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1967 Supreme(Pat) 123
HIGH COURT OF PATNA
R.L. Narasimham, & B.N. Jha, JJ.
Ramnandan Pd. – Petitioner
VERSUS
Smt. Sushila Devi & Others – Respondents
C. W. J. C. No. 948 of 1966
Decided On : 22nd December, 1967
Messrs Lal Narain Sinha and S.C. Ghose for the Petitioners.
Messrs Balabhadra Prasad Singh, S.B. Sanyal, Brajeshwar Maliick and Chaudhary S.N. Misra and Mr. B.D. Singh (for State), for the Respondents.
The default clause in the Circle Officer's order did not make the order peremptory and barred the Court from granting extension of time for payment of the first installment.
Headnote:
KOST AREA (RESTORATION OF LANDS TO RAIYATS) ACT, 1951 - SECTION 3, 7(1)(E) - RESTORATION OF LANDS TO RAIYATS - INTERPRETATION OF DEFAULT CLAUSE - EXTENSION OF TIME FOR PAYMENT OF COMPENSATION - LIMITATION - SECTION 5 OF THE LIMITATION ACT, 1963 - APPLICABILITY - STAY OF PROCEEDINGS BY HIGH COURT - EFFECT ON LIMITATION - JURISDICTION OF CIRCLE OFFICER TO PASS RESTORATION ORDER - RES JUDICATA - WRIT PETITION - CONSTRUCTIVE RES JUDICATA - APPLICABILITY.
Fact of the Case:
Petitioner applied for restoration of land under the Kosi Area (Restoration of Lands to Raiyats) Act, 1951. The Circle Officer ordered restoration on payment of compensation of Rs. 20,000/- in three annual installments, with a default clause that failure to pay the first installment within the stipulated time would result in the petitioner losing the benefit of the restoration order. The petitioner failed to pay the first installment within the stipulated time and the Collector dismissed his appeal. The Commissioner set aside the Collector's order and directed re-hearing of the appeal, but the High Court quashed the Commissioner's order. The petitioner then applied to deposit the entire sum of Rs. 20,000/- and the Circle Officer allowed him to do so. The Additional Collector reversed the Circle Officer's order, holding that the petitioner had lost the benefit of the restoration order due to the default clause.
Finding of the Court:
1. The default clause in the Circle Officer's order did not make the order peremptory and the Court retained jurisdiction to pass a final order, either rejecting or allowing the petition of restoration. 2. The Circle Officer had the power to grant extension of time for payment of the first installment, notwithstanding the expiry of the period fixed in the original order. 3. The period during which the High Court stayed the Commissioner's order remanding the appeal for re-hearing should be excluded in computing the total period of five years for payment of the compensation, as prescribed in Section 7(1)(e) of the Act. 4. The petitioner's application to deposit the entire sum of Rs. 20,000/- was within the period of five years from the date of the original order, after excluding the period of stay by the High Court. 5. The Circle Officer had jurisdiction to pass the order of restoration of possession, as he was invested with the powers of a Collector under the Act. 6. The principle of constructive res judicata did not bar the petitioner from raising the question of interpretation of the default clause in the Circle Officer's order, as he was not bound to raise it in the earlier writ petition. 7. Section 5 of the Limitation Act, 1963 was applicable to the petitioner's application to condone the delay in depositing the compensation, and the Circle Officer's order condoning the delay was valid.
Issues: 1. Whether the default clause in the Circle Officer's order made the order peremptory and barred the Court from granting extension of time for payment of the first installment. 2. Whether the Circle Officer had the power to grant extension of time for payment of the first installment, beyond the period fixed in the original order. 3. Whether the period during which the High Court stayed the Commissioner's order remanding the appeal for re-hearing should be excluded in computing the total period of five years for payment of the compensation, as prescribed in Section 7(1)(e) of the Act. 4. Whether the petitioner's application to deposit the entire sum of Rs. 20,000/- was within the period of five years from the date of the original order, after excluding the period of stay by the High Court. 5. Whether the Circle Officer had jurisdiction to pass the order of restoration of possession. 6. Whether the principle of constructive res judicata barred the petitioner from raising the question of interpretation of the default clause in the Circle Officer's order. 7. Whether Section 5 of the Limitation Act, 1963 was applicable to the petitioner's application to condone the delay in depositing the compensation.
Ratio Decidendi: 1. The default clause in the Circle Officer's order did not make the order peremptory, as it did not state that the application for restoration would stand dismissed on failure to pay the first installment within the stipulated time. 2. The Circle Officer had the power to grant extension of time for payment of the first installment, as the default clause did not expressly bar such extension. 3. The period during which the High Court stayed the Commissioner's order remanding the appeal for re-hearing should be excluded in computing the total period of five years for payment of the compensation, as the petitioner was deprived of his right to get the appeal heard on merits during that period. 4. The petitioner's application to deposit the entire sum of Rs. 20,000/- was within the period of five years from the date of the original order, after excluding the period of stay by the High Court. 5. The Circle Officer had jurisdiction to pass the order of restoration of possession, as he was invested with the powers of a Collector under the Act. 6. The principle of constructive res judicata did not bar the petitioner from raising the question of interpretation of the default clause in the Circle Officer's order, as he was not bound to raise it in the earlier writ petition. 7. Section 5 of the Limitation Act, 1963 was applicable to the petitioner's application to condone the delay in depositing the compensation, as it allowed the Court to condone the delay in filing an application under the Act.
Final Decision: The writ petition was allowed, the appellate order of the Collector was set aside, and the order of the Circle Officer-cum-Anchal Adhikari restoring the land to the petitioner was restored.
This is an application under Articles 226 and 227 of the Constitution against the appellate order passed by the Additional Collector of Saharsa on the 3rd October, 1966, in Land Restoration Appeal No. 1 of 1965-66 (Annexure H).
2. The petitioner applied under Section 3 of the Kosi Area (Restoration of lands to Raiyats) Act, 1951 (hereinafter referred to as the Act) for restoration of 91 31 acres of land in village Birpur, police station Bhimnagar, of Saharsa District, alleging that he was the previous raiyat of the holding, that it was sold away for arrears of rent on the 11th July, 1945, and purchased by one Sri Tilakdhari Lal of Madhipura. Opposite party no. 1 Srimati Sushila Devi purchased the property from the said Tilakdhari Lal by a sale deed dated the 1st December, 1948. The petitioner based his claim for restoration on the provisions of the Act which were meant to give relief to those raiyats whose holdings were sold away for arrears of rent due to their inability to pay the same in consequence of the ravages of Kosi river. The application was actually filed on the 27th October, 1957, before the Revenue Officer (Case No.4 of 1957-58). Notices were issued in due course to all the parties concerned. The opposite party no. 1 could possibly urge nothing against the restoration of the holding to the petitioner but filed certain documents with a view to support her claim for compensation for the various improvements effected on the land after it came into her possession. The Revenue Officer, Sri G. Singh, Circle Officer, Birpur, then posted the case for orders on the 17th February. 1958. The operative portion of his order (Annexure B) dated the 17th February, 1958, may be quoted in full :
“The petitioner will pay compensation of Rs. 20,000/- to the opposite party in three annual instalments of Rs. 10,000/-, 50001-, and 5000/- respectively. On the payment of first instalment, the entire holding excluding the plots noted above would be restored to the petitioner but the petitioner will have no right to dispose of the holding in full or in part till he ;Jays the entire amount of compensation thus determined. If the petitioner fails to payoff the entire amount within the stipulated time the amount remaining in arrears would be realised by certificate proceeding. The date of payment of the first instalment will commence from the 1st March, 1958, and remain valid and operative till the 1st June 1958. If the petitioner fails to pay the first instalment within the specified period then he will loose the benefit of this order of restoration”.
In the said order, the learned Circle Officer excepted Plots 664, 665, 666 and 667 on the ground that dwelling houses and other structures for storage of the implements of agriculture had been constructed on them and that it would be inadvisable to evict oppsite party no. 1 from those plots.
3. On 11th August, 1958, opposite party no. 1 filed an appeal (Annexure Y) before the Collector. The grounds of appeal (Annexure Y) show that opposite party no. 1 challenged the quantum of compensation of Rs. 20,000/- fixed for restoration and also that portion of the order of the Circle Officer by which the said four plots amounting in all to 9 acres 25 cents were excluded from the restoration proceedings. On the 28th July, 1959, the appeal was dismissed by the Collector due to the absence of both the parties. Against his order, a revision petition was filed before the Commissioner, who, by his order dated the 7th February, 1961, set aside the order of the Collector and directed the re- hearing of the appeal on merits. Against the order of the Commissioner, opposite party no. 1 filed a writ petition in the High Court, M.J.C. 232 of 1961 (Annexure Z). A Bench of this Court, by its order dated the 30th June, 1964, quashed the order of the Commissioner mainly on the ground that the Commissioner had no jurisdiction to interfere with the appellate order of the Collector. Before the Bench it was further conte
