX XX XX

11. Be that as it may, from the scheme and language of Section 10, the intention of the Legislature is to exclude the unrestricted application of the principles of Sections 5 and 10 of the Limitation Act (obviously, a mistake for Section 14) is manifestly clear. These provisions of the Limitation Act which the legislature did not, after due application of mind, incorporate in the Sales Tax Act, cannot be imported into it by anology. An enactment being the will of the legislature, the paramount rule of interpretation, which overrides all other, is that a statute is to be expounded 'according to the intent of them that made it.' 'The will of the legislature is the supreme law of the land, and demands perfect obedience.' (See Maxwell on Interpretation of Statutes, 11th Edn., pp. 1, 2 and 251). 'Judicial power is never exercised', said Marshall. C. J. of the United States, 'for the purpose of giving effect to the will of the Judges; always for the purpose of giving effect to the will of the Legislature; or in other words, to the will of the law.'

12. If the legislature wilfully omits to incorporate something of an analogous law in a subsequent statute, or even if there is a casus omissus in a statute, the language of which is otherwise plain and unambiguous, the Court is not competent to supply the omission by engrafting on it or introducing in it, under the guise of interpretation by analogy or implication, something what it thinks to be a general principle of justice and equity.'

These authorities clearly indicate that there is no necessity for express exclusion and it is open to the Court on examining the provisions of a Statute to find out whether the application of all or any of the provisions of Sections 4 to 24 of the Limitation Act stands excluded. The Orissa Land Reforms Act, as its preamble shows, has been enacted to bring progressive legislation relating to agrarian reforms and land tenures consequent on gradual abolition of intermediary interest and to confer better rights on agriculturists and to ensure increase in food production. Several provisions have been made in the Act with a view to giving effect to this declared intention of the legislature. The Act makes clear provision for conferring higher rights on the real cultivator. Section 2(24) makes provision for land owners to be declared as 'privileged raiyats' and in respect to their lands, the benefits provided under the Act are not to apply. Section 57-A makes provision for declaration of certain trusts to be religious or charitable trusts of public nature and in the event of such declaration, the benefit provided under the Statute is not to apply to persons in cultivation of lands of such trusts. The Act, therefore, has come with the time-schedule for effecting these reforms with a view to conferring higher rights on the true cultivators, put an end to absentee landlords, fix ceiling units in respect of agricultural holdings, determine surplus lands and settle the same with landless people. An analytical examination of the Act leaves no scope for doubt that the legislative intention in formulating the law is to achieve the contemplated results at the earliest opportunity. The procedure applicable to the proceedings has been simplified. It is thus apparent that the principle indicated in the case arising under the Uttar Pradesh Sales Tax Act has full application and the conclusion becomes irresistible that application of Section 5 of the Limitation Act by necessary intendment has been contemplated.

The proviso to Section 57-A (3) is in the negative form holding out the legislative mandate of providing a six-month period. The provision is indicative of the anxiety of the legislature to fix a clear time limit for making of an application and not to allow the proceeding to originate at a time beyond the period thus provided.

Counsel for the opposite parties 4 to 7 relied upon a Bench decision of this Court in the case of V.B. Moorthy Raju v. State of Orissa, AIR 1981 Ori 180 in support of the proposition that Section 29(2) of the Limitation Act would be applicable. This Court in the reported decision was examining the application of Section 5 of the Limitation Act to the provisions in Section 18-B of the Orissa Money Lenders Act and came to the conclusion that as no application was to be made under Section 18-B of the Money Lenders Act, the question of applying Sections 4 to 24 of the Limitation Act did not arise for consideration. Nothing has been said in the said decision which would support the stand of the opposite parties here.

Reliance was next placed on a Full Bench case of the Kerala High Court in the case of State of Kerala v. Ayilammal Syamala Thamburatti, AIR 1960 Ker 82. The Full Bench was considering the application of Section 12 of the Limitation Act to an appeal filed under Section 8-A of the Kerala Private Forests (Vesting and Assignment) Act, 1971 and observed (at p. 85):--

'7. Section 8 of the Act enables a person who claims that the land is not a private forest or that the private forest has not vested in the Government, to invoke the jurisdiction of the Tribunal by applying to it for a decision of that dispute. From a decision given by the Tribunal under Section 8, an appeal lies to this Court under Section 8-A of the Act. Under Rule 11 of the Kerala Private Forests (Tribunal) Rules, 1972, in all proceedings before the Tribunal, it is required to follow the procedure prescribed as regards applications in the Civil P. C. 1908, and the Rules made thereunder as far as they can be made applicable except to the extent otherwise provided in the Act or the Kerala Private Forests (Tribunal) Rules, 1972. Though the Act contains no provision which states the manner in which the decision under Section 8 is to be rendered, since under Rule 11 of the Kerala Private Forests (Tribunal) Rules, 1972, the procedure to be followed is that prescribed in the Civil P. C., 1908, as regards an application, and this decision is an appealable decision, the Tribunal has to give its reasons in support of that decision, either in a separate document or in the same document which contains its decision. That decision is not one determining the rights of parties with regard to any matter in controversy in a suit and therefore is not a decree falling within the definition of that term in Section 2(2) of the Code; it can, therefore, be characterised only as an order as defined in Section 2(14) of the Code, that is, the Tribunal's formal expression of a decision which is not a decree. The statement of reasons given by the Tribunal is a judgment.

8. In view of what is said above, the order under appeal is a composite document--a judgment-cum-an order--falling within the definition of the words 'judgment' and 'order' in Sub-sections (9) and (14) of Section 8 of the Code of Civil Procedure, 1908. The appellant is entitled to exclude the time requisite for obtaining 3 copy of the order (decision) of the Tribunal appealed from under Section 12 (2) of the Limitation Act, 1963, and the time requisite for obtaining a copy of the judgment (Statement of Reasons given by the Tribunal) on which its order is founded under Sub-section (3) thereof. In so far as the Tribunal's decision and the Statement of Reasons therefor are contained in the same document, the time required to obtain a copy of that document is to be excluded in computing the period of limitation of this appeal, and so determined, as stated in the beginning of this judgment, this appeal is within time.'

We do not think the observations of the Full Bench have any relevance so far as the point in issue is concerned.

4. On the analysis of the matter as indicated above, we are of the view that the application of Section 5 of the Limitation Act stood excluded and the Tribunal had no jurisdiction to condone the delay as the application had been made beyond the period indicated in the Proviso to Section 57-A (3) of the Act. It is unnecessary to examine the other aspects raised in the writ application but not pressed at the time of hearing.

5. The writ application is allowed and the order of the Tribunal is quashed. There would be no order for costs.

Patnaik, J.:--I agree.


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