REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION SPECIAL LEAVE PETITION (CIVIL) NOS. 11023- 11026/2010 (ARISING OUT OF CC NOS. 4610-4613/2010) Sawaran Lata etc. ..Petitioners Versus State of Haryana & Ors. ...Respondents ORDER

Dr. <NAME>, J.

1. These special leave petitions reveal a very sorry state of affair and make it evident that litigants are eager to abuse the process of the <ORG>, having no idea for the law of limitation/delay and laches.

2. These special leave petitions have been filed against the judgment and order of <ORG> dated 30.5.2009 by which the Civil Writ Petition Nos.8794 of 2009 and 8761 of 2009 have been dismissed only on the ground of delay. The Review Petitions were filed which were also time barred by 48 days. The same stood dismissed vide order dated 25.9.2009. These special leave petitions have been filed with an inordinate delay of 172 days. Petitioners sought relief of quashing the land acquisition proceedings in respect of which the award had been made under Section 11 of the Land Acquisition Act, 1894 (hereinafter called as "Act 1894") on 27.4.2004.

3. The facts and circumstances giving rise to these petitions are that the respondent - State of Haryana issued a notification under Section 4 of Act 1894 in respect of a huge chunk of land including some land of the petitioners on 2nd May, 2001. Substance of the said notification was published in two newspapers on 5.5.2001. The respondents issued a declaration under Section 6 of Act 1894 on 30.4.2002 and the substance thereof was also published in local newspapers immediately thereafter. The Land Acquisition Collector made an award on 27.4.2004 and in pursuance thereof, the respondents took possession of the land and removed the trees from the land of the petitioners.

4. Petitioners approached <ORG> by filing Writ Petition Nos. 8794/2009 and 8761/2009 on 28.5.2009 praying for quashing the notification dated 2.5.2001 under Section 4 and declaration dated 30.4.2002 under Section 6 of Act 1894. <ORG> dismissed both the petitions on the ground of delay observing that the award under Section 11 of Act 1894 had already been made on 27.4.2004. Being aggrieved, petitioners filed Review Petitions with 48 days' delay which have also been dismissed vide order dated 25.9.2009. These petitions have been filed with 172 days' delay. There is further delay of 37 days' in re-filing of the same.

5. The issue involved in these petitions is as to whether the acquisition proceedings can be challenged at a belated stage. The issue is no more res integra as the issue has been considered by this <ORG> time and again.

6. When a person challenges Section 4 Notification on any ground, it should be challenged within a reasonable period, and if the acquisition is challenged at a belated stage, the petition deserves to be dismissed only on this count. (<NAME> & <NAME>. Vs. State of U.P., AIR 1984 SC 1020).

7. A Constitution Bench of this Court, in Aflatoon & Ors. Vs. Lt. Governor, Delhi & Ors. AIR 1974 SC 2077, while dealing with the issue, observed as under:-

".... to have sat on the fence and allowed the government to complete the acquisition on the basis that notification under Section 4 and the declaration under Section 6 were valid and then to attack the notification on the grounds which were available to them at the time when the notification was published, would be putting a premium of dilatory tactics. The writ petitions are liable to be dismissed on the ground of laches and delay on the part of the petitioner."

8. Same view has been reiterated by this Court observing that acquisition proceedings should be challenged before the same attain finality, in <CITATION> AIR 1975 SC 2190; PT. Girdharan Prasad Missir Vs. State of Bihar (1980) 2 SCC 83; <NAME> Vs. Union of India AIR 1992 SC 1414; State of Orissa Vs. Dhobei Sethi & Anr. (1995) 5 SCC 583; State of Maharashtra Vs. Digambar AIR 1995 SC 1991; State of Tamil Nadu Vs. L. Krishnan AIR 1996 SC 497; and <NAME> & Ors. Vs. Dy. Secretary to Govt. of Tamil Nadu & Ors. (1997) 2 SCC 627.

9. In <ORG> Vs. <ORG> & Ors. AIR 1997 SC 482, this Court observed as under:-

"If the interested person allows the grass to grow under his feet by allowing the acquisition proceedings to go on and reach its terminus in the award and possession is taken in furtherance thereof and vest in the <ORG> free from all encumbrances, the slumbered interested person would be told off the gates of the <ORG> that his grievance should not be entertained when there is inordinate delay in filing the writ petition and when all steps taken in the acquisition proceedings have become final, the <ORG> should be loath to quash the notifications. (Emphasis added)

10. Similar view has been reiterated in State of Rajasthan & <ORG>. Vs. D.R. Laxmi & <ORG>., (1996) 6 SCC 445, wherein this <ORG> has held that even the void proceedings need not be set at naught if the party has not approached the <ORG> within reasonable time, as judicial review is not permissible at a belated stage. This <ORG> held as under:

"......Delay in challenging the notification was fatal and writ petition entails with dismissal on grounds of laches. It is thus, well-settled law that when there is inordinate delay in filing the writ petition and when all steps taken in the acquisition proceedings have become final, the <ORG> should be loathe to quash the notifications........The order or action, if ultra vires the power, becomes void and it does not confer any right. But the action need not necessarily be set at naught in all events. Though the order may be void, if the party does not approach the <ORG> within reasonable time, which is always a question of fact and have the order invalidated or acquiesced or waived, the discretion of the <ORG> has to be exercised in a reasonable manner. When the discretion has been conferred on the <ORG>, the <ORG> may in appropriate case decline to grant the relief, even if it holds that the order was void. The net result is that extraordinary jurisdiction of the <ORG> may not be exercised in such circumstances." (Emphasis Added)

11. Similar view has been reiterated by this Court in <ORG> Vs. <ORG> AIR 2003 SC 234; and <ORG> Vs. <ORG> AIR 2004 SC 850.

12. In the instant case, it is not the case of the petitioners that they had not been aware of acquisition proceedings as the only ground taken in the writ petition has been that substance of the notification under Section 4 and declaration under Section 6 of Act 1894 had been published in the newspapers having no wide circulation. Even if, the submission made by the petitioners is accepted, it cannot be presumed that they could not be aware of acquisition proceedings for the reason that very huge chunk of land belonging to large number of tenure holders had been notified for acquisition. Therefore, it should have been a talk of the town. Thus, it cannot be presumed that petitioners could not have knowledge of the acquisition proceedings.

13. In such circumstances, we do not find any fault with the impugned judgment and order. The petitions are dismissed on the ground of delay.

....................................J. (J.M. PANCHAL) .....................................J. (Dr. B.S. CHAUHAN) New Delhi, April 01, 2010


JUDGMENT <NAME>, J.

1. This is an application filed by nine petitioners, under Article 227 of the Constitution of India. These petitioners were members of the first party in a proceeding Under Section 145 of the Code of Criminal Procedure which was pending before a Magistrate, 1st Class, at Jahanabad, in case No. 175 M/81 of 1958. About 40 bighss of land of village Kalu within the jurisdiction of Arwal police-station was in dispute between the petitioners and the members of the opposite party. The learned Magistrate by an order dated the 9th of February, 1959, attached the disputed lands Under Section 146(1) of the Code of Criminal Procedure and directed the parties to appear before <ORG> at Jahanabad on the 24th of February, 1959, for the decision of the question as to which of the parties was in possession over the disputed land. The matter thereafter went before the Munsif of Jahanabad in Miscellaneous Case No. 32 of 1959.

The proceeding before the learned <NAME> of Jahanabad was covered by Sub-sections (1A) and 1(B) of Section 146 of the Code of Criminal Procedure. Ultimately, by a judgment and order dated the 18th of September, 1959,' the learned <NAME> held that the. members of <ORG> were in possession of the disputed property from the year 1953 and that the members of the first party were not in possession. The record of the case was returned to the Sub-divisional Magistrate, for passing necessary orders under Sub-section (IB) of Section 146 of the Code. The present petitioners have come up to this <ORG> complaining of the order passed by. the learned <NAME> on the 18th of September, 1959. It may be stated here that further proceedings in the <ORG> below have been stayed by this <ORG> by an order dated the 28th of September, 1959, while admitting this application.

2. learned Counsel for the petitioners submitted, mainly, that the order of the learned <NAME> dated the 18th of September, 1959, is not in accordance with law,' inasmuch as the learned <NAME> has not complied with the specific requirements of Sub-section (1A) of Section 146 of the Code of Criminal, Procedure. This argument of the learned Counsel is based on the fact that the petitioners; who were the first party in the proceeding Under Section 145 of the Code, had filed -affidavits of 29 persons two were before the learned Magistrate when he had passed the order on the 9th of February, 1959, and which affidavits were on the record before the learned <NAME> when he was dealing with the case. It has been mentioned in paragraph 5 of the petition filed in this Court, that the petitioners had filed affidavits of 29 persons which had been sent to the learned <NAME> with the record of the case.

It appears from paragraph 6, that the petitioners had filed various other documents also before the learned Magistrate but that they had withdrawn those other documents, for the purpose of filing them before <ORG>. It is, therefore, urged that the order of the learned <NAME>, dated the 18th of September, is vitiated on the ground that the learned <NAME> has not considered the several affidavits that had been filed by the first party and which were on the record of the case. It is argued that the learned <NAME> has specifically mentioned that he found no documents filed on behalf of the first party and that this conclusion of the learned <NAME>, so far as this case is concerned, is wrong, inasmuch as the affidavits which were already on record, should have been perused and considered as part of the evidence in the case. Substantially, upon these arguments it is submitted by the learned Counsel for the petitioners that the order of the learned <NAME> should be quashed.

3. The history of this unnecessarily protracted litigation appears to be as follows. At the time when the proceeding Under Section 145 of the Code of Criminal Procedure was pending before the learned Magistrate, the parties had filed a large number of documents including a large number of affidavits of many persons. Under the amended Section 145 of the Code of Criminal Procedure,' the learned Magistrate had to peruse the statements of the parties, the documents and affidavits filed by them, hear the parties and conclude the enquiry by deciding the question as to which of the parties was in possession. The order of the learned Magistrate in this case, dated the Seth of February, 1959, hardly indicates that the learned Magistrate took the trouble of coming to his decision, upon considering the materials before him. The learned Magistrate has stated thus;

Both the parties are armed with volumes of documents which are contradictory and highly confusing and do not lead to definite finding on fact of possession. Both the parties have also filed affidavits of many persons which appear to be oaths against oaths and does not help in determining the fact of possession. So I am unable to decide as to which of the parties is in possession over the disputed lands and so I consider It necessary to refer the matter to <ORG> Under Section 146 CrIPC to give a finding on the fact of possession.

It is apparent to me that the learned Magistrate made no serious effort to consider the affidavits mentioned by him in his order. Disposal of cases Under Section 145 of the Code of Criminal ProceduTe, where affidavits have been filed by both the parties, stating that these affidavits appear to be oaths against oaths, has not been approved by this Court in a large number of decisions. Reference may be made to a decision of this Court, in the case of <CITATION> . It was stated in this case that the Magistrate should consider the affidavit of each deponent and should give his reasons for accepting or not accepting it. The order in this case was set aside on the ground that the Judgment of the learned Magistrate was vitiated for the consideration of a the affidavits fifed on behalf of the parties. Again, in the case of <NAME> v. <NAME> , the judgment the learned Magistrate was set aside on the ground that he had not considered the affidavits filed on behalf of the parties at all. It was mentioned in this decision that the affidavits cannot be brushed aside by saying that they are oath against oath. It was held that the Magistrate should consider the affidavits in the same manner in which oak evidence is considered.

In another decision of this Court, in the case of <CITATION> , it was again held that the Magistrate had to consider the affidavits and give reasons for accepting the affidavits of one or the other of the parties. Our attention has also been drawn to a recent decision of <ORG> of this Court in the case of <NAME>, Criminal Revn. No. 625 of 1958 D/-17-10-1960 (Pat), in which it was stated thus:

Sub-section (1) of Section 146 lays down that a Magistrate can make a reference to <ORG>, (1) if he is of opinion that none of the parties was in possession of the subject of dispute on the date of the proceeding, or (2) if he is unable to decide as to which of then was then in such possession. As I have already said,1 the Magistrate did not, in this case, make any attempt whatever to consider or discuss the evidence in order to find whether one or the other party was in possession or none of the parties was in possession. A Magistrate cannot take recourse to Section 146 (1) merely for the purpose of shifting his own responsibility. It is only when either of the two contingencies mentioned in the sub-section arises that he can refer the case to <ORG>.

From the exposition of law made by this <ORG>, subsequent to the orders passed in the instant case, it is clear that the order of reference made by the learned Magistrate on the 9th of February, 1959, was not a proper order "at all.

4. Coming to the decision of the learned <NAME>, after reference to him Under Section 146 (1) of the Code of Criminal Procedure, it appears that the learned <NAME> did make an effort to come to a conclusion on the materials that were placed before him. But, unfortunately, his attention was not drawn to Sub-section (1-A) of Section I4fr of the Code, under which it was his duty, also, to peruse the evidence that had already come on the record on be half of the first party. What-happened in the Court of the learned <NAME> was this. On the 12th of September, 1959, a petition for time was filed by the first party/This petition was rejected by the learned <NAME> on the ground that the case was an old one. The parties were ordered to be ready with the case at once. When the case was teen up, it appears that the first party did not co-operate and the learned <NAME> proceeded to hear the case ex. parte. The last two witnesses of the second party were examined and' argument on behalf of the second, party was made and 18th of September was fixed for delivering judgment in the case. The first two .witnesses had already been examined on the 5th of June, 1959. On the 14tn of September, however, the first party filed another petition praying that a date may be fixed for argument it behalf of the first party. This petition was rejected by the learned <NAME> and, in due course, on the 18th of September Judgment was delivered: m his judgment and order, the learned <NAME> has mentioned the case of the first party: He has also mentioned the case of the second party and. thereafter the learned <NAME> has considered in detail the oral and documentary evidence, adduced on behalf of the second party. He has mentioned that there-was no oral evidence on behalf of the first party and he-found' no documentary evidence of the first party as well-On a consideration of the materials that were placed before him, the learned <NAME> held that the second party were in possession of the disputed property from the year 1953.

5. It is contended by the learned Counsel for ' the petitioners that having stated the ease of the first party and the second party, in his order, the learned <ORG> was bound to consider the affidavits which were already on the record. Reliance is placed on Section 146 (1A) of the Code of Criminal Procedure, where it is mentioned that on receipt of any reference, <ORG> shall peruse the evidence on record and take such further evidence as may be produced by the parties respectively, consider .the effect of all such evidence, and after hearing the parties,' decide the question so referred to it. It is urged that under the provision of law, even if no further evidence was adduced by the first party before the learned <NAME>, and even if no arguments were advanced before him, the learned <NAME> had to peruse the several affidavits which had already been filed before the learned Magistrate and which, on reference, formed part of the record before the learned <NAME>.

Our attention is drawn to the case of <CITATION> , wherein it has been held that, after a reference is made to <ORG>, when the Magistrate finds it difficult to decide the question of possession on the materials as required by Section 145 of the Code of Criminal Procedure, there is always some, evidence of possession on the facts and circumstances of this case, the learned <NAME> was bound to consider the affidavits filed by the first party, before holding that the members of the second party were in possession since 1953 and that the members of the first party were not in possession. In my opinion, the contention of the learned Counsel for the petitioners based on Sub-section (1A) of Section 146 of the Code of Criminal Procedure must be accepted, in my opinion, the decision in <NAME> case, so far as it has held that in a reference to <ORG> Under Section 146 of the Code of Criminal Procedure, trireme is always same evidence on record for consideration by <ORG>; is correct.

As a matter of fact, in this case, the order of the learned Magistrate itself makes it clear that there were evidence on record. I have already mentioned that of the voluminous documents mentioned by the learned Magistrate, at least, the affidavits of 29 persons which had been filed by the members of the first party were still on the record when the case had reached the Court of the learned <NAME>. It is clear, therefore, that the learned <NAME> had to consider these affidavits on record, before coming to an adverse conclusion against the members of the first party. It is rather unfortunate that the course adopted by the: learned <NAME>, although inadvertently, has resulted in protracting this litigation, after the learned <NAME> had rejected the first party's petition for time with a view to an expeditious disposal of the case. But the amendment of Section 146 of the Code of Criminal Procedure has put upon <ORG> a statutory duty, in the discharge of which the learned <NAME> failed altogether. There is no other alternative but to quash the order of the learned <NAME>, for tote reasons given above.

6. The order of the learned <NAME> of Jahanabad, dated the J8tti of September, 1959, passed in Miscellaneous Case Ho. 32 of 1959, is, therefore, quashed. The case is remanded to <ORG> for reconsideration.' .In this connection, learned Counsel for the opposite party has submitted that a direction should be given that <ORG> will now proceed to decide the case only on the materials that are already on the record. In my opinion, however, this Court ought not to make such an order, thereby restricting the discretion of <ORG> in disposing of the reference in accordance with law. I, therefore, remand the case with a direction that the case should now be disposed of in accordance with law and as quickly as possible.

<NAME>, J.

7. I agree.


PETITIONER: THE ADDL. COMMISSIONER OFINCOME TAX & ANR. Vs. RESPONDENT: THE A.L.N. RAO CHARITABLE TRUST DATE OF JUDGMENT13/10/1995 BENCH: MAJMUDAR S.B. (J) BENCH: MAJMUDAR S.B. (J) JEEVAN REDDY, B.P. (J) CITATION: 1996 AIR 344 1995 SCC (6) 625 JT 1995 (7) 339 1995 SCALE (5)742 ACT: HEADNOTE: JUDGMENT:

J U D G M E N T S.B. Majmudar, J.

This appeal by special leave is directed against the decision of <ORG> of <ORG> in Writ Appeal No.864 of 1974 decided on 4th September 1975. The said writ appeal, moved on behalf of the <ORG> by Additional Commissioner of Income Tax, Mysore and First Income Tax Officer, Mangalore Circle, Mangalore against the order of learned Single Judge <NAME>, J., as he then was, in the Writ Petition No.597 of 1973 came to be dismissed by <ORG> of <ORG>. In order to highlight the grievance of the <ORG> in this appeal a few relevant introductory facts are required to be noted. Background Facts

Respondent <ORG>, Mangalore, is a charitable trust. For the assessment year 1969-70, the respondent, hereinafter referred to as "the assessee" submitted its Return to <ORG>, Mangalore Circle. In the said Return, the assessee claimed that a sum of Rs.85,262/- which was the surplus income of the previous year, was exempt from tax under Section 11(1)(a) and sub-section (2) of the said Section. On <ORG> holding that the assessee is not a genuine Trust and therefore not entitled to claim the benefit of Section 11, the assessee preferred an appeal before he Appellate Assistant Commissioner, which was dismissed. In the second appeal preferred by the assessee before <ORG>, it was held that the assessee was a charitable trust and therefore was entitled to claim exemption from tax under Section 11 of the Income Tax Act, 1961 (hereinafter referred to as `the Act'). In I.T.R.C. No.31 of 1973 which was a reference made at the instance of the <ORG>, <ORG> by its judgment dated 4.8.1975 answered the question referred in favour of the assessee and against the <ORG>. That judgment became final. Consequently there remained no dispute about the eligibility of the assessee to claim benefit of Section

11. <ORG> took up the assessment to pass an order in accordance with the judgment of the <ORG> and made an order on 21.1.1972 by which it held that the assessee, after complying with the requirement of giving notice under Section 11(2) (a), had invested 75% of the accumulated income intended to be applied for charitable purposes in future years as required by clause (b) of Section 11(2) and therefore, the entire surplus income was exempt from tax.

The Commissioner of Income Tax, on looking into the order dated 21.1.1972 passed by <ORG> was of the view that the order of <ORG> was erroneous as he had not applied his mind to the question whether the assessee had complied with the provisions of Section 11(2) and that if he had applied his mind to the said provisions, he would have noticed that the assessee had not invested the entire surplus income, viz., Rs.85,262/- (but only Rs.70,975/-) and therefore the assessee was not entitled to the exemption provided under Section 11 of the Act. Thus, in the opinion of the Commissioner, the order of the Income Tax Officer was erroneous inasmuch as it was prejudicial to the interests of the <ORG>. He issued a show-cause notice under Section 263 of the Act on 18.1.1973 to the assessee to show cause as to why the entire surplus income of Rs.85,262/- should not be brought to tax. The assessee, on receipt of the said notice, approached <ORG> for relief under Articles 226 and 227 of the Constitution and prayed for the issue of a Writ in the nature of Certiorari to quash the Notice dated 18.1.1973 issued by the Commissioner. In that writ petition (W.P. No.597 of 1973), <NAME>, J. made an order directing the Commissioner to dispose of the proceedings initiated under Section 263 in the light of his order as to the interpretation of Section 11(1)(a) and Section 11(2) of the Act.

Before the learned Single Judge, the contention of the <ORG> was that in order to claim exemption under Section 11 , the assessee should have invested the entire surplus income in one or the other of the securities mentioned in Section 11(2)(b) of the Act and it is not sufficient if 75% of the surplus income alone has been invested by the assessee. The learned counsel for the assessee urged that the assessee had complied with the requirements of Section 11 ; according to the learned counsel, the assessee was entitled to exemption from tax in respect of 25% of the accumulated income or Rs.10,000/- whichever was higher plus that portion of the accumulated income in respect of which the conditions prescribed under Clauses (a) and (b) of Section 11(2) had been satisfied. According to the assessee, since it had deposited 75% of the accumulated income in the Securities mentioned in Section 11(2) (b), the entire surplus income which had accumulated was not taxable.

The learned single Judge rejected the contention of the <ORG> and upheld he contention of the assessee in part only. The learned Judge held that the assessee was entitled to exemption from tax only in respect of 75% of the surplus income which was accumulated for future use.

The <ORG> carried the matter in writ appeal which came to be decided by the impugned judgment. <ORG> on interpretation of Section 11(1) (a) and sub-section (2) thereof as they stood at the relevant time, took the view that 25% of the accumulated income of the <ORG> arising in the previous got exempted from income tax under Section 11(1) (a). That Section 11 (2) dealt with remaining 75% of the accumulated income of the previous year and if such 75% of the accumulated income was invested as laid down by the said provision the <ORG> was entitled to get even the 75% of the accumulated income exempted from income tax payable on the income arising to the <ORG> in the previous year. In short while dismissing the appeal of the <ORG> <ORG> of <ORG> on interpretation of the Sections took a view which was wholly in favour of respondent-<ORG>. For taking the said view <ORG> of <ORG> referred to similar view taken by <ORG> of Jammu & Kashmir in the case of <CITATION> (1975) 98 ITR 387.

Rival Contentions

Learned counsel appearing for the appellants vehemently contended that the interpretation placed by <ORG> of <ORG> on the relevant provisions of Section 11(1) (a) and 11(2) of the Income Tax Act , 1961 as they stood at the relevant time is not well sustained. That it is true that under Section 11(1) (a) 25% of the accumulated income of the Trust arising during the previous year or Rs.10,000/- whichever was higher was exempted from income tax. But as laid down by Section 11(2) at the stage of investment of such accumulated income unless cent percent of such accumulated income was invested as per the said provision the assessee-Trust would not be entitled to the benefit of exclusion of such accumulated income of the previous year from the tax net of the Income Tax Act . It was further conented that the subsequent of Section 11(2) as brought on the Statute Book by Taxation Laws (Amendment) Act , 1975 clearly showed a different legislative intention and was not merely of a classificatory nature as assumed by the <ORG> of <ORG>. The learned counsel for the <ORG>, however, fairly submitted that the his submission are based on the express language of Section 11 (1)(a) read with Section 11(2) of the Act as applicable at the relevant time and he is not supported by any decision rendered by any of <ORG>s on this point.

Learned counsel for the respondent-assessee on the other hand submitted that the view taken by <ORG> of <ORG> on the interpretation of Section 11(1) (a) and Section 11(2) of the Income Tax Act, 1961 as applicable at the relevant time is the only correct and plausible view that <ORG> of <ORG> was justified in agreeing with the view on similar lines which appealed to <ORG> in <CITATION> (supra). He also submitted that similar view has been taken by <ORG>s of Kerala, Madhaya Pradesh,Madras,Bombay and Rajasthan in the following decisions:

1. <CITATION> temple Trust (1979) 120 ITR 42 (Ker.);

2. <CITATION> (1981) 129 ITR 191 (Ker.);

3. <CITATION> .(1980) 122 ITR 130 (M.P.);

4. <CITATION> (1984) 149 ITR 573 (Mad.);

5. Commissioner of Income Tax v.

Trustees of <ORG> (1990) 185 ITR 532 (Bom.); and

6. <CITATION> (1994) 208 ITR 568 (Raj.).

Consideration of the Rival Conentions

Before we proceed to deal with the rival contentions centering round he true scope and ambit of Section 11(1) (a) and Section 11(2) of the Income Tax Act, 1961 as applicable to the assessment year in question, namely, 1969-70 it would be apposite to refer to these provisions at the outset. These provisions as they stood at the relevant time read as under:

"11 (1). Subject to the provisions of sections 60 to 63 , he following income shall not be included in the total income of he previous year of he person in receipt of the income-

(a) income derived from property held under trust wholly for charitable or religious purposes, to the extent to which such income is applied to such purposes in India and,, where any such income is accumulated for application to such purposes in India, to the extent to which the income so accumulated is not in excess of 25% of the income from the property or rupees ten thousand, whichever is higher, .... (2) Where the persons in recip of the income have complied with the following conditions, the restriction specified in clause (a) or clause (b) of subsection (1) as respects accumulation or setting apart shall not apply for the period during which the said conditions remain complied with:-

(a) such persons have, by notice in writing to the Income-tax Officer in he prescribed manner, specified the purposes for which the income is being accumulated or set apart and the period for which the income is to be accumulated or set apart, which shall in no case exceed ten years;

(b) The money so accumulated or set apart is invested in any Government security as defined in clause (2) of section 12 of the Public Debt Act, 1944 (XVIII OF 1944), or in any other security which may be approved by <ORG> in this behalf."

Section 11 underwent an amendment by Taxation Laws (Amendment) Act , 1975. As we are not concerned with these amended provisions in the present case, we need not dilate on them.

A mere look a Section 11(1) (a) as it stood at the relevant time clearly shows that out of total income accruing to a trust in the previous year from property held by i wholly for charitable or religious purpose, to the extent the is applied for such religious or charitable purpose, the same will get out of the tax net but so far as the income which is not so applied during the previous year is concerned at least 25% of such income or Rs.10,000/- whichever is higher, will be permitted to be accumulated for charitable or religious purpose and will also get exempted from the tax me. Then follows sub-section (2) which seeks to lift the restriction or the ceiling imposed on such exempted accumulated income during the previous year and also brings such further accumulated income out of tax net if the conditions laid down by sub-section (2) of Section 11 are fulfilled meaning thereby the money so accumulated is set apart to be invested in the <ORG> securities etc. as laid down by clause (b) of sub- section 11 apart from the procedure laid down by clause (a) of Section 11 (2) being followed by the assessee-trust. If Rs.1,00,000/- are earned as the total income of he previous year by the trust from property held by i wholly for charitable and religious purposes and if Rs. 20,000/- are actually applied during the previous year by the said trust to such charitable or religious purposes he income of Rs.20,000/- will be exempted from being considered for the purpose of income tax under par of Section 11(1) . So far as the remaining Rs.80,000/- are concerned if they could not be actually applied for such religious or charitable purposes during the previous year then as per Section 11(1) (a) at leas 25% of such total income from property or Rs.10,000/- whichever is higher will also earn exemption from being considered as income for the purpose of income tax, hat is, Rs.25,000/- will thus get excluded from the extent net. Thus out of the total income of Rs.1,00,000/- which has accrued to the rust Rs.25,000/- will earn exemption from payment of income tax per Section 11(1)(a) second part. Then follows sub-section (2) which states that ceiling or the limit or the restriction of income to the extent of 25% of the income or Rs.10,000/-, whichever is higher for earning income tax exemption as engrafted under Section 11(1) (a) will get lifted if the money so accumulated is invested as laid down by Section 11(2) (b) meaning thereby out of the total accumulated income of Rs.80,000/- accruing during previous year and which could not be spent for charitable or religious purposes by the <ORG> balance of Rs.55,000/- if invested as laid by sub-section (2) of Section 11 will also be excluded from the tax net. But for such investment and if Section 11(1) alone had applied Rs.55,000/- being he balance of accumulated income would have been covered by he tax net. Learned counsel for the <ORG> submitted that the investment as contemplated by sub-section (2) (b) of Section 11 must be investment of all accumulated income in <ORG> securities etc., namely, 100% of the accumulated income and not only 75% thereof. And if that is not then only the invested accumulated income to the extent of 75% will get excluded from income tax assessment. But so far the remaining 25% of the accumulated income in concerned it will no earn such exemption. It is difficult to appreciate this contention. The reason is obvious. Section 11 , subsection (1) (a) operates on its own. By its operation two types of income earned by the trust during he previous year from its properties are given exemption from income tax, (i) the par of the income of previous year which is actually spent for charitable or religious purposes in that year; and (ii) out of the unspent accumulated income of the previous year 25% of such total property income or Rs.10,000/- whichever is higher can be permitted to be accumulated by the <ORG>, remarked for such charitable or religious purposes. 25% of the income Rs.10,000/- whichever is higher will also get exempted from income tax. That exhausts he operation of Section 11(1) (a). Then follows sub-section (2) which naturally deals with the question of investment of the balance of accumulated income which has still not earned exemption under sub-section (1) (a). So far as that balance of accumulated income is concerned , that also cam earn exemption from income tax meaning thereby the ceiling or the limit of exemption of accumulated income tax as imposed by sub-section (1) (a) of Section 11 would get if additional accumulated income beyond 25% or Rs.10,000/- whichever is higher, as he case may be, is invested as laid by Section 11 (2) after following the procedure laid down therein. Therefore, sub-section (2) only will have to operate qua he balance of 75% of he total of the previous year or income beyond Rs.10,000/- whichever is higher which has butt not got the benefit of tax exemption under sub-section (1) (a) of Section 11 . If learned counsel for the <ORG> is right and if 100% of the accumulated income of the previous year is to be invested sub-section (2) of Section 11 to get exemption from income tax then the ceiling of 25% or Rs.10,000/- whichever is higher, which is available for accumulation of income of the previous year for the rust o earn exemption from income tax as laid by Section 11 (1) (a) would be rendered redundant and the said exemption provision would become otiose. It has to be kept in view the out of the accumulated income of the previous year an amount of Rs.10,000/- of 25% of the total income from property, whichever is higher , is given exemption from income tax by Section 11(1) (a) itself. That exemption is unfettered and not subject to any conditions. In other words it is an absolute exemption. If subsection (2) is so read as suggested by the learned counsel for the <ORG>, what is an absolute and unfettered exemption of accumulated income as guaranteed by Section 11(1) (a) would become a restricted exemption as laid down by Section 11(2) . Section 11(2) does not operate to whittle down or to cut across he exemption provisions contained in Section 11(1) (a) so far as such accumulated income of the previous year is concerned. It has also to be appreciated that sub-section (2) of Section 11 does not contain any non obstacle clause like " notwithstanding the provisions of sub-section (1)". Consequently it mus be held that Section 11(1) (a) has full play and if still accumulated income of the previous year is left to be dealt with and to be consideration for the purpose for the income tax exemption, sub-section (2) of Section 11 can be pressed in service and if it is complied with then such additional accumulated income beyond 25% or Rs.10,000/-, whichever is higher, can also earn exemption from income on compliance which the conditions laid down by sub-section (2) of Section 11 . It is true that sub-section (2) of Section 11 has not clearly mentioned the extent of the accumulated income is to be invested. But on a conjoint reading of he aforesaid two provisions of Sections 11(1) and 11(2) this is the only result which can follow. It is also to be kept in view the under the earlier Income Tax Act of 1922 exemption was available to charitable trusts without any restriction upon the accumulated income. There was a change in this respect under the present Act of 1961. Under the present Act, any income accumulated in excess of 25% or Rs.10,000/- whichever is higher, is axable under Section 11(1) (a) of the Act, unless he special conditions regarding accumulated as laid down in Section 11(2) are complied with. It is clear, therefore, that if the entire income received by a trust is spent for charitable purposes in India, then it will not be taxable butt if there is a saving, i.e. to say an accumulated of 25% or Rs.10,000/- whichever is higher, it will not be included in the taxable income. Section 11(2) quoted above further liberalizes and enlarges the exemption. A combined reading of both the provisions quoted above clearly show that Section 11(2) while enlarging he scope of exemption removes the restriction imposed by Section 11(1) (a) but it does not take away he exemption allowed by Section 11(1)(a) . On the express language of Sections 11(1) and (2) as they stood on the Statute Book at the relevant time no other view is possible.

In the light of the aforesaid discussion and keeping in view the illustration which we have given earlier the combined operation of Section 11(1)(a) and Section 11(2) as applicable at the relevant time would yield the following result:

(i) If the income derived from property held under trust wholly for charitable or religious during the previous year is Rs.1,00,000/- and if Rs.20,000/- therefrom are actually applied to such purposes in India then those Rs.20,000/- will get exempted from payment of income tax as per the firs part of Section 11(1)(a) .

(ii) Out of the remaining accumulated income of Rs.80,000/- for the previous year, a further sum of RS.25,000/- will get exempted from payment of income tax as per second part of Section 11(1)(a) . Thus out of the total income derived from property as aforesaid during previous year, that is, Rs.1,00,000/-, Rs.45,000/- in all will get excluded from the tax net on a combined operation of first and second part of Section 11(1)(a) .

(iii)The aforesaid ceiling of Rs.25,000/- of accumulated income property of previous year, will get c under Section 11(2) to the extent the balance of such accumulated income is invested as laid down by Section 11(2) .To take an illustration if, say, an additional amount of Rs.20,000/- out of the balance of accumulated income of Rs.55,000/- is invested as per Section 11(2) then this additional amount of Rs.20,000/- of accumulated income will get excluded from he extent net as per Section 11(2) .

(iv) The remaining balance of the accumulated income out of RS.55,000/-, that is, Rs.35,000/- if not invested as per sub-section (2) of Section 11 will be added to he taxable income of the trust and will not get exempted from the extent net.

(v) If of the other hand the entire remaining accumulated of Rs.55,000/- is wholly invested as per Section 11(2) the said entire amount of Rs.55,000/- will get exempted from the net.

We may also at this stage mention that <ORG> Kerala in <CITATION> .  129 ITR 191; M.P.in <CITATION> , m.p. [1980 122 ITR 130; Bombay in Commissioner of Income-Tax. Trustees of Bhatt Family Research Foundation  185 ITR 532; and Madras in <CITATION>  149 ITR 573 have akin the same view as <ORG> in the present case. We approve the view akin in the aforesaid decisions. We also approve the similar view taken by <ORG> in <ORG> (supra). The learned counsel for the <ORG>, therefore, has made out no case for our interference with the decision rendered by <ORG> of <ORG>.

In he result , this appeal fails and is dismissed. However, in the facts and circumstances of the case here will be no order as to costs.


JUDGMENT <NAME>, J.

1. Leave granted.

2. State of Rajasthan through the Director, <ORG>; <ORG>, through its Registrar, and the Principal Medical Officer, <ORG>, Barmer, Rajasthan, have filed this appeal against the order of <ORG> dated 6.7.2000 in D.B. Civil Special Appeal No. 917/99(Def.) titled <CITATION> . The order passed by <ORG> reads as follows:

"However looking to all the facts and circumstances, we are of the opinion that the order of learned Single Judge is in the interest of justice. It does not require any interference of this <ORG>. We do not find any merit in this appeal."

3. In the special appeal the appellants assailed the judgment of the learned single Judge allowing the Writ Petition No. 4433 of 1997, filed by the respondent. The operative portion of the said judgment runs as follows:

"In view of the above discussion, this petition is allowed. The impugned order at Annexure R/1 annexed to the reply affidavit and the order dated 3.9.1997 Annex.11 are hereby quashed and set aside. The respondents are directed to declare the result of the petitioner for <ORG> examination forthwith."

4. The question which arises for determination in this case is whether the respondent had the eligibility qualification for admission in General Nursing and Midwifery and Staff Nurse Course (hereinafter referred to as 'nursing course') commencing in the year 1990? The Director, <ORG> had invited applications by 15.12.1989 from eligible candidates for admission in <ORG> to be started from January, 1990. It was stated in the notification that the candidates should have passed first year of Three Years' Degree course (TDC) or 10+2; and that the candidates with science subjects (Biology, Chemistry, Physics) will be given preference. During the period <ORG> had issued a set of Syllabi and Regulations for Courses in General Nursing and Midwifery in which the prescribed minimum educational qualification for all candidates was 12th class pass or its equivalent preferably with science subjects.

5. The respondent, who was then working as a female worker, submitted her application for joining the course. The educational qualification possessed by her was a Madhyama Certificate issued by <ORG>, Allahabad in 1984. This certificate was previously recognized as equivalent to a degree in Hindi. The said recognition had ceased to be operative with effect from 1.4.1985. The position was further clarified in the letter dated 4.12.1991 addressed by <NAME>, Deputy Secretary, <ORG>, New Delhi to the Registrar, <ORG>, Jaipur, in which it was stated "<ORG>, Prayag, Allahabad is one of the voluntary Hindi Institutions set up for promotion of Hindi. Its examinations are not equated with the regular examinations of <ORG>. The standard of Hindi, only of its examinations is accepted." Copies of the said letter were sent to the Secretary, <ORG>, <ORG>, the Director of <ORG>, Rajasthan, all Principal Medical Officers and others.

6. The respondent was given provisional admission in the nursing course which was subsequently cancelled when it was detected that she did not have the educational qualification prescribed for the course.

The respondent filed writ petition CWP No. 5995/91, praying inter alia that the authorities be directed to allow her to pursue General Nursing Course and permit her to sit in the examination. The learned single Judge disposed of the writ petition by the following order:

".....Therefore, instead of deciding the matter here I leave it for <ORG> to decide that whether a candidate who had obtained a Madhyama degree in the year 1984 which is said to be equivalent to B.A. for Hindi purposes should be admitted to the course or not. When the matter is already receiving consideration of <ORG> and since <ORG> is a competent body which can examine the matter after taking into consideration the necessary course and the fact that the candidate has already studied for a period of three years, it will not be proper for this court to examine this matter and I leave it to <ORG> to decide the matter sympathetically as the petitioner has rightly or wrongly studied for more than three years.

Therefore, I leave it to <ORG> to decide the matter objectively and sympathetically and issue a categorical direction for all future times to come as the matter of <NAME> and <NAME> has already evoked a controversy and such matters are agitated before this Court in number of writ petitions. As such <ORG> may now decide this controversy and give a clear direction that whether such candidate is to be admitted to the course or not.

With these observations I leave it to <ORG> to consider the matter sympathetically and dispose of the matter. The writ petition is accordingly dismissed."

7. Pursuant to the direction issued by <ORG> <ORG> considered the matter and took the decision that the respondent was not eligible for admission to the General Nursing Course since she had no background in Biology and further she did not possess the requisite educational qualification. The respondent was informed of the decision of <ORG> vide letter dated 3.9.1997 of the Additional Director, <ORG>. She filed Writ Petition, CWP No. 4433 of 1997 praying, inter alia, to quash/set aside the order communicated in the letter dated 3.9.1997 and for a direction to the respondents in the case to declare her result of the examination in which she had appeared under order of <ORG>.

8. From the discussions in the judgment of the learned single Judge it appears to us that he has laid much stress on the order passed and the directions issued by <ORG> in the previous writ petition filed by the respondent, S.B. Civil Writ Petition No. 5995 of 1991 directing <ORG> to decide the controversy and give a clear direction in the matter.

The learned single Judge felt that in view of the direction given by <ORG> <ORG> ought to have taken a decision in favour of the respondent. This position is evident from the following observations in the judgment :

"When the <ORG> directed the authority to consider the case objectively, and sympathetically that means that <ORG> was inclined to interfere with the order, but instead of disturbing that order on a judicial side it had left it to the authority so that its grace and sentiments are not hurt. From the aforesaid portion of the order reproduced by me it is clear that the authority had to take a decision in the matter for all time to come but had never even remotely suggested that the <ORG> can take its decision in its own way regarding the case of the petitioner.

xxxxx Coming to the facts of this case, it is clear from the orders at Annex. 11 and R/1 annexed to reply affidavit that respondents have not at all applied their mind to the order passed by the learned Single Judge of this Court on 12.10.1993 in writ petition No. 5995/91. It was not appreciated in its true spirit. When the learned Single Judge had observed that the petitioner has rightly or wrongly studied for more than three years, therefore, her case was required to be considered objectively and sympathetically, that means that respondent No. 2 had to accept her case. Therefore, this petition was required to be allowed straightaway only on this ground."

9. We are of the view that the learned single Judge misread the order passed in SB Civil Writ Petition No. 5995 of 1991. All that had been ordered in that case was that <ORG> should decide the controversy and give a clear direction that whether such candidate has to be admitted to the course or not. We do not find any observation or direction therein which directly or by implication suggests that the educational qualification possessed by the respondent should be taken as duly recognized and relief should be given to her on that basis. In that case the observation in the order leaving the matter to <ORG> to decide objectively and sympathetically and issue a categorical direction for all future time to come, was irrelevant. The learned single Judge, in our view, was in error in holding that in view of the order passed by <ORG> in the previous writ petition filed by the respondent <ORG> should have decided the matter granting relief to the respondent. <ORG> was also in error in dismissing the special appeal in limini by passing a cryptic and unreasoned order.

10. The points involved in the case are two fold : one relating to prescription of minimum educational qualification for admission to the course and the other relating to recognition of the Madhyama Certificate issued by <ORG>, Allahabad as equivalent to or higher than +2 or 1st year of TDC for the purpose of admission. Both these points relate to matters in the realm of policy decision to be taken by <ORG> or the authority vested with power under any statute. It is not for courts to determine whether a particular educational qualification possessed by a candidate should or should not be recognized as equivalent to the prescribed qualification in the case. That is not to say that such matters are not justiciable. In an appropriate case the <ORG> can examine whether the policy decision or the administrative order dealing with the matter is based on a fair, rational and reasonable ground; whether the decision has been taken on consideration of relevant aspects of the matter; whether exercise of the power is obtained with malafide intention; whether the decision serves the purpose of giving proper training to the candidates admitted or it is based on irrelevant and irrational considerations or intended to benefit an individual or a group of candidates.

11. This Court in <CITATION> . Services and Ors., , rejecting the contention that proper consideration had not been given to the standard of education imparted by the Hindi <ORG>, Prayag and expertise acquired by the holders of the degrees awarded by the said institution, made the following observations :

"....It is not necessary for this <ORG> to consider such submissions because the same remains in the realm of policy decision of other constitutional functionaries. We may also indicate here that what constitutes proper education and requisite expertise for a practitioner in Indian Medicine, must be left to the proper authority having requisite knowledge in the subject. As the decision of <ORG> is justified on the face of legal position flowing from the said Central Act of 1970, we do not think that any interference by this <ORG> is called for....."

12. In the case of <CITATION> ., , this Court considered the question whether a diploma/degree of <ORG> Visharad or Ayurveda Ratna obtained from <ORG>, Allahabad, which institution was recognized for the period from 1931 to 1967 only, could be accepted as educational qualification fulfilling the eligibility conditions for promotion to the post of Ayurvedic Chikitsa Adhikari (<ORG>) under the State of Himachal Pradesh. This Court held that the Second Schedule to the Indian Medical Central Council Act , 1970 came into force in the State of Himachal Pradesh on 15.8.1971 which clearly mentioned the period for which diploma/degrees awarded by the <ORG> were recognized. The respondent obtained qualification after this period for which there was no recognition, and they were aware of the fact which itself disentitled them from claiming promotion. Their contention that the condition regarding degree from a recognized body is prescribed for direct recruitment only in Rule 7 of 1974 Recruitment Rules while there is no such condition in Rule 11 which governs promotion,was rejected by this Court holding that the recruitment rules have to be read consistently with the 1970 Act and 1968 Act as well as the Government Notification dated 21.2.1978 which recognizes diploma/degrees awarded by the <ORG> during the period 1931 to 1967 only. This Court declared that the qualifications acquired by the respondent for the <ORG> which were admittedly after 1967 did not entitle them to be considered for promotion to the post of <ORG>.

13. From the ration of the decisions noted above it is clear that the prescribed eligibility qualification for admission to a course or for recruitment to or promotion in service are matters to be considered by the appropriate authority. it is not for courts to decide whether a particular educational qualification should or should not be accepted as equivalent to the qualification prescribed by the authority.

14. Testing the facts of the case in hand on the touchstone of the principles it is clear that on the date of submission of the application for joining the course the respondent did not possess the prescribed qualification of 10+2 or 1st year TDC from a recognized institution. The Madhayama Certificate from Hindi Sahitya Sammelan Prayag, Allahabad had been deleted from the recognized qualification by the notification dated 28.6.1985. The respondent submitted the application for admission to the course in December, 1989. In the circumstances <ORG> was in error in issuing a direction to the appellants to treat the respondent as a candidate possessed of the prescribed educational qualification and to declare her result on that basis.

15. At this stage we may take note of the decision of this Court in <CITATION> ., , on which much reliance has been placed by learned counsel appearing for the respondent. In that case this Court issued a direction to the Government of the State of Haryana to recognize the certificate obtained by the petitioners therein and other similarly situate candidates in completing the certificate course in <ORG>, Amaravati, Maharashtra for the post of Physical Training Instructor in Government Schools in Haryana. This Court appears to have issued such direction taking note of the factual position that the petitioners had joined the institution relying on the recognition granted by the State of Haryana to the Certificate course of Physical Education in that institute and while they were in the midst of the course the State Government had derecognised the certificate course of the institute. Taking note of the particular facts of the case this Court issued the direction noted above and made it clear that if any person who has joined the course after 9th January, 1985 i.e. the date of derecognition he would not be entitled to the benefit of the order and any certificate obtained by him from the said institute would be of no avail. The decision in our view does not lay down any general principle of law applicable in all cases. It was based on the facts and circumstances peculiar to that case. Therefore, the decision cannot be of any avail to the respondent in this case.

16. In the result, the appeal is allowed. The judgment of the learned single judge dated 14 July 1999 in SB Civil Writ Petition No 4433/97 which was confirmed by the division bench by its judgment dated 6 July 2000 in DB Civil Special Appeal No 917 of 1999 (Def) is set aside and the writ petition filed by the respondent is dismissed. However, it is made clear that if in the meantime the respondent has been given any financial benefit on the basis of the qualification obtained on completion of the course the same will not be recovered from her. There will be no order as to costs.


JUDGMENT <NAME> and <NAME>, <NAME>.

1. This appeal arises out of a suit brought by the plaintiff to recover possession of certain lands in which he said he had purchased a taluki right from <NAME> on 19th Baisakh 1296, and from which he had been dispossessed by defendant No. 4 under a decree obtained under Section 9 of the Specific Relief Act on the 28th June 1899.

2. In 1891, <NAME>, predecessor in interest of defendants 1 and 2, obtained a decree for arrears of rent in respect of the lands in suit, and attached them in execution of the decree. Thereupon the plaintiff put in a claim under Section 278 , Code of Civil Procedure, which, however, was disallowed on the 14th January 1891. The plaintiff then paid up the money due under the decree, and the attachment was withdrawn. Subsequently, however, the lands were again attached for arrears of rent and sold, and they were purchased by the decree-holder, and according to the defence settled with defendant No. 4.

3. The only plea taken in the Court of first instance, which it is necessary to consider for the purposes of this appeal, is that the suit was barred by limitation under Article 11 , Schedule II, of the Limitation Act , by reason of the, foot that the-plaintiff had failed to, bring, his suit, within one year from; the 14th January 1891, the date on which his claim preferred under Section 278 , Civil Procedure Code, was, disallowed, under Section 281 , Civil Procedure Code.

4. The first <ORG> held that the suit was barred. The lower <ORG>, relying on the decision of <ORG> in the case of <CITATION> (1888) I.L.R. 3 Bom. 72, has held that the suit was not barred. Disagreeing with the finding of the <ORG> of first instance on this point and on another preliminary point as to title, the Sub-Judge set aside the judgment, and decree of the <ORG> and remanded the case, under Section 562 , Civil Procedure Code, to be tried, on the merits.

5. Defendants 1 and 2 have appealed, and in support of their appeal two points have been taken: (i) That the Sub-Judge's decision on the question of limitation was erroneous; and (ii) that he had no power to remand the case under Section 562 , Civil Procedure Code, as the whole of the evidence had been taken in the Munsif's Court, and the Sub-Judge ought therefore to have arrived at findings on the merits on the evidence.

6. In support of the first contention, we have been referred to the decision of this Court in the case of <NAME> v. <NAME> (1900) I.L.R. 27 Calc. 714. That case, however, is distinguishable from the present, for in that the land attached was in fact sold after the claim had been disallowed under Section 281 , Civil Procedure Code.

7. In our opinion the principle laid down by <ORG> in the case of <CITATION> (1888) I.L.R. 13 Bom. 72, which was followed in the case of <NAME> v. Bai Divali (1893) I.L.R. Bom. 241, applies to the present case. The object of the claim preferred by the plaintiff under Section 278 , Civil Procedure Code was to obtain the removal of the attachment, and when that attachment had been removed after payment of the decretal amount, there was no longer an attachment or any proceeding in to execution on which the order could operate to the prejudice of the plaintiff, and therefore there was no necessity to bring a suit to set aside the order. We are unable to accept the view suggested on behalf of the appellants that, in spite of the withdrawal of the attachment, the dismissal of the claim under Section 281 , Civil Procedure Code, could, by virtue of the provisions of Section 283 , Civil Procedure Code, have the effect of finally determining the question of title between the parties. The first point in support of the appeal therefore fails.

8. As to the second point we think that in this case the remand is not open to objection. The finding of the <NAME> does not show what issues were framed other than those in bar, which he has decided, and he has not dealt with the evidence adduced by the parties. We think that in this case the evidence should be duly weighed and considered by the <ORG> of first instance and findings arrived at on the other issues raised in the case. This point also fails, and we dismiss the appeal with costs.


<NAME>, C.J.

1. This petition under Article 226 of the Constitution arises out of proceedings under the U. P. Sales Tax Act, 1948 (hereinafter referred to as 'the Act'). Messrs. <ORG>, Kanpur, are the petitioner. The Assistant Commissioner (Judicial), Kanpur, is respondent No. 1.

2. The petitioner is a dealer at Kanpur dealing in cycles and cycle parts. On 29-8-1966 the Sales Tax Officer, Kanpur, passed an assessment order for the year 1964-65. The petitioner's net turnover was fixed at Rs. 2,60,000. A sum of Rs. 12,940 was assessed as sales tax payable by the dealer. The petitioner filed on 19-9-1966 an appeal against the assessment order, dated 29-8-1966. According to the memorandum of appeal, the amount of sales tax admitted by the appellant was Rs. 1,612.91. By this time the appellant had deposited a sum of Rs. 1,610.91 as sales tax. The amount so deposited fell short of the amount of admitted tax by Rs. 2. The appellant deposited an additional sum of Rs. 5 in January, 1967.

3. When the appeal came up for hearing before the Assistant Commissioner (Judicial), Kanpur, on 1-3-1967, it was urged for the Sales Tax Officer that the appeal ought to be rejected on the ground that proof of payment of the admitted tax did not accompany the memorandum of appeal. This contention was accepted by the appellate authority. There was an application by the appellant under Section 5, Indian Limitation Act for condoning delay. It was held that Section 5 , Indian Limitation Act , could not be pressed into service for condoning non-fulfilment of the condition prescribed by the proviso to Section 9 of the Act. In the result, the Assistant Commissioner dismissed the appeal on 1-3-1967 on the ground that it was not maintainable. The present writ petition by the dealer is directed against the appellate order of respondent No. 1, dated 1-3-1967.

4. When the writ petition came up for hearing before <ORG> of this Court, it was noticed that there was a conflict of opinion between Division Benches of this Court as regards the meaning to be given to the word 'entertained' appearing in the first proviso to Sub-section (1) of Section 9 of the Act. The case, therefore, is referred to <ORG>.

5. Section 9 of the Act provides for appeals. Sub-section (1) of Section 9 states:

"Any dealer objecting to an order allowing. .... .or to an assessment made under Section 7 ...... may within 30 days from the date of service of the copy of the order or notice of assessment, as the case may be, appeal to such authority as may be prescribed: Provided that no appeal against an assessment shall be entertained unless it is accompanied by satisfactory proof of the payment of the amount of tax admitted by the appellant to be due or of such instalments thereof as may have become payable: Provided, secondly......." 6. Rules have been framed under the Act. Rule 66 deals with contents of memorandum of appeal. Sub-rule (2) of Rule 66 states:

"The memorandum of appeal shall be accompanied by adequate proof of payment of the fee payable and a certified copy of the order appealed against and the chalan showing deposit in the treasury of the tax admitted by the appellant to be due, or of such instalments thereof as might have become payable."

7. The question for consideration is whether the petitioner complied with requirements of the first proviso to Sub-section (1) of Section 9 of the Act and Sub-rule (2) or Rule 66, when it appealed against the assessment order dated 29-8-1966. The decision of this case turns largely upon the meaning to be given to the word 'entertained' appearing in the first proviso to Sub-section (1) of Section 9 of the Act.

8. The word 'entertained' also appears in the proviso to Order XXI, Rule 90, Civil P. C., as amended by this <ORG>. That proviso runs thus:--

"Provided that no application to set aside a sale be entertained-

(a) ..........

(b) Unless the applicant deposits such amount not exceeding twelve and half per cent of sum realised by the sale or furnishes such security as the Court may, in its discretion, fix......."

9. The proviso to O. 21, Rule 90, Civil P. C., came up for consideration before this <ORG> in a number of cases. <CITATION> , AIR 1962 All 42, it was held by <NAME>, J., that Clause (b) of the proviso debars a <ORG> from entertaining an objection unless the requirement of depositing the amount or furnishing security is complied with. If the requirement as to deposit or security is not complied with at the time of filing of an objection within limitation and security is furnished after expiry of limitation, the subsequent compliance does not save limitation.

10. In <NAME> v. <NAME>, 1962 All LJ 574 = (AIR 1962 All 547), it was held that the expression 'entertained' cannot be given the same meaning as the word 'filed'. The true intention of the proviso appears to be to allow the judgment-debtor to prosecute his application to set aside the sale if he complies with the conditions contained in the proviso to Rule 90 before the application is finally heard and disposed of by the <ORG>.

11. Similarly, in <CITATION> , 1962 All LJ 729 = (AIR 1962 All 543), it was observed that the word 'entertain' bears the meaning of admitting to consideration.

12. <CITATION> , AIR 1963 All 320, it was held that the word 'entertain' in the proviso to Order 21, Rule 90, Civil P. C., does not mean 'receive' or 'accept', but 'proceed to consider on merits' or 'adjudicate upon'.

13. The first proviso to Section 9 (1) of the U. P. Sales Tax Act, 1948, came up for consideration before a Division Bencn of this Court in <CITATION> , (1963) 14 STC 518 (All). The facts of that case were these. The last date for filing an appeal against an assessment order was 24-10-1953. Although the assessee admitted its liability for payment of Rs. 510 as sales tax, the memorandum of' appeal filed on 12-10-1953 was accompanied by a chalan for Rs. 443 only. On 27-11-1953 the assessee presented two chalans--one dated 6-10-1953 for about Rs. 9 and the other dated 26-11-1953 for about Rs. 58. It was held by <ORG> that the Judge (Appeals) rightly rejected the memorandum of appeal on the ground that it was not accompanied by satisfactory proof of the payment of the admitted amount of the tax.

14. The first proviso to Section 9 (1) of the Act came up for interpretation before <ORG> in a recent case reported in <ORG> v. Assistant Commissioner (<ORG>, Kanpur, (1968) 21 STC 154 = (<ORG> 1968 SC 488). The facts of that case were these. The Sales Tax authority served an order of assessment on the appellant on 16-4-1966. The appellant filed his appeal to the Appellate Assistant Commissioner on 16-5-1966 within time. The memorandum of Appeal was not accompanied by a chalan showing deposit in the treasury of the tax admitted to be due by the appellant as required by Rule 66 (2). The appellant had, however, even before the assessment order was made, paid the major portion of the tax. The appellant deposited the balance of Rs. 99.99 on April 26, 1966, before the appeal was filed. The appellant filed on 24-1-1967 before the Assistant Commissioner a certificate of payment of tax issued by the Sales Tax Officer. In April, 1967, the Asst. Commissioner rejected the appeal on the ground that Section 9 of the Act read with Rule 66 (2) had not been complied with inasmuch as no proof had been given along with the memorandum of appeal that the tax had been paid. It was held by <ORG> that the Assistant Commissioner was wrong in rejecting the appeal. Their Lordships observed on pp. 162 and 163 (of STC) = (at p. 493 of <ORG>).

"We are of opinion that by the word 'entertain' here is meant the first occasion on which the <ORG> takes up the matter for consideration. It may be at the admission stage or if by the rules of that <ORG> the appeals are automatically admitted, it will be the time of hearing of the appeal." In view of this decision of the Supreme <ORG>, the view taken by Allahabad High <ORG> in (1963) 14 STC 518 (All), as regards the interpretation of the word 'entertained' in the first proviso to Section 9 (1) of the Act cannot be accepted.

15. Mr. <NAME> appearing for the respondents drew our attention to the following passage on p. 163 (of STC) = (at p. 493 of AIR) in the judgment of <ORG> in (1968) 21 STC 154 = (AIR 1968 SC 488):

"But on the first occasion when the <ORG> takes up the matter for consideration, satisfactory proof must be presented that the! tax was paid within the period of limitation available for the appeal." Mr. <NAME> contended that, apart from the question of furnishing proof of payment, the tax has to be deposited within the period of limitation prescribed for appeals.

16. Mr. <NAME> appearing for the petitioner urged before us that that observation on p. 163 (of STC) = (at p. 493 of AIR) in the judgment of <ORG> was merely an obiter dictum. On reading the entire judgment delivered by <ORG> in that case, I am unable to accept the suggestion that that observation was merely an obiter dictum.

17. In that case, <ORG> had to decide whether the appellant had complied with requirements of the first proviso to Section 9 (1) of the Act and Rule 66 (2). It was noticed that there was no strict compliance with Rule 66 (2). Nonetheless the <ORG> held that the appeal was competent. It is true that the provision for limitation is contained in Sub-section (1) of Section 9 of the Act; and the first proviso does not expressly deal with the question of limitation. But the two provisos have to be read along with the main provision contained in subsection (1) of Section 9 of the Act. It appears that, according to <ORG>, when the First Proviso is read along with the main provision of Sub-section (1) of Section 9 , the deposit of admitted tax has also to be made within limitation.

18. In that case the appeal could be filed up to 16-5-1966, <ORG> noticed that on the one hand, the entire amount of the admitted tax had been deposited by the appellant before 16-5-1966. On the other hand, proof of payment of the entire amount was not furnished at the time of filing the appeal. The necessary proof was furnished some time between the filing of the appeal and the time when the Assistant Commissioner took up the appeal for consideration. It was held that there was sufficient compliance with the requirements of the first proviso to Section 9 (1) of the Act and Rule 66 (2). The discussion of the problem began on p. 157 (of STC) -- (at p. 490 of AIR) of the judgment thus:

"The short question in this case is whether having made the deposit even before the appeal was filed and well within the period of limitation, the assessee could be deprived of his right of appeal under Section 9 of the Act." It was observed on p. 162 (of STC) = (at p. 493 of AIR):

"The rule lays down one uncontestable mode of proof which the Court will always accept but it does not exclude tide operation of the proviso when equally satisfactory proof is made available to the officer hearing the appeal and it is proved to his satisfaction that the payment of the tax has been duly made and in time." Again, on the same page :

"Here the right of appeal has been made subservient to the payment of the admitted tax."

19. It will be noticed that <ORG> repeatedly emphasized the importance of paying the admitted tax within the period of limitation. <ORG> approached the problem thus. The important thing is that the admitted tax has to be deposited within limitation. Once this basic condition is fulfilled, the manner of furnishing proof of payment is a matter of secondary importance. In view of these considerations, the observation of <ORG> on p. 163 (of STC) = (at p. 493 of <ORG>) of the judgment that satisfactory proof must be presented that the tax was paid within the period of limitation available for the appeal cannot be dismissed as a passing remark. That is the declaration of <ORG> as regards the deposit of admitted tax. Under Article 141 of the Constitution, that declaration of law is binding on this <ORG>.

20. It may be that the view taken by this Court in the case of (1963) 14 STC 518 (All) that proof of payment must accompany the memorandum of appeal is not sound. Yet, the ultimate decision of this Court in that case may be supported on the ground that the appellant did not deposit the full amount of the admitted tax within the period of limitation.

21. Mr. <NAME> urged that, in view of the fact that the deposit by the petitioner was short by the trivial sum of Rs. 2, the Assistant Commissioner should have condoned delay under Section 5 , Indian Limitation Act . Section 5 , Indian Limitation Act , states: "Any appeal or application..... .may be admitted after the prescribed period if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period......"

22. Under this provision, delay may be condoned if a party makes delay in filing an appeal or moving an application. But no such situation arose in the present case. The petitioner made delay in depositing the admitted tax. The appeal itself was filed within time. The Assistant Commissioner rightly held that there was no room to give the appellant the benefit of Section 5 , Indian Limitation Act .

23. It was faintly suggested before the Assistant Commissioner and before us that there was some mistake in calculating the turnover; and the admitted tax might not amount to Rs. 1,612.91. But that aspect of the matter does not appear to have been pressed before the Assistant Commissioner The appellant proceeded on the assumption that the admitted tax came to Rs. 1,612.91, and diere was shortage in depositing the admitted tax. The appellant proceeded to make good the deficiency. We may, therefore, proceed in the present case before us on the footing that the admitted sales tax was Rs. 1,612.91.

24. The assessment order is dated 29-8-1966. It was served on the petitioner on 5-9-1966. The last day of limitation for filing the appeal and for depositing the admitted tax was 5th October 1966. The appeal was filed within limitation on 19-9-1966. The admitted tax was Rs. 1,612.91. Out of that sum, a sum of Rs. 1,610.91 only had been deposited by the time of filing the appeal (19-9-1966) or by the time limitation expired (5-10-1966). According to the petitioner, the additional sum of Rs. 5 was deposited on 19-1-1967. According to the counter-affidavit, the sum of Rs. 5 was deposited on 25-1-1967. It is common ground that the shortage was made good some time in January, 1967. That was long after the period of limitation for filing the appeal and for depositing the admitted tax had expired. The appellant failed to satisfy the test laid down by <ORG> in (1968) 21 STC 154 = (AIR 1968 SC 488) that satisfactory proof must be presented that the tax was paid within the period of limitation available for the appeal. The Assistant Commissioner <NAME> held that the appeal was not maintainable. The appeal was <NAME> dismissed.

25. In my opinion, this petition should be dismissed with costs.

<NAME>, <NAME>

26. I am also of opinion that the petition should be dismissed. I shall state my reasons briefly.

27. The principal question between the parties is whether the admitted tax was paid within time.

28. Section 9 (1) provides:--

"Any dealer objecting...... to an assessment made under Section 7 ........may, within 30 days from the date of service of the..... .notice of assessment..... .appeal Provided that no appeal against an assessment shall be entertained unless it is accompanied by satisfactory proof of the payment of the amount of tax admitted by the appellant to be due, or of such instalments thereof as may have become payable."

29. It is clear there is a right of appeal under Section 9 (1) and that appeal cannot be entertained unless accompanied by satisfactory proof that the amount of the admitted tax has been paid. <ORG> has laid down in 1968-21 STC 154 = (AIR 1968 SC 488) that an appeal is entertained when the <ORG> takes it up for the first time for judicial consideration. At that point of time there should be satisfactory proof that the admitted tax has been paid. That can only be if the appellant has paid the admitted tax. Now the petitioner says that while Section 9 (1) does not expressly specify the period for payment of the admitted tax it does imply that it may be paid at any time before the appeal is entertained. It is the validity of that contention which requires consideration.

30. What is the period within which the admitted tax must be paid is not mentioned in Section 9 (1). All that the sub-section does is to create a right of appeal and to prohibit the appellate authority from entertaining the appeal unless satisfactory proof of payment of the admitted tax has been adduced. The requirement of proof of payment of the admitted tax presupposes payment of the admitted tax. The obligation to pay the tax, and in what manner and within what time it is to be paid, has to be gathered from elsewhere. For that, in my opinion, you must look to Section 8 of the Act and the relevant rules framed under the Act. Section 8 (1) provides:

"The tax assessed under this Act shall be paid in such manner and in such instalments, if any, and within such time, not being less than fifteen days from the date of service of the notice of assessment (and demand), as may be specified in the notice......"

Rule 45 says:, "As soon as the assessment has been made the Sales Tax Officer shall send to the dealer a notice in Form XI together with a copy of the assessment order free of charge and the dealer shall pay the tax so assessed within the time and in the manner specified in the notice."

The notice in Form XI is described as a notice of assessment and demand for payment of tax. By paragraph 1 of the notice, the dealer is informed of the turno'vcr and the tax to which he has been assessed; he is thus notified of the assessment. Para 2 mentions the amount of tax which is due. By paragraph 3, he is told that the tax must be paid "within 30 days from the date of service of this notice"; he is thus given notice of the demand. The notice in Form XI, therefore, bears the description that it does. Rules 48 and 49 detail the manner of payment. A perusal of these several provisions demonstrates that there is a complete self-contained code in the Act and the rules in respect of the payment of tax. You must have recourse to that code whenever you wish to determine the manner and the time within which the tax has to be paid. The admitted tax, to which the proviso to Section 9 (1) refers, is merely a part of the assessed tax mentioned in Section 8 (1). It is part of the tax liability respecting which complete provision for payment has been made within the framework of the code.

31. It will also be noticed that the proviso to Section 9 (1) speaks of proof of payment of the admitted tax or of the instalments thereof which have become payable. The language is strongly reminiscent of Section 8 (1) which provides for the payment of tax either in one sum or in instalments. That is clear indication of the relationship between Section 8 (1) and the proviso to Section 9 (1).

32. Another circumstance of some significance is that the period within which the dealer is required to pay the tax is, by paragraph 3 of the notice of assessment and demand, 30 days from the date of service of the notice. That is also the period of limitation for filing the appeal. The period for paying the tax is identical with the period for filing the appeal. The dealer has thus been placed in a position enabling him to adduce proof of payment of the admitted tax before the appeal is entertained. It would seem that provision of the same period for payment of the tax and for filing the appeal is not a fortuitous coincidence.

33. After this survey, if we now turn to the proviso to Section 9(1) , the context in which it has been framed becomes clear at once. The <ORG> envisages that before a dealer can have his appeal entertained, he must comply with the notice of assessment and demand at least to the extent of the tax admitted by him to be due, and he must show that he has done so before the appeal is entertained.

34. Upon the aforesaid considerations, the admitted tax, in my opinion, must be paid within a period of 30 days from the date of service of the notice of assessment and demand.

35. Our attention has been drawn to some observations of <ORG> in <ORG>, 1968-21 STC 154 = (AIR 1968 SC 488) (supra), that the admitted tax must be paid within the period of limitation for preferring an appeal. There was considerable debate before us whether those observations are binding upon us. The period of limitation for filing an appeal is 30 days from the date of service of the notice of assessment. I have taken the view that the admitted tax has to be paid within 30 days from the date of service of the notice of assessment and demand. In the circumstances, I consider it unnecessary to enter into the controversy involved in that debate.

36. Clearly, the petitioner did not deposit the entire amount of the admitted tax within 30 days from the date of service of the notice of assessment and demand. The Assistant Commissioner (Judicial) was plainly right in declining to entertain the appeal.

37. The petitioner urges that the Assistant Commissioner (Judicial) should have considered his application for condonation of delay in depositing the balance of the admitted tax. The application was made under Section 5 of the Limitation Act read with Section 9 (6) of the U. P. Sales Tax Act. Section 9 (6) provides:

" Section 5 of the Indian Limitation Act, 1908, shall apply to appeals under this Act, and Section 5 reads:

"Any appeal or application...... to which this section may be made applicable by or under any enactment for the time being in force may be admitted after the period of limitation prescribed therefor, when the appellant or applicant satisfies the Court that e had sufficient cause for preferring the appeal or making the application within such period."

Section 5 provides for condoning the delay in filing an appeal or application. Section 9 (6), U. P. Sales Tax Act, applies Section 5 to appeals. Section 5 is not attracted when the question arises whether the delay in depositing the admitted tax should be condoned. It seems to me that the application made by the petitioner for condonation of the delay in depositing the entire amount of the admitted tax is not maintainable under Section 5 of the Limitation Act read with Section 9 (6) of the U. P. Sales Tax Act.

38. In my judgment, the petition should be dismissed with costs.

<NAME>, J.

39. For the reasons given by his Lordship the Chief Justice as well as those given by Hon'ble <NAME>, <NAME>, I agree with the proposed order. The entire admitted amount of tax must be deposited within the period prescribed for filing appeal against an order of assessment of sales tax made under U. P. Sales Tax Act, 1948.

BY THE COURT

40. The petition is dismissed with costs.


JUDGMENT <NAME>, J.

1. Learned single Judge, by order, dated Sept. 24, 1979, has referred this case to a larger <ORG>. The point on which the case has been referred is whether Section 5 of the Limitation Act applies to Proceedings under Section 13-A of the Rajasthan premises (Control of Rent and Eviction) Act , 1956 (hereinafter referred to as "the Act"). While referring the above point learned single Judge has sent the entire case for decision by the larger <ORG>.

2. Before dealing with the legal question raised in this reference, we would mention the facts of the case. The plaintiff-petitioners filed a suit for eviction against the defendant-non-petitioner on the ground of default in the payment of rent from Nov. 12. 1963 to Oct 20, 1964. The defendant deposited rent under Section 13-A of the Act No. 12 of 1965 and as such the said suit was dismissed. According to the plaintiffs the defendant again made defaults in the payment of rent from Nov. 4, 1970 to April 3, 1973 amounting to rupees 367.00. as such the present suit for eviction was again filed on the ground of default. On May 29, 1973 the defendant moved an application under Sections 13 (4) & (5) of the Act and prayed for determination of rent due and for depositing the same. <ORG> on the same day passed an order that Section 13 (51 of the Act was not applicable and under Section 13 (4) of the Act there was no provision for determining the rent and as such the defendant was directed to deposit the rent according to law and time was given to deposit the rent up to July 15, 1973. The <ORG> introduced Section 13-A by Rajas-than Premises (Control of Rent and Eviction) (Amendment) Ordinance 1975 on Sept. 29, 1975 replaced by Rajasthan Premises (Control of Rent and Eviction) Amendment Act . 1975 dated Feb. 13, 1976. Under Section 13-A (b) it was provided that in every such proceeding the <ORG> shall, on the application of the tenant made within thirty days from the date of commencement of the amending ordinance notwithstanding any order to the contrary, determine the amount of rent in arrears up to the date of the order as also the amount of interest thereon at 6% per annum and costs of the suit allowable to the landlord, and direct the tenant to pay the amount so determined within such time, not exceeding ninety days, as may be fixed by the <ORG>; and on such payment being made within the time fixed as aforesaid, the proceeding shall be disposed of as if tenant had not committed any default. The defendant filed an application under the above provision on April 19, 1976 but the same was dismissed by the <ORG> on July 21. 1977 holding that the application, dated May 29. 1973 filed by the defendant had been disposed of and there was no application pending before the <ORG>. The <ORG> also held that because the application under Section 13-A was not filed within 30 days after coming into force of the amending ordinance on Sept. 29, 1975. the application was not maintainable. The defendant again filed an application under Section 13-A of the Act on July 21, 1977 stating that the defendant had moved an application on May 29, 1973 for depositing the rent and he had deposited the rent accordingly and he was under the impression that on account of the existing law, the <ORG> was not competent to dismiss the suit and the suit was still proceeding. The defendant also moved an application under Section 5 of the Limitation Act for extension of time and condoning the delay. <ORG> dismissed the application by its order, dated Jan, 19, 1978 on the ground that Section 5 of the Limitation Act was not applicable and the defendant had not moved any application under S- 13- A of the Act within thirty days after coming into force of the amending Ordinance. The defendant went m appeal and the learned Additional District Judge, by his order, dated Aug. 6. 1979. allowed the appeal and granted the benefit of Section 5 °f the Limitation Act to the defendant. The plaintiffs aggrieved against the order of the Additional District Judge, dated Aug. 6. 1979, filed the present revision. It was contended by Mr <NAME>, learned counsel for the plaintiffs that the Additional District Judge had no jurisdiction to extend the benefit of Section 5 of the Limitation Act to the defendant, it was also contended that the reasons .given by the defendant for sufficient cause f*r condoning the delay are contrary to the facts given in his previous application and as such learned Additional District Judge committed material irregularity in the exercise of its jurisdiction in taking the view that there were sufficient reasons for condoning the delay.

3. As regards the applicability of Section 5 of the Limitation Act, we are clearly of the opinion that the same is applicable in view of the provisions of Section 29(2) of the Limitation Act, 1963. Section 29(2) °f the Limitation Act reads as under:

" Section 29(2) :-- Where any special or local law prescribes for any suit. appeal or application a period of Limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit.' appeal or application by any special or local law. the provisions contained in Ss. 4 to 24 (inclusive) shall apply only in so far as. and to the extent to which, they are not expressly excluded by such special or local law."

The above provision clearly lays down that for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Ss. 4 to 24 (inclusive! shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special or local law. The Rajasthan Premises (Control of Rent and Eviction) Act , 1950 is a special law and it has not expressly excluded the provisions of the Limitation Act . As Section 5 of the Limitation Act. has not been expressly excluded under the provisions of the Premises Act, we are clearly of the opinion that Section 5 of the Limitation Act would be applicable for applications filed under Section 13-A (b) of the Act, Mr. <NAME> placed, reliance on a <ORG> decision of the Punjab and Haryana High Court in <NAME> v. Addl. Director Consolidation of Holdings. Hissar, AIR 1968 Puni 282. In our view this decision renders no assistance to the arguments advanced by Mr. <NAME>. In the abovementioned Punjab case the question was relating to the jurisdiction of the Additional Director to entertain and accept the application filed under Section 42 of the East Punjab Holdings (Consolidation and prevention of Fragmentation) Act. 1948 after the expiry of about ten years of the orders sought to be varied. was barred by Rule 18 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Rules 1949, or not. In the above context it was observed in f that case that (at Pp. 285-86):

"It appears to us that whereas the general law prescribing period of limitation for an appeal against acquittal was covered by Limitation Act , the period for preferring such an appeal by special leave not having been mentioned in the first Schudle. to the Limitation Act  Section 29(2)(b) of that Act was invoked so as to make Section 3 of the Limitation Act applicable, but exclude all other provisions thereof including Section 5 from their operation on the application for special leave. Though limitation for an appeal against acquittal under Section 417 of the Cr. P.C. is prescribed by the Limitation Act there is no mention of the East Punjab Holdings (Consolidation and prevention of Fragmentation) Act  in the Schedule to the Limitation Act . and no period of limitation for any proceedings under that Act is prescribed by the general law of limitation. The period of limitation prescribed by Rule 18 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Rules, 1949. is not a special period prescribed for any proceedings mentioned in the Schedule to the Limitation Act . but relates to a subject which does not at all find place in. the said Schedule. For the purpose of limitation for proceedings under the Consolidation Act the Limitation Act of 1963 cannot be called the general law to which Rule 18 is an exception. The Consolidation Act read with the Rules framed thereunder is a complete Code of the substantive as well as procedural law is on the subject dealt with therein. The provision as t0 limitation for filing an application under Section 42 of the Act is self-contained and is neither controlled nor supplemented by the Limitation Act . In this view of the matter, the ratio of the judgment of their Lordship of <ORG> in <NAME> case. AIR 1964 SC 260 (supra) does not appear to help the appellants."

The above case was thus decided on the ground that for purposes of limitation for proceedings under the consolidation Act, the Limitation Act , 1963, cannot be called the general law to which Rule 18 is an exception. It was further observed that the Consolidation Act read with the rules framed thereunder is a complete code of the substantive as well as procedural laws on the subject dealt with therein. The above case as such is clearly distinguishable from the controversy raised before us. As already held by us the Rajasthan Premises (Control of Rent and Eviction) Act , 1950 is a special law and there is no express provision contained in it for excluding the provisions of Section 5 of the Limitation Act and as such Section 29(2) of the Limitation Act will come into operation and Section 5 of the Limitation Act will be applicable in applications filed under Section 13-A (b) of the Act.

4. As regards the question regarding the sufficient cause made out by the defendant for granting benefit of Section 5 of the Limitation Act, no interference can be made by this Court in the exercise of its revisional jurisdiction. Learned Additional District Judge had taken the view that the defendant was misguided by earlier decisions of this court and on this ground if an application was filed under Section 5 of the Limitation Act, then it would be a sufficient cause for condoning the delay. It cannot be said that the Additional District Judge had no jurisdiction to take the aforesaid view and in the absence of any error of jurisdiction committed by him, no interference can be made in his order under Section 115 C. P. C.

5. In the result we find no force in this revision petition and the same is dismissed. As no body has appeared on behalf of the defendant-non-petitioner there would be no order as to costs.