Mirza Muzamdar HussaIn Vs. Dodla Bhaskara Reddy and ors. - Court Judgment

Excerpt:
property - suo motu revision - section 5 (2) of andhra pradesh (andhra area) estate (abolition and conversion into ryotwari) act, 1948 - settlement officer granted pattas in respect of certain lands in favour of respondents - revision filed by tahsildar was dismissed by director of settlement on ground that it was barred by time - thereafter on basis of certain information director of settlement suo motu exercised power of revision and quashed order of settlement officer granting patta - writ petition filed by respondent was allowed - writ appeal preferred - it cannot be said that director had exercised his power of revision earlier while dismissing revision petition because he refused to entertain revision petition on ground that it was barred by limitation - director did not hear parties nor did he pronounce on merits of case - it can neither be said that order of settlement officer got merged with order of director and therefore there was no order of settlement officer available for being revised on second occasion - director was not precluded from exercising his power of revision suo motu - even though no period of limitation is prescribed for exercising power of revision suo motu it has to be exercised within reasonable time - respondent allowed to file revision before commissioner of land revenue against order of director who suo motu exercised power of revision after three years. - all india services act, 1951.sections 8 & 11 & a.p. buildings (lease, rent and eviction) control rules, 1961, rule 5: [v.v.s. rao, g. yethirajulu & g. bhavani prasad, jj] refusal by landlord to receive rent - deposit of rent in court - held, a tenant has the option to take recourse to section 8 in case of refusal or evasion by landlord to receive rent and if landlord were to not name a bank or refuse even the money order of rent, the tenant can deposit the rent in accordance with sub-rules (1) to (3) of rule 5. the notice to person entitled to rent and proper maintenance of accounts of such deposits under sub-rules (4) and (5) of rule 5 are solely dependent on compliance with sub-rule (3) by the tenant. the payment or deposit of rent under section 11 read with sub-rule (6) of rule 5 arises only in respect of a tenant who did not take recourse to section 8 or section 9 before an application for eviction has been made against him in respect of any rent in arrears by date of that application, whereas in respect of rent that becomes subsequently due since date of application for eviction, the tenant is bound to pay or deposit regularly until termination of proceedings in order to enable him to contest the application. any violation of section 11(1) to (3) and sub-rule (6) of rule 5 makes the tenant liable for the adverse consequences under sub-section (4) of section 11. thus, the provisions of section 11 and sub-rule (6) of rule 5 are intended only to ensure the payment and deposit of rent including arrears during pendency and till termination of proceedings for eviction. the forfeiture of right of tenant to contest in case of default is to protect the rights and interests of landlord pending such an application for eviction, but not to confer any right on tenant to plead that all defaults committed by him prior to application for eviction can never be considered wilful, if he were to deposit all arrears of rent due within fifteen days under rule 5(6) read with sub-section (1) of section 11. the object and effect of section 11 and sub-rules (1) to (5) to rule 5, the former being for protection of landlord during pendency of eviction proceedings and the later being for protection of tenant to avoid any liability for eviction on ground of wilful default. consequently, while taking recourse to section 8 by tenant is optional, once that option is exercised, compliance with sub-rules (1) to (5) of rule 5 becomes mandatory in the sense that any non-compliance with prescribed procedure will positively indicate the wilful nature of default committed in paying or tendering rent as prescribed. while deposit of rent in terms of provisions of act and the rules amounts to valid tender of rent to landlord, the failure to comply with rule 5 (3) requiring delivery of a copy of the challan for deposit of rent in office of controller or appellate authority, as the case may be, so as to enable controller or appellate authority to cause maintenance of proper accounts under sub-rule (5) and give notice of deposit to person amounts to wilful default in making valid payment or lawful tender of the rent by the tenant to the landlord. thus, where a tenant obtains an order to deposit rent, same shall be deposited at least by the last day of the month following that for which rent is payable and rent challan shall be delivered in the office of controller within a reasonable time so that rent controller can take necessary action for service of notice of deposit under sub-rule (4) of rule 5 of the rules within seven days of such delivery. in the absence of compliance in so depositing rent and delivering challan in the office of controller, tenant shall be deemed to have committed wilful default. - 1971 dismissed the application for condoning the delay and consequently dismissed the revision as well. ashok, the learned counsel or the respondents-writ petitioners however contended that the said decision requires reconsideration in view of the decision of the supreme court referred to above and relied upon by the learned single judge as well as certain other decisions which he brought to our notice. it is more like a power vested in the high court under s. , at page 1399). it was clearly pointed out that in the event any of these three cases, the decree of the trial court does not merge with the appellate decree. 30(1)? it is well established that rules of limitation pertain to the domain of adjectival law, and that they operate only to bar the remedy but not to extinguish the right. 30(2), the legislature has evinced an intention to maintain the distinction well recognised under the general law between what is a substantive right and what is a matter of procedural law. 14. now, coming to the second question urged by the writ petitioners before the learned single judge and upon which the learned single judge has not expressed any opinion, it is well settled that even though no period of limitation is prescribed for exercising the power of revision suo motu, it has to be exercised within a reasonable time.jeevan reddy, j. 1. this appeal is preferred against the judgment of the learned single judge, allowing the writ petition and quashing of the order of the director of settlements dt. 2-1-78 in r. p. no. 65/71. the brief facts relevant for the purpose of this case are the settlement officer, nellore, granted pattas in respect of certain lands under s. 11 of the estates abolition act xxvi of 1948 by his order dt. 10th june, 1970 in favour of the respondents. the tahsildar, nellore, filed a revision against the said orders of the settlement officer before the director of settlements. but since the said revision was filed beyond the prescribed period, it was accompanied by an application to condone the delay in filing the said revision. the director of settlements by his order dt. 27th jan. 1971 dismissed the application for condoning the delay and consequently dismissed the revision as well. thereafter certain information was brought to the notice of the director by the mutawalliof a registered wakf known as 'ashoorkhana hussaini kiledar', on the basis of which the director issued a notice on 22-1-74 calling upon the respondents to show cause why the orders of the settlement officer dt. 10th june, 1970, be not revised for the reasons stated in the said notice. this notice was issued in exercise of his suo motu power of revision. the respondents showed cause and after hearing them, the director of settlements passed orders of 2nd jan. 1978, allowing the revision and quashing the orders of the settlement officer granting patta. there-upon, the respondents filed w. p. no. 2328/78 in this court which has been allowed by the learned single judge under the order impugned in this writ appeal. 2. two grounds were urged by the respondents-writ petitioners before the learned single judge, namely, (1) that inasmuch as the director has already exercised his power of revision once while dismissing the revision petition filed by the tahsildar on 27th jan. 1971, he cannot exercise the very same power of revision over again, and (2) that the invocation of the suo motu power of revision after a lapse of 1320 days is unreasonable. the final orders by the director of settlement were passed 2761 days after the order of the settlement officer and interfering at such a distance of time was equally unreasonable. 3. on the first question, the leamed single judge referred in the first instance to the unreported decision of gopalrao ekbote, j. (as he then was) where the learned judge held that dismissal of a revision application filed by a private party on the ground of delay is not a bar to the director invoking his suo motu power of revision. the learnedjudge, raghuvir, j. was inclined to agree with the said decision but relying upon certain decisions of the supreme court in particular the decisions in mela ram & sons v. commr. of income-tax : [1956]29itr607(sc) and shanker v. krishnaji, : [1970]1scr322 , the learned judge refused to follow the said decision of ekbote, j. raghuvir j. held that the director, having once exercised his power of revision with respect to the revision petition filed by the tahsildar became functus officio and cannot exercise the said power over again, whether suo motu or otherwise. on this ground alone, the learned judge allowed the writ petition and said that it is unnecessary to go into the second contention urged by the writ petitioners. 4. the present appeal is preferred by airza muzamdar hussain, who was the respondent before the director of settlement and who was also the respondent in the writ petition. the director of settlement himself was of course not filed the writ appeal. 5. at the outset we must say that there is a direct bench decision on the first question the first question urged before the learned ;angle judge and which has been upheld by him which was unfortunately, not brought o the notice of the learned single judge. in c. venkata reddy v. director of survey (1975) aplj 111, a bench of this court dealt with his very question and held that merely because a revision filed by a private party vas dismissed on the ground that it was barred by time, the director of settlement is not precluded from exercising the suo motu towers of revision. it was held that inasmuch as the revision petition filed by the private party was barred by time, it was no revision petition at all, and hence there was no decision of the director on the said revision petition. 6. mr. s. r. ashok, the learned counsel or the respondents-writ petitioners however contended that the said decision requires reconsideration in view of the decision of the supreme court referred to above and relied upon by the learned single judge as well as certain other decisions which he brought to our notice. it would be appropriate to consider his submission on merits. the argument on this count is put forward by the respondents. writ petitioners on two bases,(1) by dismissing the revision preferred by the tahsildar by his order dt. 27-1-71 - no doubt on the ground that it is barred by limitation - the director has, already exercised his revisional power once and thus ha., become functus officio and cannot exercise the very same power suo motu again, and (2) the order of the settlement officer has merged in the order of the director dt. 27-1-71 and if so, there is no order of settlement officer as such which is available for being revised. inasmuch as the order of the settlement officer has merged in the order of the director dt. 27-1-71, the director cannot revise his own order; he can only revise the orders of the subordinate officers. 7. so far as the first question is concerned, it would immediately be seen that s. 5(2) of the a. p. (andhra area) estates (abolition and conversion into ryotwari) act xxvi of 1948, merely confers the powers of revision upon the director without saying further whether it should be exercised suo motu or whether it should be exercised at the instance of a private party. it is more like a power vested in the high court under s. 115 of the civil p.c. s. 5(2) insofar as it is relevant reads thus : '...... the director shall also have the power. to cancel or revise any of the orders, acts or proceedings of the settlement ',officer, other than those in respect of which an appeal lies to the tribunal.' 8. sub-section (2) of s. 5 further ordains, that settlement officer shall be subordinate to the director and shall be guided by such', lawful instructions as he may issue from time: to time. both the settlement officer and the director of settlement are creatures of the statute brought into existence for the purpose of administering the statute. the first authority is settlement officer and the director is vested with the power to revise or cancel the order of the settlement officer wherever they are found to be contrary to law. it cannot be doubted that this power can be exercised suo motu on the basis of any information placed before him or at the instance of a party. the question is, whether it can be said in this case that the director has exercised his power when he dismissed the tahsildar's revision petition as barred by time and therefore he is precluded from exercising the said power once again. the learned single judge characterised this position saying that the director became functus officio having exercised his powers of revision, and therefore was incompetent to exercise the said power over again. for this purpose, the learned single judge has relied upon two decisions of the supreme court in shanker v. krishnaji : [1970]1scr322 and mela ram & sons v. commr. of income-tax : [1956]29itr607(sc) . so far as the first decision is concerned, it was a case where the party had filed a revision petition u/s. 115,cpcchallengingtheappellateorders of the district judge made under the bombay rents, hotel and lodging house rates control act. the civil revision petition was heard on merits by a learned single judge of the bombay high court and dismissed on the ground that the appellate court had not acted illegally in exercising its jurisdiction. thereupon, the very same party filed a petition under art. 226 or/and 227 of the constitution challenging the very same appellate order, which was allowed by a division bench of the bombay high court. the division bench held that the dismissal of the civil revision petition by a learned single judge does not bar interference under arts. 226 and 227 of the constitution. the correctness of the said view was questioned before the supreme court. the supreme court held that once the high court had dismissed the revision after bearing both the parties, the order of the appellate court got .merged with the order made in revision and thereafter the appellate order cannot be challenged over again by a petition under arts. 226 and 227 of the constitution. it was held that the application of the doctrine of merger cannot be rendered inapplicable by drawing a distinction between an application for revision and an appeal. it was also held that the power of revision is in essence akin to power of appeal. supreme court observed further that even if it is assumed that the order of the high court has not merged with the order of revision, even then it would not be a proper exercise of discretion under art. 226 or 227 to seek to revise an. order which has already been examined and found to be proper by the same court in its revisional jurisdiction. this is not a case where the revision petition was dismissed as time barred and yet the supreme court applied the doctrine of merger. this is a case where the revision was heard on merits and disposed of after bearing both the parties. this, we are saying because the doctrine of merger, as stated by the supreme court in rani choudhary v. suraj jit choudhary, : [1983]1scr372 does not apply where an appear is dismissed for default of where it is dismissed as having abated by reason of the omission of the appellant to implead the c.rs. of a deceased- respondent or where it is dismissed and barred by limitation. (vide opinion of pathak, j., at page 1399). it was clearly pointed out that in the event any of these three cases, the decree of the trial court does not merge with the appellate decree. now, we shall consider the decision of the supreme, court in mela ram & sons v. commr. of income- tax, : [1956]29itr607(sc) to see whether it lays down any proposition contrary to the above. the case arose under the lncome tax act, 1922. sub-see. (1) of s., 30 provided, for an appeal to the appellate asst. commissioner, against the orders made by the income-tax officer. sub-sec. (2) of s. 30 provided for the period of limitation and also conferred upon the appellate asst. commissioner the power to condone the delay if proper cause is assigned. see. 31 provided for the hearing and disposal of the appeal. sec. 33 conferred a further right of appeal to the income-tax appellate tribunal against the orders passed under s. 31. in that case an appeal was preferred by the assessee before the appellate asst. commissioner beyond the prescribed period and therefore it was accompanied by a petition to condone the delay in filing the appeal. the appellate assistant commissioner, however, refused to condone the delay and, accordingly dismissed the appeal. the question was, whether the order passed by the a. a. c. is an order pawed under see- 30(2) or under see. 31. if it was to be treated to be an order under sec. 30(2), no further appeal to the tribunal' was maintainable. but if it was held to be an order under see. 31, a further appeal to the tribunal did lie. the supreme court noticed a conflict of opinion between several high courts on the said question and held that even an appeal presented beyond the prescribed period of limitation is still an appeal, and an order dismissing such appeal as having been presented beyond the prescribed period is still an order under see. 31 of the act and therefore appealable under see. 33 of the act. the following observations of the supreme court bring out the ratio of, the said decision. 'but the question still remains whether the view taken in commr. of income-tax v. mysore iron and steel works : [1949]17itr478(bom) and k. k. porbunderwalla v. commr. of income-tax : air1952bom157 that an appeal which is filed beyond the period of limitation is, in the eye of law, no appeal, unless and until there is a condonation of delay, and that in consequence, an order passed thereon cannot be held to be passed in appeal so as to, fall within sec. 31, is right. now, a right of appeal is a substantive right and is a creature of the statute. sec. 30(1) confers on the assessee a right of appeal against certain orders, and an order of assessment under sec. 23 is one of them. the appellant therefore had a substantive right under sec. 30(1) to prefer appeals against order of assessment made by the income-tax officer. then we come to see. 30(2) which enacts a period of limitation within which this right is to be exercised. if an appeal is not presented within that time does that cease to be an appeal as provided under see. 30(1)? it is well established that rules of limitation pertain to the domain of adjectival law, and that they operate only to bar the remedy but not to extinguish the right. an appeal preferred in accordance with see. 30(1) must therefore be an appeal in the eye of law, though having been presented beyond the period mentioned in see. 30(2) it is liable to be dismissed in limine. there might be a provision in the statute that at the end of the period of limitation prescribed, the right would be extinguished, as for example, see. 28 of the limitation act; but there is none such here. on the other hand, in conferring a right of appeal under sec. 30(1) and prescribing a period of limitation for the exercise thereof separately under sec. 30(2), the legislature has evinced an intention to maintain the distinction well recognised under the general law between what is a substantive right and what is a matter of procedural law.' 9. we have perused the entire decision. we find no reference to or any discussion of the doctrine of merger in this case. the decision was rendered with reference to the particular provisions of the income -tax act 1922., it was held that sec. 31 conferred a substantives right of appeal upon the assessee and that dismissal of an appeal in limine on the ground of bar of limitation is still an order under sec. 31 and therefore a further appeal to the tribunal still lay under sec. 33., indeed we must point out that pathak;j., has in rani choudhury's case air 1982 sc 397, expressly referred, to and affirmed the principle of this decision, while laying down the aforesaid proposition with respect to the doctrine of merger. we are, therefore, of the opinion, that the principle in mela ram & sons v. commr. of income-tax : [1956]29itr607(sc) is not relevant on the question of merger and that its rather not be treated as running counter to the principle enunciated in rani choudhury v. suraj jit choudhury, : [1983]1scr372 . 10. for the above reasons we are of the opinion that it cannot be said in this case that the director has exercised his power of revision earlier while dismissing the revision petition filed by the tahsildar. there was no occasion for him to exercise his powers of revision because he refused to entertain the revision petition on the ground that it was barred by limitation. he did not look into the merits of the case. he did not hear the parties nor did he pronounce on the merits of the case. in such a case there is no room either for saying that he has exercised once his powers of revision, nor can it be said that the order of the settlement officer got merged with the order of the director of settlement and-therefore there is no order of settlement officer which is available for being revised on the second occasion. we are, therefore, unable to agree with the learned single judge, with due respect, that the director of settlement had become functus officio after dismissing the tahsildar's revision on 21-1-71 and was incompetent and powerless to invoke his suo motu powers of revision on 22-1-74. we are equally of the opinion, for the above reasons that the order of the settlement officer cannot be said to have merged in the director's order dated.27-1-71. 11. in this connection we may also refer, to the decision in state of madras v. madurai wills, : [1967]1scr732 . in this decision it was observed by the supreme court that the application of the doctrine of merger depends on the nature of the appellate or revisionil order in each case and on the scope of the statutory provisions conferring the appellate or revisional jurisdiction. it was further pointed out that doctrine of merger is not a doctrine of rigid and universal application and it cannot be said that wherever there are two orders, one by the inferior tribunal and the other by a superior tribunal, passed in an appeal or revision, there is fusion or merger of two orders irrespective of the subject- matter of the appellate or revisional order and the scope of the appeal or revision contemplated by the particular statute. 12. we may also refer to another decision of the supreme court in u. j. s. chopra v. state of bombay, : 1955crilj1410 wherein the doctrine of merger was considered with reference to sec. 439 of cr. p.c. which conferred revisional jurisdiction upon the high court. it was pointed out in the majority, judgment that a judgment pronounced by the high court in exercise of its appellate or revisional jurisdiction, after issuing a notice to, and giving a full hearing to both the parties would replace the judgment of the lower court, thus constituting the judgment of the high court as the only final judgment to be executed in accordance with law. 13. we are, therefore, of the opinion that the principle of the decision in k. venkata reddy v. director of survey, 1975 1 apu 111 cannot be said to be incorrect for any of the reasons suggested by the learned counsel 'or the respondent. accordingly, we are of the opinion, that the director was not precluded from exercising his powers of revision suo motu on 22-1-74, nor can his final order dated 2-1-78 be quashed on the said ground. 14. now, coming to the second question urged by the writ petitioners before the learned single judge and upon which the learned single judge has not expressed any opinion, it is well settled that even though no period of limitation is prescribed for exercising the power of revision suo motu, it has to be exercised within a reasonable time. what is the reasonable time, is a question of fact to be answered in the given facts and circumstances of each case. no hard and fast rule can he enunciated in that behalf. it is true that in k. venkata reddy v. director of survey, 1975 1 aplj 111 it was held that i here is no time limit for exercise of the said power, the said extreme proposition must be deemed to have been modified by the subsequent bench decision in kodanda rao v. government of andbra pradesh, (1981) 2 aplj 158 following that decision of the supreme court in state of gujarat v. p. raghav, : [1970]1scr335 . this question was indeed urged before the director but was negatived by him probably in view of the earlier bench decision in k. venkata reddy's case. whether the powers of revision could he exercised after a period of three years is a question to be decided by the appropriate authority in the higher authority having regard to the facts and circumstances of the case. it is one of the factors that should enter the decision of the authority in making up his mind whether to interfere or not. 11 is evident that when the director rendered his decision, the subsequent bench decision of this court in kodanda rao v. government of andhra pradesh, (1981) 2 apu 158 was not available. in all the circumstances of this case, we think. that this is a proper case where the writ petitioners should he allowed to file a revision before the commissioner. land revenue, against the orders of the director of settlement. it is accordingly directed that if the writ petitioners-respondents in this appeal file a revision petition before the commissioner of land revenue within two months from today, the same shall be entertained by the commissioner, land revenue, and disposed of on merits according to law. it is evident that it shall be open to the writ petitioners-respondents in this appeal to urge all such questions as are available to them in law, including the question of justification and reasonableness of the director invoking his suo motu powers of revision after a lapse of three years. 15. the writ appeal is accordingly allowed subject to the above directions. no costs. 16. appeal allowed.