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CASE NO.: Appeal (civil)  834 of 1997

PETITIONER: Lakshmi Narain Mandal & Ors.                     

RESPONDENT: Vs. State of Bihar and Ors.                          

DATE OF JUDGMENT: 05/08/2003

BENCH: Shivaraj V. Pati & D.M. Dharmadhikari.

JUDGMENT:

J U D G M E N T

Shivaraj V. Patil, J.

       In this appeal, the order passed by the Division  Bench of the High court in L.P.A. No. 64 of 1994  affirming the order passed by the learned Single Judge  in writ petition filed by respondents 4 and 5 herein,  is challenged questioning its validity.  The writ  petition was allowed by the learned Single Judge by his  order dated 13.4.1994 setting aside the order dated  27.2.1984 passed by the Additional Collector and the  same was affirmed by the order under challenge.  The  facts as noticed in the order of the learned Single  Judge are that a large number of persons had to loose  their lands in execution of rent decrees on account of  their failure to pay rent in respect of their holdings  or have to abandon on account of vagaries of river  Kosi.  In order to provide relief to those unfortunate  persons, to compensate them the Kosi Area (Restoration  of Lands to Riayat) Act, 1951 (for short ‘the Act’) was  brought into force.  The Preamble of the Act states  that it was intended to restore to former raiyats lands  which were sold for recovery of arrears of land or from  which they were ejected for arrears of rent or which  were treated as abandoned during certain period due to  floods in the Kosi river.  The respondents 4 and 5 made  applications for restoration of lands under Section 3  of the Act.  The Deputy Collector of Land Reforms  (DOLR) exercising the powers of the Collector under the  Act passed the order on 9.3.1961 for restoration of the  lands to them on payment of compensation in  installments. Respondents 4 and 5 paid the first  installment on 16.3.1961 and the possession of the  lands was delivered to them.  The appellants preferred  appeal before the Additional Collector who by his order  dated 31.10.1961, directed the DOLR to re-hear the  matter.  The DOLR on 21.2.1964 again decided the matter  in favour of the respondents 4 and 5 by reducing some  area and also fixing higher rate of compensation.  Although, in his order, he directed payment of  compensation money within three years and two years  respectively in three equal installments in two sets of  cases, he did not fix the schedule of payment.  The  appellants preferred appeal against the said order, to

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the Additional Collector who affirmed the said order on  20.6.1970.  The respondents 4 and 5 on 27.5.1972 filed  an application before the DOLR for fixing installments  so that the necessary payments could be made. Their  prayer was allowed on 31.5.1972.  The appellants again  preferred appeal against the said order before the  Additional Collector.  The Additional Collector by his  order dated 9.8.1975 set aside the order of DOLR dated  31.5.1972 and remitted the matter for fresh  consideration.  The DOLR again passed order in favour  of the respondents 4 and 5. However, on appeal by the  appellants, the Additional Collector set aside the  order of DOLR. Hence, the respondents 4 and 5 filed  writ petition before the High Court.  Before the  learned Single Judge, on behalf of the respondents 4  and 5, it was submitted that the order of 31.5.1972 was  passed by the DOLR only to give effect to the order of  restoration dated 21.2.1964 to do justice between the  parties and, therefore, the appellate authority should  not have interfered with the same. On the other hand,  learned counsel for the appellants contended that  having regard to the provisions of the Act, the DOLR  had no discretion in the matter; that the outer limit  for payment of compensation within five years has been  statutorily fixed and that payment of compensation  having not been made within the period, the respondents  4 and 5 lost their rights to get the lands restored.   In support of this submission, reliance was placed on  the judgment of this Court in Smt. Sushila Devi versus  Ramanandan Parsad & Ors. (AIR 1976 SC 177).  The  learned Single Judge distinguishing the case of Smt.  Sushila Devi (supra) on facts held that it had no  application to the facts of the present case.  He also  noticed that the first of the three installments fixed  by the order of 9.3.1961 had already been paid by the  respondents 4 and 5 within time; further payment was  not made on account of the pendency of the appeal;  though the appellate authority did not pass any order  of stay, nevertheless, if on account of the pendency of  the appeal, the respondents in their wisdom had not  paid the remaining installments waiting hopefully for  its result, they could not be said to be guilty of  deliberate and willful laches; after remand, the DOLR  passed order in favour of the respondents 4 and 5 with  certain modifications but did not fix any schedule for  payment of compensation;  in the said order, he reduced  the area of land from 24 bighas and odd to 19 bighas  and odd but had also fixed higher rates of  compensation.  It was also noticed that under Section  7(1)(e) of the Act, the Collector was obliged to  ascertain whether the raiyats desire to deposit the  amount of compensation in lump sum or in installments;  the appeal remained pending over six years till  20.6.1970 and by that time, the outer limit of five  years had already expired.  The learned Single Judge  took the view that the respondents should not suffer  for the mistake of the court when the court did not fix  the schedule of payment; having regard to the pendency  of the appeal and other circumstances of the case even  if two views were possible the one that serves the  object of the Act should be preferred was the view of  the learned Single Judge.  He also took note that the  entire amount of compensation has been deposited  pursuant to order dated 31.5.1972 and that the  respondents 4 and 5 having been put in possession of

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lands in question in 1961, it was not proper to upset  the status quo existing on the land.  In this view, the  writ petition was allowed.  The Division Bench of the  High Court did not find good reason to interfere with  the order of the learned Single Judge.  Consequently,  it affirmed the same by the order under challenge  holding that the learned Single Judge had considered  the matter in proper perspective.

       The learned counsel for the parities before us  reiterated the submissions that were made before the  High Court.  The emphasis of the learned counsel for  the appellants was on two points: (1) that the  respondents 4 and 5 having not paid the compensation  amount within the outer limit of five years fixed,  there was no justification in allowing their claim and  (2) Section 5 of the Limitation Act could not at all be  applied to the case having regard to the specific  provisions in the Act itself.

       The facts found in this case are that the object  and purpose of the Act were to give benefit and to  compensate the unfortunate raiyats, who had lost their  lands on account of various factors mentioned in the  Preamble and the Statement of Objects and Reasons.  The  respondents 4 and 5, in execution of the order of  restoration of possession of the land in question were  put in possession on 16.3.1961 as per order dated  9.3.1961 after payment of the first instalment.  The  entire compensation money has been deposited pursuant  to the order dated 31.5.1972.  Ultimately the order  dated 20.6.1970 passed by the appellate authority  upholding the order of restoration dated 21.2.1964  attained the finality as it was not challenged any  further.  Although the order dated 21.2.1964 directed  payment of compensation money in three equal  instalments within three years and two years  respectively in two sets of cases, the schedule of  payment was not fixed.  In that situation the  respondents 4 and 5 filed petition on 27.5.1972 before  the DOLR for fixing instalments with schedule of  payment.  The prayer was allowed on 31.5.1972.  It is  the said order dated 31.5.1972 and not the order dated  20.6.1970, which was challenged in the appeal before  the Additional Collector, who, by his order dated  9.8.1975, set aside the order of DOLR dated 31.5.1972  and remanded the matter for a fresh consideration.  On  remand again the DOLR passed the order in favour of  respondents 4 and 5, but the Additional Collector once  again set aside the order of the DOLR.  Under these  circumstances respondents 4 and 5 filed the writ  petition, which was allowed by the learned single Judge  and the Division Bench affirmed the same by the  impugned order.  From what is stated above, it is clear  that the respondents 4 and 5 came in possession of the  lands in question on 16.3.1961 pursuant to the order of  restoration of possession dated 9.3.1961.  Thus they  are in possession of the land as of now for more than  42 years.  The order dated 20.6.1970 upholding the  restoration of possession in favour of respondents 4  and 5 attained finality.  It may be noted here itself  that the order of restoration of possession originally  made was modified after remand by reducing the area of  land and enhancing the amount of compensation, which  ultimately became final by the order dated 20.6.1970.  

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Thus, after making payment of the first instalment of  amount of compensation there was change as to the area  of the land and the amount of compensation payable.   Further, the schedule of payment of instalments was not  fixed in the order of 21.2.1964, as affirmed in the  appeal.  It is only the order dated 31.5.1972, fixing  the schedule of payment, became the subject matter of  subsequent litigation.  Learned single Judge of the  High Court taking note of the pendency of the appeal,  non fixing of schedule of payment in the order of  21.2.1964 and also the fact that respondents 4 and 5  had been in possession right from 16.3.1961, set aside  the order passed by the Additional Collector and  allowed the writ petition.  The learned single Judge  took the view that the act of the court could not  prejudice the claim of respondents 4 and 5.  The  learned single Judge, on facts, clearly distinguished  the decision of this Court in Smt. Sushila Devi case  (supra).  That was a case in which peremptory order was  made and even first instalment of amount was not paid.   That was the decision in the context of the facts of  that case and the distinction made by the learned  single Judge as to the application of Smt. Sushila Devi  case (supra) to the present case appears to be correct.   Moreover, in that case there was a specific condition  in the order that on failure to pay the first  instalment within the specified period the benefit of  the order would be lost.  That is not the position in  the present case.  When the order of restoration became  final on 20.6.1970 and that order having not been  challenged, it cannot be annulled indirectly by setting  aside the order dated 31.5.1972 relating to the fixing  of the schedule of payment, which was made to give  effect to earlier order of 20.6.1970.  We find some  force in the submission of the learned counsel for the  appellants as to the non-applicability of Section 5 of  the Limitation Act but that does not change the  ultimate decision of the case.  The facts and  circumstances of the case were properly considered by  the learned single Judge to do justice between the  parties.  The order of learned single Judge was rightly  affirmed by the order under challenge.  The appeal  being in continuation of the original proceedings, the  order of restoration became final only on 20.6.1970 and  the original order of restoration, as already noticed  above, was modified after remand relating to the extent  of land and payment of compensation.  The entire amount  of compensation is also paid by the respondents 4 and  5.  Under these circumstances the argument, that amount  of compensation has been paid beyond five years and as  such the order of restoration of possession in favour  of respondents 4 and 5 is vitiated, cannot be accepted.                  Be that as it may, when substantial justice is  done between the parties in the light of the facts  stated above, in our view, it is not a fit case for  exercise of our jurisdiction under Article 136 of the  Constitution.  Hence the appeal is liable to be  dismissed.  Accordingly it is dismissed.  Parties to  bear their own costs.

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