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Badshah Ram Vs. the State of Rajasthan and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation;Property
CourtRajasthan High Court
Decided On
Case NumberS.B. First Appeal No. 62 of 1972
Judge
Reported in1974WLN(UC)236
AppellantBadshah Ram
RespondentThe State of Rajasthan and ors.
DispositionAppeal dismissed
Cases ReferredIn Secretary of State v. Colliery Co. Ltd. and Ors.
Excerpt:
.....act, 1908 - article 2 and rajasthan colonisation act, 1954--section 24--order of demolition passed by director on information furnished to him--information turned out to be wrong but not to knowledge of the director--held, article 2 applies.;if later on the information furnished to the director, colonisation, turned out to be wrong but not so to his knowledge at the time he passed the impugned order i think the impugned order would be an order in pursuance of the act falling within the purivew of art 2 of the limitation act, 1908. in this view of the matter, i am clearly of the opinion that tha suit was governed by article 2 of the limitation act, 1908 and is barred by time. - section 2(k), 2(1), 7 & 40 & juvenile justice (care and protection of children) rules, 2007, rule 12 & 98..........tehsildar. anta. had no authority to allot land to the plaintiff. it was further pleaded that the director, colonisation, passed the order dated 18-1-61 because the plaintiff disobeyed the notice issused by the assistant colonisation officer, respondent no. 2, dated 2-1-61 and 14-1-61' certain more pleas such as limitation and jurisdiction were also raised. it was also pleaded that the suit was barred under section 26 of the act. on the above pleadings of the parties, the learned additional district judge framed the following issues:1 d;k oknh us jktlfkku jkt; ls okn i= ds pj.k ua- 2 o 3 es myysf[kr nks hkwfe [k.m ,d 78 oxz dk 18-50@& :0 es fnukad 28&2&1956 dks o nwljk 38 oxz dk 8-75@& :- fnukad 28&5&1956 dks pk; dh nqdku yxkus gsrq eksy fy;s oknh ij2 ;fn fopkfkz fo'k; ua- 1 dk fuj.;.....
Judgment:

S.N. Modi, J.

1. This first appeal by the plaintiff Badshah Ram is directed against the judgment and decree of the Additional District Judge, Baran, dated 11-12-71 dismissing the suit for damages.

2. The relevant facts of the case are as follows. Two parcels of land in village Anta, measuring 13 yds. by 6 yds. & 13 yds, by 3 yds. adjoining each other and constituting one plot measuring 13 yds. by 9 yds, were allotted to the plaintiff-appellant on 22-8-1956 and 24-5-1956 respectively by the Tehsildar, Anta, for purposes of a tea shop. The plaintiff in December 1960 constructed a shop over this plot of land by raising three walls on the sides and pillars with lintels on the front. On 16-1-61, respondent No. 3 Shri Harban-shlal Gupta, Assistant Colonisation Officr, Anta, lodged a complaint Under Section 23(b) of the Rajasthan Colonisation Act, 1954, hereinafter to be referred to as the Act, alleging that the shop was constructed without permission of the competent authority. During the pendency of the aforesaid proceedings respondent No. 3 on 19-1-61 in compliance of the order dated 18-1-61 passed, by respondent No. 2 Shri I.N Kaul, Director of Colonisation, Chambal Project, Kota, demolished the walls and lintels of the shop. The plaintiff, therefore, after notice Under Section 80 CPC brought a suit out of which this appeal arises, on 16-3-64 claiming Rs. 7200/- as damages for unlawful and unauthorised demolition of the shop.

3. The suit was resisted by the State of Rajasthan which traversed all material allegations made in the plaint. It was pleaded that the Tehsildar. Anta. had no authority to allot land to the plaintiff. It was further pleaded that the Director, Colonisation, passed the order dated 18-1-61 because the plaintiff disobeyed the notice issused by the Assistant Colonisation Officer, respondent No. 2, dated 2-1-61 and 14-1-61' Certain more pleas such as limitation and jurisdiction were also raised. It was also pleaded that the suit was barred Under Section 26 of the Act. On the above pleadings of the parties, the learned Additional District Judge framed the following issues:

1 D;k oknh us jktLFkku jkT; ls okn i= ds pj.k ua- 2 o 3 es mYysf[kr nks Hkwfe [k.M ,d 78 oxZ dk 18-50@& :0 es fnukad 28&2&1956 dks o nwljk 38 oxZ dk 8-75@& :- fnukad 28&5&1956 dks pk; dh nqdku yxkus gsrq eksy fy;s oknh ij

2 ;fn fopkFkZ fo'k; ua- 1 dk fuj.; oknh ds i{k es gks rks D;k rglhynkj vUrks dks mDr Hkwfe pk; dh nqdku yxkus ds fy, cspus dk vf/kdkj ugh Fkk izfr ua-1 ij

3D;k nksusk Hkw[kaM esky nsus ds i'pkr oknh u mu ij 6000-00@& :0 dh iDdh bekjr LVky ds okLrs cuokbZ oknh ij

4 D;k oknh dh lquokbZ fd;s fcuk izfroknh gjca'kyky us mDr bekjr oknh dks voS/kkfud :i ls kg fMeksys'k dj fn;k A oknh ij

5 izfroknh gjca'kyky ds bekjr rqMokus ls fdruh gkfu oknh dks gqbZ o D;k ml ds fy, rhuks izfroknhx.k ftEenkj gS Aoknh

6D;k bLrxklk eqrkftdj en ua- 10 okn i= is'k gksus ds ckn MkbjsDVj dksyksukbls'ku us viuh vkKk rjh[k 18&1&61 oS/kkfud rkSj ij nh vkSj mfpr rkSj ij rkehj rqyokbZ xbZ A izfroknh ij

7 D;k nkok vof/k ds ckgj gsS izfroknh ua-1

8 D;k bl nkos dsk ;g U;k;ky; lek;r ugh dj ldrh izfr u-1

9 D;k ;g nkok pykus ;skX; ugh gS izfr ua-1

10 D;k izfroknh us bekjr oknh fMeksfy'k djus ls igys oknh dks dksbZ uksfVl fn;k

11 nknjlh D;k gksxh

On consideration of the evidence of the parties, the learned Additional District Judge recorded the following material findings:

1. Issues Nos. 1 and 2 have no material bearing in the suit as the plaintiff is in possession of the disputed land even after the demolition and the question of the plaintiff's title is irrelevant in the present case.

2. Issue No. 3 has no relevancy as the total construction of the shop was not demolished.

3. Village Anta forms a part of the Rajasthan Chambal Project area and the Rajasthan Colonisation Act was made applicable to it in the year 1957.

4. Construction of the shop was illegal as no prior permission was sought or obtained by the plaintiff from the competent officer.

5. Shri I.N. Kaul, respondent No. 2, had no power to order demolition of the shop Under Section 24(iii) of the Act as he was not the Collector under the Act.

6. The action of Shri I.N. Kaul, respondent No. 2 in ordering demolition of the shop without any show cause notice to the plaintiff was against the principles of natural justice and violation of basic right was not to be condemned unheard.

7. The defendants are liable to pay Rs. 1300/- as damages for the loss arising out of the demolition of the shop and Rs. 200/- on account of loss in business.

8. The suit is governed either by Article 2 or Article 36 of the Limitation Act, 1908 and was barred by time.

9. The suit was triable by a civil court and it was not barred Under Section 25 or 26 of the Act.

The learned Additional District Judge in the result dismissed the suit. Aggrieved by the said judgment and decree the plaintiff has preferred this appeal

4. The findings arrived at by the learned Additional District Judge would reveal that the suit was mainly dismissed on the ground of limitation.

5. Mr. P.C. Bhandari, the learned advocate for the plaintiff-appellant, has strenuously contended that Article 39 of the Limitation Act, 1908 corresponding to Article 87 of the Limitation Act, 1963 is applicable to the present suit and the learned Additional District Judge committed gross error in holding the suit to be barred by time. He contends that Article 2 or Article 36 of the Limitation Act, 1908 has no applicability to the present case. On the other hand, the learned Counsel for the State has supported the judgment of the learned Additional District Judge and contended that the suit falls within the ambit of Article 2 of the Limitation Act of 1908 and the learned Additional District Judge rightly dismissed the suit. The learned Counsel for the State also challenged the findings Nos. 1, 2, 5, 6, and 7. As regards finding No. 7, he contended that the damages to the tune of Rs. 1300/- were rightly assessed but there was no justification for assessing further sum of Rs. 200/- on account of loss in business.

6. I first take up the point of limitation, Article 2 of the Limitation Act, 1908, runs as under:

Article 2:

For compensation for doing 90 days when the

or for omitting to do an act or

act alleged to be in pursuance omission

of any enactment for the takes

time being in the provisions. place.

This Article provides a short period of 90 days for suits for compenastion for doing or for omitting to do an act alleged to be in pursuance of any enactment. The corresponding Article in the Limitation Act of 1963 is Article 72. In the new Act the period of limitation has been increasad from 90 days to one year. In all other respects, Article 2 of the old Act is similar to Article 72 of the new Act. The difference in the two Articles is not material in the present case for under both the Aricles the suit was barred by time. However, in view of Section 31 of the 1963 Act, the proper Article to be applied is Article 2 of the 1908 Act.

7. The words 'in pursuance of any enactment' used in the Article came for interpretation before a Full Bench of the Allahabad High Court in Pt. Shiamlal v. Abdul Raof AIR 1935 All 538 wherein it was held as follows:

As in England, the experession 'in pursuance of any enactment' must be interpreted as meaning acting in conformity with an enactment & not merely pretending to act or acting under colour of such an enactment. Where a person honestly believes that he is acting under some enactment he is protected. But where a person pretends that he was so acting and knows that he should not act under that enactment he cannot be said to be acting in pursuance of any such enactment...It would therefore follow that where a defendant has done an act or omitted to do an act, knowing that he had no ground whatsoever for so acting or omitting to do an Act, he does not come within the purview of Article 2. It is only defendants who have acted honestly' although they might have exceeded the actual power conferred upon them by an enactment who would be protected. Of course, where it is established that the act done was in strict accordance with an enactment, there would be an obvious protection. But even where the power was exceeded, there would be protection in case of good faith and bonafide belief...If the defendant were to satisfy the Court that at the time when he made the report he acted honestly on some information received, he would be protected, even though the report might turn out to be absolutely false but not so to the knowledge of the defendant.

In Secretary of State v. Colliery Co. Ltd. and Ors. AIR 1936 Pat 513, Courtney Terrell, C. J., construing Article 2 said 'The object of the Article is the protection of public officials who, while bonafide purporting to act in the exercise of a statutory power and have committed a tortuous act, it resembles in this respect the English Public Authorties Protection Act. If the act complained of is within the term of the statute, no protection is needed' for the plaintiff has suffered no legal wrong; the protection is needed when an actionable wrong has been corrmitted and to secure the protection there must be in the first place a bonafide belief by the official that the act complained of was justified by the statute, secondly, the act must have been performed under colour of a statutory cuty and thirdly, the act must be in itself a tort in order to give rise to the cause of action It is against such actions for tort that the statute gives protection. With great respect, I entirely agree with the above observations of the Allahabad and Patna High Courts. Bearing in mind the above construction of Article 2, I now proceed to examine the impugned order in compliance to which the shop was demolished. That order is Ex. A/13 dated 18-1-61 passed by the Dnector, Colonisation, Chambal Project, Kota. A bare perusal of this order would reveal that it was passed on the basis of the applications and the affidavit produced by the Assistant Colionisation Officer Anta. From the application and the affidavit, the Director, Colonisation, was satisfied that act punishable Under Section 23 of the Act had been committed by the plaintiff. He therefore passed the order/Section 24 (iii) of the Act for demolition of the unauthorised constructicn made by the plaintiff. It is not the case of the plaintiff that the older Ex. A/13 was passed dishonestly or with malafide intention. The bonafides of the Director passing the impugned order have cot been challenged by the plaintiff.

8. The learned Additional District Judge has found this order to be without jurisdiction on the ground that such an order could be passed only by the Collector & since the Director, Colonisation was not the Collector, the impugned order was illegal. learned Counsel for the State has challenged this finding of the learned Additional District Judge. He has drawn my attention to the definition of the word 'Collector' given in the Act according to which the Director, Colonisation who passed the impugned order was a Collector within the meaning of the Act and was thus authorised to order demolition Under Section 24 (iii) of the Act. In my opinion, the contention is well-founded The rvord 'Collector' has been defined in Section 2 (i) of the Act. According to this definition, 'Collector, means the Collector of the District and includes inter-alia any officer appointed before or after the commencement of the Act for purposes of colonisation. There can be no doubt that the Director of Colonisation, Chambal Project, Kota, was appointed for purposes of colonisation. He was therefore the Collector under the Act. The impugned order thus cannot be held to be without jurisdiction or unauthorised on the ground that the Director of Colonisation was not the Collector.

9. The learned Counsel for the plaintiff appellant has contended that even if the Director or Colonisation be deemed to be the Collector within the meaning of the Act, the impugned order was wholly illegal, firstly, because no offense was committed by the plaintiff Under Section 23 of the Act and, secondly, because the order for demolition Under Section 24(iii) could be passed only after conviction of the plaintiff Under Section 23 of the Act. It is pointed out that Under Section 23(b) a person can be punished if he has erected any building or any other structure without the permission of the duly authorised officer on the land described in clause (a) of Section 23 of the Act. It is further pointed out that since the construction was made by the plaintiff on the land allotted to him by the Tehsilder, no offence was committed by hirn even if he was constructing it without the permission of the duly authorised officer. Regarding the second objection, the argument is that criminal proceedings were started against the plaintiff by the Assistant Colonisation Officer Under Section 23(b) of the Act and the Director, Colonisation, bad no power Under Section 24(iii) to order demolition of the construction till the plaintiff was convicted in the criminal proceedings.

10. The contention of the learned Counsel for the State in reply is that the Tthsildar had no power to allot the land to the plaintiff in view of the provision of the Rajasthan Colonisation (Chambal Project Government Lands Allotment and Sale) Rules, 1957. His further contention is that the prosecution of the plaintiff for the offence Under Section 23(b) of the Act was wholly unauthorised and in any case the Director, Colonisation, at the time of the passing of the order for demolition Under Section 24(iii) of the Act had no knowledge as to the initiation of such proceedings by the Assistant Colonisation Officer. He has further pointed out that before the demolition order was passed, two notices had been sent to the plaintiff prohibiting him from making construction on the land.

11. In my opinion, it is not necessary for me to go into the question whether the two allotments on 22-8-56 and 24-5-58 were valid. Even assuming that the two plots of land were validly allotted by the Tehsildar to the plaintiff that would not in any way take away the suit from the purview of Article 2 of the Limitation Act, 1908. From the evidence of the Director, Colonisation, Shri I.N. Kaul, it is clear that he had no knowledge at the time of passing the impugned order that the land bad been previously allotted by the Tehsildar. He has further deposed that he also did not pass any order for lodging a complaint against the plaintiff Under Section 23 of the Act. If the Director, Colonisation, had no knowledge at the time of the passing of the impugned order that the land bad been allotted previously to the plaintiff or that a complaint Under Section 23 of the Act had been lodged against him, the order of demolition passed by him Under Section 24 (iii) of the Act cannot be said to be not in pursuance of the Act, specially when it was represented before him that the plaintiff was making construction on the Government land and alter a prohibitory order restraining him from making construction had been issued against him. If later on, the information furnished to the Director, Colonisation, turned out to be wrong but not so to his knowledge at the time he passed the impugned order, I think the impugned order would be an order in pursuance of the act falling within the purivew of Article 2 of the Limitation Act, 1908. In this view of the matter, I am clearly of the opinion that the suit was governed by Article 2 of the Limitation Act, 1908 and is barred by time.

12. I further find that the suit is barred Under Section 26 of the Act. Section 26 provides that no suit shall lie, against the State Government or any public servant for anything done in good faith under the Act. As already pointed out above, the order of demolition was passed by the Director, Colonisation, in good faith and it was under the Act, for, the Director, Colonisation, had jurisdiction Under Section 24(iii) of the Act to order demolition of the shop constructed by the plaintiff without permission.

13. The appeal is therefore dismissed with costs, though on somewhat different reasons.


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