A.U Khan, J.M:— This Bench comprised of five Members is constituted to consider the following two questions referred to by Hon'ble Chairman under his order dated 30.10.1995
(1) Whether the view expressed by Full Bench reported in 1978 RD at page 157 is the correct view of law in the matter of restoration applications moved under Section 201 of L.R Act or the contrary view expressed by learned Single Member, Shri Desh Raj Singh in revision No. 224 (LR) 1994-95 is correct one?
(2) Whether in view of Hon'ble Supreme Court decision reported in (1989) 3 SCC 396 : AIR 1990 SC page 261 a learned Single Member is legally competent to declare the Full Bench decision of this court illegal?
2. The facts in the pleadings are: Ashok Kumar moves a mutation application under Section 34 Land Revenue Act, 1901 on the ground that Barmdeen, the recorded tenant, has executed a testamentary disposition in his favour on 15.7.1987 So his name be recorded in place of deceased. In the meanwhile a proclamation is issued. No objection comes on record. The witnesses in proof of will are examined. On 11.3.1994 Naib Tahsildar enters an order allowing mutation.
3. On 8.4.1994 a motion in restoration by Smt. Sheoranya on the ground that she is widow of Baramdeen and entitled in law to succeed. That her husband has never executed a will; the claim of Ashok Kumar, a rank outsider, is rested on a forged will. The request to set aside the ex-parte order dated 11.3.1994 An affidavit with an application under Section 5 Limitation Act in support. On 6.5.94 Naib Tahsildar enters an order allowing restoration; the order dated 11.3.1994 is set aside. The mutation application comes under re-consideration. Aggrieved by the order a revision by applicant Ashok Kumar in Collector's. On 29.5.1995 Additional Collector enters an order of dismissal.
4. Hence a revision by Ashok Kumar. On 8.9.1995 Board of Revenue has allowed the revision; the order of Naib Tahsildar 6.5.1994 and Additional Collectors dated 29.5.1995 are rescinded. Startling enough, Board directs restoration application dated 8.4.1994 by Smt. Sheoranya to be treated as an appeal; remits the cause to Sub-Divisional Officer to decide with a direction that principle of over-run of limitation shall not apply. By the said order Hon'ble Member Shri Desh Raj Singh has also declared settled opinion of three Members in 1978 RD 157 illegal and has essayed various extravagent remarks-detailed hereinafter. Hence Hon'ble Chairman's reference to this Bench.
5. Heard the counsel; the record has been perused.
6. I have the advantage of reading the opinion prepared by Hon'ble Member Shri A.P Singh. It is my misfortune to disagree with various observations relating to concerns set for contemplation before the Full Bench. I have prepared my opinion, concurred to by Hon'ble Member Shri R.K Dubey—made available to members comprising the Bench. For preserving singularity of a judicial statement it was imperative to have taken full measure of it; to have given cogent reasons for disagreeing with the views on all points of fact and law. This has not been done. For my part I am to confine myself to such aspects where divergence of opinion is striking.
7. At page 2 of the decision is a narrative of bare facts set forth in mutation application pastulated under Section 34 Land Revenue Act, 1901. Applicant Ashok Kumar moves on basis of a will. Naib Tahsildar allows mutation on 11.3.1994 On 8.4.1994 Smt. Sheoranya, as widow of deceased, moves an application envisaged under Section 201 L.R Act; rehearing on proof of good cause for nonappearance. The passion to be exact compels me to call this application one of restoration. It beats me why this is treated an objection.
8. I pass on to next consideration. It has been taken as given in the treatment that proclamation issued was proper. The Judge has to show a passion for the actual. Section 197 Land Revenue Act, 1901 is as below:
“Whenever a proclamation is issued under this Act, copies thereof shall be posted in the court house of the officer-issuing it, at the head quarter of the tehsil within which the land to which it refers to is situated at some place of public report on or adjacent to the land to which it refer; and if the officer issuing it so directs the proclamation shall be further published by beat of drum in or near the land to which it refers.”
9. Has there been due compliance? In the proclamation the mode of acquiring title is given sale dated 15.7.1987— instead of a will. The date of issue is not given. Rule A-377 Revenue Court Manual requires a copy shall be served free of charge on the President of a Bhumi Prabandhak Samiti simultaneously with the issue of proclamation or within 15 days thereof. Was a copy issued in Pradhan's? A date in proclamation is 7.3.1994 There is no order-sheet of this date. One date is 1.2.1994 but no order-sheet of proceeding held on that date. On two dates entire action at law is over. The final order is entered on 11.3.1994 The service of proclamation is partial and defective.
10. When the issue of proclamation is not effective the party interested had no awareness of proceeding. Clearly then Smt. Sheoranya had not neglected to attend. She is quite innocent. The order passed on 11.3.1994 is emphatically ex-parte. In this view of things the limitation for restoration shall run from the date of knowledge of the order-not from the date of order itself. AIR 1961 SC 1500 explains:
“Where the rights of a person are affected by any order and the limitation is prescribed for the enforcement of remedy by the person against whom the said order is “by reference to the making of the order” (actual words of Section 201 Land Revenue Act) must mean either actual or constructive communication of the said order to the party concerned.”
11. Where is proof of communication of order to Smt. Sheoranya? Why count 15 days limitation from the date of order dated 11.3.1994? The motion of restoration is valid because moved inside 15 days from the date of knowledge of the order. This is one aspect of a complicated truth.
12. When issue of proclamation is defective, Tahsildar has no jurisdiction to pass the original order on 11.3.1994 In this position the point of limitation is utterly inconsequential: AIR 1959 SC 597. The restoration should and must receive a liberal treatment: AIR 1964 SC 215.
13. The order of Board of Revenue dated 8.9.1995 directing restoration (in error termed objection) be treated as an appeal—condoning the delay and Sub-Divisional Officer to decide, this is not merely a negation of ruling provision but subversion thereof. To say that restoration be treated as a memorandum of appeal, and without a prior re-trial in the court of first instance, is to say the unsayable
14. I now pass on to proposed opinion of Hon'ble Member of this Bench. Whether it is appropriate to take up entire playing field of the provision for assessment—the method, the form, the idiom and the milieu of Tahsildar's court. The function of a judge is with the concrete and the particular. The function of a historian is with generalisation. He will see what is general in the unique. A judge should always remember: Everything is what it is and not another thing. Hence all aspects under discussion: R.A 11 entry and the like which do not strictly arise from the pleadings of the parties are not for contemplation.
15. Analogies are a notorious trap for the unwary. Still so I give an example to illustrate the point I am on. The competitors in a 10,000 meters race in an atheletic meet are at the starting line. The starter through a gun-shot sets the runners off. A few protest, instantly then that five named runners were not exactly behind the starting line—instead one step ahead of it. The starter refires the gun to call back the runners and properly re-begins the race. In a race of long endurance a step ahead is triffle. Crucially re-beginning the race causes no injury to any runner. Likewise is the order of restoration passed under Land Revenue Act. But suppose the race is a 100 meters dash. Sure enough, more exacting standards of a different order are enmeshed—that is not the realm I am on. It is for this reason that in restoration an extremely indulgent view is taken.
16. It is noteworthy that restoration is a proceeding separate from the mutation. The concerns of the two-doubtless interwoven—are distinct and separate. By the grant of restoration the mutation application comes under re-consideration. It has to be decided as yet. It is incorrect to say that testamentary disposition has been adjudged to be proven and genuine. Here in no manner a review is involved. A review is re-look at the same decision. Restoration is to rescind an ex-parte order to enable unheard person, with abiding interest in land, to participate in proceeding; the process of trial re-begins.
17. Hon'ble Member is sufficiently vexed by instances of uncontested orders being set aside even after 10/15 years—the examples, he says, are multiplying. If I may say with profound respect one cannot draw a generalisation from an instance. Also this is one-eyed general statement. There are 65 districts in U.P with 5 Tehsils which means about 325 Tehsils. The researcher is to study such cases in all Tehsils for two or more years to come to a dependable conclusion. Even if that is the dismal situation the Legislature is to decide what to do. On my part I can venture a contrary generalisation: instances of brazen maneuvers in proclamation and then securing ex-parte orders are of late multiplying—my statement no doubt one-sided and misleading but no more than the original dictum. The generalisation of Hon'ble Member is as futile as mine in pointless. I see an attempt to re-write the enacted provision born out of experience of multiplying restorations. J.T 1991 (3) SC 608 has laid down:
“It is not the duty of the court either to enlarge the scope of the legislation when the language of the provision is plain and unambiguous. The court cannot re-write, recast or reframe the legislation for the very good reason that it has no power to legislate. The court cannot add words to a statute or read words into it which are not there.”
18. And Hon'ble Satish Chandra J. in 1965 R.D 408 makes explicit, “The Court's while deciding cases do not make law. When court's interpret any law they only explain what the pre-existing law is. They do not create or impose it. The court do not posses the power to say that it's view of the law will hold good—There is a power which vests exclusively in the law-making authority and not in the courts.”.
19. It is extremely in appropriate to venture various opinions in a judgment, even profoundly insightful, not cabined by compelling issues arising strictly from the pleadings of the parties.
20. It is stressed there is no giving of a notice to applicant Ashok Kumar in whose favour the earlier order stands. There is no provision to this end in Section 201 L.R Act. I have amply clarified this in 1995 RD 330. It is as below:
“The next concern for reflection is whether applicant is entitled to hearing? The provisio to Section 201 Land Revenue Act, 1901 is extracted below:—
“Provided that no such order shall be reversed or altered without previously summoning the other party in whose favour judgment has been given to appear and be heard in support of it.”
21. It clearly means hear when you alter or reverse. And do not hear when not altering or reversing the ex-parte order. And setting aside an ex-parte order is neither reversing nor altering. I will illustrate. There is a line with points A to B. There will be reversal when line is re drawn B to A. and alteration is when ex-parte order directs entry of names of three heirs of deceased tenant. The subsequent order be for two heirs of a deceased tenant. This is alteration of previous order. But when ex-parte order is merely set aside, there entails neither reversal nor alteration. It means as you were, run again; it is to erase the alphabets A—B. And on my side is Mr. Justice B.L Gulati J in 1972 RD 361.
“When an ex-parte order has been set aside, it cannot be said that the decree has been varied or reversed.”
22. There is no parallel provision under Section 201 Land Revenue Act to Order IX Rule 14 CPC relating to a lawsuit. That is demanding in nature. No decree shall be set aside on any such application as aforesaid unless notice thereof has been served on the opposite-party. In sum, hearing the side in whose favour the judgment is—is absolutely necessary. The conception of a lawsuit is not for a summary proceeding. That is one important aspect of a difference.
23. After the grant of restoration Ashok Kumar has no right to file an appeal or revision. In 1982 R.D 102 it is laid down that where an ex-parte order is set aside, the order is of interlocutory nature. In this view of things no appeal or revision is supportable in law. Ashok Kumar's two revisions are unsustainable. It should not have been entertained much-less to allow, passing an incoherent and amorphous order.
24. The Board's order by implication amounts to grant of restoration—affirming the orders of two courts below—then a retrial in Tahsildar's is appropriate. Smt. Sheoranya is to lead evidence that testamentary disposition is forged; that she is a widow entitled to heritage. On grant of restoration the motion dated 8.4.1994 consumes itself and is no more. How without resources of a pleading, the evidence, without cross-examining Ashok Kumar's witnesses and grounds of appeal she will face appellate court? Paragraph 161 U.P Revenue Court Manual enjoins that appeal shall be preferred in the form of a memorandum and shall be accompanied by a copy of the order appealed from. Still more, from which date the period of limitation for appeal shall be counted? From 11.3.1993 when Tahsildar grants mutation or 6.5.1994 when he grants restoration or 29.5.1995 when Additional Collector dismisses revision or 8.9.1996 when Board of Revenue rescinds the order of subordinate courts? Section 3 Limitation Act, 1963 is vigorous and absolute:
“Every suit instituted, appeal preferred, and application made after the prescribed period shall be dismissed although limitation has not been set up as a defence.”
25. As the orders of grant of restoration have been set aside the order granting mutation on 11.3.1994 gains operative effect. Smt. Sheoranya has filed no appeal. Seen in this light the order of Board of Revenue dated 8.9.1995 is amorphous and conceived ambiguously.
26. After this preliminary skirmish I move to first question for response by bench. The question is: Whether the view formulated in 1978 RD 157 is a correct exposition of law or the contrary opinion by Single Member in revision No. 224.L.R. 1994-95? The three-Member Bench in 1978 RD 157 has laid down that if proclamation issued in terms under Section 198 Land Revenue Act. 1901 is affectual and no objection is filed, the order passed will be wholesome; not an ex-parte. In that event no application in restoration under Section 201 L.R Act is maintainable. But when the issue of proclamation is inadequate is vitiated for any reason a motion in restoration is competent. We have no manner of doubt that this is correct apprehension of legal provision. It is based on a careful reading of ruling code. It is just like where a summon is issued and service on defendant is affectual, then no restoration application is maintainable. The order is not then ex-parte. A parallel provision to Section 201 Land Revenue Act, 1901, with qualifications, is Order IX Rule 13 Civil Procedure Code. If the issue of proclamation is in all respects adequate, is fully in accord with requirement, the order is not ex-parte. But if proclamation is defective, the order is ex-parte. Then restoration is apt. The opinion to the contrary by single Member adding elements to proclamation is to do more, is to be outside the provision of law. So we see no persuasive reason to agree with single Member. We record respectful disagreement and overrule it.
27. We come to second question set for contemplation. “Whether a Single Member can declare the decision of Full Bench of this Court as illegal? It needs no stressing that a view of the Bench is always followed by a Single Member. When there is difference between two single Members the matter is referred to a larger Bench for resolution of controversy: 1974 RD 316 : AIR 1960 SC 936 : AIR 68 Alld. 37 and (1985) 4 SCC 369. Judge learned Hand calls to attention the tendency of some Judges” who win the game by sweeping all the chess-man of the table (The spirit of Liberty by Alfred Knoph, New York 1953, P. 131) 1990 RD at page 137 refers to 1937 All England Reports 775 in re-Margan 42 Ch. 345.
“Even though individual judges are not bound by each others decisions, the principle of judicial courtesy and judicial loyalty requires that a judge does not dissent from the considered opinion of another Bench. The court of appeal in England considered itself bound by its previous decisions. Even in respect of decisions which are sometimes disliked for certain positive reasons, as some decisions of some superior courts have not been brought to it's notice or specific provision of law was not noticed, nevertheless, it is respected and not infrequently followed with the expression of hope that it might be over-ruled by House of Lords.”
28. J.T 1993 (3) SC 290 lays down that a Single Judge not inclined to follow the earlier two decisions by a Single Judge is to refer the matter to a Division bench.
29. On a consideration of material our response to the second question is that a Single Member is not competent to declare the opinion of Full Bench Board of Revenue, illegal. The answer of this Bench is as below:
(1) The view formulated in 1978 RD 157 is authentic exposition of law as to when restoration is in order following issue of a proclamation.
(2) A single Hon'ble Member has no competence to declare the view point of a three Member Bench illegal.
30. Review is allowed; the order of Board of Revenue dated 8.9.1995 is set aside. Revision of Ashok Kumar comes under re-consideration. It is dismissed with costs throughout. Tahsildar to re-decide mutation on merits according to law.
31. We agree:
1. Dr. Surinder Mohan, I.A.S Chairman.
2. Shri Ram Yadav, ???.A.S Member (Judicial).
3. R.K Dubey, Member (Judicial).
32. Review Allowed.