ivil Appeal No 2225 of 1991
From the Judgment and Order dated 12101990 of the Himachal Pradesh High Court in RSA No 134 of 1979
692 CK Mahajan and Ashok Grover for the Appellants
J Special leave is granted
The appeal is directed against the judgment of the High Court setting aside the decree passed by the trial court and the first appellate court in favour of the plaintiffs appellants and dismissing their suit on the ground of being barred by limitation
The subject matter of the present case is agricultural land in Himachal Pradesh belonging to one Sham Sunder the original plaintiff since dead who was the father of the appellant No 1 and the grand father of the appellants No2 and 3
The defendant respondent Moti alleging to be a sub tenant cultivating the land claimed the benefits under Section 274 of the Himachal Pradesh Abolition of Big Landed Estates and Land Reforms Act 1953 hereinafter referred to as the Act
Notice was issued to Sham Sunder which according to his case was not served on him
The claim of Moti was accepted amount of compensation payable under Section 274 of the Act was determined by the Compensation Officer and consequential orders were passed in his favour
The present suit was filed by Sham Sunder challenging the aforesaid orders on the allegation that Moti was merely a labourer employed by him and he never cultivated the disputed land and he therefore was not entitled to the acquisition of the proprietory right under Section 27 4 of the Act
The Suit was resisted by the defendant
Both the trial court and the appellate court accepted the plaintiff s case and concurrently held that Moti was not a sub tenant and hence the order passed by the Revenue Officer in his favour under Section 274 of the Act was without jurisdiction
The plea of limitation was rejected and the suit was decreed holding that Sham Sunder being the tenant in possession was entitled to the right under Section 274 of the Act
In a further appeal under Section 100 of the Code of Civil Procedure the defendant contended before the High Court that the suit having been filed after a period of more than three years from the day of the order under Section 274 of the Act was barred by limitation
The Court agreed with him and dismissed the suit by the impugned judgment
The High Court did not deal with any other aspect in the case stating that the defendant had not urged any other point in support of the second appeal
693 4
In the impugned judgment the High Court has held that as a consequence of the Order of the Compensation Officer under Section 274 the title in the land stood vested in the appellant and merely because a longer period of limitation is provided for recovery of possession under Article 65 of the  the suit can not be said to be within the period of limitation
Accordingly either one year period under Article 100 or in the alternative the three years  rule under Article 113 has been held applicable
We do not think that the High Court is right
The principle for deciding the question of limitation in a suit filed after an adverse order under a Special Act is well settled
If the order impugned in the suit is such that it has to be set aside before any relief can be granted to the plaintiff the provisions of Article 100 will be attracted if no particular Article of the is applicable the suit must be governed by the residuary Article 113 prescribing a period of three years
Therefore in a suit for title to an immovable property which has been the subject matter of a proceeding under a Special Act if an adverse order comes in the way of the success of the plaintiff he must get it cleared before proceeding further
On the other hand if the order has been passed without jurisdiction the same can be ignored as nullity that is non existent in the eye of law and it is not necessary to set it aside and such a suit will be covered by Article 65
In the present case the controversial facts have been decided in favour of the plaintiff appellant and the findings were not challenged before the High Court
The position thus is that the plaintiff was the owner in cultivating possession of the land and the defendant Moti was merely a labourer without any right of a tenant or sub tenant
The question is as to whether in this background it is necessary to set aside the order passed in favour of the respondent under Section 274 of the Act before the suit can be decreed or whether the plaintiff can get a decree ignoring the said order as void in which case the suit undoubtedly will be governed by Article 65 6
The provisions of Section 274 of the Act as also the other provisions are limited in their scope
The preamble indicates that the object of the Act is to provide for the abolition of the big landed estates and to reform the law relating to tenancies in the Himachal Pradesh
The expressions tenant  sub tenant  as also other similar expressions have to be understood in the sense they have been used in the other statutes dealing with the relationship of landlord and tenant in agricultural lands
Section 27 of the Act provides for a transfer by the law of the right title and interest of the land owner to the State 694 Government under sub section 1 Sub section 2 is by way of an exception with respect to land under the personal cultivation of the land owner
Sub section 4 directs that the right title and interest of the land owner thus acquired shall be transferred by the State On payment of compensation to the tenant who cultivates such land
Under this provision the order in the present case was passed in favour of Moti
If Moti was not a tenant or sub tenant he was not entitled to the benefits under the sub section
If the land was in cultivating possession of the plaintiffs as held in the present suit the Compensation Officer did not have the jurisdiction to pass any order in defiance of sub Section 2 and the land did not vest in the State at all
Further for the additional reason that Moti was not a tenant of the land the order passed in his favour under Section 274 was again without jurisdiction
In absence of the conditions necessary for the exercise of power under Section 274 the Officer lacked jurisdiction to act and it was not necessary for the civil court to formally set aside his order before passing a decree
What necessitated the plaintiff to come to the civil court was the challenge to his title and the suit must be held to be covered by Article 65 and therefore not barred by shorter periods of limitation either under Article 100 or Article 113 7
The cases relied upon by the High Court do not support the impugned judgment
In State vs Sadh Ram ILR Himachal Pradesh 1973 2 235 the Compensation Officer had passed an order under Section 274 of the Act transferring the proprietory right to the cultivating tenants of the land excluding the trees standing thereon
The transferee tenants filed a suit in respect of the trees and the High Court held that the suit was barred by limitation either under Article 100 or Article 113
The grievance of the tenant was not against the exercise of the power of the Compensation Officer under Section 27 4 of the Act rather he relied upon the same
The observations mentioned below from the judgment of Pathak CJ as he then was are enlightening and supporting the view expressed by us
This is not a case where the order made by the Compensation Officer is a nullity
If the Compensation Officer had ab initio no jurisdiction to take the proceeding and make an order therein he would have no jurisdiction to make any order at all
In that event the entire order made by him including that part of it which is in favour of the plaintiffs would be a nullity
 In the full Bench judgment of the Lahore High Court in Gangu and 695 Others vs Mahanraj Chand and Others AIR 1934 Lahore 384 the decision on the question of limitation went against the plaintiff on account of the special facts an circumstances of the case as is clear from the enunciation of the proposition at page 389 column 2 to the effect that if it is necessary for a plaintiff to get rid of an order made by an Officer of the Government which stands in his way before he can obtain a certain relief and in order to obtain that relief he does not specifically ask for the setting aside of the order but merely for a declaratory decree still the suit should be deemed to be one to set aside an order falling within the ambit of Article 14
It is material to note that in that case it was essential for the plaintiff to have got the order of the Collector set aside before asking for a decree
Two cases of this Court although not identical in facts nor governed by the present Act support the view which we are taking
In Sheo Lal and Ors
vs Sultan  Ors
  the plaintiff filed a suit for a decree for redemption after unsuccessfully moving the Assistant Collector for similar relief under the Redemption of Mortgages Punjab Act 2 of 1913 1913 and a plea of limitation by virtue of Article 14 of the Limitation Act 1908 was raised
Agreeing with the High Court this Court rejected the defence argument based on Article 14 on the ground that in the facts of the case it was not necessary to set aside the order of the Assistant collector before granting a redemption decree
The other decision in Mohd Murtiza Khan vs state of MP and Others 1966 MPLJ 933 arose out of a suit in which the interpretation of the provisions of the Bhopal Land Revenue Act was involved
In similar situation as in the present appeal before us this Court held that Article 14 of the Limitation Act 1908 had no application to the suit as the order under the Bhopal Land Revenue Act had been passed without jurisdiction and could be ignored without getting it set aside
Article 142 of the Limitation Act was applied
For the reasons mentioned above we set aside the impugned judgment of the High Court and restore the decree passed by the first appellate court
the appeal is accordingly allowed with costs through out
TNA Appeal allowed


Summary:
The appellants owning mini steel plants have been getting supply of electricity from the Respondent Board
The Board revised its terms and conditions for supply of electricity and concessional tariff of 11 paise per unit for 3 years from 1111977 was applied to five steel plants
This tariff was subsequently enhanced to 125 paise per unit
However the concessional tariff was not extended to one of the appellants viz Ms Andhra Steel Corporation since a Writ Petition had been filed by it claiming that the agreement entered into with the Respondent Board for availing high tension electric supply was no longer in force
In respect of the other steel plants the Bard extended the concessional tariff subject to escalations and other terms and conditions and fixed a certain minimum consumption
However the tariff was revised to 16 paise without reference to the maximum demand charges from 131978
In reply to a clarification sought by the Respondent Board the State Government clarified that the Government order did not preclude the Board from applying the normal terms and conditions of supply and prescribing the monthly minimum charges and the working out of the escalated rate from time to time
Subsequently the State Government withdrew the concessional tariff
The State Government made a further clarification that its intention was to allow the concessional tariff without limiting the concession by imposition of minimum 625 consumption charges till the end of March 1979
Aggreived by the withdrawal of the concessional tariff the mini steel plants filed Writ Petitions before the High Court contending that it was not open to the Electricity Board to have levied minimum charges and it was bound to supply electricity to them at the concessional tariff fixed by the State Government
It was also contended that State Government s subsequent clarification should prevail over the earlier one
Violation of principales of natural justice doctrine of promissory estoppel and right based on doctrine of legitimate expectation were also contended
It was further contended that the directions were issued under section 78A of the Electricity Supply Act and hence they were of a compulsory nature and binding on the Board
The Andhra Steel Corporation contended that while applying the concessional tariff to other mini steel plants the Electricity Board was not justified in refusing the same to it thereby singling it out and hence its action was discriminatory and male fide
The High Court rejected the various contentions and dismissed the Writ Petitions
Aggrieved by the dismissal of their Writ Petitions the mini steel plants filed appeal before this Court raising the same contentions as were advanced before the High Court
Dismissing the appeals this Court HELD 1
In granting concessional tariff obviously it does not appear to be the purpose to compel the Electricity Board to maintain the supply of the contracted load of electricity to the appellants by incurring loses
The only purpose in directing supply of energy at concessional rates was to reduce the charges of actual energy consumed by the appellants and this purpose could not be frustrated till the Electricity Board complied with the direction of supplying electricity to them at the concessional rate
Though the order dated 16180 in substance amounts to a clarification of the earlier order of clarification dated 5th December1978 it states nothing as to why the clarification contained in the order dated 5th December 1978 in categorical terms did not express the real intention of the State Government in issuing the earlier Government orders granting concessional tariff
The orders 626 granting concessional tariff did not either expressly or by necessary implication grant immunity to the mini steel plants from their obligation to pay minimum charges and this having been categorically stated by the State Government in its clarificatory order dated 5th December 1978 there was apparently no basis for issuing the second clarificatory order dated 16th January 1980
It was issued on some representation made by the mini steel plants at a point of time when Writ Petition on their behalf had already been filed in the High Court and matter was sub judice
In such a situation apart from the propriety of issuing the second clarificatory order on 16th January 1980 it is obvious that what was contained in this order is analogous to an averment made by the State Government in reply to the Writ Petitions filed on behalf of the appellants and it has no bearing in finding out the true import of the orders of the State Government granting concessional tariff
633C D636A E Amalgamated Electricity Co vs Jalgaon Borough Municipality  and Bihar State Electricity Board vs Green Rubber Industries 1990 1 SCC 731 referred to
By the Government Orders dated 2nd November 1977 and 26th November 1977 concession was granted to the appellants
This is manifest from the government Orders themselves which expressly used the expression concessional power tariff or concessional tariff
At no stage the appellants disputed that what was extended to them by the said Government Order was by way of concession
In view of the settled law
Neither of the two orders viz order dated 51278 and 12379 can be said to be illegal on the ground that they were passed in violation of principles of natural justice633F H Shri Bakul Oil Industries vs State of Gujarat   relied on
With regard to the plea of promissory estoppel it is not the case of the appellants that they established their mini plants after the grant of concessional Tariff by the said two Government Orders and but for the grant of such concessional tariff they would not have established their mini steel plants
The necessary facts so as to sustain the plea of promissory estoppel are not pleaded or established by the appellants
635B D 4
There is nothing on record to substantiate the plea of doctrine of legitimate expectation on the basis of which the appellants could be held entitled to any relief635G 627 5
On the facts of the present appeals it is not necessary to go into the question whether the power of fixing tariff under section 49 of the Electricity Supply Act could be regulated by a direction under section 78A thereof
The electricity Board proceded to implement the directions with regard to fixation of concessional tariff issued by the State Government and resolved to realise electricity charges from the appellants only at the concessional tariff of 122 p as fixed in the Government Order dated 26th November 1977
It however took the further view that the directions issued by the Government did not have any bearing on the obligation of the appellants to pay minimum charges which they were bound to pay under the agreements executed by them even though such minimum charges were to be calculated at the rate of 122 p per unit subject to escalation as indicated in the Government Orders in question
Such minimum charges were payable even if no electricity was consumed by the appellants for any reason whatsoever
631B D