Ram Krishn Mishra vs Ravishankar Mishra And Another

1 : The petitioner has filed the present petition challenging the order dated 08.06.2016 (Annx.P/5) passed by the Board of Revenue.

2 : Brief facts of the case are that the petitioner has submitted an application before the Nazul Officer, Hoshangabad, for mutation. The said

application was allowed by the Nazul Officer vide order dated 1.4.1998 and the name of the private respondent was directed to be deleted from the

record. The Collector, thereafter, granted a lease of the said land in favour of the petitioner on 14.9.2005. Thereafter, after a period of about 10 years,

the respondent No.1 had filed a representation before the Commissioner Division Hoshangabad, under the provisions of Clause 18, Part-IV of the

Revenue Book Circular (hereinafter referred to 'RBC' for brevity). The representation was filed against the order dated 14.9.2005, by which the lease

has been executed in favour of the petitioner. The representation was accompanied with an application for condonation of delay. Vide order dated

10.9.2015, the Commissioner Division Hoshangabad allowed the said representation and set-aside the order dated 1.4.1998. Against the said order, the

petitioner preferred a Revision before the Board of Revenue. The Board of Revenue by the impugned order has dismissed the Revision preferred by

the petitioner. Being aggrieved by the order passed in Revision, the petitioner has filed the present petition.

3 : Learned counsel for the petitioner submits that the order passed by the Board of Revenue is illegal on the following grounds :-

(i) The Commissioner cannot entertain a representation under Clause-18, Part-IV of the RBC beyond the period of 90 days. He further submits that

as per Clause-18, Part-IV of the RBC any representation or application has to be submitted within a priod of 90 days and no such application shall be

entertained by the Collector, Commissioner or State Government after expiry of period of 90 days. Thus, according to this Clause, there is no power of

condoning the delay with the Commissioner. He further submits that Section 5 of the Limitation Act is not applicable in the matter of filing a

representation under Clause 18, Part-IV of the RBC as the provision of Clause-18 specifically excludes application of Section 5 of the Limitation Act.

For the said purpose, learned counsel for the petitioner relied on the judgment passed by the Apex Court in the case of Bengal Chemists and Druggists

Association Vs. Kalyan Chowdhury [(2018) 3 SCC 41] as well as the judgment passed by this Court in the case of Union of India Vs. Popular

Construction Co. [(2001) 8 SCC 470] and Hukumdev Narain Yadav Vs. Lalit Narain Mishra [(1974) 2 SCC 133].

(ii) The second ground which is raised by learned cousel for the petitioner is that the Commissioner could not have set aside the order dated 1.4.1998

as it was not the subject matter of challenge in the representation filed by the private respondent.

(iii) The next ground which is raised by learned counsel for the petitioner is that the Commissioner does not have any power to cancel the registered

sale deed of the petitioner and for the said purpose, he relied on the Full Bench judgment passed by the Apex Court in the case of Satya Pal Anand

Vs. State of Madhya Pradesh and others [(2016) 10 SCC 767].

4 : The respondent No.1 has filed the reply and in the said reply, the respondent No.1 has stated that the petitioner without impleading as party to the

respondent No.1, by suppressing the material facts, obtained the lease deed dated 14.9.2005. The respondent No.1 got knowledge about the order

dated 14.9.2005, when he received the notice issued by the Nazul Officer dated 25.4.2015. After getting the knowledge of the order about 14.9.2005,

the respondent No.1 has submitted a representation under Clause-18 of the RBC before the learned Commissioner. Along with the representation, he

also filed an application under Section 5 of the Limitation Act for condonation of delay. The learned Commissioner passed an order thereby set-aside

the order dated 1.4.1998, by which the mutation was made in favour of the petitioner and directed the Nazul Officer to correct the record after

considering the sale deed and other records. The petitioner assailed this order before the Board of Revenue and the Board of Revenue maintained the

findings of the Commissioner. The respondent No.1 further submits that under the relevant provision of RBC, the learned Commissioner has vested

with the power to alter the order passed by the Collector or any sub-ordinate Authority. Along with the representation, the respondent No.1 has filed

an application under Section 5 of the Limitation Act, which was duly considered by the Commissioner. He further submits that the findings recorded

by the Commissioner are not perverse.

5 : Heard learned counsel for the parties and perused the record.

6 : From perusal of the record, it reveals that the petitioner has submitted an application for mutation of his name in the revenue record. By order

dated 1.4.1998, the application for mutation filed by the petitioner was allowed and the name of private respondent was directed to be deleted from the

revenue records. Thereafter, on 14.9.2005, the Collector granted the lease in favour of the petitioner. After a period of ten years, the private

respondent filed a representation before the Commissioner Division Hoshangabad, under the provisions of Clause-18, Part-IV of the RBC. As per

Clause-18 of the said RBC, it is clear that if any order is passed by the Collector, then a representation would lie to the Commissioner and if any order

is passed by the Commissioner, then it would lie to the State Government. The circular dated 18.12.1969 further reveals that any

representation/application shall not be filed before the Collector or Commissioner after a period of 90 days. Thus, as per this circular, the

representation has to be filed within a period of 90 days and there is no power vested with the Authority to condone the delay.

7 : In the present case, from perusal of the record, it reveals that a lease was granted in favour of the petitioner on 14.9.2005 and the representation

has been filed on 30.6.2015 i.e. Nearly after about ten years. The representation was accompanied with the application for condonation of delay.

However, the Commissioner while setting aside the order passed by the Collector on 14.9.2005 has not at all decided the application under Section 5

of the Limitation Act, preferred by the respondent No.1 for condonation of delay. The Apex Court in the case of Hukumdev Narain (supra) has held

that Election Petition under the Representation of People Act 1951, Act is required to be filed where the Limitation Act has not prescribed the period

of limitation in the Schedule different from that prescribed under Section 81 of the Act, sub-section (2) of Section 29 will be attracted and that position

is not any the less different under the new Limitation Act. The Apex Court further in the case of Bengal Chemists and Druggists Association (supra),

has held that the limitation for appeal to the Appellate Tribunal is prescribed of 45 days. In Section 421(3) of the Companies Act, 45 days is the period

of limitation and it is mandatory or peremptory in nature. No further time can be granted beyond this period. Thus, as per the judgment of this Court, if

no provision has been made for condoning the delay, then the delay cannot be condoned.

8 : The Commissioner while passing the impugned order has set aside the order dated 1.4.1998, which was not the subject matter of challenge in the

representation preferred by the respondent. The Commissioner while passing the impugned order has also set aside the registered lease deed issued in

his favour. The Commissioner has no power to set aside the registered lease deed. The power for cancellation of registered lease deed is vested with

the State Government or Civil Court. Thus, the order passed by the Commissioner as well as the Board of Revenue both are without jurisdiction.

9 : Learned counsel for the respondent No.1 submits that as per Clause-18, Part-IV of the RBC, the petitioner has a remedy of preferring an appeal

before the State Government. Therefore, the Revision submitted by the petitioner before the board of Revenue itself is not maintainable.

10 : In the present case, from perusal of the record, it appears that the respondent No.1 has not raised any such objection before the Board of

Revenue, therefore, that cannot be considered in this writ petition after passing of the order of Board of Revenue. Accordingly, the writ petition is

allowed. The order dated 10.9.2015 passed by the Commissioner Division Hoshangabad and the impugned order dated 8.6.2016 passed by the Board

of Revenue in Revision No.3850-PBR/15 both are, hereby, set aside. No order as to costs.