Jharkhand High Court
Antardhari Sao vs The State Of Jharkhand on 19 February, 2024
Author: Ananda Sen
Bench: Ananda Sen
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(C) No. 1256 of 2019
Antardhari Sao, aged about 66 years, son of late Thanu Sao, resident
of Village & P.O. Chainpur, P.S.- Mandu, District- Ramgarh
... ... Petitioner(s)
Versus
1. The State of Jharkhand, through its Chief Secretary, Government
of Jharkhand, Ranchi.
2. Deputy Commissioner, Ramgarh.
3. The Additional Collector, Ramgarh.
4. Sub Divisional Officer, Ramgarh.
5. Land Reforms Deputy Collector, Ramgarh.
6. Circle Officer, Mandu, Ramgarh. ... ... Respondent(s)
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CORAM: SRI ANANDA SEN, J.
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For the Petitioner(s) : Mr. A.K. Sahani, Advocate
For the Respondent(s) : Mr. Gaurav Raj, A.C. to A.A.G. II
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Order No. 11: Dated: 19th February, 2024
1. By filing this writ petition, the petitioner has prayed to quash
the notice dated 13.02.2019 (at Annexure-8) issued by the respondent
no.3 the Additional Collector, Ramgarh whereby a proceeding under
Section 4 (h) of the Bihar Land Reforms Act, 1950 (hereinafter
referred as "the Act, 1950" for the sake of brevity) has been initiated
against the petitioner.
Further the petitioner has prayed to quash the notice dated
04.12.2018 (Annexure-7) issued by the respondent no. 6 the Circle
Officer, Mandu, Ramgarh intimating about the initiation of
proceeding initiated under Section 4(h) of the Act 1950.
2. Learned counsel for the petitioner submits that the both these
notice are bad and without jurisdiction. He submits that notice issued
under Section 4(h) of the Act, 1950 could not have been issued after a
lapse of considerable period (which is more than 67 years in this case)
from the date of transfer. It is his case that the State cannot, take a
circuitous route by initiating a proceeding under Section 4(h) of the
Act, against the petitioner and seek to evict him. As per him in O.S.
No. 79 of 2004 between Kameshwar Prasad and others Vs. State and
the petitioner, when Title was not declared in favour of the
Kameshwar Prasad and others in the written statement filed by the
State, in the aforesaid suit, has taken a stand that the jamabandi in
favour of this petitioner has been opened after proper enquiry and
after observing all formalities as required under law. The State has
also taken a stand that the said order is not a collusive order. As per
the petitioner, this statement clearly suggests that the opening of the
jamabandi in the name of the petitioner is justified and in accordance
with the law. Thus, now the respondent cannot backtrack and initiate
a proceeding under Section 4(h) of the Act, 1950. Another limb of the
argument is that the Circle Officer, who has issued Annexure 7 (one
of the impugned notice) is not a "Collector" under the Act, 1950 thus
the notice which has been issued by the Circle Officer is bad and
without jurisdiction. He further submits that the settlement is of the
year 1937 i.e. prior to cut off date as prescribed under the Act of 1950
and that being so, the impugned notice which is of the year 2019
could not have been issued. He submits that even if no period of
limitation is prescribed for initiating a proceeding under section 4(h)
of the Act, that does not mean that the respondents has the power to
initiate such proceeding at any point of time and in this case after
more than 60 years. On this ground, he prays to quash the entire
proceeding.
3. The learned counsel appearing on behalf of the State submits
that the petitioner has rushed to this Court by challenging the notice
only. The grounds which the petitioner has taken in this writ petition
should have been taken before the competent authority under the
Act, 1950 who issued the notice, and initiated the proceeding under
Section 4(h) of the Act, 1950. On merits he submits that the transfers
were clandestine, thus the proceeding under Section 4(h) of the Act,
1950 was initiated against the petitioner after proper enquiry. He
submits that there is already a veterinary hospital over the part of the
plot of the land, thus the petitioner could not have been transferred
the land.
4. In reply Mr. Sahani, learned counsel for the petitioner submits
that the veterinary clinic has not been constructed on the part of the
land which belongs to the petitioner and his client has not claim over
the same.
5. From the pleadings of the parties and the prayer made in this
writ petition, I find that the petitioner has challenged the notice at
Annexure-7 issued by the Circle Officer, Mandu (Ramgarh) in Record
No. 7/18-19 under Section 4(h) of the Act, 1950. By the aforesaid
notice, Circle Officer has only directed the petitioner to remain
present along with all the documents at specified place to prove his
ownership over the land situated in P.S. Mandu Khata Number 34
Plot Nos. 582, 620 having an area of 2.38 acres which according to the
survey Khatiyan is a gairmajarua Khas land but the Jamabandi in the
Register II is running in the name of the petitioner at page 167/I. In
the aforesaid notice it has also been mentioned that if the petitioner
does not remain present with all the documents, then a proceeding
under Section 4(h) of the Act, 1950 will be initiated for cancellation of
Jamabandi.
6. The second notice which the petitioner has challenged is at
Annexure 8 dated 13.02.2019. The aforesaid notice was issued by the
Additional Collector, Ramgarh after initiating a proceeding under
Section 4(h) of the Act, 1950.
7. On the last date of hearing, this Court formulated two points
for consideration in this writ petition which are as follows :
"(i) Whether a Circle Officer can be said to be a "Collector" in
terms of Section 2(e) of the Bihar Land Reforms Act, 1950 and can
initiate a proceeding under Section 4(h) of the said Act.
(ii) Whether a proceeding under Section 4(h) of the Act can be
initiated after a lapse of more than 50 years when the Jamindari is
already stood vested in the year 1950 and the cutoff date which has
been fixed is 01.01.1946."
To answer the first question, I have to see the authority who
has issued the notice to the petitioner. Annexure-7 is the notice issued
by the Circle Officer whereas the Annexure-8 is the notice of
proceeding under Section 4(h) of the Act, 1950 issued by the
Additional Collector.
8. Section 2(e) of the Act, 1950 which is now the Jharkhand Land
Reforms Act defines the word Collector:
2(e) "Collector" includes any Officer [not below the rank of a
Sub-Deputy Collector] [appointed] by the State Government
to discharge all or any of the functions of a Collector under
this Act;
From the aforesaid definition, it is clear that the Collector is an
officer who is not below the rank of Sub Deputy Collector appointed
by the State Government and he has to discharge all or any of the
function of the Collector under this Act.
9. It is admitted that a notification has been issued by the State
appointing Additional Collectors and Additional Sub Division
Officers in the State to discharge the function of the Collector under
the Act, 1950.
10. As noticed above, the first notice was issued by the Circle
Officer and the second notice has been issued by the Additional
Collector, Ramgarh. When I go through the first impugned notice i.e.
Annexure-7, I find that the said notice is not of initiation of a
proceeding under Section 4(h) of the Act, 1950. This notice is a notice
of enquiry which is supposed to be conducted prior to initiate a
proceeding under Section 4(h) of the Act, 1950. In terms of section
4(h) of the Act, 1950, this enquiry can be conducted by any authority
whereas a proceeding under Section 4(h) of the Act, 1950 has to be
initiated by the Collector himself and an appropriate order has to be
passed by him. Thus, I hold that there is no illegality in conducting
an enquiry by the Circle Officer, Mandu. So far as the power to issue
notice under Section 4(h) of the Act, 1950 is concerned, the power to
initiate such proceeding, vests with the Collector. It is admitted that
the Additional Collector is also a "Collector" within the definition of
Section 2(e) of the Act, 1950 which defines Collector. Annexure-8 in
this case is issued by the Additional Collector who is thus an
appropriate and competent authority in terms of section 2(e) of the
Act, 1950 to issue notice and initiate a proceeding under Section 4 (h)
of the Act, 1950.
11. Now the next question, is even if he has the power to issue
notice, whether the proceeding under Section 4(h) could have been
initiated after lapse of more than 69 years from the date of
promulgation of the Act, 1950. This will answer the second question
which has been formulated by this Court.
12. Section 4(h) of the Act, 1950 reads as follows:
4(h) The Collector shall have power to make inquiries in
respect of any transfer including the settlement or lease of
any land comprised in such estate or tenure or the
transfer of any kind of interest in any building used
primarily as office or cutchery for the collection of rent of
such estate or tenure or part thereof, [* * *] and if he is
satisfied that such transfer was made [at any time after
the first day of January, 1946, with the object of defeating
any provisions of this Act or causing loss to the State or
obtaining higher compensation thereunder the Collector
may, after giving reasonable notice to the parties
concerned to appear and be heard [* * *] annul such
transfer, dispossess the person claiming under it and take
possession of such property on such terms as may appear
to the Collector to be fair and equitable:]
[Provided that an appeal against an order of the Collector
under this clause if preferred within sixty days of such order,
shall lie to the prescribed authority not below the rank of the
Collector of a district who shall dispose of the same according
to the prescribed procedure:] Provided further that no order
annulling a transfer shall take effect nor shall possession be
taken in pursuance of it unless such an order has been
confirmed by the State Government.]
From the perusal of the aforesaid provision, it is clear that the
Collector has right to make enquiry in respect of transfer including
any settlement or lease or transfer of any kind of interest, if he is
satisfied that the said transfer was made after 1.01.1946 with the
object to defeat the provision of the Act, 1950 or to cause loss to the
State. The Collector after giving reasonable opportunity of hearing to
the parties after hearing them can annul such transfer and dispossess
the parties, who are in possession of the properties which is
transferred or settled. In the instant case, the alleged transfer was
made in the year 1937 i.e. much prior to 01.01.1946.
13. Now the Act, 1950 came into force on 25.09.1950. As per the
Section 4(h) of the Act, 1950, if the Collector is satisfied that the
transfer which was made after 01.01.1946 is sham and clandestine for
the purpose to defeat the provision of the Act, he can pass the
appropriate order, dispossessing the person who is in possession and
for such transfer. Thus, from the aforesaid said provision it is clear
that any transfer which made prior to 01.01.1946 cannot be
questioned in terms of Section 4(h) of the Act, 1950 provided that it is
not the case of the State that the transfer actually had taken place
after 01.01.1946 though it is shown to be made prior to that date. This
is not a case here.
14. The stand taken by the State is that their jamabandi is doubtful
as the same was opened in the year 1949. Such stand of the State
suggests that admittedly the jamabandi was opened prior to coming
into force of the Act, 1950. It is also clear from the records that on
remand by this Hon'ble Court in CWJC No. 2606 of 1994 vide order
dated 22.08.2002, the Commissioner, Hazaribag in Mutation Revision
No. 82/02 pleased to affirm the order passed by the DCLR,
Hazaribag after setting aside the order passed by the Additional
Collector holding the same to be unreasonable beyond the facts and
is illegal. The order of the Commissioner in favour of the petitioner
was not challenged. Further in a Title Suit which has been filed
against the State and the petitioner by some private person, the State
has specifically taken a stand in paragraph 15 of their written
statement, that the land has been correctly mutated and recorded in
the register after following all procedures of law, in favour of the
petitioner. Thus in a judicial proceeding the State has taken a positive
stand in favour of the petitioner.
15. Be it noted it is the DCLR, Hazaribagh, who opened the Case
No. 3/90-91 whereby the DCLR got the matter enquired and when he
got a positive report in favor of the petitioner, he affirmed his
previous order of continuation of the jamabandi in favour of the
petitioner. The DCLR affirmed the order of the Circle Officer vide its
order dated 28.12.1991, which is apparent from the order passed by
the Commissioner in Mutation Case Revision No. 82/2002 vide order
dated 06.05.2003. This fact clearly suggests that the Commissioner
also accepted the fact that the jamabandi which was opened in the
name of the petitioner is correct. Now after more than 60 years a
fresh notice has been issued under Section 4(h) of the Act against the
petitioner and the proceeding was initiated.
16. Section 4(h) of the Act does not provide for any period of
limitation. When there is no period of limitation prescribed in the
statute to initiate the proceeding, it does not mean that this
proceeding can be initiated at any time as per the wish of the
authority and person, who is initiating the proceeding. In absence of
any prescribed period for limitation, the proceeding should be
initiated within a reasonable time frame.
17. Now the question is what would be the reasonable time frame.
This exact issue has been dealt with by a Division Bench of this
Hon'ble Court in Civil Review No. 45 of 2013 in the case of the State of
Jharkhand and others vs. Smt. Kalpana Pandey wherein the learned
Division Bench of this Court in paragraph 16 has held as follows:
"16. Having heard the learned counsel for both the sides and
looking to the facts and circumstances of the case, we see no reason
to entertain this Civil Review mainly for the reasons :-
(i) Entries were made in the name of the predecessor-in-title of
the respondent in the year 24th January, 1948, thereafter, for the
first time, after several decades, Misc case No. 9 of 1982-83 was
initiated by the S.D.O, Pakur under section 4(h) of the Act, 1950,
and, after hearing the parties S.D.O, Pakur vide order dated
9.11.1992 dropped the proceedings. This order has never been
challenged by any one by way of appeal before the Collector. This
order has attained its finality. Neither the State nor any private
party had gone in appeal against this order.
(ii) Again in the year 1995, despite the order was already
passed in Misc Case No. 9 of 1982-83, again before the very same
authority, namely, S.D.O, Pakur, a case was instituted being
R.M.A No. 35 of 1995-96, under section 4(h) of the Bihar Land
Reforms Act, 1950. This second case is in fact not tenable at law
because there was already an order in Misc case No. 9 of 1982/83
by the very same authority, namely, S.D.O, Pakur.
(iii) In a second case before S.D.O, Pakur, he decided the
matter vide its order dated 9.8.1995, and, cancelled the transfer of
the property, against which respondent preferred appeal bearing
R.M.A No. 22 of 1995-96 before the Collector who dismissed the
appeal vide its order dated 25th February, 2003.
(iv) Against this order the original petitioner preferred a
revision application No. 120 of 2003 before the Divisional -7-
Commissioner who dismissed the revision application vide its
order dated 13.5.2003. Against this order, W.P(C) No. 5055 of
2003 was preferred by the respondent which was allowed with cost,
against which L.P.A No. 282 of 2008 was preferred by the State
only so far as imposing of the cost of Rs.10,000/- is concerned. It
was allowed by this court vide its order dated 23rd March, 2009,
against which S.L.P was preferred by the State which was
converted into Civil Appeal No. 7995 of 2012, and, the Hon'ble
Supreme Court vide its order dated 15.10.2012 passed an order
allowing the petitioner to withdraw the S.L.P, as the petitioner
wanted to prefer review application before this court.
The Hon'ble Supreme court passed the following the order :-
"Upon hearing counsel the court made the following Order
Mr.Jayesh Gaurav, learned Counsel for the petitioners seeks
withdrawal of Special Leave Petition as the petitioners intend to
apply to the High Court for review of the impugned order. Special
Leave petition is dismissed as withdrawn"
(v) In view of the aforesaid order, the present Civil Review
application has been preferred by the State for modification of order
passed by this court in L.P.A No. 282 of 2008 dated 23rd March
2009.
(vi) Counsel appearing for the appellant submitted that L.P.A
No. 282 of 2008 was only for imposing of cost upon the State
which was waived by Division Bench of this Court.
(vii) In view of this fact and also looking to the fact that earlier
the order passed by the S.D.O, Pakur in Misc Case -8- No. 9 of
1982/83 under section 4(h) of the Bihar Land Reforms Act, 1950,
which is dated 9.11.1992 has already attained its finality as the the
proceedings were dropped by the S.D.O, Pakur. Second time before
the very same officer the proceedings cannot be initiated being
R.M.A Case No. 35 of 1995-96 against the respondent. Secondly,
the entries which were made in the year, 1948, and, that transfer of
property which was made in 1948, after 47 long years cannot be
called in question in R.M.A Case No. 35 of 1995- 96 under Bihar
Land Reforms Act,1950, especially under section 4(h) of the Act,
1950. For ready reference under section 4(h) of the Bihar Land
Reforms Act,1950 read as under :-
"Section 4(h) of the Act, 1950 runs as follows: "(h) The Collector
shall have power to made inquiries in respect of any transfer
including the settlement of lease of any land comprised in such
estate or tenure or the transfer of any kind of interest in any
building used primarily as office or cutchery for the collection of
rent of such estate or tenure or part thereof, and if he is satisfied
that such transfer was made at any time after the first day of
January, 1946, with the object of defeating any provisions of this
Act, or causing loss to the State or obtaining higher compensation
thereunder, the Collector may, after giving reasonable notice to the
parties concerned to appear and be heard annul such transfer,
dispossess the person claiming it and take possession of such
property on such terms as may appear to the Collector to be fair
and equitable. Provided that an appeal against an order of the
Collector under this clause if preferred within sixty days of such
order, shall lie to the prescribed authority not below the rank of the
Collector of a district who -9- shall dispose of the same according to
the prescribed procedure; Provided further that no order annulling
a transfer shall take effect nor shall possession be taken in
pursuance of it unless such an order has been confirmed by the
State Government".
16. In view of the aforesaid provision though there is no time limit
for the Collector to exercise its power under section 4(h) of the
Bihar Land Reforms Act, 1950, it should have been exercised
within reasonable period. Now the question arises what is a
reasonable period in the eye of law."
18. The Division Bench thereafter in paragraph 17 to 23 has dealt
with the several judgments of the Hon'ble Supreme Court which
deals with what would be the reasonable period. It is necessary to
quote the paras 17 to 23 which are hereunder:-
"17. It has been held by Hon'ble Supreme Court in the case of State of
Gujarat v. Patil Raghav Natha, reported in (1969) 2 SCC 187, especially
in paragraphs 11 and 12 thereof, as under:
"11. The question arises whether the Commissioner can revise an
order made under Section 65 at any time. It is true that there is no
period of limitation prescribed under Section 211, but it seems to
us plain that this power must be exercised in reasonable time and
the length of the reasonable time must be determined by the facts of
the case and the nature of the order which is being revised. 12. It
seems to us that Section 65 itself indicates the length of the
reasonable time within which the Commissioner must act under
Section 211. Under Section 65 of the Code if the Collector does not
inform the applicant of his decision on the application within a
period of three months the permission applied for shall be deemed
to have been granted. This section shows that a period of three
months is considered ample for the Collector to make up his mind
and beyond that the legislature thinks that the matter is so urgent
that permission shall be deemed to have been granted. Reading
Sections 211 and 65 together it seems to us that the Commissioner
must exercise his revisional powers within a few months of the
order of the Collector. This is reasonable time because after the
grant of the permission for building purposes the occupant is likely
to spend money on starting building operations at least within a
few months from the date of the permission. In this case the
Commissioner set aside the order of the Collector on October 12,
1961 i.e more than a year after the order and it seems to us that
this order was passed too late." (Emphasis Supplied)
18. It has further been held by Hon'ble Supreme Court in the case of
Mohd. Kavi Mohamad Amin v. Fatmabai Ibrahim, reported in (1997) 6
SCC 71, especially in paragraph 2 thereof, as under:
"2. Although Mr Bhasme, learned counsel appearing for the
appellant took a stand that under Section 63 of the Act aforesaid,
there should not be any discrimination amongst the agriculturists
with reference to the State to which such agriculturist belongs. But
according to him even without going into that question the
impugned order can be set aside on the ground that suo motu
power has not been exercised within a reasonable time. Section 84-
C of the Act does not prescribe any time for initiation of the
proceeding. But in view of the settled position by several
judgments of this Court that wherever a power is vested in a
statutory authority without prescribing any time-limit, such
power should be exercised within a reasonable time. In the present
case the transfer took place as early as in the year 1972 and suo
motu enquiry was started by the Mamlatdar in September 1973. If
sale deeds are declared to be invalid the appellant is likely to suffer
irreparable injury, because he has made investments after the
aforesaid purchase. In this connection, on behalf of the appellant
reliance was placed on a judgment of Justice S.B. Majmudar (as he
then was in the High Court of Gujarat) in State of Gujarat v.
Jethmal Bhagwandas Shah disposed of on 1-3-1990, where in
connection with Section 84-C itself it was said that the power
under the aforesaid section should be exercised within a reasonable
time. This Court in connection with other statutory provisions, in
the case of State of Gujarat v. Patil Raghav Natha and in the case
of Ram Chand v. Union of India has impressed that where no time-
limit is prescribed for exercise of a power under a statute it does
not mean that it can be exercised at any time; such power has to be
exercised within a reasonable time. We are satisfied that in the
facts and circumstances of the present case, the suo motu power
under Section 84-C of the Act was not exercised by the Mamlatdar
within a reasonable time. Accordingly, the appeal is allowed. The
impugned orders are set aside. No costs." (Emphasis Supplied)
19. It has further been held by Hon'ble Supreme Court in the case of
Collector v. P. Mangamma, reported in (2003) 4 SCC 488, especially in
paragraphs 5 and 6 thereof, as under :
"5. A reasonable period would depend upon the factual
circumstances of the case concerned. There cannot be any -11-
empirical formula to determine that question. The court/ authority
considering the question whether the period is reasonable or not
has to take into account the surrounding circumstances and
relevant factors to decide that question.
6. In State of Gujarat v. Patel Raghav Natha it was observed that
when even no period of limitation was prescribed, the power is to
be exercised within a reasonable time and the limit of the
reasonable time must be determined by the facts of the case and the
nature of the order which was sought to be varied. This aspect does
not appear to have been specifically kept in view by the Division
Bench. Additionally, the points relating to applicability of the
Prohibition Act, and even if it is held that the Act was applicable,
the reasonableness of the time during which action should have
been initiated were also not considered. It would be hard to give an
exact definition of the word "reasonable". Reason varies in its
conclusions according to the idiosyncrasy of the individual and the
times and circumstances in which he thinks. The reasoning which
built up the old scholastic logic stands now like the jingling of a
child's toy. But mankind must be satisfied with the reasonableness
within reach; and in cases not covered by authority, the decision of
the Judge usually determines what is "reasonable" in each
particular case; but frequently reasonableness "belongs to the
knowledge of the law, and therefore to be decided by the courts". It
was illuminatingly stated by a learned author that an attempt to
give a specific meaning to the word "reasonable" is trying to count
what is not a number and measure what is not space. It means
prima facie in law reasonable in regard to those circumstances of
which the actor, called upon to act reasonably, knows or ought to
know. [See Municipal Corpn. of Delhi v. Jagan Nath Ashok Kumar
and Gujarat Water Supply & Sewerage Board v. Unique Erectors
(Gujarat) (P) Ltd.] As observed by Lord Romilly, M.R. in
Labouchere v. Dawson it is impossible a priori to state what is
reasonable as such in all cases. You must have the particular facts
of each case established before you can ascertain what is reasonable
under the circumstances. Reasonable, being a relative term is
essentially what is rational according to the dictates of reason and
not excessive or immoderate on the facts and circumstances of the
particular case."
(Emphasis Supplied)
20. It has further been held by Hon'ble Supreme court in the case of
Ibrahimpatnam Taluk Vyavasaya Coolie Sangham v. K. Suresh Reddy,
reported in (2003) 7 SCC 667, especially in paragraph 9 thereof, as under:
"9. Even before the Division Bench of the High Court in the writ
appeals, the appellants did not contend that the suo motu power -
12- could be exercised even after a long delay of 13-15 years
because of the fraudulent acts of the non-official respondents. The
focus of attention before the Division Bench was only on the
language of sub-section (4) of Section 50-B of the Act as to whether
the suo motu power could be exercised at any time strictly sticking
to the language of that sub-section or it could be exercised within
reasonable time. In the absence of necessary and sufficient
particulars pleaded as regards fraud and the date or period of
discovery of fraud and more so when the contention that the suo
motu power could be exercised within a reasonable period from the
date of discovery of fraud was not urged, the learned Single Judge
as well as the Division Bench of the High Court were right in not
examining the question of fraud alleged to have been committed by
the non-official respondents. Use of the words "at any time" in
sub-section (4) of Section 50-B of the Act only indicates that no
specific period of limitation is prescribed within which the suo
motu power could be exercised reckoning or starting from a
particular date advisedly and contextually. Exercise of suo motu
power depended on facts and circumstances of each case. In cases of
fraud, this power could be exercised within a reasonable time from
the date of detection or discovery of fraud. While exercising such
power, several factors need to be kept in mind such as effect on the
rights of the third parties over the immovable property due to
passage of considerable time, change of hands by subsequent bona
fide transfers, the orders attaining finality under the provisions of
other Acts (such as the Land Ceiling Act). Hence, it appears that
without stating from what date the period of limitation starts and
within what period the suo motu power is to be exercised, in sub-
section (4) of Section 50-B of the Act, the words "at any time" are
used so that the suo motu power could be exercised within
reasonable period from the date of discovery of fraud depending on
facts and circumstances of each case in the context of the statute
and nature of rights of the parties. Use of the words "at any time"
in sub-section (4) of Section 50-B of the Act cannot be rigidly read
letter by letter. It must be read and construed contextually and
reasonably. If one has to simply proceed on the basis of the
dictionary meaning of the words "at any time", the suo motu
power under sub-section (4) of Section 50-B of the Act could be
exercised even after decades and then it would lead to anomalous
position leading to uncertainty and complications seriously
affecting the rights of the parties, that too, over immovable
properties. Orders attaining finality and certainty of the rights of
the parties accrued in the light of the orders passed must have
sanctity. Exercise of suo motu power "at any time" only means
that no specific period such as days, months or years are not (sic)
prescribed reckoning from a particular date. But that does not
mean that "at any time" should be unguided and arbitrary. In this
view, "at any time" must be understood as within a reasonable
time depending on the facts and circumstances of each case in the
absence of prescribed period of limitation.
(Emphasis Supplied)
21. It has further been held by Hon'ble Supreme Court in the case of Pune
Municipal Corpn. v. State of Maharashtra, reported in (2007) 5 SCC 211,
especially in paragraphs 27 and 30 thereof, as under :
"27. Now it is true that no period for revision is provided in the
Act. It was, therefore, submitted on behalf of the landowners that
when the legislature did not think it fit to prescribe period of
limitation, such power can be exercised "at any time" and no court
by a "judicial fiat" can usurp legislative power and prescribe
period of limitation. It is no doubt true that the statute does not fix
period of limitation within which revisional power should be
exercised under Section 34 of the Act. The legislature, in its
wisdom, has not fixed period of limitation as it had empowered the
State Government to exercise revisional power suo motu. In our
judgment, however, only in such cases i.e. where the period of
limitation is not prescribed that the concept of "reasonable time"
can be invoked and power must be exercised within such period.
30. The law laid down in Patel Raghav Natha has been reiterated
by this Court in several cases. We do not intend to burden our
judgment with all those cases. We may only state that broad
contention of the landowners that when no period of limitation is
prescribed, revisional jurisdiction can be exercised at any time
cannot but be rejected. If the law prescribes period of limitation, the
action must be taken within such period. But where the law does
not prescribe limitation, the court would import the concept of
"reasonable time". We may, however, hasten to add that what is
the length of the reasonable time would depend upon the facts and
circumstances of each case and no rule of universal application can
be laid down."
(Emphasis Supplied)
22. It has further been held by Hon'ble Supreme Court in the case of M.P.
Housing Board v. Shiv Shankar Mandil, reported in (2008) 14 SCC 531,
especially in paragraph 27 thereof, as under :
"27. In State of Gujarat v. Patil Raghav Natha this Court held that
the review power should be used in reasonable time. We accept the
finding of the learned Single Judge as confirmed by the Division
Bench of the High Court that the power of review has to be
exercised within a reasonable time and that in this case, three years
of time, without any explanation, could not be viewed as a
reasonable time in view of the fact that the petitioner had obtained
possession, paid premium, spent money for obtaining the
registered sale deed and have also made the initial expenditure for
preparing the land for raising structures. The said Government
could not have allowed the petitioner to do all these things and
then chosen to review its own powers."
(Emphasis Supplied)
23. It has further been held by Hon'ble Supreme Court in the case of
Santoshkumar Shivgonda Patil v. Balasaheb Tukaram Shevale, reported in
(2009) 9 SCC 352, especially in paragraph 11 and 12 thereof, as under :
" 11. It seems to be fairly settled that if a statute does not prescribe
the time-limit for exercise of revisional power, it does not mean
that such power can be exercised at any time; rather it should be
exercised within a reasonable time. It is so because the law does not
expect a settled thing to be unsettled after a long lapse of time.
Where the legislature does not provide for any length of time
within which the power of revision is to be exercised by the
authority, suo motu or otherwise, it is plain that exercise of such
power within reasonable time is inherent therein.
12. Ordinarily, the reasonable period within which the power of
revision may be exercised would be three years under Section 257
of the Maharashtra Land Revenue Code subject, of course, to the
exceptional circumstances in a given case, but surely exercise of
revisional power after a lapse of 17 years is not a reasonable time.
Invocation of revisional power by the SubDivisional Officer under
Section 257 of the Maharashtra Land Revenue Code is plainly an
abuse of process in the facts and circumstances of the case
assuming that the order of the Tahsildar passed on 30-3-1976 is
flawed and legally not correct."
(Emphasis Supplied)
19. Ultimately in para 18 of the aforesaid judgment the learned
Division Bench of this Court has held that whenever an open ended
time limit is given to any authority to exercise its power, specially
under the land laws, the said powers ought to be exercised within a
reasonable period and surely 47 long years is not a reasonable period.
It has also been held by the Division Bench that after a long lapse of
time no such power could have been exercised by the Collector or
any person delegated with the powers to initiate the proceeding
under Section 4(h) of the Act, 1950.
20. Further, if we take a clue from the Limitation Act, 1963, in the
schedule whereunder we find that as per the Article 111 and 112 to
recover possession of land of any public street or road etc. the period
of limitation is 30 years from the date of dispossession and for filing
any suit (except the suit before the Hon'ble Supreme Court in
exercise of its original jurisdiction), by the Government, the period of
limitation is 30 years. If we carefully go through the schedule of the
Limitation Act, we find that the maximum period of limitation which
is prescribed in said schedule is 30 years. Thus, as per the Limitation
Act also, no proceeding can be initiated beyond a period of 30 years
so far as the some of the entries are concerned. In the rest it is either 3
years or 12 years or in some cases 30 days or 90 days.
21. In this case, the proceeding under Section 4(h) of the Act, 1950
has been initiated after 69 years from the date of promulgation of the
Act. This is a very long period which by any stretch of imagination,
cannot be said to be a reasonable period to initiate the proceedings
under Section 4(h) of the Act, 1950. Further a suit for recovery of
possession and declaration of title will also be barred in view of the
Limitation Act as 69 years have lapsed. When a remedy is barred
under the Limitation Act, the said remedy cannot be availed by
taking recourse to a Statute where limitation has not been prescribed.
22. Thus even if the Additional Collector has power to issue any
notice under the Act, he does not have power to initiate a proceeding
after more than 60 years. Initiating the proceeding after 60 years in
this case is absolutely an abuse of law. Thus, the entire proceeding
initiated by the impugned notice under section 4(h) is set aside.
23. In view of the above, this writ petition is allowed.
(ANANDA SEN, J.)
MM
NAFR
