Vijay Singh Vijendra Singh v. Shyamlal And Others

A. K. Mathur, C.J. :-

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.

2. 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.

3. We have heard learned counsel for the parties.

4. 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:

"This Act has been enacted by the legislature keeping in view the relief to the agricultural indebtedness and check on the land grabbing from the weaker section of the society which has fallen prey to the money lenders and they had to lose their lands in lieu of the loans advanced to them. Therefore, in order to contend this exploiting of these poor people, this Act has been enacted so that the poor agriculturists may not lose their land on account of the nefarious designs of these money lenders."

5. (i) Section 2 is with regard to definitions.

(ii) Section 2(f) deals with 'prohibited transactions of loan' against security of land. It reads as under :

"2(f) 'prohibited transaction of loan' means a transaction in which a lender of money advances loan to a holder of agricultural land against security of his interest in land, whether at the time of advancing the loan or at any time thereafter during the currency of the loan in any of the following modes, namely -

(i) agreement to sell land with or without delivery of possession;

(ii) outright sale of land with or without delivery of possession accompanied by separate agreement to re-sell it;

(iii) outright sale of land with or without delivery of possession with a distinct oral understanding that the sale shall not be acted upon if the loan is re-paid;

(iv) outright sale of land with or without delivery of possession with a condition incorporated in the sale deed to re-sell it on re­payment ofthe loan;

(v) transaction in any modes other than those specified in clauses (i) to (iv) affecting interest in land including a fraudulent transaction or a transaction designed to defeat the provisions of any law regulating money lending or interest, for the time being in force,

and includes all those transactions in which a lender of money has after the appointed day but on or before the date of publication of this Act in the Gazette, obtained possession of land of the holder of agricultural land through court or by force or otherwise or obtained a decree for such possession towards satisfaction of loan;

(f) words and expressions used but not defined in this Act and defined in the Code or the Transfer of Property Act, 1982 (No. IV of 1982) shall have the meaning respectively assigned to them in the Code or that Act as the case may be."

(iii) Section 3 provides the overriding effect to this enactment notwithstanding contained in any other Act.

(iv) Section 4 deals with prohibited transactions of loan to be subject to protection and relief under this Act. Section 4 reads as under :

"4. All prohibited transactions of loan to be subject to protection and relief under this Act.

It is hereby declared that all claims in relation to a prohibited transaction of loan subsisting on the appointed day or entered into thereafter but on or before the date of publication of this Act in the Gazette shall, notwithstanding anything contained in The Code or any other enactment for the time being in force or any decree or order if any of any court or authority be subject to protection and relief in accordance with the provisions of this Act."

(v) Section 5 deals with application for protection and seeking relief under this Act. Section 5 reads as under :

"5. Application for protection and seeking relief under this Act.

A holder of agricultural land who is a party to any transaction of loan subsisting on the appointed day or entered into thereafter may apply to the Sub-Divisional Officer within such time and in such form and manner as may be prescribed for protection and relief under this Act."

(vi) Section 6 says that enquiry shall be conducted by the S.D.O.

(vii) Section 7 deals with setting aside sale and restoration of possession of land or affording other relief to such agriculturists.

(viii) Section 8 provides for an appeal. Section 8 reads as under :

"8. Appeal. -Any person aggrieved by an order of the Sub-Divisional Officer under section 7 may, within 30 days of the date of passing of such order, appeal to the Collector in such form and manner and accompanied by such fee as may be prescribed :

Provided that in computing the period aforesaid time requisite for obtaining a copy of the order appealed against shall be excluded."

(ix) Section 9 deals with finality of the order which has been passed by the Collector in appeal.

(x) Section 10 debars legal practitioners from appearing before such courts.

(xi) Section 11 deals with pending cases.

(xii) Section 12 deals with lender of money not to enter into prohibited transaction of loan.

(xv) Section 15 which is relevant for our purposes, deals with transfer of land which is subject matter of prohibited transaction of loan to be null and void. It reads as under :

"15. Transfer of land which is subject matter of prohibited transaction of loan to be null and void. - (1) Notwithstanding anything contained in any law for the-time being in force where a lender of money transfers any land, which may be a subject matter of a prohibited transaction of loan, by way of sale, gift, exchange, lease or otherwise, such transfer shall be deemed to have been made to defeat the provisions of this Act and be null and void.

(2) If any question arises as to whether a transaction is prohibited transaction of loan to which the provisions of sub-section (1) apply, the holder of agricultural land who is a party to such transaction shall apply to the Sub-Divisional Officer.

(i) where such transaction was entered into after the 31 st January, 1977, but prior to the commencement of the Madhya Pradesh Samaj Ke Kamjor Vargon Ke Krishi Bhumi Dharakon Ka Udhar Dene Walon Ke Bhumi Hadapane Sambandhi Kuchakron Se Paritran Tatha Mukti (Sanshodhan) Adhiniyam, 1988, within 5 years of such commencement; and

(ii) where such transaction is entered into after the commencement of the said Act within 6 years of the date of such transaction in the form and manner prescribed under section 5. The provisions of section 17 of the Limitation Act, 1963 (No. 36 of 1963) shall apply for computing limitation under this sub-section.

(3) The Sub-Divisional Officer may, on his own motion or on receipt of the application under sub-section (2) proceed to deal with the matter as if it were an action taken on his own motion under section 6 or an application under section 5 as the case may be and the provisions of this Act shall, so far as may be apply thereto as they apply to an action taken on his own motion under section 6 or to an application under section 5."

(xviii) Section 18 deals with framing of the Rules.

6. Section 29 of the Limitation Act, 1963 reads as under :

"29. Savings. -(1) Nothing in this Act shall affect section 25 of the Indian Contract Act, 1872, (IX of 1872).

(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 sections 4 to 24 (inclusive) shall apply only insofar as and to the extent to which they are not expressly excluded by such special or local law.

(3) Save as otherwise provided in any law for the time being in force with respect to marriage and divorce, nothing in this Act shall apply to any suit or other proceeding under any such law.

(4) Sections 25 and 26 and the definition of 'easement' in section 2 shall not apply to cases arising in the territories to which the Indian Easements Act, 1882 (V,of 1882) may for the time being extend."

In the background of these provisions of the enactments, we have to interpret to what extent the provisions of the limitation act are applicable to these proceedings.

7. 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.

8. 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.

9. In this connection reference may be made to a decision of the Apex Court in case of Mohd. Ashfaq vs. State Transport Appellate Tribunal LI. 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 :

"section 29(2) of the Limitation Act, 1963 makes section 5 applicable in the case of an application for renewal unless its applicability can be said to be expressly excluded by any provision of the Act. Sub­section (3) of section 58 in so many terms, says that the Regional Transport Authority may condone the delay in making of an application for renewal and entertain it on merits provided the delay is of not more than 15 days. This clearly means that if the application for renewal is beyond time by more than 15 days, the Regional Transport Authority shall not be entitled to entertain it, or in other words, it shall have no power to condone the delay. There is thus an express provision in sub-section (3) that delay in making an application for renewal shall be condonable only if it is of not more than 15 days and that expressly excludes the applicability of section 5 in cases where an application for renewal is delayed by more than 15 days."

10. Learned counsel for the petitioner, on the basis of the aforesaid ratio, submitted that similar is the position in the present case that an application can only be made within six years and only exception made is that of section 17 of the Limitation Act. Therefore, applying the aforesaid ratio, it is submitted that the applicability of section 5 of the Limitation Act in the present situation should be excluded - and in our opinion, rightly so. As we have already taken the view that an application under section 5 of the Act of 1977 is also in the nature of a suit, i.e. what is prayed is declaration, the transaction entered into between the parties is void by virtue of the operation of the present Act and should be declared as null and void. Therefore, it is in the nature of a declaratory suit and since it is in the nature of declaratory suit, provisions of section 5 of the Limitation Act are not applicable in the original proceedings. Therefore, we are of the opinion that because of the specific provisions contained in the Act, section 5 of the Limitation Act will not govern the suit.

11. Next question for consideration is with regard to applicability of the provisions of sections 4 to 29 of the Limitation Act to these proceedings. Sub­section (2) of section 29 contains that the provisions of sections 4 to 24 of the Limitation Act will be applicable to all proceedings except where they are specifically excluded by a local enactment. There is no provision in the Act of 1977 which excludes the provisions of the Limitation Act. section 5 of the Limitation Act is not applicable to the application filed under section 5 of the Act of 1977, because they are original proceedings. As such, sections 4 to 29 of Limitation Act are not excluded to the Act of 1977, except section 5 of the Limitation Act.

12. Our attention was invited to section 8 of act of 1977 for filing of appeal. Under section 8, the aggrieved party can file an appeal within 30 days of the passing of the order and the proviso says that in computing the period of limitation, time for obtaining copy should be excluded. In this connection, our attention was invited to the decision of the learned Single Judge in case of Dwarka and another vs. State of M. P. and others, W. P. No. 574/90, dated 3-9-1997. The Learned Single Judge took the view that when there is a proviso to section 8 which excludes the time spent in obtaining copy, this should be treated to exclude the provision of the Limitation Act. With great respect, we do not agree with this view taken by the learned Single Judge. In this connection, it will be relevant to mention here that Rules have been framed under section 18 of the Act and Rule 8 provides that provisions of the M. P. Land Revenue Code, 1959 and Rules made thereunder shall be applicable so far as they relate to appeal and shall apply to appeals preferred under section 8 of the Act to Collector. Section 53 of the M. P. Land Revenue Code, 1959 says that limitation shall be applicable to the provisions of appeals and review. Therefore, provisions of the limitation act have been made applicable to these proceedings of appeals. As such, provisions of the limitation act will apply to the proceedings of appeals filed before the Collector. Learned Single Judge has taken the view that since proviso to section 8 excludes the period spent in obtaining copy of the order, therefore, provisions of the limitation act stand excluded. With great respect, when the provisions of the Land Revenue Code have been specifically made applicable and Limitation Act has also been made applicable to these proceedings, then obviously all the provisions of the limitation act mutatis mutandis are applicable to the provisions of this Act also.

13. Thus we are of the opinion that the view taken by the learned Single Judge in the aforesaid case does not lay down the correct law.

14. As a result of the above discussion, our answer to the question is as under :

" section 5 of the Limitation Act will not be applicable to the original proceedings filed under section 5 of the Act of 1977. However, other provisions of the limitation act will be applicable to the Act of 1977 mutatis mutandis."

15. Let this case be sent to the learned Single Judge for deciding the case on merits.

Order accordingly.