IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.6092 of 2003 1. 108 SHRI SITARAMJI, 2. 108 Shri Hanumanji, 3. 108 Shri Mahadeoji through Mahanth Shatyeshwara Nand Jyoti Chela late Mahanth Harihara Nand Jyoti, R/o Bhataura Math, P.S. Hathouri, District – Samastipur ……………….. Petitioners Versus 1. THE STATE OF BIHAR, 2. The Settlement Officer, Samastipur, 3. The Assistant Settlement Officer, Rosara, District Samastipur, 4. Shri Keshwar Mandal, 5. Shri Raghubar Mandal, and 6. Shri Mushan Mandal, All sons of Chaitu Mandal, R/o Village Bhataura, P.S. Hathouri, District – Samastipur ….. Respondents. ----------- For the Petitioners:- Ms. M. Chatterjee, Advocate. For the State:- Mr. Braj Kishore Pd. Sinha, G.P. III. For the Respondents 4 to 6:- Mr. Rajendra Kumar Jain and Mr. Achuta Nand Sinha, Advocates. ----------- 7. 14.09.2009. The petitioners seek quashing of the order dated 07.02.2002 passed by the Assistant Survey Settlement Officer in Suit No. 158/98 filed under Section 106 of the Bihar Tenancy Act, 1885 (hereinafter referred to as `the Act’), whereby he had condoned the delay of about 14 years in fling of the aforesaid suit as well as the order dated 25.05.2003, whereby he had dismissed the petition dated 28.12.2002 filed by the petitioners for recall of the earlier order dated 07.02.2002. Heard learned counsels for the petitioners, the State and the respondents no. 4 to 6. 2 It has been submitted on behalf of the petitioners that after 14 years of final publication of record of rights, Suit No. 158/98 was filed by the respondents no. 4 to 6 under Section 106 of the Act. After about 4 years of filing of the aforesaid suit, a petition under Section 5 of the Limitation Act for condonation of delay in filing the suit had been filed by the aforesaid respondents. A copy of the aforesaid limitation petition has been annexed by the petitioners to this writ application as Annexure-5. It has been urged that from perusal of Annexure-5, it would be manifest that no ground for condoning the delay had been disclosed therein except a bare statement that the respondents did not have knowledge of the distribution of khatiyan. Learned counsel submitted that the aforesaid cryptic limitation petition had been allowed by the impugned order dated 07.02.2002 without disclosing any reason for such condonation of delay. The said order has been passed by the Respondent no. 3, Assistant Settlement Officer, Rosera, as would be apparent from the order itself, considering the same to be a case under Section 6 of the Limitation Act. It is 3 contended that even after about 4 years of fling of the concerned suit, the Respondent No. 3 had condoned the delay behind the back of the petitioners without issuing notice on the point of limitation. Further contention was that a bare perusal of Annexure-5 would also disclose that no case had been made out by the concerned respondents bringing the same into the ambit of Section 6 of the Limitation Act. By the aforesaid order, the suit was also admitted and summons were issued upon the petitioners. The petitioners appeared in response to the summons of the authority concerned and filed a petition dated 28.12.2002 for recall of the earlier order whereby the delay had been condoned and to declare that the suit was not competent to proceed as the same was hopelessly time barred. Learned counsel raised a question of law by making a submission that the authority under the Act being the creature of the statute can derive only such power which has actually been conferred upon them by the various provisions thereof. Learned counsel drew attention of this Court towards Section 106 of the Act. According to such provision, a suit may be instituted before a revenue officer within 4 three months from the date of certificate of final publication of record of rights under sub-section (2) of Section 103A of the Act. It is contended that the suit was filed after about 14 years sand the authority under the Act was not competent to condone the delay. It was also urged that the provisions of Limitation Act, 1963 would neither be attracted nor be applicable in such cases. In support of her submissions learned counsel for the petitioners placed reliance upon a decision of this Court rendered in Kanti Kumari @ Manju Singh Vs. The State of Bihar & Ors., [1998 (3) PLJR 490]. It is submitted that in almost identical matter where delay of 12 years in filing of suit was condoned by the authority and objection filed by the recorded land holder was rejected, it had been held by this Court in the aforesaid case that the suit preferred beyond the period of limitation would not be maintainable as being time barred and the authority had no jurisdiction to condone the delay in the absence of any pleading entitling a benefit under Section 6 of the Limitation Act. In this case also, it is contended, delay 5 has been condoned under Section 6 of the Limitation Act but no ground could be made out in the petition to show that the same is covered by Section 6 of the Limitation Act, 1963. Section 6 of the Limitation Act, 1963 is quoted as under:- “6. Legal disability.- (1) Where a person entitled to institute a suit or make an application for the execution of a decree is, at the time from which the prescribed period is to be reckoned, a minor or insane, or an idiot, he may institute the suit or make the application within the same period after the disability has ceased, as would otherwise have been allowed from the time specified therfor in the third column of the Schedule. (2) Where such person is, at the time from which the prescribed period is to be reckoned, affected by two such disabilities, or where, before his disability has ceased, he is affected by another disability, he may institute the suit or make the application within the same period after both disabilities have ceased, as would otherwise have been allowed from the time so specified. (3) Where the disability continues up to the death of that person, his legal representative may institute the suit or make the application 6 within the same period after the death, as would otherwise have been allowed from the time so specified. (4) Where the legal representative referred to in sub-section (3) is, at the date of the death of the person whom he represents, affected by any such disability, the rules contained in sub-sections (1) and (2) shall apply. (5) Where a person under disability dies after the disability ceases but within the period allowed to him under this section, his legal representative may institute the suit or make the application within the same period after the death, as would otherwise have been available to that person had he not died. Explanation.- For the purposes of this section, `minor’ includes a child in the womb.” The petition for condonation of delay was filed under Section 5 of the Limitation Act, which refers for extension of prescribed period in certain cases in any appeal or any application. However, there is no provision thereunder to condone the delay in initiation of original suit. Section 5 of the Limitation Act is quoted as under:- “5. Extention of prescribed period in certain cases.- Any appeal or any 7 application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period, if the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period. Explanation.- The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.” The aforesaid order was passed without hearing the petitioners, thus, when a period for recall of that was filed, it is contended, the same should have been decided on its merit by the authority concerned. By order dated 22.05.2003, the aforesaid petition was dismissed only on the ground that the recall of the same was outside the purview of the authority concerned. It is finally submitted that a tribunal or a court may recall an order earlier made by it on certain grounds; one of them would be mistake by the court prejudicing a party and also if the judgment has been rendered in ignorance of 8 the fact that a necessary party had not been noticed or was not represented. In view of the aforesaid settled principle of law, it was urged, the authority concerned being a tribunal hearing a suit for correction of the revenue record of rights was competent to hear and decide and make a correction of its earlier order which, according to the petitioners, was erroneous one. Learned counsel for the respondents no. 4 to 6 had contended that the authority concerned was empowered to condone the delay in view of the provisions under the Limitation Act, it was submitted that if the concerned statute does not disclose any provision for condoning the delay in filing of such suit, whereas the period of limitation stands described in the statute itself, for valid reasons to be shown by the concerned party, the provisions of Section 29 of the Limitation Act would be attracted. As a result of which, a petition under Section 5 of the Limitation Act was maintainable. It has been urged that in a proceeding arising out of Section 16(3) of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961, (hereinafter referred to as `the Ceiling 9 Act’), the authorities held that there was no provision for condonation of delay in filing a pre-emption application before the Collector under the Act, that being an original suit. Previously, this stand was upheld by this Court also. However, subsequently, the Supreme Court in Krishna Kumar Choudhary Vs. Alliance Agro Industries (P) Ltd. & Ors., [1991 (1) PLJR SC 3] had held that the Collector under the Act while entertaining original pre-emption application under Section 16(3) of the Ceiling Act was competent to consider as to whether the delay in filing the proceedings should be condoned. In view of the above Learned counsel submitted that the same principle would apply in original cases being disposed of by the revenue authorities under the statutes. Thus, according to him, the authority (Respondent No. 3) was fully competent to condone the delay under Section 5 of the Limitation Act. However, he fairly conceded that no ground for condonation of delay under Section 6 of the Limitation Act, which is a special provision for condonation of delay with regard to mentally handicapped persons, had been made out by the respondents. Learned counsel also could not demonstrate 10 from the petition filed for condonation of delay, as contained in Annexure-5, that the date of knowledge of the proceedings as well as other ingredients, necessary for condoning the delay, had been described therein. It is an admitted position that the concerned suit had been filed after delay of 14 years and after about 4 years of filing of that suit, a period for condonation of delay had been filed by the respondents no. 4 to 6 and such petition was heard and the delay was condoned by the respondent no. 3 without hearing the petitioners or without issuing notices upon the petitioners. The order also is not a reasoned one disclosing the grounds upon which such a long period of delay had been condoned. By the same order, the suit was admitted and summons were issued. The petitioners appeared and filed a petition for recall of the aforesaid order but the same was dismissed on the ground that the authority was not competent to review or recall such order. The aforesaid order, in my opinion, is an erroneous order in view of the admitted position that earlier the delay was condoned without hearing the other 11 side which would definitely prejudice the other side and specially when a ground of lack of jurisdiction of the authority in condoning the delay was raised. It is by and now well settled that every tribunal or court which has passed any order has the power to recall the same on certain grounds. In this connection it would be apt to refer to a decision of the Apex Court rendered in Budhia Swain & Ors. Vs. Gopinath Deb & Ors., [(1999) 4 SCC 396]. The relevant passage from the aforesaid decision is quoted as under:- “8. In our opinion a tribunal or a court may recall an order earlier made by it if (i) the proceedings culminating into an order suffer from the inherent lack of jurisdiction and such lack of jurisdiction is patent, (ii) there exists fraud or collusion in obtaining the judgment, (iii) there has been a mistake of the court prejudicing a party, or (iv) x x x x x x x x x x x” In the present case, the order dated 07.02.2002 was admittedly passed without hearing the 12 other side or even issuing notices upon the point of condoning the delay and the same is also not a reasoned order. Since the suit had been filed after delay of about 14 years, the defendants / respondents to the suit would definitely be prejudiced from the aforesaid order. Thus, they had a right to demonstrate before the authority concerned that there was apparent mistake in the order or the authority lacked jurisdiction or it could have been urged that the defendants / respondents therein ought to have been heard. On the aforesaid grounds the revenue authority was competent to hear and recall the earlier order. In that view of the matter I deem it proper to set aside the order dated 22.05.2003 passed by the respondent no. 3 refusing to recall the order dated 07.02.2002 and remit back the matter to him to re- determine the issue afresh in accordance with law. The petitioners herein will have the liberty to raise all the grounds including ground of jurisdiction of authority in condoning the delay under Section 5 of the Limitation Act as well as the issues, which have been raised in this writ application. The authority concerned after hearing 13 the parties would pass an order in accordance with law. Accordingly, this writ application is allowed. dk ( Dr. Ravi Ranjan, J. )