HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 25 Case :- WRIT - C No. - 1192 of 2013 Petitioner :- [ENTITY] And Others Respondent :- [ENTITY] And Others Counsel for Petitioner :- [ENTITY],[ENTITY],[ENTITY] Counsel for Respondent :- [ENTITY],[ENTITY] Hon'ble [ENTITY],J.
The petitioners who are nine in number were allotted pattas vide lease documents dated 27.10.1992. The pattas were preceded by Munadi, resolution and approval as is provided in the [ACT] and the Rules of 1952. When in the year 2003-04, one [ENTITY] filed a complaint against the allotment of the pattas, notices were issued to the petitioners who replied to the show cause notices. Thereafter the pattas, were cancelled vide order dated 1.6.2011 and the Revision which the petitioners filed was also dismissed on 23.3.2012. Before the actual cancellation order was passed, the complaint as was filed by [ENTITY] was dismissed in default. [ENTITY] never filed any restoration application but a restoration application was filed by the District Government Counsel ([ACT]) on behalf of the State. The case proceeded when the restoration application of the [ACT] was allowed and the order of dismissal was recalled on 8.9.2005. The Additional Collector cancelled the pattas on 6.5.2006. The petitioners along with other pattedars filed a Revision which was allowed and the matter was remanded back to the Additional Collector and ultimately on 1.6.2011 the Additional Collector again cancelled the pattas. The Revision which was filed was also dismissed by order dated 23.3.2012. Hence the instant writ petition.
Learned counsel for the petitioners made the following submissions:
(I) When the complaint of [ENTITY] was disimissed in default on account of his non appearance on 22.2.2005 the District Government Counsel ([ACT]) on behalf of the State of U.P. could not have filed the restoration application and thus the restoration order dated 8.9.2005 could not have been passed.
(II) The petitioners have further submitted that when the allotments were made by the lease documents dated 27.10.1992, as per the provisions of [SECTION] an application for the cancellation of pattas could have been filed within 5 years only.
Learned counsel for the petitioners to bolster his submissions placed before this Court the judgment reported in [PRECEDENT] and submitted that the question of limitation is something which goes to the very root of the matter. He submitted, entertaining a case which was filed beyond limitation amounted to a jurisdictional error. The submissions of the petitioner are contained in paragraphs 30, 31 and 32 of the writ petition and so they are being reproduced here as under:
"30. That the order dated 8.9.2005 passed by the respondent no.4, the Additional Collector (F/R), Gautam Budh Nagar allowing the restoration application filed by the [ACT] (Revenue) in Case No. 14 of 2003-04 ([ENTITY] and others vs. Manoj and others) is manifestly illegal and without jurisdiction. Hence the same is liable to be quashed by this Hon'ble Court.
31. That the complaint under [SECTION] of the [ACT] was filed by the complainants [ENTITY] and others vide order dated 22.2.2005, the complaint filed by [ENTITY] and others was dismissed in default and therefore, only the complainants [ENTITY] and others alone had the right to file the recall. Consequently the recall/restoration application filed by the the [ACT] (Revenue) was not maintainable.
32. That even otherwise also, [SECTION] provides for the limitation for initiating the proceedings for cancellation of lease under [SECTION] of the [ACT]. In the case of a private complainant or suo-motu exercise, the period of limitation withn whcih such action can be taken is five years from the date of allotment. In the case in hand, the allotment was made in favour of the allottees including the petitioners on 4.7.91. Therefore, any proceedings in respect of cancellation of the allotment /lease could be taken only upto 4.7.96. Once the proceedings itself were time barred as they were filed in the year 2003-04, the restoration application filed in such a case was also not maintainable."
The reply as was given by the State to paragraphs 30, 31 and 32 of the writ petition is contained in paragraph-14 of the counter affidavit which is being reproduced here as under:
"That the contents of paragraph nos. 39, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49 and 50 of the writ petition are not admitted, hence denied. In reply thereto, it is submitted that in the impugned order dated 23.3.2012, the specific finding has been given by the Additional Collector concerned that all the allotment holders have their own agriculture land; therefore, they are not entitled for the said patta. The Revisional Court has also held in its order dated 1.6.2011 that the procedure has not been followed during the allotment and therefore, the Revisional Court has also rejected the Revision and affirmed the order passed by the Trial Court."
Paragraph-14 of the counter affidavit does not deny the allegation that the restoration application was wrongly filed by the District Government Counsel ([ACT]). The allegation that the complaint was filed beyond the period of limitation prescribed has also not been denied.
Learned counsel also submitted that the [ACT] is a beneficial legislation and has been legislated for a specific purpose, which is to bring relief to the tiller. A DGC on behalf of the State Government could not have filed the restoration application. He was also not a "person aggrieved" under [SECTION] of the Act of 1950. Therefore, a tiller cannot be deprived of his land after the expiry of the period of limitation as had been provided in the statute. No action therefore, could have been initiated and pattas could not have been cancelled after the period of limitation as was prescribed had lapsed. Learned counsel has submitted that the question of limitation is a plea of law which concerned the jurisdiction of a Court and so could be raised at any stage. To emphasise this proposition of law, learned counsel relied on [PRECEDENT]. Paragraphs 49-54 being relevant are being reproduced here as under:
"49. A Constitution Bench of five Judges of this Court in the case of [PRECEDENT], while dealing with the question of jurisdiction, observed that a plea of limitation or plea of res judicata is a plea of law which concerns the jurisdiction of the court which tries the proceeding. The Bench held:-
"10. The provisions of [SECTION] of the Code have been examined by judicial decisions on several occasions. While exercising its jurisdiction under [SECTION], it is not competent to the High Court to correct errors of fact however gross they may, or even errors of law, unless the said errors have relation to the jurisdiction of the court to try the dispute itself. As [SECTION] indicate, it is only in cases where the subordinate court has exercised a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with material irregularity that the revisional jurisdiction of the High Court can be properly invoked. It is conceivable that points of law may arise in proceedings instituted before subordinate courts which are related to questions of jurisdiction. It is well settled that a plea of limitation or a plea of res judicata is a plea of law which concerns the jurisdiction of the court which tries the proceedings. A finding on these pleas in favour of the party raising them would oust the jurisdiction of the court, and so, an erroneous decision on these pleas can be said to be concerned with questions of jurisdiction which fall within the purview of [SECTION] of the Code. But an erroneous decision on a question of law reached by the subordinate court which has no relation to questions of jurisdiction of that court, cannot be corrected by the High Court under [SECTION].
50. In [PRECEDENT], this Court, while considering the nature and scope of High Court's revisional jurisdiction in a case where a plea was raised that the application under [SECTION] was barred by limitation, held that a plea of limitation concerns the jurisdiction of the court which tries a proceeding for a finding on this plea in favour of the party raising it would oust the jurisdiction of the court.
51. In [PRECEDENT], this Court considering the similar question under the [ACT] held as under:- (SCC p.463, para 17) "17. In the larger sense, any refusal to go into the merits of a claim may be in the realm of jurisdiction. Even the dismissal of the claim as barred by limitation may in a sense touch on the jurisdiction of the court or tribunal. When a claim is dismissed on the ground of it being barred by limitation, it will be, in a sense, a case of the court or tribunal refusing to exercise jurisdiction to go into the merits of the claim. In [PRECEDENT] this Court observed that: (AIR p. 155, para 10) "10 It is well settled that a plea of limitation or a plea of res judicata is a plea of law which concerns the jurisdiction of the court which tries the proceedings. A finding on these pleas in favour of the party raising them would oust the jurisdiction of the court, and so, an erroneous decision on these pleas can be said to be concerned with questions of jurisdiction which fall within the purview of [SECTION] of the Code."
52. In [PRECEDENT], a three Judges Bench of this Court while deciding the question of jurisdiction of the Court under the [ACT] observed:- (AIR p. 828, para 15) "15. From the above discussion it is clear that before a Court can be held to have jurisdiction to decide a particular matter it must not only have jurisdiction to try the suit brought but must also have the authority to pass the orders sought for. It is not sufficient that it has some jurisdiction in relation to the subject-matter of the suit. Its jurisdiction must include the power to hear and decide the questions at issue, the authority to hear and decide the particular controversy that has arisen between the parties."
53. In the case of [PRECEDENT], a similar question came before a three Judges Bench of this Court under the [ACT], when this Court opined as under:-(SCC p.74, para 69) "69. The question of limitation involves a question of jurisdiction. The finding of fact on the question of jurisdiction would be a jurisdictional fact. Such a jurisdictional question is to be determined having regard to both fact and law involved therein. The Tribunal, in our opinion, committed a manifest error in not determining the said question, particularly, when in the absence of any finding of fact that such short-levy of excise duty related to any positive act on the part of the appellant by way of fraud, collusion, wilful misstatement or suppression of facts, the extended period of limitation could not have been invoked and in that view of the matter no show-cause notice in terms of [SECTION] could have been issued."
54. In the case of [PRECEDENT], the matter came to this Court when the trial court dismissed the suit on issues other than the issue of limitation. The Bench held:-
"23. The reasoning behind the said proposition is that certain questions relating to the jurisdiction of a court, including limitation, goes to the very root of the court's jurisdiction to entertain and decide a matter, as otherwise, the decision rendered without jurisdiction will be a nullity. However, we are not required to elaborate on the said proposition, inasmuch as in the instant case such a plea had been raised and decided by the trial court but was not reversed by the first appellate court or the High Court while reversing the decision of the trial court on the issues framed in the suit. We, therefore, have no hesitation in setting aside the judgment and decree of the High Court and to remand the suit to the first appellate court to decide the limited question as to whether the suit was barred by limitation as found by the trial court. Needless to say, if the suit is found to be so barred, the appeal is to be dismissed. If the suit is not found to be time-barred, the decision of the first appellate court on the other issues shall not be disturbed."
To support his submission that a question of jurisdiction could be raised at any point of time during the continuation of a case, learned counsel specifically relied on paragraph-22 from a decision reported in [PRECEDENT] ([PRECEDENT]).
"22. There can be no dispute regarding the settled legal proposition that conferment of jurisdiction is a legislative function and it can neither be conferred with the consent of the parties nor by a superior court, and if the court passes order/decree having no jurisdiction over the matter, it would amount to a nullity as the matter goes to the roots of the cause. Such an issue can be raised at any belated stage of the proceedings including in appeal or execution. The finding of a court or tribunal becomes irrelevant and unenforceable/inexecutable once the forum is found to have no jurisdiction. Acquiescence of a party equally should not be permitted to defeat the legislative animation. The court cannot derive jurisdiction apart from the statute. ([PRECEDENT], [PRECEDENT], [PRECEDENT], [PRECEDENT], [PRECEDENT], [PRECEDENT], [PRECEDENT], [PRECEDENT], [PRECEDENT] and [PRECEDENT] Flock (India) (P) Ltd."
Learned Standing Counsel however, in reply has submitted that since initially pattas were granted illegally the same cannot be restored to the petitioners. Technical pleas of limitation could not be resorted to, specially when they were not raised at the appropriate stages.
Having heard the learned counsel for the parties, I am of the view that the orders dated 1.6.2011 and 23.3.2012 cannot be sustained and are to be quashed.
The pattas were executed in the year 1992. Under [SECTION] of the [ACT], the complaint which was filed in the year 2003-04 was barred by limitation by almost six years.
Further, I hold that since the question of limitation goes to the very root of the matter, even though it was not agitated before the courts below, it can definitely be raised here in this Court. [SECTION] of the [ACT] would also be relvant. The same is being reproduced here as under:
"[SECTION] Subject to the provisions contained in [SECTION], every suit instituted, appeal preferred, and application made after the prescribed period shall be dismissed, although limitation has not been set up as a defence.
(2) For the purpose of this Act, -
(a) A suit is instituted, -
(i) in an ordinary case, when the plaint is presented to the proper officer;
(ii) in the case of pauper, when his application for leave to sue as a pauper is made; and
(iii) in the case of a claim against a company which is being wound up by the Court, when the claimant first sends in his claim to the official liquidator;
(b) any claim by way of a set off or a counter-claim, shall be treated as a separate suit and shall be deemed to have been instituted -
(i) in the case of a set off, on the same date as the suit in which the set off is pleaded;
(ii) in the case of a counter-claim, on the date on which the counter-claim is made in Court;
(c) an application by notice of motion in a High Court is made when the application is presented to the proper officer of that Court"
The question of limitation had to be therefore looked into by the Court even if he dendant /opposite party had not raised it.
Further, after the application which was filed by [ENTITY] was dismissed for non prosecution then he alone could have filed the application for restoration. State was a party whose actions were being adjudicated upon in the complaint which was filed by [ENTITY]. It could not therefore, have supported the restoration application of [ENTITY].
The writ petition is, therefore, allowed. The orders dated 1.6.2011 and 23.3.2012 are quashed.
It is made clear that this relief would be confined to the petitioners who had filed the instant writ petition.
Order Date :- 6.3.2018 [ENTITY].
Case :- WRIT - C No. - 1192 of 2013 Petitioner :- [ENTITY] And Others Respondent :- [ENTITY] And Others Counsel for Petitioner :- [ENTITY],[ENTITY],[ENTITY] Counsel for Respondent :- [ENTITY],[ENTITY] Hon'ble [ENTITY],J.
Civil Misc. Substitution Application No.27147 of 2017 The application for substitution is allowed.
Office to make necessary correction in the array of parties.
Order Date :- 6.3.2018 [ENTITY].