Lakshmi Narain Mandal & Ors vs State Of Bihar And Ors

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

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

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.

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.