37. In Raleigh Investment Co., Ltd. v. Governor-General-in-Council, 1947-2 Mad LJ 16 : AIR 1947 PC 78 the question arose as to what was the meaning of the phrase "assessment made under the Act" and their Lordships of the Privy Council observed as follows: (at page 19 of Mad LJ): (at p. 81 of AIR):
 ... The obvious meaning and in their Lordships' opinion the correct meaning of the phrase 'assessment made under the Act' is an assessment finding its origin in an activity of the assessing officer acting as such. The circumstance that the assessing officer has taken into account an ultra vires provision of the Act is in this view immaterial in determining whether the assessment is 'made under the Act'. The phrase describes the provenance of the assessment; it does not relate to its accuracy in point of law. The use of the machinery provided by the Act, not the result of that use is the test.

38. Rule 32 provides that tobacco is not to toe transported except under a permit issued by a competent officer. Beyond doubt, the permits are issued by A-1 using the machinery of the Act.

Consequently, the act done by him in issuing the permits comes clearly under the category of a thing- done under Act 1 of 1944.

39. So far as A-1 is concerned, the only act which is proved against him is the issuing of the permits. For the purpose of holding that A-1 entered into a conspiracy with A-2 and abetted cheating, the trial Court has relied on certain facts other than the fact of A-1 issuing the permits. They are as follows:
1. That P. W. 7 did not transport any tobacco under Exs. P-2 to P-5.


Public Prosecutor vs Abdul Hameed Khan And Ors. on 20 September, 1960

2. That A-2 utilised these Exs. P-2 to P-5 as parent permits for obtaining subsidiary permits in transporting the non-duty-paid tobacco from Rajampct to Madias as if it was duty-paid tobacco and thereby defrauded the Government of its revenue.

3. That A-2 induced the Madras merchants P. Ws. 13, 15 and 16 to receive the tobacco and deal with it by an implied representation that it was duty-paid tobacco and thereby cheated those Madras merchants.

These various acts were not proved by direct evidence to be connected with A-1. If A-1 had really been guilty in getting these various acts (other than issue of permits) committed, then they would not have been committed by him in his official capacity. In this respect, whether he was guilty of such conspiracy and liable for the offence depends on the evidence. The trial Court has also observed in para 27 of its judgment, as follows:
 There is no evidence to show that A-1 and A-2 met at any time or corresponded with each other. But the circumstances of, the case are that a safe conclusion as to the association between A-1 and A-2 could be drawn and that a conspiracy existed between A-1 and A-2.

I agree with the lower appellate Court that this conclusion from the circumstances of the case is not justified or correct. In effect the only act o£ A-1 which is proved was committed by him in his official capacity and there is no act proved against him which was or could have been committed by him in any capacity other than official, which could show that he had the object of cheating the Madras merchants.

40. As regards charge 2 also, the only act which has been proved against A-1 is the issue of the permits which was certainly done in the discharge of his official duties.


41. In effect, the additional elements which are necessary to prove the second object of the conspiracy and the abetment of cheating under Charge No. 3 as regards A-1, have not been proved. I have already pointed out that as regards the first object of the conspiracy, Section 40 (2) applies. On these findings alone, it was obvious that the charges 1 and 3 as against A-1 are not proved. Strictly speaking, it is not necessary to go into the facts on merits to find out whether it is proved that the subsidiary permits issued by A-1 are all false permits. All the same, I am going into that question and considering the largo volume of facts with reference to elaborate arguments adduced before me. Case regards Accused 2:-
42. It is contended on behalf of A-2 that he Is also entitled to the benefit of Section 40 (2) of the Act, Reliance is sought to be placed on Rule 207 of the Act which runs:
 A charge of an offence under Section 9 of the Act shall not be made except by an officer not inferior in rank to an Inspector and every such complaint shall be preferred within six months after the 'commission of the offence to which it refers.

It is argued that the prosecution is not for an offence under Section 9 of Act I of 1944. Section 9 of that act runs thus:-
Whoever commits any of the following offences viz.

              X                  X                   X

(b) evades the payment of any duty payable under this Act;
              X                  X                   X


(d) attempts to commit, or abets the commission of any of the offences mentioned in clauses (a) and (b) of this section; Shall, for every such offence be punishable with imprisonment, for a term which may extend to six months, or with fine which may extend to two thousand rupees, or with both." The first object of the conspiracy as stated in Charge No. 1 viz., of depriving the Central Government of its legitimate revenue, substantially amounts to an offence under Section 9 (b) viz., evasion of payment of duty payable by A-2 and an object to commit an offence under Section 9 (d) by A-1 and abetment by A-1 of the commission of an offence by A-2 under Section 9 (b).


43. The learned Public Prosecutor contends that Rule 207 is meant only for the protection of a public servant who is an excise officer and that it does not apply to the case of a private merchant like A-2. This contention is not tenable in view of the fact that Rule 207 clearly contemplates an offence under Section 9 of the Act and evasion of payment of duty under Section 9 (b) of the Act can be done only by non-public servant like A-2 and can only be abetted by a public servant like A-1. The contention of the learned advocate for A-2 is that as the complaint is not preferred within the time prescribed tinder Rule 207, A-2 cannot be lawfully prosecuted under Section 9 (b) for defrauding Central Government of its revenue and A-1 cannot be charged for abetting. Section 107 I. P. C, defines 'abetting' as follows:
A person abets the doing of a thing who--
 X X X Secondly -- Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that, conspiracy, and in order to the doing of that thing.


Consequently, if A-1 had conspired with A-2 with the object of defrauding the Government of its duty under Section 9 (b) then A-1 would have committed an offence under Section 9 (d) by abetting the offence under Section 9 (b). The case of the prosecution under Charge No. 1 is substantially that A-2 was abetted by A-1 in commission of the offence under Section 9 (b) by A-1 issuing the permits. If the alleged facts in the prosecution evidence were true, a completed offence under Section 9 (b) would have been committed. When; A-2 cannot be charged of such a completed offence under Section,9 (b) because of the protection under Rule 207, it does not appear to be legally tenable" to hold that he (A-2) can be .charged for an offence under Section 120-B I. P, C. with the object of committing an offence under Section 9 (b) of the Act after the period mentioned in Rule 207. Therefore, the charge under Section 120-B I.P.C. is not tenable so far as the first object in conspiracy is concerned as the complaint was not preferred within time. But, so far as the second object in the conspiracy in charge No. 1 is concerned, Rule 207 does not apply and the prosecution is not barred by Section 40 (2) of the-Act. Similarly, charges 2 and 3 are also not barred because they involve certain acts which are not things done under the Act and need not be done by A-2 in his official capacity. I find accordingly on the preliminary objection.

(His Lordship proceeded to discuss the evidence and then dismissed all the appeals on merits).


Maddela Narsimlu And Others vs The Special Deputy Collector, ... on 12 September, 1990

ORDER


1. These writ petitions have been referred to a Full Bench on the ground that the main point arising therein is the same as the case in W.A.No. 144/1986. The point raised in W.A.No. 144/1986 is regarding the point of time from which limitation for reference u/S. 18 of the Land Acquisition Act, 1894 (hereinafter referred to as the Act) would commence. The said Writ Appeal could not be heard by us for other reasons. But inasmuch as the same point is involved here, we propose to decide the same in W.P. No. 13203/1985. So far as W.P. Nos. 11940, 11764 and 11938 of 1985 are concerned, we shall deal with them separately, at the end of this judgment. We shall first refer to the facts in W.P. No. 13203/1985 initially.


2. In W.P. No. 13203/85, the relief claim-ed is for the issue of a writ of Mandamus directing the respondent (the Special Deputy Collector, Land Acquisition, Unit I, Sriram-sagar Project) to refer to the civil court u/S. 18 of the Act the matter in respect of the compensation in respect of Ac.50-00 of land covered by the single Award No. 10/1976-77 dated 9-12-1976. The writ petition in filed of 18-11-1985 by 75 petitioners. It is alleged that the petitioners are owners of Ac.60-00 of land in Komatpally village, Nandipet Mandal, Armoor Taluk, Nizamabad District and the entire land is submerged in the Sriramsagar Project. It is stated that a meagre compensation of Rs. 2,66,215-44 was awarded in the Award No. 10/76-77 on 9-12-1976, It is further stated that the petitioners are 'not aware' as to the date of the award inasmuch as 'no notice what-so-ever' was given of the fact of the award being passed. Reliance is placed on S. 12(2) to say that there is a statutory obligation imposed on the Collector under S. 12(2) and the said obligation not having been discharged, limitation has not started under the proviso to S. 18(2) of the Act. It is alleged that as the notice u/S. 12(2) was not served, the petitioners were not in a position to submit any application for reference. Reliance is placed on a Division Bench judgment in Spl. Deputy Collector, Land Acquisition v. L. Sai Reddy, . In that case is was held that the Land Acquisition Officer is bound to issue and


Reddy, . In that case is was held that the Land Acquisition Officer is bound to issue and 'send a copy of the award' to the claimants and if such a copy is not sent, the limitation under proviso to S. 18(2) of the Act would not commence. It is stated that the petitioners 'have made several requests' to the respondent to refer the matter to the Civil Court u/S. 18 but that the respondent has not made any reference and has not given any reply to the 'requests' of the petitioners. It is further alleged that when some other villagers sought a reference, the Land Acquisition Officer made a reference and then the Addl. District Judge, Nizamabad enhanced the compensation in O.P. No. 2935 of 1981 and batch on 16-12-1983. It is therefore prayed that a writ of, Mandamus be issued to the respondent to make a reference.


3. A counter-affidavit is filed by the Special Deputy Collector, stating that the writ petition filed for a reference 8 years after the award is belated. It is pointed out that among the writ petitioners, only a few were the claimants and the award does not show the names of the other petitioners. Such of those who filed claims before the Land Acquisition Officer were 'served' with notice of award under S. 12(2) in accordance with the rules prescribed under the Land Acquisition Act and their signatures or thumb impressions were obtained. It is also stated that the said claimants received the compensation, 'without any protest' and the statutory requirement is fulfilled. It is always open to the party aggrieved, either to apply for the copy of the award or peruse the same. The notice of award under S. 12(2), it is stated, does not contempiate the service of the copy of the award itself. The notices served in the case give the details of the award i.e., S. No. and sub-division, extent, amount awarded and the names of the persons for whom the award is made. The allegation that the claimants applied for reference is not correct and there were no reminders. The total land covered by the award is Ac.91-11 guntas and the cases of the petitioners 67 to 75 have been referred under S. 31 to the Civil Court. It is not correct to say that the petitioners are not aware of the award. The petitioners have admitted in para 3 of the writ petition that they did not seek any reference under S. 18. The cases of such of the claimants who filed protest petitions in time have been referred and not the cases of others. Names of petitioners 4,5,7,8,32,35,36 to 38 and 59 are not found in the award. The writ petition is therefore


to 38 and 59 are not found in the award. The writ petition is therefore liable to be dismissed.


4. At the hearing of the case, the learned Advocate General has produced the record and it is noticed that not all the writ petitioners are claimants in the award and in respect of those who figured as claimants, notice of award under S. 12(2) in Form 9 (as shown in the Land Acquisition Manual containing the Revenue Board's proceedings) was served on the claimants giving details of Award Number, S. No. or Sub-Division, Extent, Amount and Name of claimant and the thumb impression of the claimant obtained. No protest is recorded therein. The notice requests the claimants to receive the compensation before a particular date and there is no proof of protest by any of the claimants now in the writ petition at any point of time. Admittedly, no application is made by any of the petitioners seeking a reference under S. 18 of the Act. The reason given namely, that no notice under Form 9 was served on the claimants cannot in our opinion, be accepted in view of the above material. We accordingly hold that notice in Form 9 was served on the claimants. These are our findings of fact, based on the record of the case.


5. It is, however, argued for the petitioners that in view of the judgment of the Division Bench of this Court in Spl. Deputy Collector v. L. Sai Reddy , it cannot be said that service of Form 9 notice and payment of compensation to the claimants, even if it be without protest, is not sufficient for purposes of S. 12(2) and that unless the award or other essentials viz., the reasons contained in the award, are served on the claimants, limitation under the proviso to S. 18(2) does not commence. As the limitation has not commenced, there can be no objection, it is argued, for directing the respondent to refer the matter under S. 18(1). The notice in Form 9, even if it is to be treated as served on claimants, is ineffective as neither the award nor the the reasoning part of the award has been communicated to the claimants as required by the decision in Spl. Deputy Collector v. L. Sai Reddy.


6. On the other hand, it is argued by the learned Advocate General that Form 9, even though it is not made under the rule-making authority of the Government, still it gives the Award No., S. No. or Sub-division, extent amount awarded and name of claimant and these are the main essentials of the Award. The reasoning part of the Award or the Award is not required to be served even though it is so held in Spl. Deputy Collector v. L. Sai Reddy . The notice in Form 9 being sufficient notice under S. 12(2), the compensation having been received by the claimants as per the receipts containing their thumb impressions and there being no protest at any time, no applications for reference under S. 18(1) can be made and in fact, no applications were filed nor reminders given. The limitation period prescribed in proviso to S. 18(2) has expired long back and no mandamus can be issued straightway to the respondent without any application for reference being filed at any time -- whether within the prescribed time ot even later and there is no question of extending the time.
 7. On the basis of the above contentions and findings arrived at by us, the following point arises for consideration :
 "Point Whether for purposes of notice of award under S. 12(2) of the Land Acquisition Act, 1894 it is necessary to serve a copy of the Award or the reasoning part of the Award on the persons interested and whether the service of notice in Form 9 (containing the Award number, S.No. or Sub-division, extent, amount awarded and names of persons for whom the award is made) can be held to be sufficent compliance of S. 12(2) so that the limitation prescribed in the proviso to S. 18(2) can start to run?


8. We shall initially refer to the statutory provisions. Section 18 of the Central Act dealing with 'Reference to court' reads as follows :
 "S. 18. Reference to Court:-- (1) Any person interested who has not accepted the award may, by written application to the Collector, require that the matter be referred by the Collector for the determination of the Court, whether his objection be to the measurement of the land, the amount of the compensation, the persons to whom it is payable, or the apportionment of the compensation among the persons-interested.
(2) The application shall state the grounds on which objection to the award is taken :
 Provided that every such application shall be made,


(a) if the person making it was present or represented before the Collector at the time when he made his award, within six weeks from the date of the Collector's award;
 (b) in other cases, within six weeks of the receipt of the notice from the Collector under Section 12, sub-section (2), or within six months from the date of the Collector's Award, whichever period shall first expire."
 9. However, the Andhra Pradesh Legislature passed A. P. Act XX of 1959 by which, for clause (b) of proviso to sub-section (2), the following clause is substituted :--
 "(b) in other cases within two months from the date of service of the notice from the Collector under Section 12 sub-section (2)."
 10. It will be noticed therefore that under the Central Act, the application for reference can be made 'within six weeks from the date of the Collector's award' under clause (a). It can also be made under clause (b) within (i) six weeks of the receipt of notice from the Collector under S. 12, sub-section (2) or (ii) within six months from the date of the Collector's award, whichever period shall first expire. But under the Act, as amended in Andhra Pradesh in the first part of the proviso (b) to S. 18(2), the period is 'two months' rather than 'six weeks' and so far as the second part of the proviso (b) to S. 18(2) is concerned, the same is altogether dropped. In effect, therefore, the words 'within six months from the date of the award, whichever period shall first expire do not exist in the State of Andhra Pradesh. The proviso to S. 18(2) therefore reads in A. P. as follows :


"S. 18(2):
 Provided that every application shall be made


(a) if the person making it was present or represented before the Collector at the time when he made his award, within six weeks from the date of the Collector's award,


(b) in other cases, within two months from the date of service of the notice from the Collector under Section 12, sub-section (2)."
 11. We are here not concerned with the case of a person who was present or was represented before the Collector at the time when the latter made an award. Therefore we are not concerned with clause (a) of the proviso. We are concerned with clause (b) of the proviso as existing in Andhra Pradesh and this corresponds to the first part of sub-clause (b) of the proviso of the Central Act. As the above said sub-clause (b) of the proviso to S. 18(2) uses the words "from the date of service of the notice from the Collector" under S. 12(2), it becomes necessary to refer to Section 12(2) of the Act. Section 12(2) reads as follows :
 "S. 12(2) : The Collector shall give immediate notice of award to such of the persons interested as are not present personally or by their representatives when the award is made."


12. The crucial question therefore is what is meant by the words 'notice of award'. As already stated according to the decision in Spl. Deputy Collector, L.A. v. L. Sai Reddy the Division Bench of this Court took the view that the notice of award in S. 12(2) meant the service of a notice along with a copy of the award. It was observed therein that for the purpose of seeking a reference the person interested "must know on what grounds his claim for a higher amount of compensation has been rejected. He must also know whether the Collector has determined the compensation with reference to the date of notification. If there is a dispute as to the apportionment, on what grounds his claim has been rejected or accepted only in part, as the case may be, should be made known to the claimant." It was further held that "without knowing the basis on which the lesser amount is awarded, he would not be in a position to seek a reference. The law would not expect the claimant to seek a reference in every case irrespective of whether the amount awarded is reasonable or not." Finally the Division Bench held (para 4)-
"The Legislature in incorporating sub-section (2) of S. 12 could not have intended only the substance of the award to be intimated to the claimants. In our view the expression 'notice of award' occurring in sub-section (2) of S. 12 clearly postulates that the award as such should have been communicted to the claimants".
 The Division Bench then referred to the observations of the Supreme Court in State of Punjab v. Qaisar Jehan Begum, , which in its turn followed the decision of the Supreme Court in Harish Chandra v. Deputy L.A. Officer, . It is the correctness of the above view that is questioned in the reference.


13. It will be noticed that in the award enquiry under S. 11, the Collecor is to enquire into the objections, if any, which any person interested has stated pursuant to the notice given under S. 9, to the measurement made under S. 8 and to the value of the land at the date of publication of the notification under S.4, sub-section (1) and into the respective interests of the persons claiming the compensation. The Collector then makes an award under his hand of-
 "(i) the true area of the land,


(ii) the compensation which, in his opinion, should be allowed for the land, and


(iii) the apportionment of the said compensation amoung all the persons known or believe to be interested in the land....."
 Section 12(1) provides that such an award shall be filed in the Collector's office and shall, except as provided, be final and conclusive evidence of (i) the true area; (ii) value of the land and (iii) apportionment of the compensation and (iv) the persons interested. Section 18(1) of the Act states again that any person interested who has not accepted the award may seek a reference whether his objections be to (i) the measurement of the land; (ii) the amount of compensation and (iii) the persons to whom it is payable and (iv) the apportionment thereof.
 14. A reading of the provisions of Sections 9(2), 11(1), 12(1) and 18(1) of the Act in our opinion, show that the enquiry before the Collector for the purpose of making of the award is only in relation to the four items (i) the measurement of the land, (ii) the amount of compensation and (iii) the persons to whom it is payable and (iv) the apportionment thereof, and it is these four items that have to find place in the award published under S. 11 and in the reference under S. 18(1). The award made under S. 11 being in the nature of an offer, if it contains the above factors or items, it must be treated as complete in itself. The purpose in requiring the award to contain reasons, in our view, is meant to be a check on the Collector so that his award may not be arbitrary. The reasons therefore need not be communicated under S. 12(2).


15. It is, however, argued for the writ petitioners, relying on the observations in the decision in Spl. Deputy Collector, L.A. v. L. Sai Reddi, that it is not sufficient if the notice of award under S. 12(2), (read with proviso (b) to S. 18(2) communicates merely the above three factors and that unless the reasons for the award are also communicated, it is not possible for the person interested to seek a reference mentioning his objections.


16. In our opinion, this argument though attractive on its face, cannot be accepted on a deeper scrutiny of the provisions of the Land Acquisition Act. The award enquiry before the Collector, is only for the purpose of making an offer to the person interested. Though the award must contain reasons it is not necessary that those reasons must be communicated to the persons interested. This is because once a reference is made to the Court upon an application filed within the time limited by S. 18(2), the Collector in his statement to the Court under S. 19 will then come forward, under sub-clause (d) to S. 19(1) with the grounds on which the amount of compensation is determined. In his statement to the Court he will further mention, for the information of the Court, the situation and extent of the land with particulars of any trees, buildings or standing crop, the name of the persons who he has reason to think are interested in such land and the amount awarded for damages and paid or tenders and the amount of compensation awarded. The Court shall then serve notice under S. 20 of the Act to the persons to file their objections in respect of the area of the land and the amount of compensation. While filing such objections in the Court, after the reference under S. 18 and after notice under S. 20, the persons interested will have the benefit of the grounds communicated to the Court by the Collector under S. 19(1) and they can file effective objections in the civil court. The argument that unless a copy of the award or at least the reasons of the award are communicated to the persons interested under S. 12(2), the said persons cannot claim an effective application for reference under S. 18(1), cannot be accepted. In the application for reference under S. 18(1) it is not necessary for the persons interested to say anything more than that they are objecting to the measurement of


not necessary for the persons interested to say anything more than that they are objecting to the measurement of land, the amount of compensation or the persons to whom it is payable or the apportionment thereof. Even if they do not mention any particular reasons the application seeking reference under S. 18(1) does not become invalid. They will have a real opportunity before the Court, after the reference and after the Collector's Statement under S. 19(1), when they file their objections in the Court in regard to the area or the amount of compensation or other factors. It is these objections with reasons therefor, then filed that are normally registered as an O.P. It is thereafter that the Land Acquisition Officer files a counter thereto in the Court. The scheme of the Act, in our view, is for giving to the interested persons an opportunity to know the reasons for the award when the matter comes before the Court after the reference under S. 18(1) and not at the stage of service of notice of the award under S. 12(2).


17. The above position appears to be clear from two judgments of the Privy Council to which we shall presently refer. In Pramatha Nath v. Secretary of the State, AIR 1930 PC 64 : 57 IA 100 : ILR 57 Cal 1148, it was held that the jurisdiction of the civil Court under the Land Acquisition Act is a special one and is strictly limited by the terms of Sections 18, 20 and 21. It only arises when a specific objection has been taken to the Collector's award and it is confined to a consideration of that objection. Once therefore it is ascertained that the only objection taken is to the amount of compensation, that alone is the 'matter' referred and the Court has no power to determine or consider anything beyond it e.g., question of measurement raised for the first time three years after the references were duly made by the Collector. Referring to S. 18(1) and splitting up the factors into four rather than three, Sir George Lowndes observed as follows :--
 "The section clearly specifies four different grounds of objections viz. (i) to the measurement of the land; (ii) to the amount of compensation; (iii) to the persons to whom it is payable; and (iv) to the apportionment. The distinction between objection to area and to amount of compensation are also borne out by other sections of the Act; see Sections 9, 11 19(d) and 20(c)."
 The position is more clearly elaborated by the Privy Council in Mt. Bhagwati v. Ram Kali, AIR 1939 PC 133 : 66 IA 145 : ILR 1939 All 460 as follows :


There it is stated while referring to S. 18(1), that the particulars of the reason for the objections are riot required to be given in an application for reference under S. 18(1). The Act requires only the grounds of objection to be given and by 'grounds' is meant such of the four grounds mentioned in S. 18(1) as are relied upon and no further particulars are required in order to comply with the terms of the sub-section. Lord Porter observed-
 "The difficulty in the present case arises from the form by which the appellant required the Collector to submit the matter to the Judge....
 ...It was however suggested that the requirement was not complete unless particulars of the reasons for the objections taken were given. But the Act does not require particulars to be given it requires only the grounds of objections to be given and by 'grounds' their Lordships think is meant such of the four grounds mentioned in S. 18(1) as are relied upon. The same view as to the meaning of the word 'grounds' appear to have been entertained by their Lordships' Board in Pramatha Nath v. Secretary of State (4)."


18. If there is any doubt, the same, in our opinion, is set at rest by the clear observations of the Privy Council in Mt. Bhagwati v Ram Kali (AIR 1939 PC 133). Therefore even if an application for reference is made under S. 18(1) without mentioning any reasons for the said objections, such an application is to be treated as valid. All that is required in the said application is to mention the 'grounds' of objections by which is meant, the objections in respect of the four factors, viz., (i) the measurement of the land, (ii) the amount of compensation, (iii) the persons to whom it is payable and (iv) the apportionment. No reasons or further particulars are required to be given in the application for reference under S. 18(1). Therefore the entire basis of the contention of the writ petitioners and the entire reasoning in the judgment of the Division Bench in Spl. Deputy Collector, L.A. v. L. Sai Reddi falls to the ground and cannot be accepted.
 19. It is true that the Division Bench relied upon the two decisons of the Supreme Court viz., Harish Chandra v. Deputy L.A. Officer and State of Punjab v. Qaisar Jehan Begum . In our view the said decisions of the Supreme Court have been delivered in connection with the second part of the proviso (b) to S. 18(2) available in the Central Act (and in some States) and which part has been dropped in Andhra Pradesh by the A.P. Act 20 of 1959. So far as the second part of the proviso (b) to S. 18(2) is concerned, that part uses the words-
 "or within six months from the date of the Collector's award whichever period shall first expire."


It will be noticed that so far as the unamended provisions of the Central Act are concerned (and as in vogue in some States other than Andhra Pradesh) the Supreme Court observed that if the notice under S. 12(2) is not served, it would be open to the persons interested to seek a reference within six months from the date of Collector's award. In such cases because of the absence of notice under S. 12(2), the persons interested are kept in the dark about the file number of the award, the measurement, the amount of compensation, the names of persons to whom the compensation is granted as well as the apportionment. A question had arisen before the Supreme Court whether in such cases, they could be compelled to file their application for reference within six months from the date of filing of the award by the Collector under S. 12(1). It was argued that unless the award itself or the substance of the award was communicated, it will not be possible for any person interested to file any objections even in regard to the four items referred to earlier. The Supreme Court construed the words 'date of Collector's award' and interpreted the same to mean date of knowledge of the award by the party affected either actual or constructive. It meant either the date when the award was communicated or was known by him actually or constructively. The above aspect was elaborated a little more in State of Punjab V. Quisar Jehan Begum . There also the Supreme Court was concerned with the second part of proviso (b) to S. 18(2). Knowledge of the award, their Lordships observed, did not mean a mere knowledge of the fact that an award had been made, (at 1607 of AIR):


"The knowledge must relate to the essential contents of the award. These contents may be known either actually or constructively. If the award is communicated to a party under S. 12(2) of the Act, the party must be obviously fixed with knowledge of the contents of the award whether he reads it or not. Similarly when a party is present in Court either personally or through his representative when the award is made by the Collector, it must be presumed that he knows the contents of the award. Having regard to the scheme of the Act, knowledge of the award must mean knowledge of the essential contents of the award."


20. It is therefore clear that in cases falling under the second part of proviso (b) to S. 18(2) wherein the words 'date of the Collector's award' have been used, it must be the date of the knowledge of the award itself if communicated or the date of knowledge of the "essential contents" thereof. Unfortunately, so far as Andhra Pradesh is concerned, the second part of proviso (b) to S. 18(2) has been omitted by Act 20 of 1959 and therefore it is not possible, so far as Andhra Pradesh is concerned, for the interested persons to rely on the above said two decisions of the Supreme Court and contend that limitation does not start until either the award is communicated or atleast the essential contents thereof are communicated. So far as Andhra Pradesh is concerned, the first part of proviso (b) to S. 18(2) alone governs and limitation will start after the expiry of two months from the date of service of 'notice from the Collector under S. 12, sub-sec. (2).' This part of the provision requires interpretation of another set of words i.e. 'notice of award' in S. 12(2). Those words, in our view, mean notice of the award containing the offer of the Government, such award referring, in terms of S. 11 merely (i) the true area of the land, (ii) the compensation which should be allowed for the land, (iii) the apportionment of the said compensation (iv) the persons known or believed to be interested in the land. If the above four factors are mentioned in the notice of award it would, in our opinion, be sufficient compliance with the provisions of S. 12(2) as to notice of award even though the reasons for the award are not communicated. As already stated an application for reference made under S.


the reasons for the award are not communicated. As already stated an application for reference made under S. 18(1) need not contain the reasons for which the applicant contends that the award is bad. After a reference is catted for, the Collector is to give his reasons for the award in his Statement to the Court under S. 19(1). Once the reasons given by the Collector are before the Court as contained in his Statement to the Court given under S. 19, there will be no difficulty for the applicant to file his reasoned objections in the Court by looking into the said Statement.


21. The view of the Division Bench in Spl. Deputy Collector, L. A. v. L. Sai Reddi that unless the award or the reasoning part of it is communicated, no effective application for reference can be filed under S. 18(1) is, in our view, not correct.
 22. In Andhra Pradesh and particularly in this Court, the notice under S. 12(2) is given in Form 9 which is contained in the Land Acquisition Manual. The said Form has been evolved by the proceedings of the Board of Revenue, Madras and is still being followed in Andhra Pradesh. The Form is as follows :
"Form 9.
Notice of award under S. 12(2) of Act 1 of 1894.
 The following award has been passed by the undersigned in the matter of the acquisition of the lands noted below and situated in Village.


Taluk.

 Survey No. & Sub-Division.

 Extent.

 Amount Persons to whom awarded, award is made.

is/ are hereby informed that he/ they should appear either or by an authorised agent before the undersigned within days after the issue of this notice, and receive the amount specified above, failing which the said sum of money will be kept in Revenue deposit and will bear no interest.
 Station :
 Date :             Land Acquisition Officer.

 Note :-- The paragraph below the statement in this notice should be deleted when the notice is served on those who are not awardees."

 23. We have perused the forms which have been served on the claimants in the present case and we find that Column 1 further gives the award number also. The above details, in our opinion, would be clearly sufficient compliance with the requirement of

'notice of award' contained in S. 12(2) of the Act read with the first part of proviso (b) to S. 18(2).


24. Reliance is however placed by Sri B. Sudarshan Reddy for the writ petitioners on the following passage (in para 7) of Harish Chandra v. Deputy L.A. Officer  in the context of S. 12(2) :
 "This requirement itself postulates the necessity of the communication of the award to the party concerned the Legislature recognised that the making of the award under S. 11 followed by its filing under S. 12(1) would not meet the requirement of justice before bringing the award into force. It thought that the communication of the award to the party concerned was also necessary and so by the use of the mandatory words an obligation is placed on the Collector to communicate the award immediately to the party concerned. It is significant that the section requires the Collector to give notice of the award immediately after making it. This provision lends support to the view which we have taken about the construction of the expression 'from the date of the Collector's award' in the proviso to S. 18. It is because communication of the order is regarded by the Legislature as necessary that S. 12(2) has imposed an obligation on the Collector and if the relevant clause in the proviso is read in the light of this statutory requirement it tends to show that the literal and mechanical construction of the said clause would be wholly inappropriate."


A casual reading of the said passage may, no doubt, suggest that even under S. 12(2), it is necessary to communicate the award to the party. But, in our view, the Supreme Court did not lay down an absolute proposition that a notice containing the details referred to in Form 9 (viz., those containing the award number, the measurement, the extent of compensation and the person to whom it is payable and apportionment) is not sufficient. In our opinion, the words 'communication of the award' used in paragraph 7 of the judgment of the Supreme Court do not mean any more than communication of the above said particulars mentioned in Form 9 as contained in the award. It mast be noted that the Supreme Court was mainly dealing with the second part of the proviso (b) to S. 18(2). If, by the word 'award' is meant nothing more than the four factors mentioned by the Privy Council, the details in Form 9 would, in our view, be sufficient compliance with S. 12(2). The question of submitting reasons for the objections arises, as stated by the Privy Council, only after reference and notice under S. 20(1). It cannot be assumed that the Supreme Court intended to lay down a rule different from the one laid down by the Privy Council earlier.


25. Several decisions of this Court as well as those of other High Court have been cited before us for the view that even under the first part of the proviso (b) to S. 18(2) actual or constructive communication of the award is necessary. These cases, in our view, can be divided into two categories. In these cases falling under both the categories, the Land Acquisition Act as applicable in the relevant State contain both the parts in the proviso (b) to S. 18(2) and not merely the first part as in Andhra Pradesh. In the first category fall cases where no notice what-so-ever has been issued under S. 12(2) as visualised by the first part of proviso (b) to S. 18(2). In the second category fall cases where notice was issued under S. 12(2) without a copy of the award or what the Supreme Court considered to be the essential contents of the award and it was held that the limitation did not start to run.


26. So far as the first category of cases wherein no notice what-so-ever was served under the first part of proviso (b) to S. 18(2) (that is, where no notice under S. 12(2) was served) there is no difficultly in holding that the period of limitation did not start. In this category of cases once it is noted that there is no notice as contemplated under the first part of proviso (b) to S. 18(2) by communication of notice under S. 12(2), it will be incumbent for the authority to bring the knwoledge of the award to the person interested as contemplated in the decisions of the Supreme Court in Harish Chandra v. Deputy L.A. Officer and in State of Punjab v.Qaisar Jehan Begum . Such knowledge should be brought home either actually or constructively as stated in those decisions. Therefore, the first category of cases does not create any difficulty. To this category belong Seshachalam v. District Collector, Guntur, 1955 Andh LT 755 : (AIR 1957 Andh Pra 687); Mahmoddunnisa v. Government of Hyderabad, AIR 1958 Andh Pra 42; C. Venkatramayya v. Land Acquisition Officer, (1968) 1 Andh Pra WR 113; Farhatullah v. Spl. Tahasildar, Land Acquisition, 1975 Andh LT 492; Ram Singh v. State, ; Jaswant Rai v. Land Acquisition Collector, P.U.L.D., Mohali, ; Ramahari v. L.A. Officer, ; Gram Seva Mandal v. Collector, Wardha, and Ghulam Shah v. State of J. & K., AIR 1965 J & K 58. In so far as in the above said decisions the courts held that the communication of the award


In so far as in the above said decisions the courts held that the communication of the award or its essential contents either actually or constructively was necessary having regard to the second part of proviso (b) to S. 18(2) the said decisions, in our view, are in accord with the two decisions of the Supreme Court above mentioned. These cases as already stated, therefore do not present any difficulty and they do not help the writ petitioners in the present case before us.


27. The difficulty arises in regard to the second category of cases which are the following : Mangilal Jawanmal v. Spl. L.A. Officer, ; Keshav v. State, ; Spl. L.A.O., Ghatap-pabha v. A. K. Gadakari, AIR 1973 Mys 22; Rasulkhanji Sardar Mahomad Khanji v. H.P. Rathod, (1975) 16 Guj LR 911; R. Hirabhai v. Dy. Collector, L.A. & R Panam Project, Godhra, ; Ishabhai Umarbhai v. State, ; Gopalbhai Becharbhai v. State, . The best exposition of the law supporting the view of the writ petitioners, according to us, is contained in the judgment of the Bombay High Court in Mangilal Jawanmal v. Spl. L.A. Officer . Though a notice in the form prescribed in Anderson's Manual giving three particulars (i.e., true area, amount of compensation and apportionment) was served on the persons interested, it was held, it was not sufficient. In so far as learned Judges applied the two decisions of the Supreme Court earlier referred to, while interpreting the first part of the proviso (b) to S. 18(2), we do not with great respect, accept the said approach, as the Supreme Court cases had occasion to consider only the second part of proviso (b) and not the first part. Again in so far as they stated that the reasons contained in the award should be communicated to the interested persons so that the latter could file an effective reference, we again disagree respectfully, for the said view runs contrary to the two Privy Council cases. In fact, the more important ruling of the Privy Council, namely the one in Mt. Bhagwati v. Ram Kali


the Privy Council, namely the one in Mt. Bhagwati v. Ram Kali (AIR 1939 PC 133) was not brought to the notice of the learned Judges. If the learned Judges, however, thought that the provisions of the Bombay Court-Fees Act, 1959 (contained in Art. 15 in Schedule I which required one half of the advalorem Court fee payable on the compensation to be paid at the stage of application for reference) necessitated the communication of reasons, so that the party could decide what to claim in the reference application, the case becomes wholly distinguishable. In fact, at one stage (see para 22) the learned Judges refer to the Court-fee aspect as one of the 'compelling factors' for the view they are taking regarding the first part of proviso (b) to S. 18(2). The Bombay decision has to be understood in the light of the pecular provision in the Bombay Court Fees Act, 1959. There Art. 15 of Schedule I fixes "one half of ad valoram" as Court-fee in respect of "Application to the Collector for a reference to the Court under S. 18 of the Land Acquisition Act, 1894" and on account of that special provision, the Bombay case is clearly distinguishable, We may, however, add that the said provision in the I Schedule is rather incongruous in the light of the decisions of the Privy Council already referred to. So far as the other ruling in the second category of cases referred to above are concerned, they 'merely apply the two Supreme Court judgments for construing the first part of proviso (b) without noticing that the Supreme Court was concerned with the second part of the proviso (b) to S. 18(2). We are, therefore, unable to accept their reasoning. We, therefore, dissent respectfully from the rulings in the second category of cases


to accept their reasoning. We, therefore, dissent respectfully from the rulings in the second category of cases grouped above.


For the aforesaid reasons, we hold that under S. 18(2) of the Land Acquisition Act, 1894 (as amended by A.P. Act XX/1959) notice of award under proviso (b) to S. 18(2) (which corresponds to the first part of proviso (b) to S. 18(2) in the Central Act, does not mean that it is necessary that the award copy or the reasoning part of the award need to be communicated to the persons interested. If the Form 9 as per the A.P. Land Acquisition Manual is served, giving the Award No., the true area acquired, the compensation allowed, the persons known or believed to be interested and the apportionment, it would be sufficient for the commencement of the limitation of two months. Thus in W.P. No. 13203/1985, limitation commenced soon after service of notice in Form 9, and as no application under S. 18(2) was filed, as found by us, no writ of Mandamus can be issued directing reference under S. 18.


29. Coming to the other writ petitions, the position is that the awards in W.P. No. 11938/85 are dated 31-10-64, 29-3-1965, 24-8-1965, 22-11-1965, the award in W.P. No. 11940/85 is registered in 1962, the award in W.P. No. 11764/85 is of 26-2-1960. the writ petitions are filed for issue of a writ of Mandamus in 1985 and none of the petitioners filed any application under S. 18 at any time. No Mandamus can be issued unless the party has filed application under S. 18 in time. There is delay of nearly 20 years in the filing of the writ petitions. The writ petitions are hopelessly belated. The counter reveals that most of the petitioners are not even claimants nor are their names found in the award. The writ petitions, therefore, deserve to be dismissed.
 30. All the writ petitions are, therefore, dismissed. In the circumstances, there will be no order as to costs. Advocates fee will be Rs.2,000/- one set.
 31. Petitions dismissed.


Smt Sajida Begum vs State Bank Of India, Sarc ... on 4 September, 2012

THE HON'BLE THE ACTING CHIEF JUSTICE PINAKI CHANDRA GHOSE AND THE HONOURABLE  THE HONOURABLE SRI JUSTICE VILAS V. AFZULPURKAR

WRIT PETITION No.22317 of 2012

04.09.2012

Smt Sajida Begum.

State Bank of India, SARC Nampally, Hyderabad, Rep. by its authorized officer.

Counsel for the Petitioner: MR. T.C. KRISHNAN

Counsel for the Respondent: MR. AMBADIPUDI SATYANARAYANA

<GIST:

>HEAD NOTE:

? Cases referred

1. AIR 2011 MP 205
2. (2011) 6 SCC 739
3. 2012 (7) TMI 641
4. 2008 (4) MHLJ 424 = LAWS (BOM) 2008 (2) 173
5. (2004) 11 SCC 472
6. (2004) 11 SCC 456
7. (1975) 4 SCC 22
8. AIR 1995 SC 1111
9. (2003) 8 SCC 431
10. IV (2009) BC 635
11. (2008) 14 SCC 445
12.  (2009) 5 SCJ 774
13.  (1995) 5 SCC 5 = AIR 1995 SC 2272

ORDER: (per Hon'ble Sri Justice Vilas V. Afzulpurkar)


ORDER: (per Hon'ble Sri Justice Vilas V. Afzulpurkar)

        Petitioner herein has challenged the order dated 04.05.2012 passed by the
Debts Recovery Appellate Tribunal (DRAT), Chennai dismissing the application
filed by the petitioner, being I.A.No.1654 of 2010 in AIR(SA).No.1012 of 2010.


2.      The aforesaid appeal and the interlocutory application were preferred
before DRAT against order of the Debts Recovery Tribunal-II (DRT), Hyderabad in
S.A.No.142 of 2010 dated 27.08.2010. In the said appeal before DRT, the
petitioner had questioned the possession taken over by the respondents with
regard to the secured asset i.e. house bearing No.18-12-419/941/A/1 situated at
Hafez Baba Nagar, Kanchan Bagh, Hyderabad.  Petitioner asserts that she is the
absolute owner and possessor of the said house property by virtue of a
registered gift deed dated 27.02.2009 executed by her husband, Mohd. Nazeer
Khan, whereas the respondent bank asserts that it is a secured asset, which was
mortgaged by Smt Khaiser Begum by depositing the registered Gift Deed dated
04.02.1995 executed by her husband Mohammed Arif Khan and the said mortgage was
created in favour of the respondent bank on 14.11.1995 by virtue of term loan
and working capital limit availed by M/s. Bio Vet Formulations represented by
its proprietor, Sri Arif Khan. While we are not for the present concerned with
the merits of the rival claims, as above, S.A.No.142 of 2010 preferred by the
petitioner was, however, dismissed on merits by DRT under order dated 27.08.2010
and questioning the correctness of the said order, petitioner had preferred
further appeal before DRAT along with an application seeking condonation of
delay of 16 days in filing the said appeal. The application, being I.A.No.1654


of 2010, has since been dismissed by DRAT under the impugned order by placing
reliance upon a decision of the Madhya Pradesh High Court in SETH BANSHIDHAR
KEDIA RICE MILLS PVT. LTD v. STATE BANK OF INDIA1 holding that under Section 18
of the Securitization and Reconstruction of Financial Assets and Enforcement of
Security Interest Act, 2002 the appellate tribunal has no power to condone the
delay in presentation of the appeal. The correctness of the said view is
questioned in this writ petition.


3.      We have heard the learned counsel for the petitioner and the learned
standing counsel appearing for the respondent bank.

4.      Learned counsel for the petitioner has placed reliance upon a decision of
the Supreme Court in THIRUMALAI CHEMICALS LTD. v. UNION OF INDIA2 and a Full
Bench judgment of the High Court of Calcutta in UNION OF INDIA v. JAGADISH
PRASAD JALAN NANDALAL3 to which one of us is a party (the Hon'ble the Acting
Chief Justice). He also placed reliance upon a Division Bench judgment of the
Bombay High Court in UCO BANK, MUMBAI v. M/s. KANJI MANJI KOTHARI AND CO.4 and a
decision of the Supreme Court in FAIRGROWTH INVESTMENTS LTD. v. CUSTODIAN5.


5.      Per contra, learned standing counsel for the respondent bank placed
reliance upon a decision of the Supreme Court in L.S. SYNTHETICS LTD. v.
FAIRGROWTH FINANCIAL SERVICES LTD.6; THE COMMISSIONER OF SALES TAX, U.P.,
LUCKNOW v.
M/s. PARSON TOOLS AND PLANTS, KANPUR7; BIRLA CEMENT WORKS v. G.M. WESTERN
RAILWAYS8; PRAKASH H. JAIN v. MARIE FERNANDES9; a judgment of the Kerala High
Court in JAYAN v. HONG KONG AND SHANGHAI BANKING CORPORATION LTD.10; NOHARLAL
VERMA v. DISTRICT CO-OPERATIVE CENTRAL BANK LIMITED11 and lastly the decision of
the Supreme Court in COMMISSIONER OF CUSTOMS AND CENTRAL EXCISE v. HONGO INDIA
P. LTD.12.


6.      Before we appreciate the rival contentions, the legislative environment
spread over the Securitization and Reconstruction of Financial Assets and
Enforcement of Security Interest Act, 2002
(for short 'SARFAESI Act'); the Recovery of Debts Due To Banks and Financial
Institutions Act, 1993 (for short 'the DRT Act') and the Limitation Act, 1963,
may be noticed so far as is relevant.  Section 17 of the SARFAESI Act provides a
forum for adjudication of claim of any person challenging any of the security
measures taken by the secured creditor and the said forum is provided before the
DRT constituted under the DRT Act.  For the sake of convenience and relevance,
Sections 17(1) and (7), 18(1) and (2), 36 and 37 of the SARFAESI Act are
extracted as under:

17. Right to Appeal. - (1) Any person (including borrower), aggrieved by any of
the measures referred to in sub-section (4) of section 13 taken by the secured
creditor or his authorised officer under this Chapter, may make an application
along with such fee, as may be prescribed, to the Debts Recovery Tribunal having
jurisdiction in the matter within forty-five days from the date on which such
measures had been taken.

(7) Save as otherwise provided in this Act, the Debts Recovery Tribunal shall,
as far as may be, dispose of application in accordance with the provisions of
the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (51 of
1993) and the rules made thereunder.


18. Appeal to Appellate Tribunal. - (1) Any person aggrieved, by any order made
by the Debts Recovery Tribunal under Section 17, may prefer an appeal along with
such fee, as may be prescribed to an Appellate Tribunal within thirty days from
the date of receipt of the order of Debts Recovery Tribunal.

(2) Save as otherwise provided in this Act, the Appellate Tribunal shall, as far
as may be, dispose of the appeal in accordance with the provisions of the
Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (51 of 1993)
and rules made thereunder.

36. Limitation. - No secured creditor shall be entitled to take all or any of
the measures under sub-section (4) of section 13, unless his claim in respect of
the financial asset is made within the period of limitation prescribed under the
Limitation Act, 1963 (36 of 1963).

37. Application of other laws barred. - The provisions of this Act or the rules
made thereunder shall be in addition to, and not in derogation of, the Companies
Act, 1956 (1 of 1956), the Securities Contracts (Regulation) Act, 1956 (42 of
1956), the Securities and Exchange Board of India Act 1992 (15 of 1992), the
Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (51 of 1993)
or any other law for the time being in force.


Though Section 17 of SARFAESI Act is styled as a right to appeal, it is,
in fact, a forum for original proceedings against the security measures.  Sub-
section (7) of Section 17 provides that any application made under Section 17 of
SARFAESI Act shall be disposed of in accordance with the provisions of the DRT
Act and the Rules made thereunder. Section 18 of SARFAESI Act provides a right
to appeal to DRAT against orders of DRT passed under Section 17 of SARFAESI Act.
Such appeal is also required to be disposed of in accordance with the provisions
of the DRT Act and the Rules made thereunder.

7.      The following provisions of the DRT Act may also be noticed.
The DRT and DRAT are established under Section 3(1) and 8(1) respectively and
the respective exclusive jurisdiction of the tribunal and the appellate tribunal
are provided for under Section 17 of the DRT Act. The procedure and powers of
tribunal and appellate tribunal are governed by Section 22 of the DRT Act, which
is extracted hereunder:
22. Procedures and powers of the Tribunal and the Appellate Tribunal. -
(1) The Tribunal and the Appellate Tribunal shall not be bound by the procedure
laid down by the Code of Civil Procedure, 1908
(5 of 1908), but shall be guided by the principles of natural justice and,
subject to the other provisions of this Act and of any rules, the Tribunal and
the Appellate Tribunal shall have powers to regulate their own procedure
including the places at which they shall have their sittings.


(2) The Tribunal and the Appellate Tribunal shall have, for the purposes of
discharging their functions under this At,
the same powers as are vested in a Civil Court under the Code of Civil
Procedure, 1908, (5 of 1908) while trying a suit, in respect of the following
matters, namely: -

(a) summoning and enforcing the attendance of any person and examining him on
oath;
(b) requiring the discovery and production of documents;
(c) receiving evidence on affidavits;
(d) issuing commissions for the examination of witnesses or documents;
(e) reviewing its decisions;
(f) dismissing an application for default or deciding it ex parte;
(g) setting aside any order of dismissal of any application for default or any
order passed by it ex parte;

(3) Any proceeding before the Tribunal or the Appellate Tribunal shall be deemed
to be a judicial proceeding within the meaning of Secs. 193 and 228, and for the
purposes of Sec.196 of the Indian Penal Code (45 of 1860) and the Tribunal or
the Appellate Tribunal shall be deemed to be a Civil Court for all the purposes
of Sec.195 and Chapter XXVI of the Code of Criminal Procedure, 1973 (2 of 1974).

        It would be noticed from the above that the tribunal and the appellate
tribunal while discharging their functions exercise same powers as are vested in
civil Court under the Code of Civil Procedure, 1908 while trying a suit in
respect of specified matters, as above.


8.      Section 24 of the DRT Act, extracted below, provides that the provisions
of the Limitation Act apply to an application made to the tribunal.
24. Limitation.- The provisions of the Limitation Act, 1963
(36 of 1963) shall, as far as may be, apply to an application made to a
Tribunal.

9.      Section 29 of the Limitation Act, to the extent relevant,
is necessary to be noticed as follows:
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 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
in so far as, and to the extent to which, they are not expressly excluded by
such special or local law.

        As would be noticed from sub-clause (2) above that Sections 4 to 24
(inclusive) of the Limitation Act would apply to any special or local law, if
such special or local law does not expressly exclude the applicability of
Sections 4 to 24 of the Limitation Act.


10.     The interpretation of Section 29 of the Limitation Act is considered in
several decisions and it would be apt to notice a decision of the Supreme Court
in MUKRI GOPALAN v. CHEPPILAT PUTHANPURAYIL ABOOBACKER13 wherein the question
that fell for consideration is whether the appellate authority constituted under
Section 18 of the Kerala Rent Control Act has power to condone the delay and
whether Sections 4 to 24 of the Limitation Act are applicable thereto, which
includes Section 5 of the Limitation Act. Paras 10, 11, 13, 15 and 22 are
relevant for our purpose and are extracted hereunder:
10. In the light of the aforesaid analysis of the relevant clauses of Section
29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act
providing for a statutory appeal to the appellate authority satisfies the
aforesaid twin conditions for attracting the applicability of Section 29(2) of
the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act
or a local law. It also cannot be disputed that it prescribes for appeal under
Section 18 a period of limitation which is different from the period prescribed
by the schedule as the schedule to the Limitation Act does not contemplate any
period of limitation for filing appeal before the appellate authority under
Section 18 of the Rent Act or in other words it prescribes nil period of
limitation for such an appeal. It is now well settled that a situation wherein a
period of limitation is prescribed by a special or local law for an appeal or
application and for which there is no provision made in the Schedule to the Act,
the second condition for attracting Section 29(2) would get satisfied. As laid


the second condition for attracting Section 29(2) would get satisfied. As laid
down by a majority decision of the Constitution Bench of this court in the case
of Vidyacharan Shukla Vs. Khubchand Baghel and Ors.
(AIR 1964 SC 1099), when the First Schedule of the Limitation Act prescribes no
time limit for a particular appeal, but the special law prescribes a time limit
for it, it can be said that under the first schedule of the Limitation Act all
appeals can be filed at any time, but the special law by limiting it provides
for a different period. While the former permits the filing of an appeal at any
time, the latter limits it to be filed within the prescribed period. It is
therefore, different from that prescribed in the former and thus Section 29(2)
would apply even to a case where a difference between the special law and
Limitation Act arose by the omission to provide for limitation to a particular
proceeding under the Limitation Act.


11. It is also obvious that once the aforesaid two conditions are satisfied
Section 29(2) on its own force will get attracted to appeals filed before
appellate authority under Section 18 of the Rent Act. When Section 29(2) applies
to appeals under Section 18 of the Rent Act, for computing the period of
limitation prescribed for appeals under that Section, all the provisions of
Sections 4 to 24 of the Limitation Act would apply. Section 5 being one of them
would therefore get attracted. It is also obvious that there is no express
exclusion anywhere in the Rent Act taking out the applicability of Section 5 of
the Limitation Act to appeals filed before appellate authority under Section 18
of the Act. Consequently, all the legal requirements for applicability of
Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of
Limitation Act can be said to have been satisfied. That was the view taken by
the minority decision of the learned single Judge of Kerala High Court in Jokkim
Fernandez Vs. Amina Kunhi Umma (AIR 1974 KER 162). The majority did not agree on
account of its wrong supposition that appellate authority functioning under
Section 18 of the Rent Act is a persona designata. Once that presumption is
found to be erroneous as discussed by us earlier, it becomes at once clear that
minority view in the said decision was the correct view and the majority view
was an erroneous view.


...
13. As per this sub-section, the provisions contained in certain sections of the Limitation Act were applied automatically to determine the periods under the special laws, and the provisions contained in other sections were stated to apply only if they were not expressly excluded by the special law. The provision (Section 5) relating to the power of the court to condone delay in preferring appeals and making applications came under the latter category. So if the power to condone delay contained in Section 5 had to be exercised by the appellate body it had to be conferred by the special law. That is why we find in a number of special laws a provision to the effect that the provision contained in Section 5 of the Limitation Act shall apply to the proceeding under the special law. The jurisdiction to entertain proceedings under the special laws is sometimes given to the ordinary courts, and sometimes given to separate tribunals constituted under the special law. When the special law provides that the provision contained in Section 5 shall apply to the proceedings under it, it is really a conferment of the power of the court under Section 5 to the Tribunals under the special law-whether these tribunals are courts or not. If these tribunals under the special law should be courts in the ordinary sense an express extension of the provision contained in Section 5 of the Limitation Act will become otiose in cases where the special law has created separate tribunals to adjudicate the rights of parties arising under the special law. That is not the intension of the legislature.


15. After repealing of Indian Limitation Act, 1908 and its replacement by the present Limitation Act of 1963 a fundamental change was made in Section 29(2). The present Section 29(2) as already extracted earlier clearly indicates that once the requisite conditions for its applicability to given proceedings under special or local law are attracted, the provisions contained in Sections 4 to 24 both inclusive would get attracted which obviously would bring in Section 5 which also shall apply to such proceedings unless applicability of any of the aforesaid Sections of the Limitation Act is expressly excluded by such special or local law. By this change it is not necessary to expressly state in a special law that the provisions contained in Section 5 of the Limitation Act shall apply to the determination of the periods under it. By the general provision contained in Section 29(2) this provision is made applicable to the periods prescribed under the special laws. An express mention in the special law is necessary only for any exclusion. It is on this basis that when the new Rent Act was passed in 1965 the provision contained in old Section 31 was omitted. It becomes therefore apparent that on a conjoint reading of Section 29(2) of Limitation Act of 1963 and Section 18 of the Rent Act of 1965, provisions of Section 5 would automatically get attracted to those proceedings, as there is nothing in the Rent Act of 1965 expressly excluding the applicability of Section 5 of the Limitation Act to appeals under Section 18 of the Rent Act. ...


22. As a result of the aforesaid discussion it must be held that appellate authority constituted under Section 18 of the Kerala Rent Act, 1965 functions as a court and the period of limitation prescribed therein under Section 18 governing appeals by aggrieved parties will be computed keeping in view the provisions of Sections 4 to 24 of the Limitation Act, 1963 such proceedings will attract Section 29(2) of the Limitation Act and consequently Section 5 of the Limitation Act would also be applicable to such proceedings. Appellate authority will have ample jurisdiction to consider the question whether delay in filing such appeals could be condoned on sufficient cause being made out by the concerned applicant for the delay in filing such appeals. The decision rendered by the High Court in the present case as well as by the appellate authority taking contrary view are quashed and set aside. The proceedings are remanded to the court of the appellate authority, that is, District Judge, Thalassery. Rent Control Appeal No.9/94 filed before the said authority by the appellant is restored to its file with a direction that the appellate authority shall consider I.A.56/94 filed by the applicant for condonation of delay on its own merits and then proceed further in accordance with law. Appeal is allowed accordingly. In the facts and circumstances of the case there will be no order as to costs.

(emphasis supplied)


(emphasis supplied)

11. It is not in dispute that there is no express exclusion of the Limitation Act under the SARFAESI Act and so far as DRT Act is concerned, under which the DRT and DRAT function and entertain original and appellate proceedings under the SARFAESI Act, clearly exercise powers of a civil Court under CPC and in addition, the Limitation Act is expressly made applicable under Section 24 of the DRT Act.
12. In view of that, we are of the view that Section 29(2) of the Limitation Act is clearly attracted and thereby Sections 4 to 24 (inclusive) of the Limitation Act would be applicable to proceedings under Sections 17 and 18 of the SARFAESI Act before the DRT as well as DRAT. Consequently, therefore, the order impugned passed by the DRAT rejecting the petitioner's application for condonation of delay for want of jurisdiction is liable to be set aside.

13. The decision in SETH BANSHIDHAR KEDIA RICE MILLS PVT. LTD.'s case (1 supra) which is the basis for passing of the impugned order by DRAT, with respect, does not lay down correct law and as shown above is, in fact, contrary to the ratio of the Supreme Court in MUKRI GOPALAN's case (13 supra) quoted above. With respect, therefore, we are unable to subscribe to the view of the Madhya Pradesh High Court in the aforesaid decision.


14. Now coming to the decisions cited by the learned counsel for the petitioner, the decision in THIRUMALAI CHEMICALS LTD's case (2 supra) is totally inapplicable to the present case, as it dealt with a case under the Foreign Exchange Management Act, 1999 which provides power of appeal under Section 19(1); procedure for appeal under Section 19(2) and the power of tribunal to condone the delay in filing of an appeal under proviso to Section 19(2). The question involved herein, therefore, did not arise in that case. Similarly, the decision in JAGADISH PRASAD JALAN NANDALAL's case (3 supra) is also distinguishable, on facts, as in the said decision Section 35 of the FEMA r/w Section 34 of the Arbitration and Conciliation Act, 1996, were considered and Section 35, which provides the limitation of not exceeding 60 days, was held indicative of exclusion of Section 5 of the Limitation Act in terms of Section 6 of the General Clauses Act.

In the decision in UCO BANK's case (4 supra), the aforesaid similar question was considered and answered by holding that Section 5 of the Limitation Act would be applicable to the appeal or application under Section 17(1) of the Act. The decision of the Supreme Court in FAIRGROWTH INVESTMENTS LTD's case (5 supra), which dealt with the provisions of the Special Court (Trial of Offences Relating to Transactions in Securities) Act, 1992, is not applicable to the facts and question of law arising in the present matter.


15. The decision of the Supreme Court in L.S. SYNTHETICS LTD's case (6 supra) relied upon by the learned counsel for the respondent bank is already considered by the Supreme Court while considering the provisions of the Special Court (Trial of Offences relating to Transactions in Securities) Act, referred to supra and is distinguishable from the present case. The decision in THE COMMISSIONER OF SALES TAX's case (7 supra) relates to applicability of Section 14 of the Limitation Act and does not deal with the question involved herein. Similarly, the decision in BIRLA CEMENT WORKS's case (8 supra) deals with the question of applicability of the Limitation Act to the Railway Claims Tribunal, which is, admittedly, not a civil Court; that case also has no application to the present case. The decision in PRAKASH H. JAIN's case (9 supra) considered as to whether the competent authority under the Maharashtra Rent Control Act, 1999 is not a civil Court and on holding so, consequently, Section 151 of CPC was held not applicable. The decision of the Kerala High Court in JAYAN's case (10 supra) is clearly distinguishable, as it does not take into consideration Section 29 of the Limitation Act or the decision of the Supreme Court in MUKRI GOPALAN's case (13 supra). With respect, therefore, we express our inability to agree with the said view. Similarly, the decision in NOHARLAL VERMA's case (11 supra) is also distinguishable as it considered, on facts, as to whether sufficient cause was made out.


The last of the decisions in COMMISSIONER OF CUSTOMS AND CENTRAL EXCISE's case (12 supra) considered the provisions of the Central Excise Act, 1944 wherein the Act itself provided for the forum for appeal and revision etc. together with power of the appellate and revisional authority to condone the delay for the respective periods provided for appeal and revision. It was, on those circumstances, held that no further power of condonation under Section 5 of the Limitation Act is available. Obviously, that decision has no application to the statutory environment in the present case.

16. In the result, therefore, we hold that the provisions of the Section 5 of the Limitation Act are applicable to the proceedings before DRAT under Section 18 of the SARFAESI Act. Consequently, the impugned order is set aside and the Debts Recovery Appellate Tribunal, Chennai is directed to consider the petitioner's application for condonation of delay afresh on merits and pass appropriate orders in accordance with law preferably within a period of two (2) months from the date of receipt of a copy of this order.

 The writ petition is accordingly allowed. As a sequel to the disposal of the writ petition, the miscellaneous applications, if any, shall stand disposed of as infructuous. There shall be no order as to costs.

_________________________ PINAKI CHANDRA GHOSE, ACJ _____________________ VILAS V. AFZULPURKAR, J


Cheekati Kuriminaidu And Ors. vs Karri Padmanabham Bhukta And Ors. on 20 February, 1964

JUDGMENT Anakthanarayana Ayyar, J.
 1. Ten petitioners have filed this writ petition praying that this Court may call for the records relating to the order of the Sub-Collector, Parvatipuram in I. A. C. R. A. 10 of 1962 dated 9-7-1952 and issue 3 writ of certiorari or any other appropriate writ quashing that order.
 2. The relevant facts are as follows: Certain lands in the village of Neelakanthapurarn wero leased out by the owners in favour of certain lessees under cowle (Ex. D.5) dated 5-2-1906 for a period of 3 years. "It provided for a rent of RS. 51-4-0 per year. Though the period of lease under it expired in 1909, beyond doubt or dispute, the tenants continued to be in possession as lessees holding over and cultivated the lands up to date. On 10-5-1927 the owners of the lands executed a mortgage deed (Ex, P-5) in favour of the persons who were then lessees. It provided as follows :-


"I have to-day borrowed from you Rs. 666.10.8 repayable with an annual interest of Rs. 40/- thereon and as A security for the due discharge of the above debt I have given you possession of our lands situate in Neelakantapuram alias Chinnayavaiase.....which have been in your occupation and cultivation since a very long time..... Possession of the above lands is given to you for the stipulated annual rent of Rs. 65/- and so cercefartoe you can enjoy the said lands and be appropriating Rs. 40/- from out of the above stipulated ren[ yourself every year towards the interest due to you on this mortgage debt and from out of the balance be paying Rs. 5/-every year to the Government towards the quit rent and kattubadi on these lands and be paying the remaining Rs. 19/- to us by the 15th of Kerteekam every year and obtain receipts from us.
 After thus enjoying for a period of 15 years from this 'Prabha' to 30th of Phalguna of 'Vrusha' if your principal amount of Rs. 1000/- is paid by 30th of Phalguna in any year, you give back this deed, quit rent etc., receipts and the lands to us....."
 The persons, who claim to be interested in these lands as mortgagees and lessees or their successors-in-interest, are petitioners 7 to 10.


2-a. Similarly the owner leased out cerain other lands by lease deed [Ex. D-1) for a period of 3 years for lands situate in the same village. Subsequently, the owner executed a mortgage deed (Ex. D-2) on 13-5-1927 in favour of the persons who were holding the lease for a sum of Rs. 1000/. This document contained recitals as follows :-
 "I have today borrowed Rs. 1000/- (Rupees one thou-sand) from you repayable with an annual interest of Rs. 60/-thereon and as a security far the due discharge of the above debt I have given you possession of the lands called Chavaka Polam covered by Inam T. D. No. 394, situate in Neelakantapuram ..... which have been in your occupation and cultivation since a very long time ana .....possession of the above said lands was given for the stipulated annual rent of Rs. 97.8.0 and so henceforth you can cullivate and enjoy all cultivated and cultivable lands and be appropriating every year Rs. 60/-yourself from out of the above stipulated rent towards the interest payable to you on this mortgage amount by the 15th of Pushya every year, and from out of the balance, be paying Rs. 9 every year towards the quit rent and kattu-badi payable to the Govt. during the month of Sravana each year obtaining receipts in my name and be paying us the balance of Rs. 28.8.0 by the 15th of Karteekam every year and obtain receipts from us.


After thus enjoying for a period of 15 years starting from the year Prabha to 30th of Phalguna of the year Vrusha, if the principal amount of Rs. 1000/- is paid to you by 30th of Phalguna of any year, you must give back this deed, quit-rent etc. receipts and lands to us."
 Petitioners 1 to 6 in the writ petition are the persons who are either lessees or mortgagees or their successors-in-interest. Similarly, the owner of the land in the same village executed lease deed (Ex. D-3) on 14-2-1932 for a period of three years in favour of certain lessees for an annual rent of Rs. 36A. The owner later on executed a mortgage deed (Ex. D-4) in favour of the lessees under lease deed (Ex. D-3). The mortgage (Ex, D-4) is dated 25-4-1933 for a sum of Rs. 300/-. It runs as follows:-


"As  a  security  for the  due  discharge  of  the  amount
still due to you under a promissory note for Rs. 300/- dated
14th February  1932    executed in your favour,    we have
stipulated that our lands called Dandasi Polam  situate in
Neelakantapuram,   irrigated   by   Yarakanna   Banda.....
are given possession to ycu with stipulation that from out of our stipulated rent of Rs. 37/- payable on the above lands, you have to appropriate Rs. 36/- every year towards your interest on Rs. 300 and pay Rs. 1/- to the Government towards quit rent etc., payable for these lands.
 After thus enjoying for a period of three years from "Srimukha" to "Uva", if your principal amount of Rs. 300/-is paid by 30th of Phalgunam of any year you have to give back this deed, quit rent etc., receipts and the lands to us."
 The lands concerned in these documents are inam lands in an inam village. Beyond doubt or dispute, the provi-sions of the Andhra Inams (Abolition and Conversion into Ryotwari) Act (Andhra Act XXXVII of 1956) are applicable to all these lands. It is also beyond doubt or dispute that the various petitioners are either lessees or their succes-sors-in-interest and also mortgagees or their successors-in-interest and that the respective petitioners have been in possession, all along, of the lands concerned in the respective leases.


The Inam Deputy Tahsildar held a suo motu enquiry under Section 4 (1) of the Act in which Karri Padmanabham Bhukta inamdar was shown as petitioner. The latter is first respondent in this writ proceeding. There were fourteen respondents. They include either the present petitioners or their predecessors-in-interest. Respondents 1 to 3 and 14 in the proceedings before the Tahsildar are not parties in this writ petition and they were concerned with lands with which we are not concerned in this writ proceeding. in the proceeding before the Inam Deputy Tahsildar, various contentions were raised on the basis of which he framed four points for decision. Only two points related to the present petitioners or their predecessors-in-interest namely, points 3 and 4 which are as follows:-
 3. Whether respondents 4 to 9 are in occupation of C schedule lands and respondents 3, 6, 7 and 8 are in occupation of D schedule lands as mortgagees only or as tenants in spite of the mortgages?
 4. Whether respondents 10 to 13 are in occupation of E schedule lands as mortgagees or as tenants by the data of Act 37 of 1956?
 The Inam Deputy Tahsildar held as follows:-


The Inam Deputy Tahsildar held as follows:-
 ".....I am of the opinion that then is no incompatibility between the tenancy and the mortgage so as to attract the doctrine of surrender and in the absence of surrender of tenancy, the tenancy continues and these respondents are admittedly in occupation of the schedule lands prior to and by the date of coming into force of Act 37 of 1956. I, therefore, hold that respon-dents 4 to 9 are entitled to pattas for 2/3rds of the C and D schedule lands and respondents 10 to 13 are en-litled to ryotwari patta for 2/3rds of E schedule lands."
 3. The inamdar filed appeal in I. A. C. R. A. No. 10/52 before the Sub-Collector, Parvatipuram. Two points were framed by him. Point No. 1 related to respondents 1 to 3 and 14 with whom we are not concerned in this writ proceeding. Point No. 2 was substantially the same as Point Nos. 3 and 4 before the Inam Deputy Tahsildar. That point was as follows :-
 (2) Whether the fact that the remaining respondents became mortgagees subsequently implies that they are no longer tenants and are, therefore, not entitled to 2/3rd share of the pattas?


4. Various rulings were cited by both sides before the Inam Deputy Tahsildar and the Sub-Coilictor. The latter observed that the learned Inam Deputy Tahsildar had merely mentioned the rulings in his order without discussing them. The learned Sub-Collector discussed the law as laid down by the rulings and held on Point No. 2 in favour of the inamdar as against respondents 4 to 9 alone and accordingly allowed the appeal against them. But, he directed both parties to bear their own costs. It is against that order that this writ petition has been filed.
 5. The question which arises for consideration in this writ petition is the point which has been framed by the learned Sub-Collector in his order.
 6. Shri A. Gangadhara Rao, the learned Counsel for the petitioners, has raised the following contentions:
 (1) That the mortgages, Ex. D-2 and Ex. D-5 are not usufructuary mortgages.
 (2) Section 111(f) of the Transfer of Property Act does not apply to the leases concerned in this case as they were leases for agricultural land.
 (3) Even if Section 111 (f) were to be applicable, there was no implied surrender of the leases under that provision o1 law.
 7. Section 58 (d) of the Transfer of Property Act as it originally stood (before amendment by Central Act XX of 1929) was as follows:-


"Where the mortgagor delivers possession of the mortgaged property to the mortgagee, and authorizes him io retain such possession until payment of the mortgage-money and to recaive the rents and profits accruing from the property and to appropriate them in lieu of interest, or in payment of the mortgage-mcney, or partly in lieu of interest and partly in payment of the mortgage-money, the transaction is called an usufructuary mortgage and the mortgagee an usufructuary mortgagee."
 This provision was amended by the Central Amending Act (Act XX of 1929) and the amended provision runs is follows :-
 "Where the mortgagor delivers possession or expressly or by implication binds himself to deliver possession of the mortgaged property to the mortgagee, and authorizes him to retain such possession until payment of the mort-gage-money, and to recede the rents and proiits accruing from the properly or any part of such rents and profits end to appropriate the same in lieu of interest, or in payment of the mortgage money, or partly in lieu of interest or partly in payment of the mortgage-money, the transaction is called an usufructuary mortgage and the mortgagee an usufructuary mortgagee."


Ex. D-2 and Ex. P-5 were executed in 1927 that is before the Amending Act came into force. Each of these two mortgage deeds provides that the mortgagee was to pay only a portion of the rent and profits with the result that he could in effect receive the remaining portion of the rents and profits in lieu of interest. This is sufficient to make them 'usufructuary mortgages' under the defini-tion in force after the amendment of 1929 but was not sufficient to comply with the requirements of Section 56 (d), as it stood before the amendment of 1929. Therefore each of Ex. D-2 and Ex, P-5 was not a usufructuary mortgage as that term was defined on the date on which the documents, Ex. D-2 and Ex. P-5 were executed. This contention is not made regarding the other mortgage (Ex. D-4) which was executed after the amendment of 1929 came into force. The question as to whether Ex. D-2 and EX-P-5 could in law be called usufructuary mortgages by name does not affect the contents, substance and nature of the mortgages which are substantially similar in material particulars to the mortgage (Ex. D-4).
 8. Contention Nos. 2 and 3 : Section 117 of the Transfer of Property Act tuns as follows:
 "None of the provisions of this Chapter (Chapter V consisting of Sections including Section 111) apply to leases for agricultural purposes, except in so far as the State Government may, by notification published in the Official Gazette, declare all or any of such provisions to be no applicable in the case of all or any of such lease, together with or subject to, those of the local law, if any, for the time being in force.


Such notification shall not take effect until the expiry of the six months from the date of its publication." It is beyond doubt or dispute that no notification under Section 117 was issued in the State making any provisions of Chapter V applicable to agricultural leases.
 9.    In   Umar   Pulavar  v..   Dawood   Rowther,   AIR   1947 Mad 68 it was held to the following effect :    (Head Note)
  "Section 111 (g) as amended in 1929 embodies a principle of justice, equity and good conscience, and must be held   to   govern   even   agricultural   leases....."


10.   Section 111(f) and  (g)  run as follows :-

 "111.   A   lease   of   immovable   property   determines-

 (f) by   implied   surrender;

 (g) by forfeiture;  that  is to  say.....
  (1) in   case   the lessee   breaks    an   express  condition
which  provides that,  on  breach  thereof the  lessor may  :
enter;   or  (2)  in  case   the   lessee   renounces  his  character
as such by setting up a title in a third person or by claim-
ing title  in  himself;  or (3) the  lessee is adjudicated  an in-
solvent   and   the   lease   provides   that   the   lessor   may  re-
either on the happening of such event; and in any of these
CASES  the   lessor  or  his transferee  gives  notice  in writing
to the lessee of his intention to determine the lease;"


In Brahmayya    v.    Sundaramma,  AIR   1948  Mad   275   (F5)
the learned Judges of the Full Bench observed as follows
(at page   279)
 "Whilst that section (Section 106) does not apply to leases for agricultural purpose, by virtue of Section 117 of the Act nevertheless, it has been observed and laid down in a series of decisions of this Court that the rules in Section 106 and in the other sections [Sections 105 to 116) in Chap. V of the Act are founded upon reason and eauity; they are the principles of English Law and should be adopted as state-ment of the law in India applicable to agricultural leases ....."
 11.    In   Namdeo   v.   Narmadabai,    their Lordships  of the Supreme  Court  observed  as follows:

 (at   page   232)


(at   page   232)

 "In  our opinion, the provision  as to  notice  in writing as a preliminary to a suit for ejectment based on forfeiture of a   lease   (Section   111 (g)   of  the   Transfer  of  Property  Act) is  not  based  on   any  principle   of justice,   equity  or  good conscience   and   cannot   govern   leases   made   prior   to  the coming   into  force   of  the  Transfer  cf  Property Act,   1882 or  to   leases  executed  prior to  1-4-1930.    The  lights  and obligations   under  those   leases  have   to  be  determined  according to the  rules of law prevailing at the time and the only rule applicable seems to be that a tenant cannot by his   unilateral   act   and   by   his   own   wrong  determine  the lease   unless  the   lessor  gives  an   indication   by  some  unequivocal   expression   of   intention   on   his   part   off   taking advantage  of the  breach.     On   no  principle  of equity  is  a tenant entitled to a  notice  in writing telling him that the lease   has   been   determined.....


Considerable reliance was placed by Mr. Daphthary on the   decision  of Chandrasekhara  Aiyar,  J.   sitting singly  in the case of AIR 1947 Mad 68 wherein the learned Judge said  that Section   111 (g) as amended   in   1929  embodied  a principle  of  justice,  equity  and  good  conscience  and  must be  held  to  govern  even  agricultural  leases.....     In
our judgment, this case was wrongly decided and we are unable  to support It.


Mr. Daphtary also placed reliance on certain observations contained in the Full Bench decision In AIR 1948 Mad 275 (FB). There it was said that although Section 105, T. P. Act does not apply to leases for agricultural purpose by virtue of Section 117 of the Act, nevertheless the rules in Section 106 and in the other sections (Sections 105 to 116) in Chap. V of the Act are founded upon reason and equity and they are the principles of English law and should be adopted as the statement of the law in India applicable also to agricultural leases. In our opinion, the above statement is again formulated in to a wide a language."
 Their Lordships proceeded to show that the provisions con-tained in Sections 107, 108(i), parts of Sees. 109, 110 and 111 contained mere rules of procedure which were rules of a technical nature and cannot he said to be based on any principles of equity. Their Lordships observed as follows: (at page 233) "Parts of Sections 109, 110, 111 contain mere rules of procedure or rules of a technical nature. These certainly cannot be said to be based on any principles of equity. In our judgment therefore, the statement in this decision that Sections 105 to 116 T. P. Act, an founded upon principles of reason and equity cannot be accepted either as correct or precise. Of course, to the extent that those sections of the Act give statutory re cognition to principles of justice, equity and good con science they are applicable also to cases not government by the Act."


Their Lordships then observed that certain portions of Section 111 contained mere rules of procedure or rules of a technical nature but they did not decide the question as to whether the provisions contained in Section 111 (f) in particular was a mere rule of procedure or was, on the other hand, based on any principle of justice, equity and good conscience.
 12. It has to be decided whether the provision in Section 111(f) is cased on principle of justice, equity and good conscience.
 13. In Venkayya V. Subbarao, AIR 1957 Andh-Pra 619, the question arose whether, where a later lease was executed regarding the same property, there was an implied surrender of an earlier lease of the same property under Section 111 (f), Transfer of Property Act. Viswanatha Sastri, J. observed as follows: (at page 624) "Implied surrender is, however, recognised and provided for by Section 111, Clause (f) of the Transfer of Property Act and the illustration thereto, which refers to a lessee accepting from his lessor a new lease of the property leased, to take effect during the continuance of an existing lease. The illustration is obviously not exhaustive of cases of implied surrender ....."
 The learned Judge, after considering various decisions, held that there was an implied surrender.


The learned Judge, after considering various decisions, held that there was an implied surrender.
 14. In G. Valia Raja v. Tharappan Vareed, , the question arose whether, when there cams into existence a later usufructuary mortgage, there was an implied surrender af an earlier lease under Section 111 of the Transfer of Property Act. The learned Judge relled on the decision In Veiu v. Lekshmi, AIR 1953 Trav-Co 584, wherein it was laid down "the principle is that, whenever a certain relationship exists between two parties in respect of a subject-matter and a new relationship arises as regards the identical subject-matter, if the two sets of relationships cannot co-exist as being inconsistent and incompatible, that is to say, if the latter can come into effect only on the termi-ation of the earlier, that would be deemed to have been terminated in order to enable the latter to operate".
 The learned Judge formulated the question as follows : (at page 294) "The question is, whether under Exts. A and B, the parties stand to each other in two inconsistent and in-compatible relationships or in other words, whether the rela-tionship between them after the date of Ext. B, was that mortgagor and mortgagee and not that of lesser and lessee."


The learned Judge stated thus: (at page 295) "..... the question has to be answered pri-
marily on the terms of Ex. B, understood in the light of the surrounding circumstances ..... The contents of Ex. B winch are important in this connection, are the description of the mortgaged properties in the schedule, the 'statement' in it 'that possession of the properties was handed over to the mortgagee on the date of the document', the direction to the mortgagee io enjoy the properties directly or indirectly, the 'reference' to 720 paras of paddy as the annual income from the properties 'in contradistinction with the description as rent in Ext. A,' together with the provision for accounting relating to it, by appropriating part of it towards interest on the mortgage amount and by paying the balance to the mortgagor, the provision in it for the release of the mortgaged propar-ties on payment of the mortgage amount, the repetition of the provision for the payment of tax amcunting to Rs. 48-8-1, as if Ex. B is self-contained, and 'the provision for the sale of the mortgaged properties as described.' These indicate to my mind, that after the date o1 Ex. B, the only relationship that subsisted was, that of mortgagor and mortgagee....."


Two important recitals on which the learned Judge based his conclusion are (a) that the document (mortgage) contained references to annual income from the properties in contradistinction with rent mentioned in the lease deed and (b) that there is a provision for sale of the mortgaged properties. In the mortgages with which we are concerned in the present case, there is no provision for sale of the property for realisation cf the mortgage money. There is, on the other hand, a clear provision in each of the three mortgages that the persons who took the mortgage were to make payments out of the stipulated rent. It not only means that rent was due from those persons but also that rent had been stipulated and agreed upon. This is a clear indication regarding each mortgage that, though the mortgage was executed, relationship of lessor and lessee existed at the same time and remained unaffected. It means that such relationship of lessor and lessee continued as it had existed up to ths date of the mortgage.
 15. The learned Judge (Velu Pillai, J.) has himself observed in , as follows : [at page 294) :
 "It was contended for the defendants, that ths acceptance of a mortgage does not always nut an end to the earlier lease, and it was urged, that, though under Ext. A, the immovable properties were leased, under Ext. B, what was mortgaged was only the lessor's reversion, meaning not only his right to recover the leasehold, but also the right to the rent and all other rights which he may possess under the lease.


As an instance, Markose v. Godar Namboodiripad, 39 Cochin 400, may be referred to, where the provision in the mortgage document was to appropriate the interest on the mortgage amount from the 'Pattom' or 'rent' payable under the lease, the balance of the pattom alone, being payable in the mortgagor which was held to be a conclusive circumstance for coming to the conclusion, that the lease subsisted notwithstanding the mortgage."
 Thus, Velu Pillai, J. himself approved of that earlier decision in 39 Cochin 400, where it had been stated that the provision for payment of interest on mortgage money from out of rent was held to be a conclusive circumstance for holding that the lease subsisted. Such a provision-is actually found in the three mortgages which are concerned in this case. The learned Judge did not specifically consider the question as to whether Section 111 (f) of the Transfer of Property Act was applicable to agricultural leases by way of being based on principles of justice, equity and good conscience. But, he proceeded to decide the case on the principle of implied surrender which he referred to as a principle whose applicability to leases cannot be doubted and which was founded in English law upon the rule of estoppel. He also stated that Section 111 (f) of the Transfer of Property Act only codified that principle.
 16. In Ramrao Govindrao v. Pahumal, , it was observed as follows: (at page 297) "It is then argued that Section 101 of the Transfer of Property Act is exhaustive of the cases where there would be no merger, so that where a tenant accepts a mortgage, tenancy rights merge in the mortgagee lights. We cannot accept this to be the negative aspect of Section 101 of the Transfer of Property Act.


However, it seems clear to us that the relationship, of landlord and tenant came to an end when the usufructuary mortgage was effected. It is stated in the mortgage deed tnat the mortgagor is in possession and occupation of the house (Qabiz wa Mutasarrif), that he is delivering possession to the mortgagee, that the mortgage is possessory (Rahabil-Qabz), that the mortgagee will not be entitled to any interest nor will Ihe mortgagor be entitled to rent, and that on redemption only the principal amount of Rs, 1000/- will be repaid by the mortgagor to the mortgagee. It is, therefore, clearly a pure usufructuary mortgage."
 The learned Judges approved of the decision in AIR 1951 Kerala 293.
 17. In S. A. No. 270 of 1962, Kinta Avutaram v. Vsrada Eangara Raju, Unreported judgment of this Court, DA. 19-6-1963 (A. P.), which came up for decision before cur learned brother, Chandrasehhara Sastry, J. the relevant facts were as follows: There was a lease of building hot agricultural land) and subsequent usufructuary mortgage of the same property in favour of the lessee. The concerned recitals were :