KAPTAN SINGH Vs. KALYAN SINGH AND

JUDGEMENT

(1.) THIS special appeal is directed against the judgment of a learned Single Judge of this Court by means of which he dismissed the writ petition filed by the appellant. The relevant facts giving rise to this appeal are that appellant Kaptan Singh moved an application on June 30, 1965 before the Tahsildar, Sikandara Rao, requesting that compensation amounting to Rs. 800/- which had been awarded to him during consolidation proceedings, should be recovered as arrears of land revenue from respondent No. 1 Kalyan Singh. According to him, this was the amount awarded to him as compensation on account of a well that existed in a plot which originally was in his tenure, but which was allotted to Kalyan Singh during proceedings under the U.P. Consolidation of Holdings Act (hereinafter referred to as the Act). The application was accompanied by a copy of notice No. 10629/26-C.H. Form No. 26 prescribed under the Act. The application was contested by Kalyan Singh. The Tahsildar held that it was a fit case in which recovery should be enforced as arrears of land revenue against Kalyan Singh. Since the matter had been contested, it came up before the Additional Collector. One of the pleas raised by Kalyan Singh, while contesting the application made by Kalyan Singh, was to the effect that the proceedings for recovery of Rs. 800/- awarded as compensation to Kaptan Singh were barred by time. It may be mentioned here that the outerfoil of C.H. Form No. 26 issued to Kaptan Singh bore no date. There was a date on the reverse of the C.H. Form No. 26 which had been obliterated and another date i.e. July 24, 1964 had been written under it with a different ink and in a different handwriting, according to the observations made by the learned Additional Collector. On the basis of the evidence led before him, the learned Additional Collector came to the conclusion that possession over the plots in question had been delivered to Kalyan Singh on December 31, 1963. As a result of this finding, the learned Additional Collector observed as under: - "There was hardly any occasion for the issue of C.H. Form No. 26 on any date earlier than that and, therefore, it follows that the certificate was issued in April, 1964. If this was so, then his kee (Kaptan Singh's) application dated June 30, 1965 was moved within two years of the issue of this certificate. Collateral evidence which points to issue of certificate in Form No. 26 in 'April, 1964 has been adduced to support the case that in the present case also the certificate was issued in April, 1964". The learned Additional Collector on an examination of the record produced before him also observed that in the case of Certificate No. 10629)26, which is material to the present case, the amount of Rs. 800/- had been altered to Rs. 100/- and the date on the back of the Certificate had also been over written, erased and then written afresh. The interpolations, in the opinion of the Additional Collector, were obvious The Additional Collector held, 'The evidence in this case clearly points to the application of Kaptan Singh being within two years of the date, whatever it was of the issue of the certificate in C.H. Form No. 26 but since there is no date recorded on the certificate, the requirements of law were not fulfilled and I cannot hold that recovery should be enforced by the Tahsildar in accordance with the provisions of the C.H. Rules.' In the result, the Additional Collector quashed the proceedings for recovery and directed the Tahsildar to withdraw any attachment that he might have ordered. Aggrieved by the order of the Additional Collector Kaptan Singh filed a writ petition in this Court. The learned Single Judge repelled the contention made on behalf of the appellant, who was the petitioner before him, that since the application for recovery proceedings was moved within two years of the issue of C.H. Form No. 26, the Additional Collector ought not to have quashed the recovery proceedings. Relying on rule 55(12) of the Rules framed under the Act, the learned Single Judge also took the view that it was not for the Additional Collector to determine the date of the issue of C.H. Form No. 26. According to him, the key words in rule 55(12) were that the recorded date would be the real date for determination of the question of limitation. In the view of the learned Single Judge, the Additional Collector had gone out of his way to arrive at a finding, that C.H. Form No. 26 had been issued within two years immediately before the commencement of the recovery proceedings, 'in rule 55(12).' The learned Single Judge seems to have been of the view that since no genuine date appeared on C.H. Form No. 26 issued to Kaptan Singh, the order of the Additional Collector was unimpeachable. In this view of the matter, the learned Single Judge dismissed the writ petition and maintained the order of the Additional Collector. We have heard the learned counsel appearing for the applicant and for respondents Nos. 1 and 3 and, in our opinion, the learned Single Judge as well as the learned Additional Collector misconstrued the relevant provisions of the Act and the rules framed there under. The Act contemplates payment of compensation of various types to tenure-holders affected by consolidation proceedings. We are concerned with a case where compensation was awarded to the appellant because a plot belonging to him was allotted to respondent No. 1 and it contained a well for which compensation had been determined in accordance with the requirements of the Act. Section 24 of the Act, as it stood at the relevant time is concerned with compensation of this type and is in the following terms: - "24. Possession and accrual of compensation for trees, etc.- (1) The Settlement Officer, Consolidation shall fix the date, to be notified in the unit, from which the final consolidation scheme shall come into force. On and after the said date a tenure-holder shall be entitled to enter into possession of the plots allotted to him. (2) On and from the date of obtaining possession every tenure-holder getting trees, wells and other improvements existing on the plots allotted to him in pursuance of the enforcement of the final consolidation Scheme shall be liable for the payment of and pay to the former tenure-holder thereof, compensation for the trees, wells and other improvements allotted to him, to be determined in the manner hereinbefore provided." As a result of the operation of sub-section (2) of Section 24 of the Act, the liability of respondent No. 1 to pay the amount of Rs. 800/- as compensation for the well, which passed on to him as a result of the consolidation proceedings, to the appellant arose on the date when he obtained possession of the plots in question. It has been found by the Additional Collector that possession was transferred to respondent No. 1 on December 31, 1963. Consequently, this was the date from which respondent, No. 1 became liable for payment of compensation on account of the well to the appellant. December 31, 1963 must thus clearly be the date of starting point of limitation if any prescribed since it is inconceivable that limitation for enforcing a liability could start running even before the liability arose. Reference here might be made of some other provisions of the Act which provide for payment of compensation to tenure-holders whose plots are affected as a result of consolidation proceedings. Section 28(1) of the Act deals with the delivery of possession to allottees of Chaks. The first proviso to Section 28(1) lays down that the delivery of possession to the allottee shall not affect the right of the person from whom possession is transferred to tend and gather the crops standing on such Chak on the date of the delivery unless the Assistant Consolidation Officer decides otherwise. The second proviso provides that the person tending and gathering the standing crop, in accordance with the first proviso, shall be liable to pay to the person who has been allotted the 'Chak' or lands, compensation for the use of the land at such rate and in such manner as may be prescribed. Section 29 provides for determination of the compensation payable in respect of crops where possession over standing crops is also delivered under Section 28 to the tenure-holder put in possession. Section 29-A of the Act is in the following terms:- "29-A. Recovery of compensation (1) where a tenure-holder from whom compensation is recoverable under this Act, fails to pay the same within the period prescribed there for, the person entitled to receive it, may in addition to any other mode of recovery open to him, apply to the Collector within such time as may be prescribed to recover the amount due on his behalf as if it were an arrear of land revenue payable to Government. (2) Where any compensation payable under this Act is not paid whether in whole or in part within three months of the date of obtaining possession under Section 24 or Section 28 as the case may be interest at the rate of 6 per cent, per annum shall be charged on the amount not so paid." Section 29-A of the Act is concerned with the recovery of compensation payable either under Section 24 or Section 28 of the Act. While Section 2.9-B(1)(a) provides for payment of compensation for land contributed by land-holders for public purposes, clause (b) of sub-section (2) of Section 20-B is concerned with payment of compensation for trees, wells and other improvements failing within such land. Reference may now be made to the relevant rules framed under Section 54 of the Act. Rule 55 deals with compensation of the character prescribed under Section 28 of the Act, i.e. to say, where a person is allowed to continue to tend and gather the standing crop sown by him even alter possession thereof has been delivered to the new allottee. Rule 57 purports to have been made to comply with the situation contemplated under Section 29 of the Act. The material heading, however, is not part of the rule. A reading of this rule makes it clear that it is the only rule which can be attracted to compensation payable under Section 24 of the Act. The relevant part of rule 27 is quoted here for ready reference: - "57. Section 29 soon after the delivery of possession, the Assistant Consolidation Officer shall cause to be delivered an outer foil of the certificate in C.H. Form No. 26 to the recipient of compensation for trees, wells, buildings or other improvements. The certificate shall show the name of the payer, the amount of compensation and description of property compensated. (2) Notice of payment of compensation for trees, wells, buildings or other improvements shall also be furnished on outerfoil in C.H. Form No. 26 to each payer of compensation, showing the name of recipient, amount of compensation awarded and the description of the property compensated. (3) As soon as the certificates and notices have been distributed, the innerfoils of C.H. Form No. 26 shall be made over to the Tahsildar having jurisdiction. (4) The provisions of sub-rules (10), (12), (13) and (14) of rule 55 shall also apply to the recovery of compensation mentioned in C.H. Form No. 26 as if it were compensation payable under sub-rule (9) of rule 55. (5) ............. As a result of sub-rule (4) of rule 57, the provisions of sub-rules (10), (12), (13) and (14) of rule 55 are attracted to the compensation payable in respect of trees, wells and other improvements to the original tenure-holder by the allottee to obtain possession of a Chak, as if it were compensation payable under sub-rule (9) of rule 55. Rule 55, as already observed, deals with compensation payable for standing crop situate on the land transferred to another person which the original tenure-holder is left entitled to tend and gather. Sub-rule (10) of rule 55 provides that the compensation payable under sub-rule (9) shall be recoverable as arrears of land revenue, if unpaid, on the expiry of nine months from the date of transfer of possession. Thus the person entitled to obtain compensation cannot initiate proceedings for recovery of the amount awarded as compensation before the expiry of nine months from the date of transfer of possession of the plots concerned. Sub-rule (12) of rule 55, to which reference is contained in sub-rule (4) of rule 57, is to the effect that 'without prejudice to the right to recover compensation through a competent court, the certificate of award of compensation issued under sub-rule (11) shall lapse if not presented to the Tahsildar having jurisdiction within two years of the date recorded on it for recovery as screars of land revenue'. Under sub-rule (13) of rule 55 when a certficate of award is presented before the Tahsildar, he is required to make a preliminary enquiry to ascertain if the compensation in question has been paid or not. THIS sub-rule requires the Tahsildar to forward the result of his enquiry to the Collector. If it is found by the Tahsildar that compensation has been paid, nothing remains to be done. According to sub-rule (14) (i) of rule 55, when the Collector is satisfied after making such further enquiry as he may consider necessary that compensation has not been paid in terms of the certificate, he shall cancel the same and issue another certificate for the recovery of the same as arrears of land revenue. In the instant case, it was not found either by the Collector or the Tehsildar that the amount awarded as compensation had been paid and, therefore, the amount clearly remained due. Realising this, the Tehsildar submitted a report for the recovery of the amount due as arrears of land revenue. The learned Single Judge as well as the Additional Collector placed reliance on sub-rule (12) of Rule 55 and quashed the proceedings for recovery of the compensation. Since no date was recorded on the outerfoil of C. H. Form No. 26, they came to the conclusion that the amount of compensation could not be realised as arrears of land revenue. The sole question to be considered is whether certificate of amount of compensation lapsed merely because either no date was recorded thereon or had been erased. It is obvious in view of Rule 57(1) that C.H. Form No. 26 could not have been issued to the appellant in respect of the well in question on a date prior to December 31, 1963 when according to the finding recorded by the Assistant Collector possession thereof along with the Chak on which it is situate was delivered to respondent No. 1. The Act and the Rules give a valuable right to a person, to whom compensation is payable, to realise the amount by summary proceedings. THIS right could not be defeated merely because the officer concerned either because of negligence or incompetence omitted to mention a date on C.H. Form No. 26 which he issued it or someone else interpolated the records. When a public officer is entrusted with a duty and the citizen concerned has no power to control the performance of such a duty, the mere omission by the official to execute the duty cannot be considered to be mandatory so as to defeat the statutory rights of the party affected. In our view, the learned Single Judge took a highly technical view in rejecting the claim made by the appellant (Kaptan Singh). As stated earlier, whatever the date recorded on C.H. Form No. 26, it could not possibly have been anterior to December 31, 1963. The application was made undisputably within two years of that date. The application for recovery of the compensation awarded to the appellant was consequently, not barred by time prescribed by sub-rule (12) of rule 55. We consequently allow this appeal, set aside the order of the learned Single Judge and quash the order passed by learned Additional Collector. The case will go back to the Additional Collector for action in accordance with law and the observations contained in this judgment. The appellant will be entitled to the costs of this appeal as well as of the writ petition.