# Smt. Parvinder Kaur v. Board of Revenue U.P. Lko & Ors

- **Citation:** (2022) 1 ILRA 1229
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-01-27
- **Case number:** Writ-B No. 1003602 of 2010
- **Bench:** Vivek Chaudhary
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-parvinder-kaur-v-board-of-revenue-u-p-lko-ors-48104
- **Pages:** 13

## Headnote

Civil Law - U.P. Zamindari Abolition and
Land Reforms Act, 1950 - Sections 341,
344(1)(a), & 344(1)(f) - U.P. Zamindari
Abolition and Land Reforms Rules,1950 -
Rule 285 I - Limitation Act, 1963 - Section
29(2) - As per 29 (2) Limitation Act
provisions contained in section 4 to 24
Limitation Act apply to special or local law
only in so far as, and to the extent to
which, they are not expressly excluded by
special or local law - Applicability of
Limitation Act - As per Section 341 of U.P.
Z.A. & L.R. Act applies the Limitation Act
to the proceedings held under it - Section
344 (1)(a) of UPZLR Act provides for
framing of rules for imposing time limit,
with or without power to extend such
time limit imposed - Rule 285-I provides
a period of only thirty days for filing
objections against auction sale - Held -
U.P. Z.A. & L.R. Act and Rules, for the
purposes of recovery of sums, recoverable
as arrears of land revenue, is a complete
code in itself, it falls within the category
of special local Act under section 29(2) of
the
Limitation
Act
&
it
specifically
excludes the applicability of Sections 4 to
24 of the Limitation Act (Para 13)

Civil Law - U.P. Zamindari Abolition and
Land Reforms Rules, 1950 - Rule 285 I -
Application to set aside auction sale -
Limitation Act, 1950 - Section 5 - Delay
Condonation in filing objection beyond 30
1230 INDIAN LAW REPORTS ALLAHABAD SERIES
days - Barred - As per Rule 285-I
objections to the auction sale can be filed
within a period of thirty days only from
the date of sale - If objections are not
filed within thirty days under Rule 285-J
the collector is bound to confirm the sale -
If no objections is filed within 30 days all
claims on ground of irregularity or mistake
in publishing or conducting the sale is
barred and only remedy available is to file
a suit on ground of fraud - objections
under Rule 285-I could not be filed and
entertained after thirty days from the date
auction
sale
are
held
&
even
the
commissioner or any superior court could
condone the delay in filing objections
after 30 days (Para 14)

Dismissed. (E-5)

List of Cases cited :

## Text

_Characters 0–39,866 of 46,315. This is a partial read: ask again with offset=39866 for what follows._

1 All. Smt. Parvinder Kaur Vs. Board of Revenue U.P. Lko & Ors.
1229
legality or propriety of any order includes
the power to examine any finding, whether
of fact or law, recorded by any subordinate
authority, and also includes the power to
re-appreciate any oral or documentary
evidence."

14. It is also material that allegation
made in the writ petition has not been
controverted by respondent no.4 and 5 by
filing counter affidavit or by filing affidavit in
terms of proposal of the Court to exchange
their Chak in order to end the litigation,
accordingly allegation made in the writ
petition cannot be ignored that petitioner has
been deprived of the Chak of better quality of
land as well as in front of the house.

15. In facts and circumstances of the
case, the impugned revisional order dated
24.2.2009 passed by respondent no.1
(Annexure No.7 to the writ petition) and
order dated 27.9.2006 passed by respondent
no.2 (Annexure No.4 to the writ petition)
are quashed and the dispute is remanded
back
to
the
Deputy
Director
of
Consolidation, Azamgarh to decide the
Revision afresh in the light of the
observation mentioned above after notice
and opportunity of hearing to the parties
preferably within a period of six months
from the date of receipt of certified copy of
this order.

16. The writ petition, accordingly,
stands allowed.
----------

(2022)01ILR A1229
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 27.01.2022

BEFORE
THE HON'BLE VIVEK CHAUDHARY, J.

Writ-B No. 1003602 of 2010

Smt. Parvinder Kaur ...Petitioner
Versus
Board of Revenue U.P. Lko & Ors.
 ...Respondents

Counsel for the Petitioner:
M.G. Khan, Shamshad Ali

Counsel for the Respondents:
C.S.C., A.M. Shukla, Ashish Chaturvedi, Bidhan
Chandra Rai, Kapil Misra, Manu Dixit, S.P.
Shukla, Satyendra Kumar, Vishal Dixit

Civil Law - U.P. Zamindari Abolition and
Land Reforms Act, 1950 - Sections 341,
344(1)(a), & 344(1)(f) - U.P. Zamindari
Abolition and Land Reforms Rules,1950 -
Rule 285 I - Limitation Act, 1963 - Section
29(2) - As per 29 (2) Limitation Act
provisions contained in section 4 to 24
Limitation Act apply to special or local law
only in so far as, and to the extent to
which, they are not expressly excluded by
special or local law - Applicability of
Limitation Act - As per Section 341 of U.P.
Z.A. & L.R. Act applies the Limitation Act
to the proceedings held under it - Section
344 (1)(a) of UPZLR Act provides for
framing of rules for imposing time limit,
with or without power to extend such
time limit imposed - Rule 285-I provides
a period of only thirty days for filing
objections against auction sale - Held -
U.P. Z.A. & L.R. Act and Rules, for the
purposes of recovery of sums, recoverable
as arrears of land revenue, is a complete
code in itself, it falls within the category
of special local Act under section 29(2) of
the
Limitation
Act
&
it
specifically
excludes the applicability of Sections 4 to
24 of the Limitation Act (Para 13)

Civil Law - U.P. Zamindari Abolition and
Land Reforms Rules, 1950 - Rule 285 I -
Application to set aside auction sale -
Limitation Act, 1950 - Section 5 - Delay
Condonation in filing objection beyond 30
1230 INDIAN LAW REPORTS ALLAHABAD SERIES
days - Barred - As per Rule 285-I
objections to the auction sale can be filed
within a period of thirty days only from
the date of sale - If objections are not
filed within thirty days under Rule 285-J
the collector is bound to confirm the sale -
If no objections is filed within 30 days all
claims on ground of irregularity or mistake
in publishing or conducting the sale is
barred and only remedy available is to file
a suit on ground of fraud - objections
under Rule 285-I could not be filed and
entertained after thirty days from the date
auction
sale
are
held
&
even
the
commissioner or any superior court could
condone the delay in filing objections
after 30 days (Para 14)

Dismissed. (E-5)

List of Cases cited :

1. Kaushalya Rani Vs Gopal Singh; AIR 1964 SC
260

2. Hukum Dev Narain Yadav Vs Lalit Narain
Mishra; AIR 1974 SC 480

3. U.O.I. Vs Popular Construction Co. (2001) 8
SCC 470

(Delivered by Hon'ble Vivek Chaudhary, J.)

1. Heard Shri Shamshad Ali learned
counsel for petitioners, Sri N.K. Seth, learned
Senior Advocate assisted by Sri Ashish
Chaturvedi advocate for respondent no. 6auction purchaser and learned Standing
Counsel for the State.

2. Petitioners, heirs of late Vijay Pal Singh
(one of the five brothers), by the present writ
petition have challenged the order dated
31.05.2010 passed by respondent no.1 Board of
Revenue, U.P., Lucknow and further prayed for
a mandamus commanding the respondent no.6auction purchaser not to create any hindrance in
the peaceful possession of the petitioners over
the property in dispute.

3. It appears that at the very initial
stage, the Court was not satisfied with
regard to possession of the petitioners and,
thus, on 15.06.2010 the interim order
passed provided only that, "opposite party
no.6 shall not alienate the property in
question till the next date of listing." Even
during the course of arguments no claim
was made by the petitioners that they are in
possession of the property in dispute.

4. Before coming to the facts it would
be appropriate to narrate the long and
checkered litigation parties went through to
again reach this court by the present writ
petition. The property in dispute, bearing
Khasra
No.295,
297,
272-A,
272-B,
measuring 15 Biswa situated in Village
Behsa, Tehsil and District-Lucknow, was
auctioned to clear the electricity dues of the
partnership firm M/s Walia Industries, setup
in the year 1981, which had installed a
factory for manufacturing of Saria on the
same. The factory suffered losses and was
ultimately closed. The recovery proceedings
were initiated by UPPCL for its electricity
dues against M/s Walia Industries by a
recovery
citation
dated
17.01.2001.
Admittedly, the said dues were recoverable as
arrears of land revenue under the U.P.
Zamindari Abolition and Land Reforms Act,
1950 (UP. Z.A. & L.R. Act). In the said
recovery proceedings the property in dispute
was attached and thereafter auctioned on
2.12.2002 and after confirmation of sale
auction purchaser also got possession and his
name mutated in records. On 23.10.2003 all
the five brothers filed the sale objections
under Rule 285-I of U.P. Zamindari Abolition
and Land Reforms Rules, 1952 (U.P. Z.A. &
L.R. Rules). The said objections were heard
and rejected on the point of limitation vide
order dated 29.10.2003 by the learned
Additional Commissioner, holding that the
same were filed beyond a period of thirty
1 All. Smt. Parvinder Kaur Vs. Board of Revenue U.P. Lko & Ors.
1231
days of auction, as provided by Rule 285-I.
Being aggrieved, objectors preferred a
revision before the Board of Revenue, which,
by its order dated 18.08.2005, allowed the
revision and quashed the entire auction
proceedings. Aggrieved from the said order
auction purchaser preferred a Writ Petition
No.5464 (M/S) of 2005 (Revenue) before the
high court. The writ petition was allowed by
judgment and order dated 22.08.2007 and the
order dated 18.08.2005 passed by the Board
of Revenue was set aside, as without deciding
the issue of limitation the Board of Revenue
had wrongly proceeded to decide the revision
on merits. The matter was remanded back to
the Board of Revenue. The Board of Revenue
again heard the matter and condoned the
delay in filing of objections by its order-dated
12.02.2008 and remanded the matter back to
the Commissioner for hearing the objections
on merits. Auction purchaser filed a Writ
Petition No.1196 (M/S) of 2008 against the
said order dated 12.02.2008 of the Board of
Revenue but a stay order was granted only on
21.08.2008
and
communicated
to
the
Additional Commissioner on 02.09.2008.
The Additional Commissioner (Judicial),
Lucknow however by its judgment and order
dated 03.09.2008 allowed the objections on
merits and set aside the auction proceedings.
The said Writ Petition No.1196 (M/S) of
2008 of the auction purchaser also came to be
heard and the Court dismissed the same as
infructuous vide order dated 10.02.2009, with
liberty to auction purchaser to raise all his
issues in his revision before the Board of
Revenue. The Revision No.1093 (Sale) of
2010 filed by the auction purchaser is
allowed by order-dated 31.05.2010 by the
Board of Revenue and that is now under
challenge before this court.

5. The counsel for the petitioners
submits that Late Surjeet Singh purchased
the property in dispute in the year 1975
and after his death all five of his sons,
including Sri Vijay Pal Singh and Sri
Sarabjeet Singh inherited the said property.
He claims that in the year 1981 Sri Vijay
Pal Singh and Sri Sarabjeet Singh (also
noted as Sarvjeet Singh in some records)
had formed a partnership firm and installed
a factory for manufacturing of Saria on the
same. Since, after death of late Surjeet
Singh all his five sons inherited the
property in dispute, the same could not be
sold in the auction for dues of the firm and
its two promoter brothers. He further
submits that property in dispute was sold
on a low price without affecting proper
notice on all the heirs of late Surjeet Singh
and that the Board of Revenue has wrongly
allowed the revision and rejected the
objections of the petitioners.

6. Opposing the petition Sri N.K.
Seth,
learned
Senior
Advocate
for
respondent no.6-auction purchaser submits
that the facts as submitted by the counsel
for the petitioners are incorrect. It is only
the two brothers namely Vijay Pal Singh
and Sarabjeet Singh and their firm M/s
Walia Industries that owned the property in
dispute. Later the said two brothers also left
the Firm and got new partners introduced
and, thus, the present petition filed only on
behalf of heirs of Late Vijay Pal Singh, is
not maintainable, as the said other brothers
have not approached this Court. He next
submits that the objections filed by the
petitioners under Rule 285-I of the U.P.
Z.A. & L.R. Rules are barred by limitation
and the delay in filing the objections cannot
be condoned. He further submits that there
is otherwise also no illegality in the auction
sale and also there is no force in the
objections to the auction sale and thus the
petition should be dismissed.
1232 INDIAN LAW REPORTS ALLAHABAD SERIES

7. I have heard counsels for the
parties and learned Standing Counsel at
length and perused the record. The
questions
raised
by
the
parties
for
consideration of this court thus are:-

(i) Whether the objections of the
petitioners to the auction sale are barred by
limitation or the commissioner/any superior
court has power to condone the delay in
filing the objections;

(ii) Ownership of property in dispute
and maintainability of present writ petition
on behalf of petitioners; containing within
issues whether all five brothers or only two,
namely Sarabjeet Singh and Vijay Pal
Singh, inherited the property in dispute and
whether the said two sons also in view of
later developments have any concern with
the property in dispute and whether the
objections or present writ petition is
maintainable on their behalf,

(iii) If the above two are decided in
favor of the petitioners, whether there is
any force in the objections to the auction
filed by the petitioners.

(i) Limitation and power to condone
the delay

8. Counsel for the auction purchaser
submits that admittedly the auction sale
was held on 2.12.2002 and objections
under Rule 285-I of U.P. Z.A. & L.R. Rules
were filed on 23.10.2003, i.e., after ten
months and twenty-one days. Rule 285-I
provides a period of thirty days only for
filing the objections and thus the objections
filed after the said period are barred by
time, which could not be condoned by the
commissioner. He places reliance upon two
single judge judgments of this court,
namely,
Abdul
Wahid
v.
Additional
Commissioner (admin.) Meerut Division
and Others; 1989 AWC 1056; and Prabhu
Dayal and others v. Board of Revenue and
others 2012 SCC Online All 473. Opposing
the same learned counsel for the petitioners
submits that the case of Abdul Wahid was
decided relying upon the judgment in case
of Indu Engineering and Textiles Ltd.
Nawalganj, Agra v. Commissioner Agra
Division, Agra & Others; 1984 AWC 772,
which itself was decided upon the law as it
existed prior to 1979 amendment to the
revenue manual and is therefore no more a
good law. Similarly Prabhu Dayal case has
nothing to do with recovery proceedings
and is thus not applicable. He further
submits that the commissioner had power
to condone the delay under Section 5 of the
Limitation Act, 1963 and the Board of
Revenue had earlier rightly condoned the
delay.

9. Initially there was a dispute as to
whether the objections filed under Rule
285-I
are
judicial
or
administrative
proceedings. The said question was referred
to a full bench of this court and the full
bench in ''Ram Swaroop vs. Board of
Revenue and others, 1990 LCD (8) 253',
noting the amendments made to Paragraph
911 of the Revenue Manual in the year
1979, declared the same to be judicial
proceedings and held Commissioner to be a
revenue court while deciding them. The full
bench further observed, "there is no dispute
that Limitation Act will apply before any
court of law." However, question still
remains as to the extent to which section 5
or any other provision of the Limitation Act
can be invoked to condone the delay in
filing objections under Rule 285-I. The said
question arises in view of Section 29(2) of
the Limitation Act, 1963 which provides:-

"Section 29(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,
1 All. Smt. Parvinder Kaur Vs. Board of Revenue U.P. Lko & Ors.
1233
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 section 4 to 24
(inclusive) shall apply only in so far as,
and to the extent to which, they are not
expressly excluded by such special or local
law." (emphasis added)

10. The scope of application of
Section 29(2) of the Limitation Act
including what would be a special act and
when applicability of section 4 to 24 of the
Limitation Act
would
be
barred
is
considered at length by the Supreme Court
in ''Kaushalya Rani Vs. Gopal Singh; AIR
1964 SC 260'. In the said case the issue
before the court was the applicability of
Section 29(2) of the Limitation Act with
regard to amended Section 417 of the Code
of Criminal Procedure, 1973 (Cr.P.C.).
Section 417(3) of Cr.P.C. provided an
opportunity to complainant also, with the
leave of High Court, to file appeal against
an order of acquittal. Section 417 (4) of
Cr.P.C. provided that no application for
grant of leave to appeal under sub-section
(3) shall be entertained by the High Court
after the expiry of sixty days from the order
of acquittal. The Supreme Court in
paragraph 6 and 7 held:-

"(6) It will appear that the section,
which was recast by Act XXVI of 1955, for
the first time made provision for an appeal
by a private complainant from an order of
acquittal, if he obtained special leave to
appeal from the High Court. Previous to
the Amending Act aforesaid, it was only the
State Government which could come up in
appeal from an order of acquittal. The
section, thus, provides for an appeal by
the State Government, as also by the
complainant in a case instituted upon a
complaint, provided that special leave of
the Court is obtained. So far as appeal by
the State Government is concerned, S. 417
itself does not provide for any period of
limitation. The period of limitation for such
an appeal is laid down in Art. 157 of the
Limitation Act. Previous to the amendment
of 1955, the period of limitation for such an
appeal by the State Government was six
months, which was reduced to three months
by the Act XXVI of 1955 with effect from
January 1, 1956. Hence, so far as an
appeal by the State Government is
concerned, the period of limitation thus
reduced is a part of the general law of
limitation and is amenable to the operation
of S. 5 of the Limitation Act. But the
provisions of sub-sec. (3) and (4) of S. 417
are in the nature of 'special provisions'
introduced for the first time by the
Amending Act XXVI of 1955. Sub-section
(4), in terms, is very precise and
mandatory, prohibiting the High Court
from entertaining any application for
special leave to appeal from an order of
acquittal after the expiry of 60 days from
the date of such an order. On a perusal of
the bare provisions of the section and the
history of the law on the subject, two things
are clear; namely, (1) that the legislature
thought it expedient in the interest of justice
and public policy that the period of six
months allowed to the State Government to
appeal from an order of acquittal should be
curtailed by half, thus evincing its clear
intention to cut short the duration of the
litigation which had already resulted in an
order of acquittal; and (2) that in certain
cases the High Court should have the
power of granting special leave to a
complainant, as distinguished from the
1234 INDIAN LAW REPORTS ALLAHABAD SERIES
State Government, to come up in appeal
from an order of acquittal, but at the same
time indicating in clear and unambiguous
terms that such an application must be
made within 60 days from the date of the
order of acquittal. This rule of 60 days bar
of time has been specifically provided for in
the section itself, unlike the general rule of
limitation applicable to an appeal against
acquittal, at the instance of the State
Government. In our opinion, therefore, the
position is clear that so far as appeal by the
State Government is concerned, the law of
limitation is the general law laid down in
the Limitation Act (Art. 157) to which S. 5
would apply by its own force. But in so far
as an appeal by a private prosecutor is
concerned, the legislature was astute to
specifically lay down that the foundation
for such an appeal should be laid within
60 days from the date of the order of
acquittal. In that sense, this rule of 60
days bar is a special law, that is to say, a
rule of limitation which is specially
provided for in the Code itself, which does
not ordinarily provide for a period of
limitation for appeals or applications. It is
the general law of limitation, as laid down
in the Limitation Act, which governs
appeals ordinarily preferable under the
Code, vide Arts. 150, 154, 155 and 157. To
such appeals the provisions of S. 5 would
apply.

(7). It has been observed in some of
the cases decided by the High Courts that
the Code is not a special or a local law
within the meaning of S. 29(2) of the
Limitation Act, that is to say, so far as the
entire Code is concerned because it is a
general law laying down procedure,
generally, for the trial of criminal cases.
But the specific question with which we are
here concerned is whether the provision
contained in S. 417(4) of the Code is a
special law. The whole Code is indeed a
general law regulating the procedure in
criminal trials generally, but it may contain
provisions specifying a bar of time for
particular class of cases which are of a
special character. For example, a Land
Revenue Code may be a general law
regulating the relationship between the
revenue-payer and the revenue-receiver or
the rent-payer and the rent-receiver. It is a
general law in the sense that it lays down
the
general
rule
governing
such
relationship, but it may contain special
provisions relating to bar of time, in
specified cases different from the general
law of limitation. Such a law will be a
'special law' with reference to the law
generally governing the subject-matter of
that kind of relationship. A 'special law',
therefore, means a law enacted for special
cases,
in
special
circumstances,
in
contradistinction to the general rules of
the law laid down, as applicable generally
to all cases with which the general law
deals. In that sense, the Code is a general
law regulating the procedure for the trial
of criminal cases, generally; but if it lays
down any bar of time in respect of special
cases in special circumstances like those
contemplated by S. 417 (3) & (4), read
together, it will be special law contained
within the general law. As the Limitation
Act has not defined 'special law', it is
neither necessary nor expedient to attempt
a definition. Thus, the Limitation Act is a
general law laying down the general rules
of limitation applicable to all cases dealt
with by the Act; but there may be
instances of a special law of limitation laid
down in other statutes, though not dealing
generally with the law of limitation. For
example, rules framed under Defence of
India Act, vide Surya Mohan v. State of
Bihar ILR 30 Pat 126: (AIR 1951 Pat
462); Canara Bank Ltd. v. The Warden
Insurance Co. [ILR (1952) Bom 1083]:
1 All. Smt. Parvinder Kaur Vs. Board of Revenue U.P. Lko & Ors.
1235
(AIR 1953 Bom 35) dealing with the
special rule of limitation laid down in the
Bombay Land Requisition Act (Bom.
XXXIII of 1948). These are mere
instances of special laws within the
meaning of S. 29(2) of the Limitation Act.
Once it is held that the special rule of
limitation laid down in sub-sec. (4) of S.
417 of the Code is a 'special law' of
limitation, governing appeals by private
prosecutors, there is no difficulty in
coming to the conclusion that S. 5 of the
Limitation Act is wholly out of the way, in
view of S. 29(2)(b) of the Limitation
Act."(emphasis added)

Similarly in ''Hukum Dev Narain
Yadav v Lalit Narain Mishra; AIR 1974
SC 480', the court in paragraphs - 17, 18
and 25 held that:-

"17. Though Section 29(2) of the
Limitation Act has been made applicable to
appeals both under the Act as well as under
the Criminal Procedure Code, no case has
been brought to our notice where Section
29(2) has been made applicable to an
election petition filed under Section 81 of
the Act by virtue of which either Section 4,
5 or 12 of the Limitation Act has been
attracted. Even assuming that where a
period of limitation has not been fixed for
election petitions in the Schedule to the
Limitation Act which is different from that
fixed under Section 81 of the Act, Section
29(2) would be attracted, and what we
have to determine is whether the provisions
of this section are expressly excluded in the
case of an election petition. It is contended
before us that the words "expressly
excluded" would mean that there must be
an express reference made in the special or
local law to the specific provisions of the
Limitation Act of which the operation is to
be excluded. As usual the meaning given in
the Dictionary has been relied upon,
but what we have to see is whether the
scheme of the special law, that is in this
case the Act, and the nature of the remedy
provided therein are such that the
Legislature intended it to be a complete
code by itself which alone should govern
the several matters provided by it. If on an
examination of the relevant provisions it is
clear that the provisions of the Limitation
Act are necessarily excluded, then the
benefits conferred therein cannot be
called in aid to supplement the provisions
of the Act. In our view, even in a case
where the special law does not exclude the
provisions of Sections 4 to 24 of the
Limitation Act by an express reference, it
would nonetheless be open to the Court to
examine whether and to what extent the
nature of those provisions or the nature of
the subject-matter and scheme of the
special law exclude their operation. The
provisions of Section 3 of the Limitation Act
that a suit instituted, appeal preferred and
application made after the prescribed
period shall be dismissed are provided for
in Section 86 of the Act which gives a
peremptory command that the High Court
shall dismiss an election petition which
does not comply with the provisions of Ss.
81, 82 or 117. It will be seen that S. 81 is
not the only section mentioned in Section
86, and if the Limitation Act were to apply
to an election petition under S. 81 it should
equally apply to Ss. 82 and 117 because
under Section 86 the High Court cannot
say that by an application of Section 5 of
the Limitation Act, Section 81 is complied
with while no such benefit is available in
dismissing
an
application
for
noncompliance with the provisions of Section
82 and 117 of the Act, or alternatively if the
provisions of the Limitation Act do not
apply to Section 82 and Section 117 of the
1236 INDIAN LAW REPORTS ALLAHABAD SERIES
Act, it cannot be said that they apply to S.
81. Again, S. 6 of the Limitation Act which
provides for the extension of the period of
limitation till after the disability in the case
of a person who is either a minor or insane
or an idiot is inapplicable to an election
petition. Similarly, Ss. 7 to 24 are in terms
inapplicable to the proceedings under the
Act, particularly in respect of the filling of
election petitions and their trial.

18. It was sought to be contended that
only those provisions of the Limitation Act
which are applicable to the nature of the
proceedings under the Act, unless expressly
excluded, would be attracted. But this is not
what S. 29(2) of the Limitation Act says,
because it provides that Sections 4 to 24
(inclusive) shall apply only in so far as, and
to the extent to which, they are not
expressly excluded by such special or local
law. If none of them are excluded, all of
them would become applicable. Whether
those sections are applicable is not
determined by the terms of those sections,
but by their applicability or inapplicability
to the proceedings under the special or
local law. A person who is a minor or is
insane or is an idiot cannot file an election
petition to challenge an election, nor is
there any provision in the Act for legal
representation of an election petitioner or
respondent in that petition who dies, in
order to make Section 16 of the Limitation
Act applicable.

25. For all these reasons we have
come to the conclusion that the provisions
of Section 5 of the Limitation Act do not
govern the filing of election petitions or
their trial and, in this view, it is
unnecessary to consider whether there are
any
merits
in
the
application
for
condonation of delay."(emphasis added)

In ''Union of India vs. Popular
Construction Co. (2001) 8 SCC 470' the
issue before the court was "whether the
provisions of Section 5 of the Limitation
Act, 1963 are applicable to an application
challenging the award filed under Section
34 of the Arbitration and Conciliation Act,
1996". The Supreme Court again held:

"12. As far as the language of
Section 34 of the 1996 Act is concerned,
the crucial words are 'but not thereafter'
used in the proviso to sub-section (3). In
our opinion, this phrase would amount to
an express exclusion within the meaning
of Section 29(2) of the Limitation Act, and
would therefore bar the application of
Section 5 of that Act. Parliament did not
need to go further. To hold that the Court
could entertain an application to set aside
the Award beyond the extended period
under the proviso, would render the
phrase 'but not thereafter' wholly otiose.
No principle of interpretation would
justify such a result.

13. Apart from the language, 'express
exclusion' may follow from the scheme
and object of the special or local law.
"Even in a case where the special law
does not exclude the provisions of
Sections 4 to 24 of the Limitation Act by
an express reference, it would nonetheless
be open to the Court to examine whether
and to what extent the nature of those
provisions or the nature of the subjectmatter and scheme of the special law
exclude their operation." (SCC p.146,
para 17) (emphasis added)

11. In the present case, Section 341 of
U.P. Z.A. & L.R. Act applies the Limitation
Act to the proceedings held under it, but,
Section 344 (1)(a) and (f) provides for
framing of rules for imposing time limit,
with or without power to extend such time
limit imposed, and applicability of different
sections
of
the
Limitation
Act
to
1 All. Smt. Parvinder Kaur Vs. Board of Revenue U.P. Lko & Ors.
1237
proceedings under it. Section 344 (1)(a)
and (f) read:-

"344. Rules in general. - (1) Every
power to make rules given by this Act shall
be deemed to include the powers to provide
for-

(a) imposing limits of time within
which things to be done for the purposes of
the rules must be done, with or without
powers to any authority therein specified to
extend limits imposed;

(f) the application of the provisions of
the Indian Limitation Act, 1908 (X of 1908)
to
suits
applications,
appeals
and
proceedings under this Act;"

12. Rule 285(H) of UP. Z.A. & L.R.
Rules provides that owner of property put to
auction can by depositing the entire amount
and expenses as provided in the said rule,
with in a period of thirty days from the date
of sale, can get the sale set aside. But, any
person who files his objections under rule
285-I of the said Rules cannot move an
application under rule 285-H. In the present
case objections are filed under rule 285-I
only. Rules 285(I) to 285(M) of U.P. Z.A. &
L.R. Rules relevant for our purpose read:-

"285-I. (i) At any time within thirty
days from the date of the sale, application
may be made to the Commissioner to set
aside the sale on the ground of some
material
irregularity
or
mistake
in
publishing or conducting it; but no sale
shall be set aside on such ground unless the
applicant proves to the satisfaction of the
Commissioner that he has sustained
substantial injury by reason of such
irregularity or mistake.

(ii) [* * *]

(iii) The order of the Commissioner
passed under this rule shall be final.

285-J. On the expiration of thirty
days from the date of the sale if no such
application as is mentioned in Rule 285-H
or Rule 285-I, has been made or if such
application has been made and rejected by
the Collector or the Commissioner, the
Collector shall pass an order confirming
the sale after satisfying himself that the
purchase of land in question by the bidder
would not be in contravention of the
provisions of Section 154. Even order
passed under this rule shall be final.

285-K. If no application under Rule
285-I is made within the time allowed
therefor, all claims on the ground of
irregularity or mistake in publishing or
conducting the sale shall be barred:

Provided that nothing contained in
this rule shall bar the institution of a suit in
the Civil Court for the purpose of setting
aside a sale on the ground of fraud.

285-L. Whenever the sale of any holding
or other immovable property is set aside
under Rule 285-H or Rule 285-I the
purchaser shall be entitled to receive back his
purchase money plus an amount not
exceeding five per cent of the purchase
money as the Collector or the Commissioner,
as the case may be, may determine.

285-M. (i) After a sale of holding or
other immovable property under the Act,
has been
confirmed
in
the
manner
aforesaid, the Collector shall put the
person declared to be purchaser into
possession of such property, and shall
grant him a certificate to the effect that he
has purchased the property to which the
certificate refers and such certificate shall
be deemed to be a valid transfer of such
property, but need not be registered as a
conveyance except as provided by Section
89 of the Registration Act, 1908.

(ii) The certificate shall state the name
of the person declared at the time of sale to
1238 INDIAN LAW REPORTS ALLAHABAD SERIES
be the actual purchaser and any suit
brought or application made in a Civil or
Revenue
Court
against
the
certified
purchaser on the ground that the purchase
was made on behalf of another person not
the
certified
purchaser,
though
by
agreement the name of the certified
purchaser was used shall be dismissed with
costs." (emphasis added)

13. A perusal of the provisions of U.P.
Z.A. & L.R. Act and the Rules framed
thereunder shows that the same provide a
complete procedure for the complete
manner of recovery, including, holding of
auction sale, objections to sale and disposal
of such objections including consequences
of not filing the objections. Thus, the said
Act and Rules fall within the category of
special local Act under section 29(2) of the
Limitation Act for the purpose of recovery
proceedings held under the same. Schedule
to the Limitation Act by entry 127 provides
limitation of sixty days for filing an
application to set aside a sale in execution
of a decree. By entry 137 it provides
limitation of three years for any other
application for which no period of
limitation is provided elsewhere. While
Rule 285-I only provides a period of thirty
days for filing objections against auction
sale. Thus the special act not only provides
the period of limitation for filing objections
to the auction sale separately, the period of
limitation provided by the special act is
also different from that provided by the
Limitation
Act.
Further,
Rule
285-I
provides that objections to the sale can be
filed within a period of thirty days from the
date of sale before the commissioner, only
on grounds of irregularity or mistake in
publishing or conducting the sale. If the
objections are not filed under Rule 285-I
within thirty days from the date of sale,
under Rule 285-J the collector is bound to
confirm the sale and such an order of
confirmation of sale shall be final. Rule
285-K makes the position further clear by
providing that thereafter all claims on
ground of irregularity or mistake in
publishing or conducting the sale shall be
barred and only remedy available is to file
a suit on ground of fraud. From the
aforesaid, it is clear that U.P. Z.A. & L.R.
Act and Rules, for the purposes of recovery
of sums recoverable as arrears of land
revenue, is a complete code in itself, which
specifically excludes the applicability of
Sections 4 to 24 of the Limitation Act.

14. In the present case admittedly
auction took place on 02.12.2002 and the
objections under Rule 285-I were filed on
23.10.2003, i.e. after ten months and
twenty-one days of the auction. Any such
objections were to be filed within thirty
days from the date of auction. The
collector meanwhile, since no objections
were filed within thirty days, confirmed
the sale on 07.01.2003. As per Rule 285K only remedy available to any person
after thirty days of auction sale is to file a
suit on ground of fraud. The objections
under Rule 285-I could not be filed and
entertained after thirty days and any
delay in filing objections cannot be
condoned. Such an interpretation flows
from the plain language of the sections
and rules aforesaid. It also appears to be
appropriate to bring finality to the auction
proceedings. Therefore the delay in filing
objections could not be condoned either
by the commissioner or by any superior
court. The objections filed beyond the
period of thirty days from the auction sale
are held as barred by time and not
maintainable.

(ii)
Ownership
of
property
in
dispute and Maintainability of present
writ petition on behalf of petitioners
1 All. Smt. Parvinder Kaur Vs. Board of Revenue U.P. Lko & Ors.
1239

15. The submission of the counsel for
the petitioners is that the property in
dispute belonged to late Surjeet Singh and
after his death all his five sons inherited the
same. Thus, the same could not be sold for
the dues of a partnership firm of which
only two brothers were partners, as the
same would amount to auction of shares of
the other three brothers who had no
concern
with
the
partnership
firm.
Opposing the same counsel for auction
purchaser submits that all the sons of late
Surjeet Singh never became owners of the
property in dispute. He submits that by a
registered will dated 05.01.1989 late
Surjeet Singh bequeathed the same to his
two sons, namely, Vijay Pal Singh and
Sarabjeet
Singh.
Further,
from
the
partnership deeds executed from time to
time it is clear that not only the other three
sons of late Surjeet Singh never had any
concern with the property in dispute but
later even Vijay Pal Singh and Sarabjeet
Singh had no concern as they also resigned
from the partnership firm. No objections
are filed against auction either by the
partnership firm or the persons who were
partners of the firm at the time of auction
and they never disputed the auction.

16. Before coming to the merit of
submissions, relevant is to note, that,
though the objections under Rule 285-I
were filed by all the five brothers but the
present writ filed is filed only by the heirs
of late Vijay Pal Singh, who was one of the
the initial two partners of the firm. It is
admitted
before
this
court
that
the
predecessor of the petitioners, late Vijay
Pal Singh was a partner of the firm and was
liable of the dues. Thus, once the other
three brothers, who were never partners of
the firm, are now not claiming any right in
the property and not challenging the order
of Board of Revenue before this Court,
which has upheld the auction sale, it is not
open for the liable petitioner to make any
such claim. This ground, that, share of
persons having no concern with the liability
is wrongly sold, can only be taken by a
person who makes any claim to the
property while denying liability. The same
cannot be taken by heirs of an admittedly
liable partner.

17. Now coming to the merits of the
claim that the other three brothers had
shares in the property. With the assistance
of parties I have perused the record. In the
registered will dated 05.01.1989 late
Surjeet Singh states that his wife has
expired
and
thereafter
details
the
circumstances of the family and of all his
five sons. In his will late Surjeet Singh
names the other three sons, and states, that,
two of them are in government jobs and the
third son is running his independent
electricity goods shop and all of them are
well settled in life. He states that his son
Vijay Pal Singh is already partner with him
in Walia Industries, which is running the
Saria mill on the property in dispute. He is
not worried about these three sons, but, for
his youngest son Sarabjeet Singh, who is
working with him in Walia Industries as his
name is not entered in the records. Hence
he is writing the will to settle that after his
death name of his son Sarabjeet Singh
should be entered in records and Sarabjeet
Singh will inherit his entire half share of
Saria Mill. It further states that he desires
that finally both his sons Vijay Pal and
Sarabjeet Singh should have half share
each in the entire Saria Mill. He further
notes that in his lifetime only he shall try to
get the name of Sarabjeet Singh entered in
the records and, even by such change in
records, Vijay Pal Singh and Sarabjeet
1240 INDIAN LAW REPORTS ALLAHABAD SERIES
Singh each would only get equal half share
in the mill, so that a balance is retained.
Since other three sons are well settled,
hence, they will not get any right or share
in the said Saria mill. Thereafter he details
about
his
other
properties
and
its
succession. Thus the said will finally
settled that his two sons namely Vijay Pal
Singh and Sarabjeet Singh inherited the
entire Saria mill in equal share and other
three sons had no concern with the same.
The petitioners or other brothers concealed
the said registered will while filing
objections under Rule 285-I and knowingly
took an entirely contrary stand. The will is
also not disputed before this court by the
petitioners.