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Pravinkant Keshavlal Parikh Vs. the Bombay Municipal Corporation for Greater Bombay and anr. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtMumbai High Court
Decided On
Case NumberFirst Appeal No. 693 of 1972
Judge
Reported inAIR1981Bom37
ActsBombay Municipal Corporation Act, 1888 - Sections 3, 299, 491, 502, 503 and 504; Limitation Act, 1963 - Sections 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24 and 29(2); Code of Criminal Procedure (CrPC) , 1898 - Sections 7 and 9; Essential Commodities Act, 1955 - Sections 6-C
AppellantPravinkant Keshavlal Parikh
RespondentThe Bombay Municipal Corporation for Greater Bombay and anr.
Appellant AdvocateM.V. Sali, Adv.
Respondent AdvocateV.T. Walawalkar,;M.V. Shetty and;P.B. Karhadkar, Advs.
Excerpt:
.....- section 504 of bombay municipal corporation act, 1888 and section 5 of limitation act - power of chief judge of small causes court to condone delay in filing application under section 504 - judge not appointed in personal capacity to determine application under section 504 but in his official capacity - judge empowered to consider application for condonation of delay - delay caused due to bonafide negligence of petitioner - such delay to be condoned under section 5. - - after receiving the said letter as the appellant was not satisfied with the offer made by the corporation he filed an application under section 504 of the bombay municipal corporation act on 31st july 1968 making a claim for compensation. while summing up its conclusions, the court held that when a judicial..........did not disclose sufficient cause for not making the application earlier.2. the learned additional chief judge of the small cause court, bombay vide his order dated 22ad april, 1971 came to the conclusion that section 5 of the limitation act applies to the application filed under section 504 of the bombay municipal corporation act. however, he found that the delay had not been properly explained by the appellant and the reason given by the appellant appeared to him to be an afterthought. in view of these findings the learned additional chief judge refused to condone the delay and therefore the application filed was dismissed. it is against this order of dismissal of the application that the present appeal has been filed by the appellant under section 3 of act no. xii of 1888.3. shri.....
Judgment:

Dharmadhikari, J.

1. It is an admitted position that the respondents the Bombay Municipal Corporation have acquired the land belonging to the petitioner, under Section 299 of the Bombay Municipal Corporation Act. The possession of the land was taken on 24th Aug., 1965 though intimation about the intention, to acquire the Land was communicated to the appellant on 27th Mar., 1965. It appears that vide letter dated 12th April 1965 i.e. even before taking over of the possession of the land, the appellant claimed compensation, for the land acquired. Unfortunately till 1st of June 1968 no reply was given by the Corporation authorities to the claim made by the appellant nor the Bombay Municipal Corporation had made an offer regarding the payment of compensation till that date. After receiving the said letter as the appellant was not satisfied with the offer made by the Corporation he filed an application under Section 504 of the Bombay Municipal Corporation Act on 31st July 1968 making a claim for compensation. This application was opposed by the Bombay Municipal Corporation on various grounds and a contention was also raised that the application was barred by limitation as it was filed beyond the period of limitation prescribed by Section 504 of the Bombay Municipal Corporation Act.

The appellant had also filed an application under Section 5 of the Limitation Act for condonation of delay on the ground that he could not file an application earlier because of the conduct of the Bombay Municipal Corporation Officers themselves and hence there was sufficient cause for him for not making the application within the period prescribed by Section 504 of the Bombay Municipal Corporation Act. This application was also opposed on behalf of the Municipal Corporation on the ground (1) that the provisions of Section 5 of the Lim. Act are not applicable to the application contemplated by Section 504 of the Bombay Municipal Corporation Act; and (2) that the application filed by the appellant did not disclose sufficient cause for not making the application earlier.

2. The learned Additional Chief Judge of the Small Cause Court, Bombay vide his order dated 22ad April, 1971 came to the conclusion that Section 5 of the Limitation Act applies to the application filed under Section 504 of the Bombay Municipal Corporation Act. However, he found that the delay had not been properly explained by the appellant and the reason given by the appellant appeared to him to be an afterthought. In view of these findings the learned Additional Chief Judge refused to condone the delay and therefore the application filed was dismissed. It is against this order of dismissal of the application that the present appeal has been filed by the appellant under Section 3 of Act No. XII of 1888.

3. Shri Sali, learned Counsel for the appellant contended before us that the learned Additional Chief Judge of the Small Cause Court, Bombay committed an error apparent on the face of record in dismissing the application filed by the appellant for condonation of delay in filing the application under Section 504 of the Bombay Municipal Corporation Act. According to him it is an admitted position that though the possession of the land in question was taken by the Bombay Municipal Corporation on 24th August 1965 and the claim for compensation was already lodged by the appellant on 12th of Apr. 1965 till 1st June 1968 no reply was given by the Bombay Municipal Corporation, Unless such a reply was received and a dispute was raised, the appellant bona fide believed that there was no cause of action for him for filing the application under Section 504 of the Bombay Municipal Corporation Act. After getting such a reply on the 1st June 1968 within a period of less than one month he filed the application before the learned Chief Judge of the Small Cause Court under Section 504 of the Bombay Municipal Corporation Act. Therefore any delay which was caused in filing the application was caused by the conduct of the Municipal Officers in not replying to the claim made by the appellant and in any case the appellant bona fide believed that till such reply was received and dispute is raised he could not have filed the application under Section 504 of the Corporation Act. The delay caused was unintentional and was not deliberate. Further according to Shri Sali the appellant filed the application before the Corporation authorities claiming an adjustment of amount of Rs. 17,000/- which he had to pay as arrears of property taxes in respect of the said property. He had requested the Corporation authorities to pay him the compensation after deduction of the said taxes. The appellant approached the Officers of the Corporation on more than one occasion. Ultimately he was constrained to file a suit for injunction in the City Civil Court, Bombay bearing Suit No. 7551 of 1965 restraining the respondent Bombay Municipal Corporation from recovering the alleged property taxes by attachment and sale of the properly and such an injunction was granted by the City Civil Court restraining the respondent Bombay. Municipal Corporation from taking any action for recovery of the arrears of taxes till the amount of compensation was determined and paid to him. Such an injunction was continuing on the date when the application under Section 504 of the Bombay Municipal Corporation Act was filed. In the application filed under Section 5 of the Limitation Act the appellant has contended that he was under the impression that it was the duty of the respondent Bombay Municipal Corporation to determine amount of compensation and to pay it to him. For the first time he came to know that the Bombay Municipal Corporation was not willing to pay the compensation as claimed by him when he received their letter dated 1st of June 1968. Thus, according to Shri Sali it all these facts and circumstances are considered in their totality, then the learned Additional Chief Judge of the Small Cause Court has acted with material irregularity in dismissing the application filed by the appellant under Section 5 of the Limitation Act.

4. On the other hand it is contended by Shri Walawalkar, learned Counsel appearing for the Bombay Municipal Corporation that the provisions of Section 5 of the Limitation Act are not applicable to the application contemplated by Section 504 of the Bombay Municipal Corporation Act because the learned Chief Judge of the Small Cause Court is an authority named under the said section in his capacity as persona designate and the Chief Judge of the Small Cause Court while entertaining an application filed under Section 504 of the Bombay Municipal Corporation Act, acts as persona designate and not as a Court within the meaning of the said expression as defined under Section 5 of the Limitation Act. Shri Walawalkar has also contended that jurisdiction is conferred upon the Court before which an application for condonation of delay is filed either to grant or reject application. If a Court after keeping in view the relevant principles, exercises its jurisdiction in refusing to grant the said application, then sitting in appeal this Court cannot interfere with the said discretionary order passed by the lower Court. In the present case the cause of action for filing the application arose on 24th August 1965 when the possession of the land in question was taken by the Corporation. The application under Section 504 of the Bombay Municipal Corporation Act is filed on 3rd July 1968 i. e. practically after more than three years and this whole delay is not properly explained by the appellant. Therefore, the learned Additional Chief Judge of the Small Cause Court was right in dismissing the application filed by the applicant for condoning the said delay.

5. So far as the first contention raised by Shri Walawalkar, viz. that the provisions of Section 5 of the Limitation Act are not applicable to the application contemplated by Section 504 of the Bombay Municipal Corporation Act, is concerned in our opinion, there is no substance in this contention. Section 504 of the Bombay Municipal Corporation. Act reads as under:

'504. If in any case not falling under Section 491, any person is required by this Act, or by any regulation or by-law framed under this Act, to pay any expenses or any compensation, the amount to be so paid and, if necessary, the apportionment of the same, shall, in case of dispute, be determined, except as is otherwise provided in Sections 502 and 503, by the Chief Judge of the Small Cause Court on application being made to him for this purpose at any time within one year from the date when such expenses or compensation first became claimable.'

From the bare reading of this section it is quite clear that the application under this section is to be filed before the Chief Judge of the Small Cause Court within a period of one year from the date on which the compensation first became claimable. This section prescribes period of limitation different from the period prescribed by the schedule attached to the Limitation Act and therefore in view of the provisions of Section 29(2) of the Limitation Act the provisions contained in Sections 4 to 24 (both inclusive) shall apply to such an application in so far as and in the extent to which they are not expressly excluded by the Bombay Municipal Corporation Act. It is an admitted position that there is no express exclusion of the provisions of Section 5 of the Limitation Act in any of the provisions of the Bombay Municipal Corporation Act. Therefore, prima facie the provisions of Section 5 of the Limitation Act will apply to an application filed under Section 504 of the Bombay Municipal Corporation Act.

6. However, it is strenuously contended by Shri Walawalkar that Section 5 of the Limitation Act will not apply to this application because the learned Chief Judge of the Small Cause Court who exercises' jurisdiction to entertain an application under Section 504 of the Bombay Municipal Corporation Act is merely a persona designate and not a Court within the meaning of the said expression as used in Section 5 of the Limitation Act. In our opinion there is no substance in this contention also. As to when an authority could be termed as 'persona designate' is by now welt settled. In this context a reference could usefully be made to the latest decision of the Supreme Court in Thakur Das v. State of Madhya Pradcsh, : 1978CriLJ1 . While considering a question as to whether an appellate authority appointed under Section 6-C of the Essential Commodities Act. 1955 is a 'persona designate' or not the Supreme Court ultimately observed as under:

'Sections 7 and 9 of the Code of Criminal Procedure, 1898 envisage division of the State in various Sessions Divisions and setting up of Sessions Court for each such division, and further provides for appointment of a Judge to preside over that Court, The Sessions Judge gets his designation as Sessions Judge as he presides over the Sessions Court and thereby enjoys the powers and discharges the functions conferred by the Code. Therefore, even if the judicial authority appointed under Section 6-C is the Sessions Judge, it would only mean the Judge presiding over the Sessions Court' and discharging the functions of that Court. If by the Sessions Judge is meant the Judge presiding over the Sessions Court and that is the appointed appellate authority, the conclusion is inescapable that he was not persona designate which expression is understood to mean a person pointed out or described as an individual as opposed to a person ascertained as a member of a class or as filling a particular character (vide Central Talkies Ltd. v. Dwarka Prasad, : 1961CriLJ740 and Ram Chandra v. State of U. P., : 1966CriLJ1514 )'

7. Then after making a reference to the decisions of various High Courts in para. 10 of the said judgment the Supreme Court approved the Full Bench decision of the Andhra Pradesh High Court in Public Prosecutor v. L. Ramayya, in the following terms:

'As against this, this very question was examined by a Full Bench of the Andhra Pradesh High Court in Public Prosecutor (A. P.) v. L. Ramayya, (Andh Pra). Two questions were referred to the Full Bench. The first was whether the District and Sessions Judge who is appointed judicial authority for hearing appeals under Section 6-C is a persona designate or an inferior Criminal Court and the second was whether even if it is an inferior Criminal Court a revision application against the order of the appellate authority would He to the High Court? The Full Bench answered the first question in the affirmative. While summing up its conclusions, the Court held that when a judicial authority like an officer who presides over a court is appointed to perform the functions to judge and decide in accordance with law and as nothing has been mentioned about the finality or otherwise of the decisions made by that authority, it is an indication that the authority is to act as a court in which case it is not necessary to mention, whether they are final or not as all the incidents of exercising jurisdiction as a Court would necessarily follow. We are in broad agreement with this conclusion.'

8. If the law laid down by the Supreme Court in Thakur Das's case : 1978CriLJ1 is applied to the present provisions, viz. Section 504 of the Bombay Municipal Corporation Act, it is quite clear that the learned Chief Judge of the Small Cause Court is appointed not as an individual but as the Presiding Officer of the Small Cause Court. He is appointed in his official capacity as the Chief Judge presiding over the Small Cause Court and not in his individual capacity. He is selected to act in his capacity as Chief Judge of already constituted Court, and not in his private capacity or individual capacity. He is selected on account of his presiding over the Small Cause Court. This Chief Judge of Small Cause Court is not a person pointed out of described as an individual as opposed to a person ascertained as a member of a class or as filling a particular character. When a Judicial Officer like the Chief Judge of a Small Cause Court is named as a person who has to entertain and decide applications filed under Section 504 of the Bombay Municipal Corporation Act, he has to decide these applications in accordance with law and in the Bombay Municipal Corporation Act nothing has been, mentioned about finality or otherwise of the decisions given by the Chief Judge of the Small Cause Court. On the other hand under Act No. XII of 1888 in specific terms an appeal has been provided against the decision of the Chief Judge of the Small Cause Court passed under Section 504 of the Bombay Municipal Corporation Act. An appeal against the said decision lies to this Court. By Section 5 of Act No. XII of 1888 the period of limitation for such an appeal is also prescribed. Therefore, it is quite clear that no finality is attached to the decision given by the Chief Judge of Small Cause Court under Section 504 of the Bombay Municipal Corporation Act and the said decision is subject to an appeal to the High Court. In our opinion this is a clear indication of the fact that the Chief Judge of the Small Cause Court acts as a Court and not as a persona designate. Once it is held that the learned Chief Judge of the Small Cause Court is not a persona designate but acts as a Court, then obviously the provisions of Section 5 of the Limitation Act will apply to the proceedings instituted under Section 504 of the Bombay Municipal Corporation Act. Hence it is not possible for us to accept the contentions raised by Shri Walawalkar in this behalf.

9. So far as the merits of the matter are concerned, it is no doubt true that a discretion is conferred upon a Court before which an appeal for condonation of delay is filed It is equally true that if the said Court after keeping in view the relevant principles exercises its discretion judiciously, then unless it is shown that the order is manifestly unjust or perverse, normally the appellate Court will not interfere with the said discretion. However in the present case, the learned Additional Chief Judge of the Small Cause Court has not kept in view the relevant principles while exercising his discretion in refusing to condone the delay. It is undoubtedly true that in dealing with the question of condonation of delay under Section 5, the party seeking relief has to satisfy the Court that he had sufficient cause for not making the application within the prescribed time and this has always been understood to mean the explanation to cover the whole period of delay. It is neither possible nor advisable to lay down precisely as to what facts or matters would constitute sufficient cause under Section 5 of the Limitation Act Obviously this must depend upon the facts and circumstances of each case, but by now it is well settled that the words 'sufficient cause' should be liberally construed so as to advance substantial justice when no negligence or inaction or want of bona fides is impute able to the party, viz. that the delay in filing the application should not have been for the reason which indicates the party's negligence in not taking necessary steps which it could have or should have taken. What could be such necessary, steps will again depend upon the facts and circumstances of each case. See Mrs. Sandhya Rani Sarkar v. Sudha Rani Devi, : [1978]2SCR839 .

10. We have already narrated the facts in detail as are reproduced in the application filed by the appellant under Section 5 of the Limitation Act. So far as the appellant is concerned, he had claimed compensation vide letter dated 14th Apr. 1965 i.e. even before the possession of the land was taken by the Bombay Municipal Corporation. It is the case of the appellant in the application filed before the Small Cause Court that he had also approached the authorities concerned for adjustment, of arrears of the property taxes from the amount of compensation payable to him. He has also stated in the application that he had personally met some of the officers concerned and the officers had agreed that such adjustment would be made when the quantum of compensation is decided, inspite of this the action of recovery of the amount was taken and the appellant was constrained to tile a suit for injunction in the City Civil Court bearing No, 7551 of 1966 wherein the interim injunction was granted in favour of the appellant For the first time the Bombay Municipal Corporation repudiated the claim of compensation made by the appellant long back i.e. on 12th Mar, 1965 vide letter dated 1st June 1968. Therefore, till 1st of June 1968 no dispute was raised by the Bombay Municipal Corporation regarding the payment of compensation nor the Corporation had offered any compensation. After receipt of this letter the appellant informed the Bombay Municipal Corporation that the compensation offered is wholly inadequate. Thus the letter issued by the Bombay Municipal Corporation dated 1st June 1968 was replied to by the appellant vide his advocate's letter dated 28th June 1968. By this letter he had reaffirmed his claim made earlier and claimed compensation at the rate of Rs. 450/- per square yard. After giving this reply on 28-6-1968 and after making necessary arrangements he filed an application under Section 504 of the Bombay Municipal Corporation Act as early as possible. All these circumstances clearly indicate that the appellant was acting all through bona fide, and could not file the application, became of an honest and bona fide belief on his part and because of the inaction on the part of the officers of the Bombay Municipal Corporation. In the application filed under Section 5 of the Limitation Act the appellant has fully explained the whole period of delay. He has also disclosed what steps were taken by him in the matter. If all these circumstances are considered in their totality, then it is clear that the application filed by him clearly discloses sufficient cause. as to why he could not approach the Small Cause Court under Section 504 of the Bombay Municipal Corporation Act earlier. As the learned Chief Judge of the Small Cause Court has not kept in view the relevant principles laid down by the Supreme Court while exercising his discretion under Section 5 of the Limitation Act and has omitted material facts and circumstances from consideration while deciding the said application, it is quite obvious to us that the discretion exercised by the trial Court was wholly illegal and could be termed as manifestly unjust.

11. In the result, therefore the appeal is allowed. The order passed by the learned Additional Chief Judge, Court of Small Causes, Bombay in Municipal Application No. M/259 of J968 on 22nd Apr., 1971 is set aside. The application filed by the appellant under Section 5 of the Limitation is allowed and the delay caused in filing the application by the appellant under Section 504 of the Bombay Municipal Corporation Act is condoned. The Court of Small Causes is directed to deal with and decide the said application on merits, in accordance with law.

12. However, in the circumstances there will be no order as to costs.

13. Appeal allowed.


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