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Judgment
The question in this case is whether in respect of a revision from an order of the Assistant Settlement Officer granting patta u/s 11 of Madras
Act XXVI of 1948, there is in him or the Director of Settlements, the power to condone a delay in filing the revision petition. Ismail, J., held that
there is no such power. We are in entire agreement with this view. A specific rule has been framed under the rule-making power provided in
Section 67 with reference to Section11 that the revision petition to the Settlement Officer or a revision to the Director should be filed within a
specified time. The application of Section 5 of the Limitation Act has been expressly excluded. That means, neither the Settlement Officer nor the
Director of Settlements has the power u/s 5 of the Limitation Act to condone the delay.
It is true that there is no limitation provided for a revision u/s 5 or Section 7 of the Act. But the order in the instant case will not fall within the
purview of the power u/s 5 or Section 7, because of the specific provision providing for a revision against orders passed u/s 11 of the Act. The
special excludes the general.
The appeal is dismissed. No costs.
[NOTE.--The judgment under appeal was that of Ismail, J. which was as follows:
(W.P. No. 2232 of 1968 5th January, 1970).
The Assistant Settlement Officer, Salem on 30th June, 1967 passed an order allowing a ryotwari patta to the petitioner herein in respect of S.
No. 64/4 por. measuring Order 69 acre in Meyyanur village in Salem taluk and District. Against this order, the first respondent herein preferred a
revision petition to the Settlement Officer, Party No. III, Madras-7, on 16th September, 1967. The Settlement Officer found, after deducting the
time taken for obtaining the certified copy of the order of the Assistant Settlement Officer, that the revision petition was filed after 43 days from the
date of the order of the Assistant Settlement Officer. Since the prescribed period of limitation was only 30 days and the revision petition was filed
after a delay of 13 days, he stated that the delay had not been properly explained and, therefore, by an order, dated 10th October, 1967 rejected
the revision petition in limine. Against the order, the first respondent herein preferred a revision petition to the Director of Settlements, Madras-5.
The Director of Settlements, Madras-5, by an order, dated 5th March, 1968 purporting to act u/s 5(2) of the Madras Estates (Abolition and
Conversion into Ryotwari) Act (XXVI of 1948) hereinafter referred to as the Act condoned the delay, set aside the order of the Settlement
Officer, Salem, and remanded the case to him for fresh disposal on merits. The petitioner herein preferred a revision petition to the Board of
Revenue against this order of the Director of Settlements and the Board by its order, dated 3rd May, 1968 dismissed the revision petition. It is,
thereafter, the petitioner has filed the present writ petition praying for the issue of a writ of certiorari to quash the order of the Director of
Settlements as confirmed by the Board of Revenue.
The point that is raised in this writ petition lies in a very narrow compass. Pursuant to Section 67(2) (d) of the Act, the Government in G.O. No.
3190, Revenue, dated 17th October, 1955, made the following rule:
Revision petitions against the orders of an Assistant Settlement Officer u/s 11 of the said Act shall be presented to the Settlement Officer
concerned within fifteen days from the date of conduct of Rough Patta Objection Hearing or the date of publication of this notification, whichever is
later, in the areas where Section 11 enquiries have already been conducted separately under the old procedure and within thirty days of the
conduct of final settlement enquiry or within fifteen days of the date of publication of this notification, whichever is later in areas where section If
enquiries are conducted along with the Rough Patta Objection Hearing under the new procedure. Further revision petitions shall lie to the Director
of Settlements and the Board of Revenue against the orders of the Settlement Officer and the Director of Settlement respectively within thirty days
of the date of their respective orders. Explanation --Section 5 of Indian Limitation Act, 1908 (Central Act IX of 1908) shall not apply to revision
petitions coming within the purview of this rule.
Thus it will be seen that for preferring a revision petition to the Settlement Officer the period of limitation prescribed is only 30 days and this rule
expressly states that Section 5 of the Indian Limitation Act shall not apply to revision petitions coming within the purview of this rule. That means,
once a Revision petition is filed beyond the period of limitation prescribed in the rule, the Settlement Officer will have no jurisdiction whatever to
entertain the same, and to deal with the same on merits. It is only because of this provision the Settlement Officer dismissed the revision petition of
the first respondent in limine. However, the Director of Settlement when he interfered with the order of the Settlement Officer stated that he was
competent to condone the delay by virtue of Section 5(2) of the Act. I am of the opinion that the Director of Settlements committed a patent error
of law in coming to this conclusion. Section 5(2) of the Act merely states:
Every Settlement Officer shall be subordinate to the Director and shall be guided by such lawful instructions as he may issue from time to time; And
the Director shall also have power to cancel or revise any of the orders, acts or proceedings of the Settlement Officer, other than those in respect
of which an appeal lies to the Tribunal.
In my opinion, this section itself does not give power to the Director of Settlements while revising the order of the Settlement Officer, to do what
the Settlement Officer himself cannot do. Whenever an appellate authority, or a revisional authority interferes with an order of the lower authority
and passes an order, that authority passes the order which in its opinion the lower authority Ought to have passed in accordance with law. If the
lower authority had no power to condone the delay the appellate authority cannot condone that delay occurring before the lower authority and on
that ground set aside the order of the lower authority. That is exactly what the Director of Settlements had done in the present case. No doubt, by
G.O. No. 139, Revenue, dated 9th January, 1963 the Government in exercise of the powers conferred by Clause (6) of Sub-section (2) of
Section 67 read with Sub-section (2) of Section 5 and Clauses (c) and (of) of Section 7 of the Act made the following rule:
1--(1) Any person who objects to any of the orders, acts or proceedings of a Settlement Officer, other than those in respect of which an appeal
lies to the Tribunal, may prefer a revision petition to the Director.
(2) Any such petition shall be preferred within one month from the date on which these rules are published in the Fort St. George Gazette or within
two months from the date of communication of the order or proceeding of the Settlement Officer, whichever of the dates aforesaid is the latest:
Provided that the Director may admit a petition preferred after the period aforesaid if he is satisfied that the petitioner had sufficient cause for not
preferring the petition within the said period.
But the proviso to Sub-rule (2) merely enables the Director to admit the petition preferred after the period of limitation prescribed for preferring
such a revision petition to him and certainly this proviso does not enable the Director to condone the delay occurring in the revision petition
preferred to the Settlement Officer, who himself had no power to condone the delay. As a matter of fact, it is this Confusion that has been
responsible for the orders passed by the Director and the Board in this particular case. It is conceded that the Settlement Officer by virtue of the
explanation to the rule extracted already had no power to condone the delay. If he had no power to condone the delay, neither the Director of
Settlements, nor the Board of Revenue had any power to condone that delay and on that basis set aside the order of the Settlement Officer and to
remand the matter to the Settlement Officer. I may point out again that the power to condone the delay available to the Director of Settlements is a
power to condone the delay in preferring a revision petition to him beyond the period of limitation prescribed therefore and not a power to
condone the delay in preferring a revision petition to the Settlement Officer, which the Settlement Officer himself had no power to condone.
Looked at from another point of view also the orders of the Director of Settlements and the Board of Revenue are erroneous in law. As I
pointed out earlier, both the Director of Settlements and the Board of Revenue relied on Section 5(2) of the Act and obviously on the rule made by
the Government in G.O. No. 139, Revenue, dated 9th January, 1963. I am of the opinion that the said Section 5(2) and the rule referred to have
no application to the revision petition preferred by the first respondent to the Director of Settlements. The rule made by the Government in G.O.
No. 3190, Revenue, dated 17th October, 1955 itself provides for revision petitions to the Director of Settlements and the Board of Revenue and
also prescribes the period of limitation therefor, in respect of orders made u/s 11 of the Act. Hence, Section 5(2) is a general provision, while the
rule made by Government in G.O. No. 3190, Revenue, dated 17th October, 1955 is a special provision dealing with the orders made u/s 11 of
the Act. On the general principle that a special provision excludes the applicability of the general provision, with regard to the orders made u/s 11
of the Act, it is the rule mentioned above that is exclusively applicable. Therefore, the explanation to the rule excluding the application of Section 5
of the Limitation Act, will govern even the revision petitions preferred to the Director of Settlements and the Board of Revenue, against the orders
of the Settlement Officer in revision preferred against the order of the Assistant Settlement Officer made u/s 11 of the Act. Consequently, even the
Director of Settlements had no power to condone the delay in preferring the revision petition to him falling under the rule made in G.O. No, 3190,
Revenue, dated 17th October, 1955
Under these circumstances, the writ petition is allowed and the impugned orders of the Director of Settlements and the Board of Revenue are
quashed. There will be no order as to costs.