SA/10/2007 1/45 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SECOND APPEAL No. 10 of 2007 For Approval and Signature: HONOURABLE MR.JUSTICE R.S.GARG ===================================================== 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ===================================================== STATE OF GUJARAT - Appellant(s) Versus GANGABEN POLABHAI - Defendant(s) ===================================================== Appearance : MR AY KOGJE, AGP for Appellant MR AJ PATEL with MR SR PATEL for Respondents: 1,1.2.3 None for Defendant(s) : 1.2.1,1.2.2 ===================================================== CORAM : HONOURABLE MR.JUSTICE R.S.GARG Date : 02/03/2007 ORAL JUDGMENT SA/10/2007 2/45 JUDGMENT 1. Shri A.Y.Kogje, learned AGP for the appellant; Shri A.J.Patel with Shri S.R. Patel, learned counsel for the respondents. The appeal is finally heard. 2. The short facts necessary for disposal of the present appeal are that one Pola Haja, [since deceased], applied to Mamlatdar under Section 37[2] of the Bombay Land Revenue Code [“BLR Code” or “Code” for the sake of brevity] on the ground that the actual measurement of the farm was less by 10 acres and 10 gunthas. He pleaded for declaration under Section 37[2] of the Code that the property belonged to him. The application came to be rejected by the Mamlatdar vide his order dated 3.6.81 in view of the findings that the land belonged to the government. The matter was thereafter taken to the Revenue Court which, vide its order dated 15.9.83 set aside the order of the Mamlatdar and remanded the case. It appears that in the meantime, powers which were earlier conferred SA/10/2007 3/45 JUDGMENT upon the Mamlatdar came to be given to the Deputy Collector. On 15.7.91, the Deputy collector, after reconsidering the entire material available on the record held in favour of the heirs of the deceased Pola Haja. The State did not challenge the said order passed by the Deputy collector, but the Collector took up the matter in suo motu revision being Land Revenue Application No. 5/91. On 27.4.94, the Collector set aside the order passed by the Deputy collector and rejected the claim made by Pola Haja [since deceased]. 3. Against the order passed by the Collector, heirs of Pola Haja filed an appeal before the Gujarat Revenue Tribunal, which by its order dated 3.1.95 set aside the order passed by the Collector and restored the order passed by the Deputy Collector. Copy of the said order was received by the department on 22.1.95. I am referring to these dates because at a later stage, it may assume importance. SA/10/2007 4/45 JUDGMENT 4. Instead of filing a suit within one year from the date of the said order or at best from the date of receipt of the copy of that order, i.e. on or before 19.1.96, the State probably realizing that they have lost limitation for filing the suit, filed Special Civil Application No. 6533 of 1996 on 15.4.96 in this Court. The said Special Civil Application came to be dismissed on 9/11.9.02. The State thereafter challenged the matter in Letters Patent Appeal No. 193/02, appeal was filed on 29.11.02 and was dismissed on 27.6.03. Still dissatisfied, the State took up the matter before the Apex Court by way of Special Leave Petition [Civil] No.1869 of 2004. However, the said Special Leave Petition came to be dismissed on 8.3.2004. 5. The State thereafter filed Civil Suit No.560 of 2004 in the court of the learned Civil Judge [Senior Division], Rajkot on 23.8.2004. They prayed that the orders passed by the authorities were illegal, the State was the owner of the property and the defendants/respondents have no SA/10/2007 5/45 JUDGMENT right, title or interest in the property. 6. After service of the notice, the defendants appeared and on 8.9.2004 filed an application under Order VII Rule 11 of the Code of Civil Procedure [“CPC” for short]. The objection raised was that as the suit was filed beyond one year and as the suit could not be entertained beyond one year by any Civil Court in view of the bar contained under sub-section[3] of Section 37 of the Code, the suit be held not maintainable. The application was contested by the State Government, but the learned Civil Judge [Senior Division], Rajkot allowed the application vide his order dated 25.11.2004 and rejected the plaint. Being aggrieved by the said order, the State preferred Regular Civil Appeal No. 25/05 but the same came to be dismissed on 9.5.06, therefore, the State has filed this appeal under Section 100 of the Code. 7. The appeal has been admitted for hearing the parties on 7.2.2007 on the following substantial SA/10/2007 6/45 JUDGMENT questions of law. [i] Whether on the facts and in the circumstances of the case, the plaintiff- State is entitled to take protection and benefit of Section 14 of the Indian Limitation Act, 1963 on the ground that after disposal of the revenue proceedings, they had filed Writ Application, Letters Patent Appeal and had gone to the Supreme Court, and the period spent in these proceedings deserve to be excluded from the limitation? [ii] Whether on the facts and in the circumstances of the case, the word 'appeal' used in sub-section[3] of Section 37 of the Bombay Land Revenue Code would include all other proceedings where the Court of competent jurisdiction is entitled to set aside the order passed by the Revenue Authorities and if yes, would limitation start from the date the Supreme Court dismissed the application for leave? 8. Shri A.Y. Kogje, learned AGP for the appellant submits that present is a case where an application under Order VII Rule 11[d] of the Code could not be maintained because question SA/10/2007 7/45 JUDGMENT of limitation cannot be taken to be a bar for entertainment of the suit. According to him, question of limitation would not make the suit barred under any other law but the Court, after trial of the suit may refuse to grant the reliefs. His further submission is that present is a case where the plaintiff-State would be entitled to benefits under Section 14 of the Indian Limitation Act, 1963 and present is a case where word “appeal” is to be understood to include any other forum which otherwise is competent to decide the order passed by the Tribunal or the revenue authority. His submission is that in any case, present was a case where the court should have cast an issue on question of limitation and then decided the matter. Placing reliance upon the judgment of the Supreme Court in the matter of Union of India v. Suresh J. Thanawala [AIR Supreme Court Weekly 2001 SC 4079], it is submitted that application filed under Rule 11 of Order VII of the CPC was not maintainable. He also submits that the State is ready and willing to SA/10/2007 8/45 JUDGMENT make some amendment in the pleadings. He prays that the dismissal be set aside and the matter be remanded to the trial court for disposal of the matter in accordance with law. 9. Shri A.J. Patel, learned counsel for the respondent placing reliance upon the Single Bench judgment of this Court, which I shall refer to later on, submits that Section 37 read with Section 204 of the Code is complete procedure and Code in itself and if Section 37 is not observed, then the suit cannot be entertained. Referring to the plaintiff’s application filed under Order VII Rule 11 of the CPC, it is submitted that in the present matter, the defendants did not raise the question of limitation, but in fact, they were raising the question of sub-section [3] of Section 37 - bar of suit beyond the period of limitation of one year, therefore, if the suit is filed after the expiry of one year, then such suit would be barred and if such suit is barred then, clause [d] of Rule 11 of Order VII SA/10/2007 9/45 JUDGMENT would apply with full force. He also submits that present is a case where special limitation is provided under the Indian Limitation Act. Therefore, in view of Section 29[2] of the Indian Limitation Act, the period prescribed under the common law would not be available. He submits that even under the common law, if the limitation is not set up as a defence and if the court finds that the suit is patently barred by limitation on the showing of the plaintiff himself, then the court would be obliged to dismiss the suit. His further submission is that present is a case where provisions of Section 14 of the Limitation Act would not apply, because, the plaintiff has failed to plead that it was prosecuting earlier litigation with due diligence in relation to same matter in issue, it was prosecuting in good faith in a court which from the defect of jurisdiction or other cause of like nature was unable to entertain it. His submission is that in the year 1960, this High Court made it clear that a suit is required to be filed within one SA/10/2007 10/45 JUDGMENT year and the starting point of limitation would be the date of dismissal of the appeal as required under Section 37[3] of the Code. According to him, if the law is settled in the year 1960 and was reiterated from time to time by the Single Judge Bench or Division Bench judgments of this Court, then, filing of the writ application before the High Court cannot be said to be prosecution of the proceedings in good faith or with due diligence. His further submission is that the matter was finally disposed of by the Tribunal on 3.1.95 and copy was received by the appellant on 20.1.95 and in this set of circumstances, the suit had to be filed on or before 19.1.96 i.e. before the expiry of one year, but the State Government, with able assistance of its officers etc., filed writ application on 15.4.96, that is, after the period for filing the suit was lost. He submits that neither there was diligence nor there was good faith. He also submits that the High Court in a single Bench or Division Bench in Letters Patent Appeal or the Supreme Court in its SA/10/2007 11/45 JUDGMENT appellate jurisdiction could otherwise grant relief in favour of the State, therefore, it cannot be held that the plaintiffs were prosecuting the matter in good faith before the Forum which had no jurisdiction to entertain it. He submits that even otherwise the plaintiff has not pleaded the cause or foundation on which it could claim benefit under the law. 10. Shri Kogje, learned AGP for the appellant submits that the judgment in the matter of Rukmanibai w/o. Kasturdas Dharamdas v. The State of Gujarat, [1960 GLR 179] has been overruled by the Supreme Court, therefore, the defendants would not be allowed to take shelter under the said judgment. 11. Shri Patel, learned counsel for the respondents submits that the judgment of the High Court was in two parts; one part related to Section 11 of the Bombay Revenue Jurisdiction Act, 1876 while the other part was in relation to Section 37[2] and Section 37[3] of the Code, according to him, SA/10/2007 12/45 JUDGMENT the Supreme Court only interfered in the matter on the ground that even before exhausting all the remedies as available under the law, a party would be entitled to file the Civil Suit for declaration of his title. His submission is that the findings relating to Section 37[3] have not been set aside by the Supreme Court. Be that as it may. At this stage, I must observe that once the judgment is held to be bad law for one part of the order by the Supreme Court, then even for another part of the judgment it would not be proper for the High Court to place reliance upon the said judgment. 12. Before I come to the arguments, I would prefer to refer to provisions of law which are subject matter of litigation before and interpretation by this Court time and again. Section 37 of the Bombay Land Revenue Code reads as under:- “37. All public roads, etc., and all lands which are not the property of others belong to the Government.- [1] All public roads, lanes and paths, the bridges, ditches, SA/10/2007 13/45 JUDGMENT dikes, and fences, on or beside, the same, the bed of the sea and of harbours and creeks below high water-mark, and of rivers, streams, nallas, lakes, and tanks, and all canals, and water-courses, and all standing and flowing water and all lands wherever situated, which are not the property of individuals, or of aggregates of persons legally capable of holding property, and except in so far as any rights of such persons may be established, in or over the same, and except as may be otherwise provided in any law for the time being in force are and are hereby declared to be, with all rights, in or over the same or appertaining thereto, the property of the Government, and it shall be lawful for the Collector subject to the orders of the State government, to dispose of them in such manner as he may deem fit, or as may be authorized by general rules sanctioned by the Government concerned, subject always to the rights of way, and all other rights of the public or of individuals legally subsisting. Explanation:- In this section “high water- mark” means the highest point reached by ordinary spring-tides at any seasons of the year. SA/10/2007 14/45 JUDGMENT [2] Where any property or any right in or over any properties is claimed by or on behalf of the Government or by any person as against the government, it shall be lawful for the Collector or a survey officer, after formal inquiry of which due notice has been given, to pass an order deciding the claim. [3] Any suit instituted in any civil Court after the expiration of one year from the date of any order passed under sub-section [1] or sub-section[2], or, if one or more appeals have been made against such order within the period of limitation, then from the date of any order passed by the final appellate authority, as determined according to section204, shall be dismissed [although limitation has not been set up pas a defence] if the suit is brought to set aside such order or if the relief claimed is inconsistent with such order, provided that in the case of an order under sub-section [2] the plaintiff has had due notice of such order. [4] Any person shall be deemed to have had due notice of an inquiry or order under this section if notice thereof has been given in accordance with rules made in this behalf by the State Government.” SA/10/2007 15/45 JUDGMENT From the perusal of sub-section [2], it would be clear that where any property or any right in or over any properties is claimed by or on behalf of the government or by any person as against the government, the Collector would have jurisdiction to pass an order and decide the claim of the party. Sub-section[3] in substance provides that a party aggrieved by the findings recorded by the Collector or a survey officer would be entitled to challenge the same in Civil Court within one year from the date of the order provided limitation would not start running if an appeal as provided under the law is filed by the aggrieved party and in such case, the limitation would start from the date of the disposal of the appeal. Section 204 of the Bombay Land Revenue Code reads as under:- ”204. Appeal when to lie to the State government.- Subject to the provision in the Bombay Revenue Tribunal Act, 1939 an appeal shall lie to the State Government from any decision or order passed by a Survey Commissioner, except in the case of SA/10/2007 16/45 JUDGMENT any decision or order passed by such officer on appeal from a decision or order itself recorded in appeal by any officer subordinate to him.” A fair understanding of sub-section [3] of Section 37 would make it clear that the limitation would start running from the date of the disposal of the appeal or from the date of any order passed by the final appellate authority [emphasis supplied]. Law does not say that the limitation would start running from the date of the order of an authority or the Court which under the law is entitled to set aside the order of Collector or is entitled to interfere with the order. When the law provides that the limitation would start running from the date of any order passed by the final appellate authority, then reading anything beyond what is provided under the law would mean adding wisdom to the law and adding some discretion, which, in fact, legislation did not reserve in favour of the aggrieved party. SA/10/2007 17/45 JUDGMENT 13. Section 37[3] further provides that suit is to be filed within one year and if the suit is not filed within the said period of one year, the same shall be dismissed although limitation has not been set up as a defence. The language employed in sub-section[3] is pari materia with the language employed in sub-section [3] of the Indian Limitation Act, 1963 when it provides that “although limitation has not been set up as a defence”. The law casts a duty upon the Judge or the appellate authority to dismiss the matter once it finds that the cause has been brought before the court or the Tribunal after the period of limitation. Once the limitation is provided under sub-section [3] of Section 37, then the limitation would rule the parties for all practical purposes. Section 29 of the Indian Limitation Act reads as under:- “29. Savings.--[1] Nothing in this Act shall affect section 25 of the Indian Contract Act, 1872 [9 of 1872]. [2] Where any special or local law SA/10/2007 18/45 JUDGMENT 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 purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in sections 4 to 24 [inclusive] shall apply only in so far as, and to the extend to which, they are not expressly excluded by such special or local law. [3] Save as otherwise provided in any law for the time being in force with respect to marriage and divorce, nothing in this Act shall apply to any suit or other proceeding under any such law. [4] Sections 25 and 26 and the definition of “easement” in section 2 shall not apply to cases arising in the territories to which the Indian Easements Act, 1882 [5 of 1882], may for the time being extend.” Section 29 of the Indian Limitation Act clearly provides that where any special or local law prescribes for any suit a period of limitation SA/10/2007 19/45 JUDGMENT different from the period prescribed by the Schedule, the provisions of Section 3 thereof shall apply as if such period were period prescribed by the Schedule. In the present case, in light of Section 29 of the Indian Limitation Act, the limitation even for declaration would stand reduced to one year and the running point/starting point of the limitation would be the date of the order of the final appellate authority. When Section 37[3] of the Code itself provides that if the suit is not brought within one year, then the same shall be dismissed although the limitation has not been set up as a defence, then the provisions contained in special law shall supersede general/common law and in case the suit is filed beyond the period of one year, then such suit would be barred under Section 37[3] of the Code. Order VII Rule 11[d] of the CPC provides that the plaint shall be rejected in a case where the suit appears from the statement in the plaint to be barred by any law. In the present matter, on the plaintiff’s own showing, it would clearly appear SA/10/2007 20/45 JUDGMENT that the suit was filed beyond the period of one year from the date of the order passed by the final appellate authority. If such are the statements and such are the pleadings of the parties and the facts are undisputed, then there was no bar against the court in taking up the application filed under Order VII Rule 11[d] of the CPC to consider the question whether the suit appeared to be barred by any law in view of the statements made in the plaint. 14. Shri Kogje, learned AGP, placing reliance upon the judgment of the Supreme Court in the matter of Union of India v.West Coast Paper Mills Ltd. [AIR 2004 SC 3079] submits that a fair understanding of Section 14 of the Limitation Act would make it clear that where the period is spent in bona fide litigation, the period so spent should be excluded from the period of limitation. 15. In the said matter, some freight was charged by Railway, but later on, it was declared to be SA/10/2007 21/45 JUDGMENT invalid by the Supreme Court. The plaintiff thereafter filed writ application before the High Court seeking refund of excess freight. The High Court refused to grant mandatory relief in the writ jurisdiction and thereafter, the plaintiff filed suit for recovery of money. In the said set of the facts, the Supreme Court observed that the time spent in such proceedings deserves to be counted out, that is, it is required to be excluded from the period of limitation. For the said purpose, Shri Kogje has also relied upon yet another judgment of the Supreme Court in the matter of Union of India v. West Coast Paper Mills Ltd.[AIR 2004 SC 1596]. In the said matter also, the Supreme Court on the facts observed that if a person was contesting the litigation bona fide, then such period can be excluded in view of Section 14 of the Indian Limitation Act. 16. He also places his reliance upon the judgment of the Supreme Court in the matter of Union of India v.Suresh J. Thanawala [AIR Supreme Court SA/10/2007 22/45 JUDGMENT Weekly 2001 SC 4079], to submit that present is a case where the matter should be remanded back giving appropriate opportunity to the State Government to bring up necessary pleadings and amend the plaint. 17. Shri Patel, learned counsel for the respondents submits that a fair understanding of Section 14 of the Indian Limitation Act would clearly provide that the requirement of Section 14 is not only to be argued but is to be pleaded and, unless the requirement is pleaded and there are full pleadings, a party cannot be allowed to lead evidence or rely upon a provision of law without factual foundation. According to him, in a case where a party seeks benefit under Section 14 of the Indian Limitation Act, it has to plead that the plaintiff was prosecuting with due diligence some other civil proceedings whether in a court of first instance or appeal or revision and he was prosecuting the proceedings in good faith in a court which from the defect of jurisdiction SA/10/2007 23/45 JUDGMENT or other cause of like nature was unable to entertain it. 18. After going through the pleadings of the parties, I must immediately agree with Mr. Patel that the State Government has not made proper submissions nor had raised proper pleadings on