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Ramesh Shankar Wankhede Vs. the State of Maharashtra - Court Judgment

LegalCrystal Citation
SubjectProperty;Limitation
CourtMumbai High Court
Decided On
Case NumberCivil Revn. Appln. No. 160 of 1972
Judge
Reported inAIR1975Bom297; 1975MhLJ233
ActsLimitation Act, 1863 - Sections 5 and 29(2); Land Acquisition Act, 1894 - Sections 18
AppellantRamesh Shankar Wankhede
RespondentThe State of Maharashtra
Appellant AdvocateS.N. Kherdekar, Adv.
Respondent AdvocateV.V. Naik, Hon. Asstt. to A.G.P.
Excerpt:
.....where there was delay in filing the application for reference under section 18(maharashtra) of the land acquisition act, 1894, then an extension of period under section 5 of the limitation act, 1963 could be granted - - it is urged on the authority of this decision that like the industrial tribunal or the labour courts the land acquisition officer is also not a court and therefore no provisions of the limitation act would be applicable to such proceedings. they further observed that again under section 5 it is only a court which is enabled to admit an application after the prescribed period had expired if the court is satisfied that the appellant had sufficient cause for not preferring the application and the scheme of the indian limitation act was that it only dealt with application.....order1. this revision application has been filed against the order of the special land acquisition officer rejecting the application for reference to the court under section 18 of the land acquisition act. the award in respect of which reference was to be made was passed on 29.3.1971 and communicated to the land owner on the same day. the application for reference under section 18 of the land acquisition act was made on 19.5.1971. the application was to be made within 6 weeks of the passing of the order. thus the application was barred by limitation, by 9 days. the applicant, therefore, made an application was barred by limitation by 9 days. the applicant, therefore, made an application for condonation of delay in filing the said application on the ground that he was prevented by a.....
Judgment:
ORDER

1. This revision application has been filed against the order of the Special Land Acquisition Officer rejecting the application for reference to the Court under Section 18 of the Land Acquisition Act. The award in respect of which reference was to be made was passed on 29.3.1971 and communicated to the land owner on the same day. The application for reference under Section 18 of the Land Acquisition Act was made on 19.5.1971. The application was to be made within 6 weeks of the passing of the order. Thus the application was barred by limitation, by 9 days. The applicant, therefore, made an application was barred by limitation by 9 days. The applicant, therefore, made an application for condonation of delay in filing the said application on the ground that he was prevented by a sufficient cause from not prevented by a sufficient cause from not preferring the application during the prescribed time. The Land Acquisition Officer rejected the application on the ground that the time for filling the application could not be extend for any reason whatsoever i.e. according to Land acquisition Officer, he had no power to condone the delay under Sections 5 or any other provision of the Limitation Act, though he has not said so specifically in the Order. He relied on two decisions of the Allahabad High Court one was : AIR1932All597 . The applicant has filed this revision application against the said order.

2. The question involved in this case is whether by virtue of the provisions of Sections 29 (2) of the Limitation Act, 1963 the provisions of Section of the Limitation Act can be availed of by the applicant for condonation of delay in filing the application. Undoubtedly the land Acquisition Act, under which the application was made, is a special law, Section 29(2) says:

'Where any special or local law prescribes for any suit, appeal of application a period of limitation of different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit appeal or application by any special or local law, the provisions contained in Sections 4 to 24 (inclusive) shall apply only in so far as, and to the extent, to which they are not expressly excluded by such special or local law.'

By virtue of this provision section 5 of the Limitation Act is made applicable to the applications under a special law. The Land Acquisition Act does not expressly exclude the application Act does not expressly exclude the application of Section 4 to 24 of the Limitation Act.

3. Section 5 of the Limitation Act reads thus:

'Any appeal or any application other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application with such period.'

Section 5, therefore applies to all the application except those under O.XXI of the Code of Civil Procedure, Ordinarily therefore the provisions of Section 5 ought to apply to an application made under Section 18 of the Land Acquisition Act. It is however contended on behalf of the non-applicant that the provisions of Section 5 can be invoked only where the applications is made to the Court and the Collector of the Land Acquisition Officer dealing with an application for reference under Section 18 of the land Acquisition Act. The learned counsel for the State-non-applicant relied on certain decisions in support of his contention. He relied on gram Panchayat, Murthal v. The Land Acquisition Collector, (FB). This was a case of an application under Section 18 of the Land Acquisition Act and the question was whether the provisions of sub-section (2) of Section 12 of the Limitation Act were applicable to those proceedings. It was held there that the provisions of Section 12(2) were not applicable to those proceedings. The Punjab High Court also referred to a decision of this Court in Khashba Daji Shinds v. M.V. Hinge, ILR (1965) Bom 831, in which also. It was held that the provisions of Section 12(2) of the Limitation Act do not apply to the Acquisition Act. The decisions, however, are distinguishable on the terms of Section 12(2) of the Limitation Act. Under Section 12(2) of the Limitation Act, the time requisite for obtaining a copy of the decree, sentence or order appealed from or sought to be revised or reviewed is liable to be excluded in the computing the period of limitation for an appeal or an application for leave to appeal or for revision or for review of a judgment. The provisions of sub-section (2) of Section 12 and they are an application for revision and an application for review of a judgment and it is because of this that it was held in these two cases that the provisions of sub-section (2) of Section 12 cannot be availed of in the proceeding started on an application for leave to appeal or an application for leave to appeal or an application for revision or an application for review of a judgment. These decisions, therefore, are of no assistance in holding that the provisions of Section 5 of the Limitation Act are not applicable to an application for reference under Section 18 of the Land Acquisition act. Another decision which was cited is Town Municipal Council v. Presiding Officer, Labour Court : (1969)IILLJ651SC . The question there was whether the Limitation provided by Article 137 of the Limitation Act of 1963 would govern the proceedings under Section 33-C (2) of the Industrial Disputes Act. The Supreme Court observed that the provisions of Article 137 of the Limitation Act 1963 or of article 137 of the Limitation Act, 1963 or of Article 181 of the Limitation Act of 1908 govern applications must be presented to the Court governed by the code of Civil Procedure. It was observed that the application governed by Article 137 or 181 of the Limitation Act must be to courts to be governed by the Article 137 or 181 of the Limitation Act must be to courts to be governed by the Articles in this division of the schedule and they further observed that the scope of the various articles in this division of the schedule and they further observed that the scope of the various articles in this division cannot be held to have been so enlarged as to include within them applications to bodies other than courts, such as a quasi-judicial tribunal, or even an executive authority and they further held that an Industrial Tribunal or a Labour Court dealing with applications or references under the Act (Industrial Disputes Act) are not courts and they are in no way governed either by the Code of Civil Procedure or the Code of Criminal procedure. It is urged on the authority of this decision that like the Industrial Tribunal or the Labour Courts the land acquisition Officer is also not a Court and therefore no provisions of the Limitation Act would be applicable to such proceedings. The Supreme Court followed this decision in subsequent case of Nityan and M. Joshi v. The Life Insurance Corporation of India, : (1969)IILLJ711SC . In this cases also it has been held that Article 137 only contemplates the other applications mentioned in the various articles are applications filed in a court. They further observed that again under Section 5 it is only a court which is enabled to admit an application after the prescribed period had expired if the court is satisfied that the appellant had sufficient cause for not preferring the application and the scheme of the Indian Limitation act was that it only dealt with application to courts, and that the Labour Court is not a court within the Indian Limitation Act, 1963.

4. The learned counsel for the applicant referred to a decision of this Court in M/s. Vasanji Ghela & Co. v. State of Maharashtra, (1967) 69 Bom LR 598, in which the question involved was whether by virtue of the provisions of Section 29(2) of the Limitation act, 1963. the provisions of Section 5 were applicable to the application for reference made under Section 23 of the Bombay Sales Tax Act, 1946. It appears that the decision proceeds on the basis that the Sales Tax Tribunal, while dealing with an application for reference made under Section 23 of the Bombay Sales Tax Act, 1946. It appears that the decision proceeds on the basis that the Sales Tax Tribunal, while dealing with an application for reference made under Section 23 was a Court and on that basis it was held that Section 5 of the Limitation Act could be availed of in that proceeding. It does not appear that specific question was raised in this case whether the Sales Tax Tribunal while dealing with an application for reference under Section 23 of the Bombay Sales Tax Act was a Court as contemplated by Section 5 of the Limitation Act. It does not appear that specific question was raised in this case whether the Sales Tax Tribunal while dealing with an application for reference made under Section 23 was a Court and on that basis it was held that Section 5 of the Limitation Act could be availed of in that proceeding. It does not appear that specific question was raised in this case whether the Sales Tax Tribunal while dealing with an application for reference under Section 23 of the Bombay Sales Tax Act was a Court as contemplated by Section 5 of the Limitation Act. In the earlier Supreme Court decisions i.e. AIR 1953 SC Supreme Court decisions i.e. : [1953]4SCR351 and : (1963)IILLJ608SC , view was taken that all the articles in the Third Division to the Schedule including Article 181 of the Limitation Act of 1908 govern applications under the Code of Civil Procedure only and it clearly implied that the application may be presented to a Court governed by the Code of Civil Procedure. By virtue of the amendments now made in the Act of 1963. they only enlarge the scope of the Third Division of the Schedule so as to include some applications presented to the Court governed by the Code of Criminal Procedure. But they do not enlarge the scope so as to include not enlarge the scope so as to include also an Industrial Tribunal or a Labour Court dealing with an application or reference under the Act as they are in no way governed either by the Code of Civil Procedure or the Code of Criminal Procedure. On this view it would prima facie appear that just as an Industrial Tribunal or a Labour Court is not a Court as it is not governed by the Code of Civil Procedure or the Code of Criminal Procedure, the Land Acquisition Officer or the Collector is also not a Court as it is not governed by the Code of Civil Procedure or the Code of Criminal Procedure. It would be true that the Collector or the Land Acquisition Officer who is empowered to act as a Collector in the Land Acquisition proceedings would not ordinarily be Court governed by the provisions of Code of Civil Procedure when he proceeds to determine the compensation for the land to be acquired. However, the amendment which has been made to Section 18 of the Land Acquisition Act by Maharashtra Act No.38 of 1964 by incorporating therein sub-section (3) would in my view make a considerable difference, Section 18(1) provides that

'18(1) Any person interested who has not accepted the award or the amendment thereof may be written application to the Collector, require that the matter be referred by the Collector for the determination of the Court, whether his objection be to the measurement of the land the amount of the compensation, the persons to whom it is payable or the apportionment of the compensation among persons to whom it is payable or the apportionment of the compensation among persons interested.

Sub-Section (2) of Section 18 of the Land Acquisition Act requires that application shall state the grounds on which objection to the award or the amendment is taken. It further provides for the period of limitation for making an application for reference to the Court. Sub-Section (3) of Section 18 of the Land Acquisition Act reads thus:

'(3) Any order made by the Collector on an application under this Section shall be subject to revision by the High Court as if the Collector were a Court subordinate to the High Court within the meaning of Section 115 of the Code of Civil Procedure, 1908.'

From this provision it would appear that even though the Collector or the Land Acquisition Officer while dealing with the matter of the compensation may not be a Court governed by the provisions of the Code of Civil Procedure, yet by virtue of this provision when he is dealing with the application for reference under Section 18, he deals with that application as a Court governed by the provisions of the Code of Civil Procedure and that is why an application for revision to the High Court has been provided against the order made by the Collector on such an application. When dealing with an application for reference under Section.18 of the Land Acquisition Act, the Land Acquisition Officer is considered to be a Court subordinate to the High Court with in the meaning of Section 115 of the Code of Civil Procedure. If he is considered a Court under sub-section (3) of Section 18 then in that case the provisions of Section 5 of the Limitation Act, 1963 were applicable to the application made by the applicant for reference and the Collector or the Land Acquisition Officer had to consider the application under Section 5 for condonation of delay in filing the application. The Special Land Acquisition Officer, on the view it took about the non applicability of the provisions of Section 5 of the Limitation act, did not enter into the question whether any sufficient cause has been made out by the applicant for condonation of the delay in filing the said application. Since I hold that Section 5 of the Limitation Act is applicable to such a proceeding, it will have to be investigated as to whether the applicant has made out sufficient cause for filing the application beyond the period of limitation.

5. Accordingly I set aside the order of the Special Land Acquisition Officer and remand the case to him for an enquiry as to whether there was sufficient cause for the applicant to file an application beyond the period of limitation and whether he is entitled to condonation. The Lower Court will give a reasonable opportunity to the parties to be heard on this question and thereafter decide the matter in accordance with law. The revision application is, therefore, allowed with costs.

6. Application allowed.


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