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Mohan Vasta Vs. State of Gujarat - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtGujarat High Court
Decided On
Case NumberSpl. Civil Appln. No. 638 of 1977
Judge
Reported inAIR1985Guj115; (1985)1GLR293
ActsLand Acquisition Act, 1894 - Sections 18, 18(1) and 18(3); Limitation Act, 1963 - Sections 29(2); Constitution of India - Article 226
AppellantMohan Vasta
RespondentState of Gujarat
Appellant Advocate P.M. Thakkar and; Ajit D. Patel, Advs.
Respondent Advocate G.Q. Bhatt, Asstt. Government Pleader
Cases ReferredMahijibhai Jivanbhai Vaghri v. M. C. Shah
Excerpt:
property - condonation of delay - section 18 of land acquisition act, 1894, section 29 of limitation act, 1963 and article 226 of constitution of india - petitioner being villager and agriculturist and his wife suffering from t.b. he could not file application within time provided under section 18 - facts stated for condonation of delay found to be reasonable and correct - held, delay condoned. - - land acquisition officer, nadiad, reported in ilr (1968) guj 348 was not a good law. there the question was not as to whether the delay, if any could or could not be condoned if a petition is presented for that purpose and there are good, valid or no reasons. that petition was rightly entertained in view of the clear provisions in the limitation act as well as in the land acquisition act...........under art. 226 of the constitution of india challenging the judgment' and order of the special land acquisition officer, rajkot, dt. 14-6-1977. the land of the petitioner bearing survey no. 63/2 was acquired by the respondent. the award was passed on 13-8-1976 and the petitioner was paid the amount of rs. 3302.82 as compensation. that amount was accepted under protest. he thereafter presented an application to the collector for reference under s. 18(2) of the land acquisition act. as this petition was not submitted within a period of 45 days as provided by s. 18 of the land acquisition act he submitted an application to cond9ne the delay. the ground stated was that his wife was sick and was suffering from t.b. and there were heavy rains. he produced the medical certificate and also.....
Judgment:

S.L. Talati, J.

1. Mohan Vastahas ,filed this petition under Art. 226 of the Constitution of India challenging the judgment' and order of the Special Land Acquisition Officer, Rajkot, dt. 14-6-1977. The land of the petitioner bearing survey No. 63/2 was acquired by the respondent. The award was passed on 13-8-1976 and the petitioner was paid the amount of Rs. 3302.82 as compensation. That amount was accepted under protest. He thereafter presented an application to the Collector for reference under S. 18(2) of the Land Acquisition Act. As this petition was not submitted within a period of 45 days as provided by S. 18 of the Land Acquisition Act he submitted an application to cond9ne the delay. The ground stated was that his wife was sick and was suffering from T.B. and there were heavy rains. He produced the medical certificate and also an affidavit of a respectable person from the village. The Collector after considering the matter came to the conclusion that though the wife of the petitioner was suffering from T.B., the petitioner was not suffering and the distance from village Kothariya to Rajkot was 8 to 10 kms. and after September there were no rams. Giving these reasons he came to the conclusion that there was no reason to condone the delay and the application came to be dismissed. That order is now being challenged by filing this petition.

2. Before we say anything in regard to the order by referring to the authorities we have to dispose of preliminary objections raised by the Assistant Government Pleader, Shri G. D. Bhatt. It was submitted that there was no power to condone the delay and reliance was placed on the case of Prabhakar Vasudev Gadgil V. P. Y. Deshpande, Special Land Acquisition Officer, reported in AIR 1983 Bom 342. The Bombay High Court came to the conclusion that the Collector acting under S. 18 of the Land Acquisition Act was not a Court and the provisions of the Limitation Act would not be attracted. The Bombay High Court came to this conclusion mainly considering the case of The Kerala State Electricity Board Trivandrum v. T. P. Kunbaliumma reported in AIR 1977 SC 282. The Bombay High Court on the basis of the Supreme Court judgment came to the conclusion that the decision rendered by this Court in the case of Mahijibhai Jivanbhai Vaghri v. M. C. Shah, Spl. Land Acquisition Officer, Nadiad, reported in ILR (1968) Guj 348 was not a good law. Now it is required to be stated that the Supreme Court was ceased of the matter and the matter was arising out of an application which was submitted to the District Court under S. 16(3) of the Indian Telegraph Act, 1885 claiming an enhanced compensation. The District Judge held that the application was governed by Art. 137 of the Limitation Act, 1963 and, therefore, the petition was filed beyond three years and was barred by time. The High Court set aside the order of the District Judge and remitted the matter back to the Court for disposal in accordance with law. The order of the High Court was challenged before the Supreme Court. The Supreme Court in paragraph 22 of the judgment came to the following conclusion:

'22. The conclusion we reach is that Art. 137 of the 1963 Limitation Act will apply to any petition or application filed under any Act to civil Court. With respect we differ from the view taken by the two Judge Bench of this Court in Athani Municipal Council case AIR 1969 SC 1335 (supra) and-hold that Art. 137 of the 1963 Limitation Act is not confined to applications contemplated by or under the Code of Civil Procedure. The petition in the present case was to the District Judge as a Court. The petition was one contemplated by the Telegraph Act for judicial decision. The petition is an application falling within the scope of Art. 137 of the 1963 Limitation Act.'

Now, therefore, the Supreme Court only considered the question as to whether the petition which was filed under S. 16(3) of the Indian Telegraph Act, 1885 was governed by Art. 137 of the Limitation Act, 1963 or not. That was the only question which was considered. There the question was not as to whether the delay, if any could or could not be condoned if a petition is presented for that purpose and there are good, 'valid or no reasons.

3. Now in this particular case we are concerned with the petition which was presented under the Land Acquisition Act stating the reasons as to why the delay was required to be condoned. That petition was rightly entertained in view of the clear provisions in the Limitation Act as well as in the Land Acquisition Act. The relevant section so far as the Limitation Act, 1963 is concerned is Section 29(2) which reads as under

'29. (2) Where any special or local law prescribes for any suit, appeal or application, a period of limitation different from the period prescribed by the Schedule, 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.'

Now it is not disputed that the Land Acquisition Act is a special law. It cannot be disputed that the person was an applicant and he had submitted an application which is equivalent to a petition. The word 'applicant' is defined by section 2(a) of the Limitation Act which reads as under: -

'2 , In this Act, unless the context otherwise requires, -

(a) 'applicant' includes-

(i) a petitioner;

(ii) any person from or through whom an applicant derives his right to apply :

(iii) any person whose estate is represented by the applicant as executor, administrator or other representative.',,

Section 2(b) defines the'word 'application' as under : -

2.(b)'application' includes a petition.'

Now that, therefore, under the special law the applicant submitted a petition to a proper forum. Under S. 29(2) all provisions contained in the Limitation Act from Ss. 3 to 24 (inclusive) will be applicable. This position is considered by this Court in Special Civil AppIn. No. 3613 of 1981 decided on 3-3-82; (reported in AIR 1982 Guj 298). There the effect of S. 29(2) of the Limitation Act was considered and the Court came to the conclusion as under (at p. 305) :-

'Once the question of applicability of section 5 arises in the context of the operation of section 29(2) of the Limitation Act to any special or local law, the principles of sections 4 to 24 get attracted by necessary implication by the very force of section 29(2). Under these circumstances when a statutory authority having quasi-judicial functions enforces the given period of limitation under a special or local law as the case may be, by the combined operation of section 29(2) read with sections 4 to 24 of the Limitation Act clearly gets attracted to such proceedings before. the statutory authority exercising quasi-judicial powers under the concerned special or the local statute.'

'Now in view of this position the Land Acquisition Officer rightly, entertained the application and started deciding the question as to whether the delay should be condoned or should not be condoned. We, therefore, come to the conclusion that decision reported in AIR 1977 SC 282 (supra) has not impliedly overruled the decision of this Court reported in ILR (1968) Guj 348 (supra) as held by the Bombay High Court in AIR 1983 Bom 342 (supra).

4. The next contention urged by the learned Assistant Government Pleader Shri G. D. Bhatt was on the basis of section 18(3) of the Land Acquisition Act, which runs as under : -

'18.(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.'

On the basis of this secti6n it was submitted that the petitioner should have filed a Revision Application in this Court and not a petition under Art. 226 of the Constitution of India and in no case without resorting to the alternative remedy. It is sufficient to say that though the revision lies when the property of a party is acquired and he has challenged the compensation awarded to him it cannot be suggested for a moment that the petition under Art. 226 of the Constitution of India cannot lie. Now this petition came to be filed as far back as in the year 1978 challenging the order dated 14-6-1977. It would be futile after many years to ask the party to exhaust his alternative remedy by filing a revision petition in this Court before the, learned single Judge and thereafter approach the constitutional Bench of this Court. As we have already entertained this petition we have got to decide it.

5. Now the admitted position is that the wife of the petitioner was suffering from T.B. Another admitted position is that it was a, rainy season. The petitioner is a villager. He is an agriculturist. The Land Acquisition Officer; should have seen that the technical plea off limitation in these peculiar circumstances does not come in his way in getting the appropriate compensation for his Ian& which was,' compulsorily acquired, if he was entitled to get otherwise. When the main facts stated in his petition or condo nation of delay were found to be correct it was perverse to come to the conclusion that the rainy season was over and as he himself was not sick he could have come traveling a distance of only 8 to 10 Kms. This view is not a view which under the circumstances would be considered to be at all reasonable. Under these circumstances the order passed by the Land Acquisition Officer dated 14-6-1977 is hereby set aside.. The delay is condoned and the Land Acquisition Officer, Rajkot is directed to make Reference to the District Court.

6. Rule is made absolute.

7. Petition allowed.


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