26 November 1975
Supreme Court


Bench: GUPTA,A.C.
Case number: Appeal Civil 857 of 1968








CITATION:  1976 AIR  177            1976 SCR  (2) 845  1976 SCC  (1) 361  CITATOR INFO :  F          1985 SC1279  (3)

ACT:      Kosi Area  (Restoration of Lands to Raiyats) Act, 1951, ss. 3, 7, 13 and 16- Order passed for restoration on poyment of  1st  instalment  of  compensation-Applicant  questioning correctness of  order and  filing application  more  than  5 years later  for extension  of time  for payment in lumpsum- Maintainability-  Final order, what is-Court’s action not to prejudice parties-Scope  of principle-Limitation  Act, 1963, s. 5, applicability.

HEADNOTE:      Section 3  of the  Kosi Area  (Restoration of  Lands to Raiyats) Act.  1951, provides  for the restoration to former raiyats by the Collector, on his own motion or otherwise, of lands which were sold for arrears of rent or from which they were ejected  for arrears  of rent  or which were treated as abandoned between January 1, 1939 and December 31, 1950, due to floods in the Kosi river. Under s. 7, the Collector is to determine, after  inquiring into  any objections,  the  land liable to  be restored  to the raiyat, the amount payable by him for  the restoration  being the  cost of improvement, if any, to  whom that  amount is  payable, whether it should be paid in  instalments, and the amount of each instalment. The instalments shall.  however, be  payable within a period not exceeding 5  years.  Section  13  states  that,  subject  to appeal, orders  passed by the Collector are final, and s. 16 provides that the decision on appeal shall be final.      The respondent  applied for  restoration of  land which was sold  in execution  of a  decree for arrears of rent. On February 17,  1958, an  order for  restoration was  made  in respect of  a part of the area and compensation was directed to be  paid to the appellant in three instalments. The order added that  if the  first instalment was not paid within the specified period,  "the applicant  would lose the benefit of the order  of restoration".  The respondent  did not pay the first instalment within the time prescribed for its payment, but appealed  to the  Appellate Authority.  The  appeal  was dismissed and  the respondent  filed a  revision before  the Commissioner (though  the Act did not provide for a revision against the  order of  the  Appellate  Authority),  and  the



Commissioner allowed  the revision.  The appellant  filed  a writ petition  and the High Court quashed the Commissioner’s order.  A  further  appeal  to  the  Supreme  Court  by  the respondent was dismissed for non-prosecution. Thereafter, on October 15,  1965,  the  respondent  applied  for  an  order extending the  time  for  payment  fixed  by  the  order  of February 17,  1958, and for permission to deposit the entire amount then  determined in  one lumpsum.  The respondent was allowed to  do so. The appellant’s appeal was allowed by the Appellate  Authority.   But,  the  High  Court  allowed  the respondent’s writ  petition on  the grounds,  (1)  that  the first order  of February 17, 1958 was not a final order and, therefore, time could be extended notwithstanding the expiry of the  period fixed  by the  1958 order  for payment of the first instalment;  (2) that  the Court’s  action should  not prejudice any party and, therefore, excluding the time taken for the  various remedies  pursued by  the  respondent,  the application made on October 15,1965 was within the period of 5 years  from the  original order;  and (3) in any case, the delay could  be and  must be  deemed to  have been, condoned under s. 5, Limitation Act. 1963.      Allowing the appeal to this Court. ^      HELD :  (1) The  order of  February 17,  1958, made  it clear that on failure to pay the first instalment within the specified period,  the benefit  of the  order would be lost. This is no doubt a conditional order; it is not, however, an nterlocutory order, but is a final order. [850G] 846      (2) The  principle that  the "Court’s action should not prejudice any  party" has no relevance in the context of the present case.  The remedies  pursued by  the respondent were steps taken  by him at his own risk and he cannot, as matter of  right,  ask  for  excluding  the  time  spent  on  those proceedings. [850H-851A]      (3)(a) Section  5, Limitation  Act cannot be invoked in connection  with   the  application  of  October  15,  1965, because, (i)  the officer  to whom  the application was made was not  a Court; and (ii) there is no time limit prescribed for the  application  which  could  be  extended  under  the section. [751-AB]      (b) The application is not for extension of time to pay the instalments, but for permission to pay in a lumpsum, and hence, is  a fresh application. But, successive applications are not  permitted under  the Act, because, (i) the finality attached to  the orders would become meaningless; (ii) there would be  uncertainty and  confusion; and  (iii) that  there should be  finality in  litigation and  that a person should not be  vexed twice for the same cause, are well-established principles of general application. [851-D-E]      Daryao &  Ors. v.  The State  of U.P.  & Ors., [1962] 1 S.C.R. 574  and Burn & Co. v. Their Employees, [1956] S.C.R. 781, referred to.      [Duty of officers to give effect to Orders of appellate authorities pointed out.]

JUDGMENT:      CIVIL APPELLATE  JURISDICTION : Civil Appeal No. 857 of 1968.      From the  Judgment and  Decree dated  the 22nd December 1967 of the Patna High Court in Civil Writ Jurisdiction case No. 948 of 1966.      F. S. Nariman, D. Goburdhan for the appellant.



    P. K. Chatterjee, D. P. Mukherjee for Respondent No. 1.      For respondents 2-4 Ex parte.      The Judgment of the Court was delivered by      GUPTA, J.  This appeal  by  certificate  under  Article 133(1)(a) of  the Constitution  granted by  the  Patna  High Court arises out of a proceeding under section 3 of the Kosi Area  (Restoration   of  Lands   to   Raiyats)   Act,   1951 (hereinafter  referred   to  as   the  Act).  By  the  order challenged in  this appeal  the High  Court allowed  a  writ petition filed  by the  first respondent  setting  aside  an appellate order  under section 16 and restoring the original order passed  on an  application under section 3 of the Act. To appreciate the nature of the dispute between the parties, it would  be  more  convenient  to  refer  to  the  relevant provisions of  the Act  before we  turn to  the facts of the case.      The Act  was passed,  as its  long title  and  preamble show, to  provide for  "the restoration to former raiyats of certain lands  which were  sold’ for arrears of rent or from which they  were ejected  for arrears  of rent or which were treated as  abandoned, between  the 1st day of January 1939, and the  31st day  of December  1950, in  the absence of the raiyats due  to floods  in the Kosi River." Section 3 of the Act is in these terms:           "Steps to  be taken  for restoration  of  land  to      raiyats.-If the  holding of a raiyat or portion thereof      was sold  in execution  of a decree for arrears of rent      or if  a raiyat  was ejected  from a holding or portion      thereof in execution of decree 847      passed under sub-section (2) of section 66 of the Bihar      fenancy Act,  1885, or  if the  holding of  a raiyat or      portion thereof  was treated as abandoned under section      87 of  the said  Act at any time between the 1st day of      January, 1939,  and the  31st day of December 1950, and      is in  the possession  of the  landlord  or  any  other      person, the Collector may, if he thinks fit, of his own      motion or  otherwise, take steps for the restoration of      such holding or portion thereof to the said raiyat." "Collector" is defined in section 2(a) as the Collector of a district  or  any  other  officer  appointed  by  the  State Government to  discharge any of the functions of a Collector under this  Act. Section  4 requires  the Collector  to give notice of  the proceeding under section 3 to the raiyat, the landlord, and all other persons interested in the holding or portion thereof forming the subject matter of the proceeding so as  to enable  them to file their objects if any. Clauses (a) and  (b) of  section 5(1)  state the  grounds  on  which objection may  be  raised  to  the  restoration  asked  for. Section 5(1)(a)  which is  relevant for  the present purpose reads as follows:           "5. Objection  to the  restoration of  holding and      manner of  disposal.-(1)  On  the  date  fixed  in  the      notice, the  landlord or  any, other  person may appear      and object to the restoration of the holding or portion      thereof on  anyone or  more of  the following  grounds,      namely :-           (a)  that he has constructed any building or other                structure of  a permanent  nature or  planted                any garden  on the  holding  or  any  portion                thereof before  the date  of the commencement                of this Act and that such building, structure                or  garden  is  of  such  a  value  that  the                restoration  of  the  land  covered  by  such                building, structure or garden will be unfair;



              and" Section 5(2)  provides that  if  after  inquiring  into  the objections  the   Collector  finds   that  the  building  or structure constructed,  or the  garden laid  on the  land of which restoration  is sough,  is  of  such  value  that  the restoration will  be unfair,  the Collector  shall drop  the proceedings entirely where the building, structure or garden covers the entire area in question, and where only a part of the land  is so  covered, only  partly, in  so far  as  they relate to  the site  of such  building, structure or garden. Section 7  lays down  the procedure  to be  followed by  the Collector if  the proceedings  are not dropped entirely. The Collector is  to determine the land liable to be restored to the raiyat and the amount payable by him for the restoration specifying the  person to  whom the  amount is  payable; the amount to  be determined is the cost of improvement, if any, effected on  the land  which the Collector may deem fair and acquittable. The  Collector shall then ascertain whether the raiyat desires  to deposit  the amount  in one lumpsum or in instalments; if  the raiyat  desires to  pay the  amount  in instalments, the  Collector will  determine the  number  and amount of  such instalments  having regard  to the means and circumstances of  the raiyat.  But the  instalments shall be payable within a period not exceeding five years. As soon as 848 possible after  the entire amount or the amount of the first instalment, as  the case  may  be,  is  deposited  with  the Collector, the  Collector shall  direct the raiyat to be put in possession of the land. Section 13 states that subject to appeal under  section 16,  orders passed  by  the  Collector under the  Act shall  be final  and bars the jurisdiction of civil courts  to vary  or set  aside any  order passed under this Act.  Section 16  provides an  appeal from  every order passed under  this Act,  (a) when  the order was made by the Collector of  a District,  to the Commissioner, and (b) when the order  was made  by any officer other than the Collector of the  District, to the Collector of the District or to any officer specially  empowered by  the State  Government by  a notification to hear such appeals. The section also provides that the  decision of  the Commissioner  or the Collector of the District or any officer so empowered shall be final.      The facts of this case are as follows.      The land  in dispute  was sold  on  July  11,  1945  in execution of  a decree  for arrears  of rent.  The  auction- purchaser,  one   Tilakdhari  Lal,   obtained  delivery   of possession and  remained in possession for a little ever two years before  selling the land to the appellant Sushila Devi on  December   1,  1948.  On  October  27,  1957  the  first respondent applied for restoration of the land under section 3 of  the Act  before the  Circle Officer,  Birpur, who  was appointed by  the Government to discharge the functions of a Collector under  the Act.  According to  the  appellant  she spent a  large sum  of money  on reclamation of the land and building structure on a part of it. On February 17, 1958 the Circle Officer  made an  order for restoration in respect of the holding  excluding an  area of  9.25 acres  on which the appellant had  built structures.  In terms of this order the first respondent  was to pay compensation of Rs. 20,000/- to the appellant in three annual instalments of Rs. 10,000, Rs. 5,000/- and  Rs. 5,000/-,  the first  instalment was to have been paid  between March 1, 1958 and June 1, 1958. The order added that  if the  first instalment was not paid within the specified period,  the applicant  would "lose the benefit of the order  of restoration". The first respondent did not pay the instalment within the time allowed, and on September 11,



1958 preferred  an appeal to the Collector against the order of the Circle Officer. The appeal was dismissed for default. The first  respondent thereafter  filed a  revision petition before the Commissioner though the Act did not provide for a revision against  an appellate order passed by the Collector of the  District. The  Commissioner however  set  aside  the order  of   the  Collector   and  remanded  the  appeal  for rehearing. The  appellant questioned  the correctness of the Commissioner’s order  by filing  a writ  petition before the Patna High Court which was allowed by the High Court on June 30, 1964  and the order of the Commissioner was quashed. The High Court  observed in its order that it did not think that the  decision   of  the  Circle  Officer  was  arbitrary  or defective  in   law.  The   first  respondent   obtained   a certificate under  Article 133(1)  of  the  Constitution  to appeal to  this Court  against that order of the High Court, but the  appeal was dismissed for non-prosecution on July 9, 1965.      More than a year had passed after the dismissal of that appeal to  this Court  when the  second chapter of the story began. On October 849 15, 1965  the first  respondent made  an application  to the Block Development  Officer, Birpur,  who was discharging the functions  of  a  Collector  under  the  Act  for  an  order extending the  time for  payment fixed  by the  order  dated February 17,  1958, and for permission to deposit the entire amount as  determined by  that order in one lumpsum. Seeking to explain  the long  delay in  making the  application, the first respondent  stated that  all this  time  he  had  been diligently  prosecuting   other  legal   remedies.  On  this application the  Block Development Officer, who was also the Anchal Adhikari,  made an  order  directing  notices  to  be issued to  the parties  concerned asking  them to be present before him  on October  22, 1965. As the notice had not been served on  the  appellant,  the  Block  Development  Officer shifted the  date to  November 17,  1965 for  hearing of the matter. On  November 17,  1965 also  the notice had not been served on  the appellant,  but the Block Development Officer having heard the first respondent made the following order:           "The applicant is ready to pay the total amount in      one instalment. Under this provision given in Kosi Land      Restoration Act and Rules, the applicant is directed to      deposit the  entire amount within a week from this date      of his  order failing  which the  claim of applicant be      filed. Further  action for restoration of land would be      taken after  a week.  The opposite party be informed to      receive the  amount and  appear on 25-11-65. Put up the      erecord on 25-11-65." Having come  to know  of the ex-parte order made on November 17, 1965  the appellant  preferred an appeal from that order to the  Additional Collector, Saharsa, who was the appellate authority. The  Additional Collector  admitted the appeal on November 20,  1965 and  stayed further proceedings including the  restoration   of  possession  and  directed  the  Block Development, Officer to remit the record of the case to him. The copy of the Additional Collector’s order appears to have been received in the office of the Block Development Officer on November  22, 1965.  But on  November 25,  1965 the Block Development Officer passed the following order:           "The area Karamchari is directed to open zamabandi      in the name of applicant and to issue rent receipt. The      dealing  Asst.   is  directed   to  issue  delivery  of      possession in form IV under Clause ’F’ of sub section 1      of section  7 of  Kosi Area  Restoration  of  Lands  to



    raiyats Act, 1951." Later, on  the same  day, he  recorded another  order saying that the  stay  order passed by the Additional Collector had been put  up before him that day and directing the record to be sent  to the Additional Collector. He also added that the stay order  had been  obtained  on  the  basis  of  a  wrong statement. Assuming  that the Block Development Officer came to know of the Additional Collector’s order only on November 25 though  it was received in his office on November 22, and that too  after he  had made  the order  earlier in  the day directing  delivery   of  the   possession  to   the   first respondent, it  is surprising  that he took no steps to give effect to  the stay  order made  by the  appellate authority which was  binding on  him. One  would  have  expected  that having received the order 850 he would  hasten to  recall or stay the operation of his own order made  earier in  the day,  but he  did not  do so.  He merely directed  the record  to be  sent to  the  Additional Collector with the remark that the stay order must have been obtained upon an untrue representation, a remark that he had no  authority  to  make.  Whatever  the  reason,  the  Block Development Officer appears to have deliberately ignored the order passed  by a  superior tribunal  which was  binding on him, and  his conduct deserves severe condemnation. However, on October  3, 1966  the Additional  Collector  allowed  the appeal and  set aside  the order dated November 11, 1965 and all  subsequent  orders  passed  by  the  Block  Development Officer on  the view  that a  second application on the same grounds was not maintainable under section 3 of the Act, and the first  respondent having failed to comply with the terms of the  original order dated February 17, 1958, his right to restoration was lost. The first respondent then filed a writ petition before  the Patna  High Court challenging the order of the  Additional Collector  and the High Court allowed the petition and  restored the  order of  the Block  Development Officer dated November 25, 1965.      The High  Court allowed  the  writ  petition  on  three grounds. It  was held  that the  order passed  by the Circle Officer on February 17, 1958 was not a final order rejecting or allowing the petition for restoration and, therefore, the Circle  Officer   or  any   other  officer  discharging  the functions of  the Collector under the Act had power to grant extension of  time notwithstanding  the expiry of the period fixed  for   payment  of  the  first  instalment.  Secondly, referring to  section  7(1)  (e)  which  provides  that  the instalments granted  must be  payable within  a  period  not exceeding five  years, the High Court observed that "court’s action  should  not  prejudice  any  party"  and  held  that excluding the time taken for the various remedies pursued by the first  respondent, the  application made  on October 15, 1965 was  within the  period of  five years from the date of the original  order. Thirdly,  the High  Court held that "in any case  after coming into force of the new Limitation Act, 1963, the  petitioner (first  respondent) had a right to ask the court  concerned to  condone the delay in depositing the same under  section 5  of that  Act"; though the application dated October  15, 1965 did not invoke or refer to section 5 of the  Limitation Act,  1963, the  High Court held that the order made  on that  application  "should  be  construed  in substance as an order condoning the delay".      The original  order dated  February 17,  1958  granting three annual  instalments to  the  first  respondent  stated clearly that if he failed to pay the first instalment within the period  mentioned therein, he would "lose the benefit of



the order  of restoration".  This no doubt was a conditional order,  but  a  conditional  order  is  not  necessarily  an interlocutory order  as  the  High  Court  appears  to  have thought. The  order made it clear that on failure to pay the first instalment  within the specified period the benefit of the order  would be  lost which gave it a finality; no other order was  necessary for  disposing of the application under section 3  perhaps possibly  making a  note as to whether or not the  instalment had  been paid  in time.  As regards the second  ground,  it  is  difficult  to  appreciate  how  the principle that the "court’s action should not 851 prejudice any party" can have any relevance in this context. The remedies  pursued by  the first respondent following the order made  on February  17, 1958 were steps taken by him at his own  risk and  he cannot  as a  matter of  right ask for excluding the  time spent  on these  proceedings. The  third ground on which the decision of the High Court rests relates to the  applicability of  section 5  of the  Limitation Act, 1963. We  do not  see how  section 5  could  be  invoked  in connection with  the application made on October 15, 1965 by the first  respondent. Under section 5 of the Limitation Act an  appeal   or  application  "may  be  admitted  after  the prescribed period  if the  appellant or  applicant satisfies the Court  that he  had sufficient  cause for not preferring the appeal  or making  the application  within such period". The Collector  to whom  the application  was made  was not a court, though section 15 of the Act  vested him with certain specified powers  under the  Code of  Civil Procedure; also, the kind  of application  that was  made had  no time  limit prescribed for  it, and  no question  of extending  the time could therefore  arise. We  therefore think  that  the  High Court misdirected  itself in  referring to  section 5 of the Limitation Act.  Further, the application does not appear to have been made for retention of time to pay the instalments. It was  an application  for permission to deposit the entire amount of  Rs. 20,000/-  in a  lump. This must be taken as a fresh application  under section  3 of the Act. The question that arises therefore is, whether the Act permits successive applications to  be made  under section  3 giving  rise to a fresh proceeding  every time  in respect of the same subject matter. Section  13 provides  that every order passed by the Collector under  the Act,  subject to  an  order  passed  in appeal under  section  16  would  be  final.  If  successive applications under  section 3  are permitted to be made, the finality attaching to the order of the Collector as provided in section  13 would  become  meaningless,  apart  from  the uncertainty and  confusion that  would  result.  That  there should be  finality in litigation and a person should not be vexed  twice   for  the  same  cause  are  well  established principles of  general  application.  If  any  authority  is needed, we  may refer  to two  decisions of this Court where this matter  has been elaborately considered : Daryao & Ors. v. The  State of  U.P. &  Ors.(1) and  Burn &  Co. v.  Their Employee(2). The Additional Collector was therefore right in dismissing the  application made on October 17, 1965 and the reasons given  by the  High Court  for  setting  aside  that order,  in  our  opinion,  are  not  sound.  The  appeal  is accordingly allowed with costs. V.P.S.                                       Appeal allowed. 852