NAGPUR IMPROVEMENT TRUSTversusSHEELA RAMCHANDRA TIKHE

1074                     [2018] 10
                SUPREME COURT      S.C.R. 1074
                                REPORTS                     [2018] 10 S.C.R.


 A                    NAGPUR IMPROVEMENT TRUST
                                         v.
                       SHEELA RAMCHANDRA TIKHE
                         (Civil Appeal No. 10853 of 2018)
 B                             OCTOBER 31, 2018
                 [A. K. SIKRI AND ASHOK BHUSHAN, JJ.]
              Nagpur Improvement Trust Disposal Rules, 1988:
              s.5(2) – Disposal of surplus land – Policy decision in the
 C     year 1968 by appellant-Trust to dispose of 44.61 acres of land to
       the owners of the land from whom it was acquired by way of
       acquisition proceedings – Respondent (the owner from whom the
       land was acquired) filed application dated 3.9.1975 for re-allotment
       of entire 44.16 acres – On 6.10.1975 decision was taken to re-allot
       the 44.61 acres of land on lease to the respondent on certain terms
 D     and conditions – The decision was communicated to the respondent
       on 16.10.1975 – The respondent requested to reduce the amount of
       premium – Appellant on 9.6.1982 allocated to the respondent 24
       acres out of 44.61 acres – Respondent acknowledged t54he
       allotment – Possession of the land was handed over on 11.11.1982
 E     – The respondent thereafter requested the appellant to release
       remaining 20.61 acres of land to her – On 9.2.1989 appellant
       executed lease in favour of respondent in respect of 24 acres of
       land – Respondent filed suit seeking declaration that she was entitled
       to re-allotment of 20.61 acres of land – Trial court decreed the suit
       – Appellate court held that the respondent was not entitled for
 F     allotment – High Court, held that respondent was entitled for
       allotment of 20.61 acres of land – On appeal, held: Allotment of
       land was subject to statutory Rules – When policy decision was
       taken to dispose of surplus land (44.61 acres) and when 24 acres
       of land was allotted Land Disposal Rules, 1955 were applicable –
 G     Thereafter Land Disposal Rules, 1983 came into force and r. 5(2)
       thereof became applicable for disposal of land – Earlier resolution
       no longer could have been availed, after enforcement of 1983 Rules
       – Respondent’s claim for allotment of 20.61 acres was not covered
       by r.5(2) of 1983 Act – Hence no decree could have been passed
       contrary to statutory Rules – Nagpur Improvement Trust Land
 H     Disposal Rules, 1955.
                                       1074
NAGPUR IMPROVEMENT TRUST v. SHEELA RAMCHANDRA 1075
                    TIKHE

      Limitation Act, 1963:                                             A
      s.3(1) – Consideration of issue of limitation by appellate
court – When such issue was not before trial court – Propriety of –
Held: In view of s.3(1)entering into issue of limitation (when the
same was not before trial court) was permissible.
      Allowing the appeal, the Court                                    B

      HELD: 1.1 The allotment of land of the appellant-Trust was
subject to statutory Rules, namely, Nagpur Improvement Trust
Land Disposal Rules, 1955. The Resolution dated 03.05.1968
was passed by the Board for disposal of surplus land acquired for
the drainage and sewage disposal scheme, during the period of           C
enforcement of 1955 Rules. The allotment letter dated 16.10.1975
to the plaintiff of 44.61 acres of land was in furtherance of
Resolution dated 03.05.1968. The plaintiff after receipt of the
letter dated 16.10.1975 prayed for reduction of amount of
premium demanded. Several letters were written by the plaintiff         D
regarding premium and allotment, last being letter dated
02.03.1982 in which the plaintiff herself was not ready to accept
the terms as communicated by letter dated 16.10.1975. The Trust
on 09.06.1982, thus, has alloted only 24 acres out of 44.61 acres
of land. [Paras 13 and 15] [1087-A, E-G]
                                                                        E
      1.2 The facts of the case and correspondence clearly
indicate that at no point of time allotment of 44.61 acres was made
in favour of the plaintiff. The decision to allot 44.61 acres was
communicated on 16.10.1975 on terms and conditions mentioned
therein. The plaintiff having expressed certain reservation with
the conditions and asked for relaxation of conditions and the           F
Trust after taking into consideration the entire facts and
circumstances took a decision to allot only 24 acres of land out of
44.61 acres on 09.06.1982, there was never any firm allotment of
44.61 acres of land to the plaintiff giving any indefeasible right of
allotment of 44.61 acres of land and the plaintiff herself has to be    G
blamed for not getting allotment of entire 44.61 acres of land.
[Para 15] [1087-G-H; 1088-A-B]
     1.3 After the allotment of 24 acres of land on 09.06.1982, a
new set of Rules for disposal of land of Nagpur Improvement
                                                                        H
1076            SUPREME COURT REPORTS                    [2018] 10 S.C.R.


 A     Trust was framed, namely, Nagpur Improvement Trust Land
       Disposal Rules, 1983 which came into force w.e.f. 18.05.1983.
       Part III of the Rules dealt with manner of disposal of land. [Para
       16] [1088-C]
             1.4 The present is a case where for the disposal of the land
 B     in question, Rule 5(2) of 1983 Rules became applicable from
       18.05.1983. The earlier Resolution of the Board dated 03.05.1968
       would no longer have been availed after the enforcement of 1983
       Rules for allotment of land. Sub-rule (2) of Rule 5 which provides
       for no exception except as otherwise provided in sub-rule (1)
       and Part VI of these Rules. Hence, after the enforcement of the
 C     Rules the land vested and acquired by the Trust was to be
       disposed of only in the manner as indicated in sub-rule (2) of
       Rule 5. [Para 17] [1089-B, C-D]
             1.5 Admittedly 24 acres out of 44.61 acres of land was
       already allotted to the plaintiff on 09.06.1982 and Trust has taken
 D     a decision not to allot any further land in view of its subsequent
       decision dated 24.04.1983 to keep the remaining 20.61 acres of
       land for Department of Social Forest Trees for Central Nursery
       and for Nursery of the Nagpur Improvement Trust was taken by
       the Board. After enforcement of Rules, 1983 which were brought
 E     into force on 18.05.1983, 20.61 acres of land could not be allotted
       to the plaintiff except by following Rule 5 of the Rules, 1983.
       [Para 17] [1084-D-E]
             1.6 The First Appellate Court has categorically made note
       of the Rules, 1983 and held that the plaintiff was not entitled for
 F     any further allotment. Rules, 1983 were also relied by the appellant
       before the High Court in the Second Appeal filed by the plaintiff.
       The High Court took the view that since the decision to allot
       44.61 acres of land was taken on 06.10.1975 and 16.10.1975 i.e.
       prior to Rules, 1983, the Rules had no retrospective effect which
       shall not nullify the actions taken in accordance with the earlier
 G     Rules then prevailing. There is no question of nullifying the
       decision taken on 06.10.1975 and 16.10.1975 which was taken
       earlier to the subsequent Rules, 1983. In pursuance of earlier
       decision i.e. taken on 06.10.1975 and 16.10.1975 the entire
       allotment which took place prior to Rules, 1983 were completely
 H     saved but allotment which could not culminate before enforcement
NAGPUR IMPROVEMENT TRUST v. SHEELA RAMCHANDRA 1077
                    TIKHE

of Rules, 1983, would not have been made after the enforcement         A
of Rules, 1983 except in accordance with Rules, 1983. [Paras 17,
18 and 19] [1089-E-F, H; 1090-E-G]
      1.7 There being no allotment of rest 20.61 acres of land
prior to 18.05.1983 on the basis of earlier decision no allotment
would have been made after the enforcement of the Rules in             B
disregard to the statutory Rules. The statutory Rules enforced
w.e.f 18.05.1983 substantially changed the manner of allotment
and more rigorous conditions were put on the land of the Trust.
There cannot be any dispute with the proposition that after the
land is acquired for public purpose it vests in the acquiring body
and the land holder has no right to claim the land acquired. [Para     C
19] [1090-H; 1091-A-B]
      State of Kerala and others v. M. Bhaskar Pillai and
      another (1997) 5 SCC 432 : [1997] 1 Suppl. SCR 87;
      Sulochana Chandrakant Galande v. Pune Municipal
      Transport and others (2010) 8 SCC 467 : [2010] 9                 D
       SCR 476 – relied on.
      1.8 At best the application for re-allotment of 20.61 acres
of land can be said to be pending at the time when new Rules
came in force. New Rules, thus, were fully attracted for any further
disposal of land by the Trust as per Rule 5 and as per sub-Rule        E
(2) of Rule 5 the land would have been disposed of except as
otherwise provided in sub-Rule (1) only by holding public auction;
inviting tenders by public advertisement; making offers to or
accepting offers from any Government, Local Authority, Public
Sector Undertaking or a body corporate which is owned or               F
controlled by Government; inviting applications from persons or
bodies of persons who are eligible for allotment of plots under
Rule 4, by public advertisement and land for public amenities
such as for primary school, vehicle stand, public latrine or urinal,
public library, reading room, hospital, dispensary or such other
purpose, etc. Plaintiff’s claim is not covered in any manner of        G
disposal under Rule 5(2), hence no decree would have been
passed by the trial court contrary to the statutory Rules as
envisaged by Rule 5(2). [Para 21] [1092-C-F]
     1.9 The view of the High Court that Rules, 1983 are
prospective and shall not effect the allotment made in favour of       H
1078            SUPREME COURT REPORTS                     [2018] 10 S.C.R.


 A     the plaintiff on 06.10.1975 and 16.10.1975 was erroneous. The
       allotments which were finalised in pursuance of Resolution dated
       06.10.1975 and 16.10.1975 were saved, but allotment of any land
       which could not take place finally before enforcement of Rules,
       1983 has to be in accordance with the Rules, 1983. [Para 21]
       [1092-F-G]
 B
             State of Tamil Nadu v. M/s. Hind Stone and others (1981)
             2 SCC 205 : [1981] 2 SCR 742 – relied on.
              1.10 Thus, the claim of plaintiff for allotment of additional
       land of 20.61 acres which can be at best said to be pending on the
 C     date of enforcement of Rules, 1983 would have been only dealt
       with in accordance with Rule 5 of Rules, 1983 and disregard of
       said Rules the trial court would not have decreed the suit directing
       the Trust to execute lease in favour of the plaintiff of 20.61 acres
       of land. The decree of the trial court was clearly in the teeth of
       the statutory Rules and the High Court committed error in taking
 D     the view that Rules, 1983 were not applicable in the present case.
       Plaintiff was not entitled for the decree as has been granted by
       the trial court and affirmed by the High Court. [Paras 23 and 27]
       [1094-G-H; 1097-A]
             Transport Nagar Free Zone Co-operative Society Limited
 E           v.. Nagpur Improvement Trust, 2005 (3) Bom.C.R. 485
             – referred to.
             2. Lower Appellate Court has held that suit of the plaintiff
       was barred by time it having been filed more than three years
       after the refusal to allot the land. The High Court has held that
 F     the Appellate Court has committed error of law in considering
       the issue of limitation which was not the question raised before
       the trial court. In view of section 3(1) of the Limitation Act no
       error was committed by the Appellate Court in entering into the
       issue as to whether application was barred by time. The Appellate
 G     Court was well within its jurisdiction in considering the question
       of limitation. [Paras 24, 25 and 27] [1095-A-B, E; 1096-G-H]
             Foreshore Cooperative Housing Society Limited v.
             Praveen D. Desai (dead) through Legal Representatives
             and Others (2015) 6 SCC 412 : [2015] 5 SCR 1075 –
             relied on.
 H
NAGPUR IMPROVEMENT TRUST v. SHEELA RAMCHANDRA 1079
                    TIKHE

                      Case Law Reference                                   A
2005 (3) Bom.C.R. 485           referred to             Para 5
[1997] 1 Suppl. SCR 87          relied on               Para 19
[2010] 9 SCR 476                relied on               Para 20
[1981] 2 SCR 742                relied on               Para 21
                                                                           B
[2015] 5 SCR 1075               relied on               Para 26
      CIVIL APPELLATE JURISDICTION : Civil Appeal No. 10853
of 2018.
      From the Judgment and Order dated 14.03.2017 of the High Court
of Judicature of Bombay, Nagpur Bench at Nagpur in Second Appeal
                                                                           C
No. 122 of 2015.
      Shyam Divan, Huzefa Ahmadi, Sr. Advs., Satyajit A. Desai,
Ms. Anagha S. Desai, Anshuman Singh,, Advs. for the Appellant.
      Mukul Rohatgi, Sr. Adv., Abhishek Bhoot, Ravindra Khapre, Pratik
R. Bombarde, Advs. for the Respondent.
                                                                           D
      The Judgment of the Court was delivered by
      ASHOK BHUSHAN, J. 1. Leave granted.
        2. This appeal has been filed by Nagpur Improvement Trust,
challenging the judgment dated 14.03.2017 of High Court of Judicature
Bombay at Nagpur in Second Appeal No. 122 of 2015, by which judgment       E
the Second Appeal filed by the respondent has been allowed by setting
aside the judgment of lower appellate court and restoring the judgment
of trial court decreeing the suit.
      3. Brief facts of the case necessary to be noted for deciding this
appeal are:-                                                               F
       The Nagpur Improvement Trust, the appellant has been constituted
under the Nagpur Improvement Trust Act, 1936. For the purposes of
Drainage and Sewerage Scheme Part-II, notification under Section 39
of the Nagpur Improvement Trust Act, 1936 was issued on 27.11.1953
for acquiring 44.61 acres of land of the respondent. An award was          G
passed on 31.12.1962 determining the compensation of Rs.23,500/- on
the basis of compromise, which compensation amount was paid to the
respondent and possession was taken over by the appellant of the land.
On taking up the possession, the land vested in the appellant, which

                                                                           H
1080             SUPREME COURT REPORTS                          [2018] 10 S.C.R.


 A     became the absolute owner. A statutory rule namely, Nagpur
       Improvement Trust Land Disposal Rules, 1955 was framed in exercise
       of power under Nagpur Improvement Trust Act, 1936 for disposal of
       land by the Nagpur Improvement Trust. As per Rule 3 of the Statutory
       Rules, 1955, one of the mode of transfer of trust land was by direct
       negotiation with the party. With regard to land admeasuring 44.61 acres
 B
       as noted above, a policy decision was taken by the Board of the Trust
       dated 03.05.1968 for disposal of land to the owners on lease by charging
       the determined premium and the ground rent. The appellant accordingly
       invited application for re-allotment of the land on lease. The respondent
       filed an application dated 03.09.1975 for re-allotment of entire 44.61
 C     acres of land. A decision dated 06.10.1975 was taken to re-allot the
       44.61 acres to the respondent on the terms and conditions stipulated in
       the Board Resolution dated 03.05.1968. By letter dated 16.10.1975, the
       appellant informed the respondent in reference to her application dated
       03.09.1975 that land acquired by the Trust may be allotted to her on the
       terms and conditions as mentioned in the letter. The letter dated 16.10.1975
 D
       communicated that amount of consideration for allotment would be 1.5
       times of the amount received by them from the Land Acquisition Officer.
       The lessee can use the land only for Agriculture purposes and the amount
       of consideration will have to be made in maximum 10 installments. The
       respondent was required to deposit amount of Rs.3,525/- towards first
 E     installment and sign the form of terms and conditions of the allotment,
       only after that the Trust would be able to take further action in the matter.
              The respondent in reply to the aforesaid letter wrote back to the
       appellant on 01.11.1975 requesting to revise the amount of premium
       payable by her. The respondent wrote further letters, lastly on 02.03.1982,
 F     again reiterating her request to reduce the amount. It was further
       requested that she should be given the land measuring 44.61 acres at the
       cost of acquisition only. The letter dated 02.03.1982 was replied by the
       appellant vide letter dated 09.06.1982 allocating land measuring 24 acres
       out of 44.61 acres. The revised premium for allotment of 24 acres was
       fixed as Rs.19,230/- and first installment of 10% was requested to be
 G     paid immediately and to further accept terms and conditions of allotment.
       The respondent acknowledged the allotment letter dated 09.06.1982 and
       communicated her acceptance on 15.06.1982. The respondent accepted
       the allotment on revised premium. In pursuance of the acceptance of
       allotment letter dated 09.06.1982 allotting 24 acres of land on terms and
 H     conditions mentioned therein, the possession of 24 acres of land was
NAGPUR IMPROVEMENT TRUST v. SHEELA RAMCHANDRA 1081
           TIKHE [ASHOK BHUSHAN, J.]

also handed over to the respondent on 11.11.1982. The respondent after         A
taking possession of 24 acres of land again wrote a letter dated 17.06.1983
thanking the appellant for allotment of 24 acres of land and further
requesting to release remaining 20.61 acres of land. The appellant wrote
on 31.12.1986 to the respondent to pay Rs.4514.95 due from her. The
respondent thereafter sent various representations for allotment of
                                                                               B
remaining 20.61 acres of land. On 09.02.1989, a lease was executed by
the appellant in favour of respondent for 24 acres of land as was allotted
by allotment letter dated 09.06.1982. The respondent filed a suit – Regular
Civil Suit No. 2515 of 1989 against the Nagpur Improvement Trust,
praying for following reliefs:-
        (a) Declare that the plaintiff is entitled to re-allotment of 20.61    C
            acres of her land to her to the exclusion of anybody else as
            the acquisition of the plaintiff’s land for the purpose of
            defendant’s scheme is not required by the defendant for its
            scheme.
        (b) Issue a mandatory injunction directing the defendant to re-        D
            allot 20.61 acres of land out of survey no.9/1, 11 and 9/2 of
            Mouza Godani, Umrer Road, Nagpur, to the plaintiff and
            execute a lease indenture accordingly in favour of the
            plaintiff.
        (c) Issue mandatory injunction directing the defendant to make         E
            the offer of her land admeasuring 20.61 acres of suit land
            S/Nos.9/1, 11, 9/2 of Mouza Gondhani, Umrer Road, Nagpur
            to the plaintiffs land is not required by the defendant for its
            scheme and the defendant a permanently restrained from
            making offer of plaintiffs remaining suit land to anybody          F
            else in any manner and under any pretext.
        (d) Declare that the plaintiffs suit land i.e. 20.6 acres of land in
            Survey Nos. 9/1, 11, 9/2 of Mouza Godhani, Umrer Road,
            Nagpur, has been unnecessarily acquired with malafide
            intention and that it was never required and needed by the         G
            defendant for its drainage and Sewerage Disposal Scheme
            Part-II as firstly notified on 27.11.1983, as per award dated
            31.12.1962.
        (e) Saddle the costs of the suit on the defendant and
                                                                               H
1082             SUPREME COURT REPORTS                            [2018] 10 S.C.R.


 A             (f)   Grant any other relief which this Hon’ble Court deems fit
                     in the facts and circumstances of the case.
              The trial court framed following issues:-
               1)    Does the plaintiff prove by abuse of process of law,
                     malafidely and under colorabale exercise of power that
 B                   defendant has unnecessarily acquired her land?
               2)    Does she further prove that she has the preferential right
                     to get reallotment of remaining 20.61 acres of land?
               3)    Does she further prove that she had deposited Rs.4515.95
 C                   for allotment of remaining 20.61 acres of land?
               4)    Does she further prove that defendant is avoiding to re-
                     allot her remaining 20.61 acres of land?
               5)    Whether plaintiff is entitled to get relief as prayed?
               6)    What order and decree?
 D
              The trial court held that Issue No. 1 does not survive. Issue No.3
       was decided against the plaintiff, however, trial court answered the Issue
       Nos. 2, 4 and 5 in favour of the plaintiff and decreed the suit holding that
       plaintiff is entitled for allotment of remaining 20.61 acres of land. Plaintiff
       was directed to deposit remaining premium amount of Rs.16,295/- along
 E
       with 10% p.a. interest and the appellant was directed to execute the
       lease-deed of land admeasuring 20.61 acres in favour of the respondent.
              The appellant aggrieved by the judgment and decree of the trial
       court filed a Regular Civil Appeal No. 632 of 2007. The District Judge,
       Nagpur formulated following points for consideration:-
 F
               1)    Whether respondent-plaintiff is entitled to allotment of the
                     suit land?
               2)    Is the suit barred by time?
               3)    Is the judgment and decree impugned herein call for
                     interference?
 G
               4)    What order?
             The learned District Judge held that plaintiff was not entitled for
       allotment. The District Judge further held that suit filed by the plaintiff
       was virtually a suit for specific performance of the letter of allotment
       dated 16.10.1975 and suit having been filed beyond a period of 3 years is
 H
NAGPUR IMPROVEMENT TRUST v. SHEELA RAMCHANDRA 1083
           TIKHE [ASHOK BHUSHAN, J.]

barred by time. The District Judge vide judgment dated 26.08.2014           A
allowed the appeal, set aside the decree of the trial court and dismissed
the suit. Against the judgment of the Appellate Court, second appeal
was filed by the respondent before the High Court. The High Court
framed following two substantial questions of law in the appeal:-
       (1) Whether the lower appellate Court erred in applying and          B
           relying on the Nagpur Improvement Trust Land Disposal
           Rules, 1983, when in fact what was sought to be enforced
           by the appellant was the order dated 16.10.1975 in
           consonance with letter/order dated 06.10.1975 passed in
           terms of Board Resolution dated 03.05.1968, i.e. decision
           taken by the respondent much prior to the framing of Rules       C
           of 1983?
       (2) Once the Nagpur Improvement Trust, the acquiring body
           chooses to re-allot the land acquired, whether such action
           of re-allotment can be enforced in the Court of Law?
                                                                            D
       The High Court held that plaintiff was entitled for allotment of
20.61 acres of land in view of resolution of the Board dated 03.05.1968.
The High Court also held that the Rules namely Nagpur Improvement
Trust Land Disposal Rules, 1983 having came into force on 18.05.1983
was not applicable to the Board Resolution dated 03.05.1968 and the
decision taken on 06.10.1975 and 16.10.1975. The High Court further         E
held that trial court having not framed any issues regarding limitation,
the first appellate Court committed error in holding that the suit was
barred by limitation, consequently, the second appeal has been allowed
by the High Court, restoring the judgment and decree of the trial court.
The Nagpur Improvement Trust being aggrieved by the judgment of the         F
High Court has come up in this appeal.
       4. We have heard Shri Shyam Divan, learned senior counsel and
Shri Huzefa Ahmadi, learned senior counsel for the appellant. We have
also heard Shri Mukul Rohtagi, learned senior counsel, who has appeared
for the respondent.                                                         G
       5. Learned counsel for the appellant submitted that suit filed by
the plaintiff was barred by limitation. The appellant had claimed re-
allotment of 44.61 acres of land as per Resolution of the Board dated
03.05.1968. The Board having taken a decision to allot only 24 acres of
land, which was communicated by letter dated 09.06.1982, the cause of
                                                                            H
1084             SUPREME COURT REPORTS                          [2018] 10 S.C.R.


 A     action with regard to 20.61 acres of land arose on the said very date and
       suit having been filed in the year 1989 is barred by time. It is further
       submitted that after enforcement of Rules, 1983, Rule 5 provided for
       manner of disposal of land and there being no statutory provision for re-
       allotment of land to the land owner from whom land was acquired, the
       suit filed by the plaintiff for claiming re-allotment could not have been
 B
       decreed. Earlier Rules, 1955, which permitted allotment by direct
       negotiations having been rescinded and statutory Rules, 1983 created a
       prohibition for allotment of any land of the Trust except as Rule 5(2), the
       claim of the plaintiff was liable to be dismissed and the trial court
       committed error in decreeing the suit. It is further submitted that even
 C     the Rules 1955, Rule 3(a), which provided for allotment of land by direct
       negotiations was struck down by a Division Bench of the Bombay High
       Court vide its judgment dated 7/20.09.2004 Transport Nagar Free Zone
       Co-operative Society Limited Vs. Nagpur Improvement Trust,
       2005(3) Bom.C.R.485. The plaintiff could not have relied on Rules,
       1955 claiming allotment. The High Court committed error in observing
 D
       that First Appellate Court erred in considering the question of limitation
       when no issue was framed by the trial court. It is submitted that suit
       having been barred by limitation, the Appellate Court was well within its
       jurisdiction to enter into the issue of limitation and hold that the suit was
       barred by time. The suit filed in the year 1989 was clearly barred by
 E     time and was rightly dismissed by the First Appellate Court. The High
       Court committed error in holding that Statutory Rules, 1983 were not
       applicable.
              6. Shri Mukul Rohatgi, learned senior counsel refuting the
       submission of counsel for the appellant contends that plaintiff was clearly
 F     entitled for allotment of 20.61 acres of balance area of land as was
       already allotted by letter dated 16.10.1975. The allotment of land to the
       plaintiff was under Rule 5 of Rules, 1955. Hence, Division Bench judgment
       relied by the appellant in Transport Nagar Free Zone Co-operative
       Society Limited (supra) is not applicable. The resolution having been
       passed by the Board to re-allot area acquired from plaintiff, it was no
 G     longer a matter of contract. The letter dated 09.06.1982 allotting 24
       acres of land cannot be said to be letter denying allotment of 44.61
       acres, hence no cause of action arose to the plaintiff in the year 1982
       and first time cause of action arose in the year 1989 when lease-deed
       was executed. Hence, the suit of the plaintiff was not barred by limitation.
 H     The suit of the plaintiff was filed under Section 39 of the Specific Relief
NAGPUR IMPROVEMENT TRUST v. SHEELA RAMCHANDRA 1085
           TIKHE [ASHOK BHUSHAN, J.]

Act, 1963 by which plaintiff was enforcing her entitlement.                     A
       7. Learned counsel for the respondent further contends that
present is not a case where this Court may exercise its jurisdiction under
Article 136 of the Constitution of India by interfering in the judgment of
the High Court. The total area of land was 44.61 acres which was owned
by the plaintiff and was acquired and Trust having taken a decision to          B
return the land to land owner since it was no longer required for the
scheme, the plaintiff has every right to receive acquired area of 44.61
acres and no error has been committed by the trial court in decreeing
the suit.
       8. We have considered the submissions of the learned counsel
for the parties and perused the records.                                        C

        9. The principal issue which needs to be decided is as to whether
trial court was right in holding that plaintiff was entitled for allotment of
20.61 acres of land for which decree was granted. From the facts noticed
above, there is no dispute between the parties that in pursuance of
resolution dated 03.05.1968 of the Board, plaintiff had made an application     D
on 03.09.1975 for allotment of entire 44.61 acres of land and a letter of
allotment dated 16.10.1975 for 44.61 acres of land was issued. The
allotment letter dated 16.10.1975 contains certain conditions. It is useful
to extract the communication dated 16.10.1975 which is to the following
effect:                                                                         E
        “With reference to the above application letter this is to inform
        you that under the drainage and sewage disposal scheme allotment
        of 44.61 acres land in Khasra NO.9-1,9-2 and 11 out of excess
        land acquired by the Trust may be allotted to you on the terms
        and conditions as mentioned in lease deed subjected to using it         F
        only for agricultural purpose.
        1.   The amount of consideration for the above land would be
             1.50 times of the amount received from Land Acquisition
             Officer.
        2.   The allotment from the Trust Layout would be done on the           G
             basis of lease for which Land Rent of 2% of the value of
             consideration will have to be paid.
        3.   The lessee can use the said land only for agricultural
             purpose. For irrigating the land the water of sewage flow
                                                                                H
1086             SUPREME COURT REPORTS                          [2018] 10 S.C.R.


 A                  would be provided by Nagpur Improvement Trust and/or
                    Nagpur Municipal Corporation as per the rate fixed up by
                    Nagpur Municipal Corporation whenever possible.
               4.   The amount of consideration will have to be made in
                    maximum 10 instalments and on the remaining unpaid
 B                  amount of the consideration interest would be charged at
                    the rate of 10% p.a.
       Hence you are required to deposit amount of Rs.3,525/- towards first
       instalment of the consideration in this office at the earliest and sign the
       form of terms and conditions of the allotment. Only after that the Trust
 C     would be able to take further action in the matter which please note.”
             10. On receipt of letter dated 16.10.1975 appellant requested for
       reduction of proportionate value of the premium from the total amount
       and further wrote on 02.03.1982 to the Trust wherein rate of 1.5 times
       of the amount of compensation was asked to be reduced. In the letter
 D     dated 02.03.1982 following request was made by the plaintiff:
                     “Considering all the situation stated above, how can I give
               you more amount as cost of field which you acquired I would
               like to request you to give the same at the cost of acquisition
               only. Further terms are acceptable to me, at any time.
 E                 If you do not consider my above request, I will have to
               move the Govt. for shelter.”
               11. After receipt of the letter dated 02.03.1982 the Trust by letter
       dated 09.06.1982 made allotment of 24 acres out of 44.61 acres of land
       to the following effect:
 F
               “With reference to your application mentioned above this is to
               inform that the Chairman is pleased to consider your request for
               allotment of land measuring about 24 acres out of 44.61 acres of
               land acquired under drainage and sewerage disposal scheme on
               the same terms and conditions informed to you vide No.ES/7821
 G             dated 16.10.1975. The revised premium for allotment of 24 acres
               would be about Rs.19.230/- and you will have to pay 1st installment
               10% of the premium immediately and accept the terms and
               conditions for allotment and sign necessary lease indenture etc.”
              12. The possession of 24 acres of land was also handed over to
 H     the respondent on 11.11.1982. The plaintiff thus was well aware that her
NAGPUR IMPROVEMENT TRUST v. SHEELA RAMCHANDRA 1087
           TIKHE [ASHOK BHUSHAN, J.]

request for allotment of entire 44.61 acres was not acceded to and only       A
24 acres have been allotted. Subsequent execution of the lease dated
09.02.1989 was in continuation of the allotment dated 09.06.1982.
       13. As noted above the allotment of land of the Trust was subject
to statutory Rules, namely, Nagpur Improvement Trust Land Disposal
Rules, 1955. Rule 3 of the Rules provides as follows:                         B
        “Rule 3. The transfer of Trust land shall be-
        (a) by direct negotiation with the party; or
        (b) by public auction; or
        (c) by inviting tenders; pr
                                                                              C
        (d) by concessional rated.”
      14. Rule 5 of the 1955 Rules which has also been referred is as
follows:
        “Rule 5. The Trust may lease out on concessional rates any Trust
        land to any (i) Public institution or body registered under any law   D
        for the time being in force or to (ii) the evictees (which means
        persons whose lands in some locality have been compulsorily
        acquired by the Trust and includes tenants in occupation of such
        lands) which vests or is to vest in the Trust, or to (iii) the poor
        persons residing within the limits of the Nagpur Corporation who
        have no house of their own within the limits either individually or   E
        as a member of a joint family and whose annual income from all
        sources either individually or of the joint family, as the case may
        be does not exceed Rs.1,800/- per annum.”
        15. The Resolution dated 03.05.1968 was passed by the Board
for disposal of surplus land acquired for the drainage and sewage disposal    F
scheme, during the period of enforcement of 1955 Rules. The allotment
letter dated 16.10.1975 to the plaintiff of 44.61 acres of land was in
furtherance of Resolution dated 03.05.1968. The plaintiff after receipt
of the letter dated 16.10.1975 prayed for reduction of amount of premium
demanded, several letters were written by the plaintiff regarding premium     G
and allotment, last being letter dated 02.03.1982 as extracted above, in
which the plaintiff herself was not ready to accept the terms as
communicated by letter dated 16.10.1975. The Trust on 09.06.1982, thus,
has alloted only 24 acres out of 44.61 acres of land. The facts of the

                                                                              H
1088             SUPREME COURT REPORTS                          [2018] 10 S.C.R.


 A     case and correspondence as noticed above clearly indicate that at no
       point of time allotment of 44.61 acres was made in favour of the plaintiff.
       The decision to allot 44.61 acres was communicated on 16.10.1975 on
       terms and conditions mentioned therein. The plaintiff having expressed
       certain reservation with the conditions and asked for relaxation of
       conditions and the Trust after taking into consideration the entire facts
 B
       and circumstances took a decision to allot only 24 acres of land out of
       44.61 acres on 09.06.1982, there was never any firm allotment of 44.61
       acres of land to the plaintiff giving any indefeasible right of allotment of
       44.61 acres of land and the plaintiff herself has to be blamed for not
       getting allotment of entire 44.61 acres of land on account of she having
 C     raised request for the reduction of the premium and she having not
       communicated her consent to accede to the terms and conditions of
       allotment as proposed by the Trust.
              16. After the allotment of 24 acres of land on 09.06.1982, a new
       set of Rules for disposal of land of Nagpur Improvement Trust was
 D     framed, namely, Nagpur Improvement Trust Land Disposal Rules, 1983
       which came into force w.e.f. 18.05.1983. Part III of the Rules dealt
       with manner of disposal of land. Rule 5(1) & (2) which are relevant for
       the present case are as follows:
               “Rule 5. General.- (1) No piece of Government land vested in or
 E             managed by the Trust shall be transferred except with the general
               or special sanction of the Government given in that behalf.
               (2) Except as otherwise provided in sub-rule (1) and in Part VI
               of these rules, all other lands vested in and acquired by the Trust
               shall be disposed of by the Trust by -
 F               (i) holding public auction; or
                 (ii) inviting tenders by public advertisement; or
                 (iii) making offers to or accepting offers from any Government,
                 Local Authority, Public Sector Undertaking or a body corporate
                 which is owned or controlled by Government;
 G               (iv) inviting applications from persons or bodies of persons who
                 are eligible for allotment of plots under rule 4, by public
                 advertisement to be published at least in one leading local news
                 paper each in Marathi, Hindi and English on the basis of
                 predetermined premium or other considerations or both and
 H               deciding these applications by drawing lots, if necessary, as it
NAGPUR IMPROVEMENT TRUST v. SHEELA RAMCHANDRA 1089
           TIKHE [ASHOK BHUSHAN, J.]

          may determine, from time to time in accordance with the rules           A
          hereinafter appearing.
          (v) Land for public amenities such as for primary school, vehicle
          stand, public latrine or urinal, public library, reading room,
          hospital, dispensary or such other purpose may be transferred
          to the Corporation of the City of Nagpur, either free of premium        B
          and ground rent or at nominal premium and ground rent as the
          Trust may determine in each case.”
       17. The present is a case where for the disposal of the land in
question Rule 5(2) became applicable from 18.05.1983. The earlier
Resolution of the Board dated 03.05.1968 would no longer have been
                                                                                  C
availed after the enforcement of 1983 Rules for allotment of land. Sub -
rule (2) of Rule 5 which provides for no exception except as otherwise
provided in sub-rule (1) and Part VI of these Rules. Sub-rule (1) of Rule
5 referred to general or special sanction of the Government which is not
applicable in the present case. Part VI dealt with grant of land for religious,
educational, charitable and public purposes which also is not applicable          D
in the facts of the present case. Hence, after the enforcement of the
Rules of land vested and acquired by the Trust was to be disposed of
only in the manner as indicated in sub-rule (2) of Rule 5. Admittedly 24
acres out of 44.61 acres of land was already allotted to the plaintiff on
09.06.1982 and Trust has taken a decision not to allot any further land in
                                                                                  E
view of its subsequent decision dated 24.04.1983 to keep the remaining
20.61 acres of land for Department of Social Forest Trees for Central
Nursery and for Nursery of the Nagpur Improvement Trust was taken
by the Board. Thus, there was decision of Trust to set apart land of
20.61 acres for Department of Social Forest Trees for Central Nursery
and for Nursery of the Trust. After enforcement of Rules, 1983 which              F
were brought into force on 18.05.1983, 20.61 acres of land could not be
allotted to the plaintiff except by following Rule 5 of the Rules, 1983.
The First Appellate Court has categorically made note of the Rules,
1983 and held that the plaintiff was not entitled for any further allotment.
After referring to Rules, 1983 specifically Rules 5, 4 and 23, the First
                                                                                  G
Appellate Court in paragraph 22 laid down following:
              “22) In the present case, admittedly land adm.24 acres was
        already allotted to the respondent by the appellant before coming
        into force of the Rules of 1983 and therefore, the appellant is not
        even entitled to claim 500 sq. meter of land. Except the aforesaid
                                                                                  H
1090             SUPREME COURT REPORTS                           [2018] 10 S.C.R.


 A             provision there is no other provision in these Rules empowering
               the Trust to allot land to the respondent without the sanction of
               State Government.”
              18. Rules, 1983 were also relied by the appellant before the High
       Court in the Second Appeal filed by the plaintiff. The High Court held
 B     that Rules, 1983 had no retrospective effect so as to nullify the actions
       taken in accordance with the earlier Rules, hence, Rules,1983 were not
       relied. The High Court held that lower Appellate Court committed error
       in relying on Rule 5 of Rules, 1983. The High Court in paragraph 18 of
       the judgment has held following:

 C             “18. The lower Appellate Court has committed an error in holding
               that the defendant-NIT could not have disposed of the land in
               favour of the appellant-plaintiff without there being any authority
               of law. The reliance was placed by the lower Appellate Court on
               the provision of Rule 5 of the Nagpur Improvement Trust Land
               Disposal Rules, 1982 to hold that there was no compliance and
 D             the allotment was not in conformity with it. In my view, such
               reliance was misplaced. The reason being that the said Rules
               wee brought in force on 18.05.1983 and the decision to re-allot
               44.61 acres of land to the appellant-plaintiff was taken on
               6.10.1975 and 16.10.1975, i.e. prior to coming into force of these
 E             Rules. The Rules had no retrospective effect so as to nullify the
               actions taken in accordance with the earlier Rules prevailing.
               The substantial question of law at serial No.(I) is, therefore,
               answered accordingly.”
              19. The High Court took the view that since the decision to allot
 F     44.61 acres of land was taken on 06.10.1975 and 16.10.1975 i.e. prior to
       Rules, 1983, the Rules had no retrospective effect which shall not nullify
       the actions taken in accordance with the earlier Rules then prevailing.
       There is no question of nullifying the decision taken on 06.10.1975 and
       16.10.1975 which was taken earlier to the subsequent Rules, 1983. In
       pursuance of earlier decision i.e. taken on 06.10.1975 and 16.10.1975
 G     the entire allotment which took place prior to Rules, 1983 were completely
       saved but allotment which could not culminate before enforcement of
       Rules, 1983, would not have been made after the enforcement of Rules,
       1983 except in accordance with Rules, 1983. We have already noticed
       that the plaintiff was allotted only 24 acres of land in pursuance of decision
       dated 06.10.1975 and 16.10.1975 and request of the plaintiff to allot
 H
NAGPUR IMPROVEMENT TRUST v. SHEELA RAMCHANDRA 1091
           TIKHE [ASHOK BHUSHAN, J.]

entire 44.61 acres of land was not acceded to and only 24 acres of land        A
was allotted possession of which was handed over to the plaintiff on
11.11.1982. There being no allotment of rest 20.61 acres of land prior to
18.05.1983 on the basis of earlier decision no allotment would have been
made after the enforcement of the Rules in disregard to the statutory
Rules. The statutory Rules enforced w.e.f 18.05.1983 substantially
                                                                               B
changed the manner of allotment and more rigorous conditions were put
on the land of the Trust. There cannot be any dispute with the proposition
that after the land is acquired for public purpose it vests in the acquiring
body and the land holder has no right to claim the land acquired. In this
context reference has been made to State of Kerala and others vs.
M. Bhaskar Pillai and another, (1997) 5 SCC 432. In paragraph 4                C
following has been laid down:
        “4. In view of the admitted position that the land in question was
        acquired under the Land Acquisition Act, 1894 by operation of
        Section 16 of the Land Acquisition Act, it stood vested in the
        State free from all encumbrances. The question emerges: whether        D
        the Government can assign the land to the erstwhile owners? It
        is settled law that if the land is acquired for a public purpose,
        after the public purpose was achieved, the rest of the land could
        be used for any other public purpose. In case there is no other
        public purpose for which the land is needed, then instead of
        disposal by way of sale to the erstwhile owner, the land should        E
        be put to public auction and the amount fetched in the public
        auction can be better utilised for the public purpose envisaged in
        the Directive Principles of the Constitution. In the present case,
        what we find is that the executive order is not in consonance
        with the provision of the Act and is, therefore, invalid. Under        F
        these circumstances, the Division Bench is well justified in
        declaring the executive order as invalid. Whatever assignment
        is made, should be for a public purpose. Otherwise, the land of
        the Government should be sold only through the public auctions
        so that the public also gets benefited by getting higher value. “
                                                                               G
       20. This Court again in Sulochana Chandrakant Galande vs.
Pune Municipal Transport and others, (2010) 8 SCC 467, held
that after vesting of land in State free from all encumbrances after
acquisition, landowner becomes persona non grata after vesting and has
right to compensation only and cannot claim right of restoration of land
                                                                               H
1092             SUPREME COURT REPORTS                           [2018] 10 S.C.R.


 A     on any ground, whatsoever. In paragraph 22 following has been laid
       down:
               “22. In view of the above, the law can be summarised that once
               the land is acquired, it vests in the State free from all
               encumbrances. It is not the concern of the land owner how his
 B             land is used and whether the land is being used for the purpose
               for which it was acquired or for any other purpose. He becomes
               persona non grata once the land vests in the State. He has a
               right to get compensation only for the same. The person interested
               cannot claim the right of restoration of land on any ground,
               whatsoever. “
 C
              21. The plaintiff’s case at the highest is that her application for
       allotment of 20.61 acres of land was pending consideration when Rules,
       1983 were enforced. The plaintiff’s own case is that refusal to allot
       20.61 acres of land took place only on 09.02.1989 when the Trust executed
       lease of 24 acres of land only. Thus, at best the application for re-allotment
 D     of 20.61 acres of land was pending at the time when new Rules came in
       force. New Rules, thus, were fully attracted for any further disposal of
       land by the Trust as per Rule 5 and as per sub-Rule (2) of Rule 5 the
       land would have been disposed of except as otherwise provided in sub-
       Rule (1) only by holding public auction; inviting tenders by public
 E     advertisement; making offers to or accepting offers from any
       Government, Local Authority, Public Sector Undertaking or a body
       corporate which is owned or controlled by Government; inviting
       applications from persons or bodies of persons who are eligible for
       allotment of plots under Rule 4, by public advertisement and land for
       public amenities such as for primary school, vehicle stand, public latrine
 F     or urinal, public library, reading room, hospital, dispensary or such other
       purpose, etc. Plaintiff’s claim is not covered in any manner of disposal
       under Rule 5(2), hence no decree would have been passed by the trial
       court contrary to the statutory Rules as envisaged by Rule 5(2). The
       view of the High Court that Rules, 1983 are prospective and shall not
 G     effect the allotment made in favour of the plaintiff on 06.10.1975 and
       16.10.1975 was erroneous. As observed above the allotments which
       were finalised in pursuance of Resolution dated 06.10.1975 and
       16.10.1975 were saved, but allotment of any land which could not take
       place finally before enforcement of Rules, 1983 has to be in accordance
       with the Rules, 1983. In this context, reference is made to the judgment
 H
NAGPUR IMPROVEMENT TRUST v. SHEELA RAMCHANDRA 1093
           TIKHE [ASHOK BHUSHAN, J.]

of this Court in State of Tamil Nadu vs. M/s. Hind Stone and others,          A
(1981) 2 SCC 205. In that case, the applications by various persons
desirous of taking mining lease were pending when the Rules for grant
of lease were amended. The Rules were amended on 02.12.1977 by
introducing Rule 8-C, it was contended by several applicants that Rule
8-C was not applicable to the applicants whose applications were pending.
                                                                              B
The relevant facts were mentioned in paragraph 4 which are to the
following effect:
       “4. Several persons who held leases for quarrying black granite
       belonging to the State Government and whose leases were about
       to expire, applied to the Government of Tamil Nadu for renewal
       of their leases. In some of the cases applications were made           C
       long prior to the date of G.O. Ms. No. 1312 by which Rule 8C
       was introduced. Some applications were made after Rule 8C
       came into force. There were also some applications for the grant
       of fresh leases for quarrying black granite. All the applications
       were dealt with after Rule 8C came into force and all of them          D
       were rejected in view of Rule 8C Several Writ Petitions were
       filed in the High Court questioning the vires of Rule 8C on various
       grounds. Apart from canvassing the vires of Rule 8C, it was
       contended that Rule 8C did not apply to grant of renewals of
       lease at all. It was also argued that in any event, in those cases
       in which the applications for renewal had been made prior’ to          E
       the coming into force of Rule 8C, their applications should have
       been dealt with without reference to Rule 8C. The Madras High
       Court while not accepting some of the contentions raised on
       behalf of the applicants, struck down Rule 8C on the ground that
       it exceeded the rule making power given to the State Government        F
       under Section 15 which, it was said, was only to regulate and not
       to prohibit the grant of mining leases. As a consequence all the
       applications were directed to be disposed of without reference
       to Rule 8C. It was also observed that even if Rule 8C was valid
       it applied only to the grant of fresh leases and not to renewals. It
       was also held that it was not open to the Government to keep the       G
       applications pending for a long time and then to dispose them of
       on the basis of a rule which had come into force later. The State
       Government has come in appeal against the judgment of the
       Madras High Court while the respondent-applicants have tried
       to sustain the judgment of the Madras High Court on grounds            H
1094             SUPREME COURT REPORTS                           [2018] 10 S.C.R.


 A             which were decided against them by the Madras High Court. “
              22. Rejecting the argument that Rule 8-C is not attracted on the
       applications which were pending on date of amendment, it was held that
       applications were required to be disposed of on the basis of the Rules in
       force at the time of the disposal of the applications. Following was laid
 B     down in paragraph 13:
               “13. Another submission of the learned Counsel in connection
               with the consideration of applications for renewal was that
               applications made sixty days or more before the date of G.O.
               Ms. No. 1312 (December 2, 1977) should be dealt with as if
 C             Rule 8C had not come into force. It was also contended that
               even applications for grant of leases made long before the date
               of G.O. Ms. No. 1312 should be dealt with as if Rule 8C had not
               come into force. The submission was that it was not open to the
               Government to keep applications for the grant of leases and
               applications for renewal pending for a long time and then to reject
 D             them on the basis of Rule 8C notwithstanding the fact that the
               applications had been made long prior to the date on which Rule
               8C came into force. While it is true that such applications should
               be dealt with within a reasonable time, it cannot on that account
               be said that the right to have an application disposed of in a
 E             reasonable time clothes an applicant for a lease with a right to
               have the application disposed of on the basis of the rules in force
               at the time of the making of the application. No one has a vested
               right to the grant or renewal of a lease and none can claim a
               vested right to have an application for the grant or renewal of a
               lease dealt with in a particular way, by applying particular
 F             provisions. In the absence of any vested rights in anyone, an
               application for a lease has necessarily to be dealt with according
               to the rules in force on the date of the disposal of the application
               despite the fact that there is a long delay since the making of the
               application. We are, therefore, unable to accept the submission
 G             of the learned Counsel that applications for the grant or renewal
               of leases made long prior to the date of G.O. Ms. No. 1312
               should be dealt with as if Rule 8-C did not exist.”
              23. We, thus, are of the considered opinion that the claim of plaintiff
       for allotment of additional land of 20.61 acres which can be at best said
       to be pending on the date of enforcement of Rules, 1983 would have
 H
NAGPUR IMPROVEMENT TRUST v. SHEELA RAMCHANDRA 1095
           TIKHE [ASHOK BHUSHAN, J.]

been only dealt with in accordance with Rule 5 of Rules, 1983 and              A
disregard of said Rules the trial court would not have decreed the suit
directing the Trust to execute lease in favour of the plaintiff of 20.61
acres of land. The decree of the trial court was clearly in the teeth of the
statutory Rules and the High Court committed error in taking the view
that Rules, 1983 were not applicable in the present case.
                                                                               B
       24. It is also relevant to notice that lower Appellate Court has held
that suit of the plaintiff was barred by time it having been filed more than
three years after the refusal to allot the land. The High Court has held
that the Appellate Court has committed error of law in considering the
issue of limitation which was not the question raised before the trial
court. In paragraph 17 of the judgment following has been held:                C

        “17. Though the allotment of 44.61 acres of land was on
        16.10.1975, the lease-deed in respect of 24 acres of land was
        executed on 09.02.1989. Thus, there was refusal on 09.02.1989
        to execute the lease-deed in respect of 20.61 acres of land.
        Hence, the cause of action in terms of Article 54 of the Limitation    D
        Act would start running from 09.02.1989 when the defendant-
        NIT refused to execute the lease-deed. The suit in question
        having filed on 15.12.1989 was not, therefore, barred by the law
        of limitation. In fact, this was not the question raised before the
        trial court and no issue was framed in respect of it. The lower        E
        Appellate Court has committed an error of law in considering
        such issue and holding that the suit in question was barred by the
        law of limitation. The finding of the lower Appellant Court,
        therefore, needs to be set aside.”
       25. In so far as view of the High Court that Appellate Court            F
committed error in entertaining the question of limitation which was not
the issue framed by the trial court, suffice is to refer the provision of
Section 3 of the Limitation Act, 1963. Section 3(1) of the Limitation Act
provides as follows:
        “Section 3. Bar of limitation.-(1) Subject to the provisions           G
        contained in sections 4 to 24(inclusive), 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.”

                                                                               H
1096             SUPREME COURT REPORTS                              [2018] 10 S.C.R.


 A            26. This Court in Foreshore Cooperative Housing Society
       Limited vs. Praveen D. Desai(dead) through Legal
       Representatives and others, (2015) 6 SCC 412, had considered
       the question of jurisdiction of Court in reference to provisions of Limitation
       Act. Noticing Section 3 of the Act following was observed:
 B             “48. Section 3 of the Limitation Act, 1963 clearly provides that
               every suit instituted, appeal preferred and application made after
               the prescribed period of limitation, subject to the provisions
               contained in Sections 4 to 24, shall be dismissed although the
               limitation has not been set up as a defence.
 C             49. A Constitution Bench of five Judges of this Court in the case
               of Pandurang Dhondi Chougule v. Maruti Hari Jadhav, AIR 1966
               SC 153, while dealing with the question of jurisdiction, observed
               that a plea of limitation or plea of res judicata is a plea of law
               which concerns the jurisdiction of the court which tries the
               proceeding. The Bench held(AIR p.155, para 10):
 D
               10. The provisions of Section 115 of the Code have been examined
               by judicial decisions on several occasions. While exercising its
               jurisdiction Under Section 115, it is not competent to the High
               Court to correct errors of fact however gross they may, or even
               errors of law, unless the said errors have relation to the jurisdiction
 E             of the court to try the dispute itself. As Clauses (a), (b) and (e)
               of Section 115 indicate, it is only in cases where the subordinate
               court has exercised a jurisdiction not vested in it by law, or has
               failed to exercise a jurisdiction so vested, or has acted in the
               exercise of its jurisdiction illegally or with material irregularity
 F             that the revisional jurisdiction of the High Court can be properly
               invoked. It is conceivable that points of law may arise in
               proceedings instituted before subordinate courts which are related
               to questions of jurisdiction. It is well settled that a plea of limitation
               or a plea of res judicata is a plea of law which concerns the
               jurisdiction of the court which tries the proceedings. A finding on
 G             these pleas in favour of the party raising them would oust the
               jurisdiction of the court, and so, an erroneous decision on these
               pleas can be said to be concerned with questions of jurisdiction
               which fall within the purview of Section 115 of the Code. But an
               erroneous decision on a question of law reached by the
 H             subordinate court which has no relation to questions of jurisdiction
NAGPUR IMPROVEMENT TRUST v. SHEELA RAMCHANDRA 1097
           TIKHE [ASHOK BHUSHAN, J.]

         of that court, cannot be corrected by the High Court Under             A
         Section 115. “
       27. No error was committed by the Appellate Court in entering
into the issue as to whether application was barred by time. The Appellate
Court was well within its jurisdiction in considering the question of
limitation. We, however, for the present case need not express any opinion      B
with regard to the question of limitation in view of we having held that
plaintiff was not entitled for the decree. Thus, even without entering into
the question of limitation we are of the clear opinion that plaintiff was
not entitled for the decree as has been granted by the trial court and
affirmed by the High Court.
                                                                                C
      28. In the result, the appeal is allowed, the judgment of the High
Court is set aside and the suit of the plaintiff stands dismissed.


Kalpana K. Tripathy                                           Appeal allowed.
                                                                                D




                                                                                E




                                                                                F




                                                                                G




                                                                                H