VIJAY SINGH @ VIJENDRA SINGH Vs. SHYAMLAL

JUDGEMENT

(1.) THIS is a reference made by the learned Single Judge to a Larger Bench for answer of the question whether sections 4 to 24 of the Limitation Act are expressly excluded from the M.P. Samaj Ke Kamjor Vargon Ke Krishi Bhumi Dharakon Ka Udhar Dene Walon Ke Bhumi Hadapane Sambandhi Kuchakron Se Paritran Tatha Mukti Adhiniyam, 1976 (3 of 1977), (for short, the Act), or not. Brief facts which are necessary for convenient answer to this reference are that the respondent Shyamlal sold certain lands to Vijaysingh by two registered sale deeds dated 10 -7 -1986 of village Chiknouta, Tahsil Bina, Distt. Sagar, bearing Kh. No. 30, measuring 4.50 acres and by another sale deed dated 13 -8 -1987 of land measuring 1.214 hectares (3 acres) of the same Kh. number. Thereafter, he moved an application before the S.D.O. Bina challenging the validity of the two sale deeds by filing an application on 14 -4 -1995 on the ground that the sale deeds were executed for security of loans, they fall in the prohibited transactions as per scheme of the Act. The point of limitation was raised by Vijaysingh and the same was accepted by the S.D.O. Bina, the original Authority, and he dismissed the application. Aggrieved against this order, an appeal was preferred before the Collector under section 8 of the Act and the Collector reversed the order of the S.D.O. and remanded the case back to the trial court that no period of limitation is prescribed for filing such an application, by order dated 28 -12 -1998 (Annexure P -5). Aggrieved against this order, the present writ petition was filed by the petitioner challenging the order of the Collector. In this background, the matter came up before the learned Single Judge who, after referring to the scheme of the Act (3 of 1977) and the provisions of the Limitation Act, has referred this case to a Larger Bench for deciding whether sections 4 to 24 of the Limitation Act are expressly applicable to this special enactment or not. We have heard Learned Counsel for the parties.

(2.) IN order to appreciate the controversy involved in the matter, it may be relevant to mention aims and objects of the Act of 1977 for which this enactment was made. They are better summarised in the statement of the Act of 1977 which read as under:

(3.) IN the present case, the application was filed by the applicant on account of the transactions falling within the definition of the prohibited transaction on 14 -4 -1975. Section 15 of the Act prescribes the period of limitation. It says that if any question arises whether the transaction is prohibited transaction of loan to which provisions of sub -section (1) apply, holder of agricultural land who is a party to such transaction, shall apply to the S.D.O. where such transaction was entered into after 31 -1 -1977, but prior to the commencement of the Act, within 5 years of such commencement, and secondly where such transaction is entered into after the commencement of the said Act, within six years of the date of such transaction in the form and manner prescribed under section 5. It further provides that provisions of section 17 of the Limitation Act shall apply for computing limitation under this section. The effect of sub -section (ii) of section 15(2) of the Act is that the period of limitation has been prescribed for filing such applications, i.e. six years from the date of transaction. Therefore, a separate period of limitation has been prescribed for filing an application for redressal of grievance of the concerned applicant. An exception is also made that this period of limitation will not be applicable in cases where any transaction is actuated with fraud or mistake for which, as provided in section 17 of the Limitation Act, the cause of action will arise from the date the applicant discovers the fraud or mistake. Therefore, the only exception that has been engrafted to the period of six years is that if any transaction is actuated with fraud or mistake, then in that case, the period of limitation will start from the date of the knowledge or the fraud so discovered or mistake so discovered. Thus in this view of the matter, normally the period of limitation for instituting an application is six years and exception is as contained in section 17 of the Limitation Act. Therefore, in this view of the matter, we have to see whether section 5 of the Limitation Act will be applicable to such applications or not. It will be relevant to mention here that under section 5 of the Act of 1977, applications are made before the S.D.O. for declaration that the transaction so entered into was illegal and bad and, therefore, has to be declared as null and void. This is nothing but in a nature of a declaratory suit, though section 5 of Act of 1977 contemplates filing of an application. However, the relief which is being sought under this section is in the nature of a declaratory suit and as such, the applications have to be treated like those of original suits and as such, section 5 of the Limitation Act will not be applicable to these original proceedings, as section 5 is not applicable to suits. Though in section 5 of the Limitation Act, the word 'application' has been used, but here 'application' would mean nothing but suit. Therefore, so far as filing of original applications is concerned section 5 of the Limitation Act will not be applicable except under section 17 of the Limitation Act. In this connection reference may be made to a decision of the Apex Court in case of Mohd. Ashfaq vs. State Transport Appellate Tribunal U.P. and others : AIR 1976 SC 2161. There also somewhat an identical question arose. An application under section 58 of the Motor Vehicles Act, 1939 for renewal was made and as provided in the proviso to sub -section (iii), delay in making the application for renewal is condonable only if it is not more than 15 days and in that light, their Lordships interpreted that when by a special enactment, separate period of limitation is prescribed, then in such cases that period of limitation will apply and not section 5 of the Limitation for further condonation of delay. In that connection, their Lordships discussed section 29(2) of the Limitation Act, 1963 and held that proviso to the Limitation Act will only apply to the extent where they are not expressly excluded notwithstanding that if a separate period of limitation is made, then the provisions of the Limitation Act to that extent will remain excluded. In this connection, their Lordships observed as under: