Gujarat High Court
Gail (India) Ltd vs Commanding Officer & on 5 May, 2015
Author: Harsha Devani
Bench: Harsha Devani
C/SCA/7917/2014 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO.7917 of 2014
With
SPECIAL CIVIL APPLICATION NO.7918 of 2014
TO
SPECIAL CIVIL APPLICATION NO.8037 of 2014
With
SPECIAL CIVIL APPLICATION NO.10268 of 2014
TO
SPECIAL CIVIL APPLICATION NO.10299 of 2014
With
SPECIAL CIVIL APPLICATION NO.14358 of 2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE HARSHA DEVANI
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1 Whether Reporters of Local Papers may be allowed
to see the judgment?
2 To be referred to the Reporter or not?
3 Whether their Lordships wish to see the fair copy of
the judgment?
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of
India or any order made thereunder?
=============================================
GAIL (INDIA) LTD....Petitioner(s)
Versus
COMMANDING OFFICER & 1....Respondent(s)
=============================================
Appearance:
Special Civil Applications No.7917/2014 to 8037/2014 and
10268/2014 to 10299/2014
MR SHALIN MEHTA, SR. ADVOCATE with MR VISHWAS K SHAH,
ADVOCATE for the Petitioner(s) No.1
MR MASOOM K SHAH, ADVOCATE for the Respondent(s) No.1
MR PY DIVYESHVAR, ADVOCATE for the Respondent(s) No.2
NOTICE SERVED for the Respondent(s) No.1
Special Civil Application No.14358/2013
MR MTM HAKIM, ADVOCATE for the Petitioner(s) No.1
Page 1 of 34
C/SCA/7917/2014 JUDGMENT
MR SHALIN MEHTA, SR. ADVOCATE with MR VISHWAS K SHAH,
ADVOCATE for the Respondent(s) No.1
MR BHAVESH B CHOKSHI, ADVOCATE for the Respondent(s) No.2
=========================================
CORAM: HONOURABLE MS. JUSTICE HARSHA DEVANI
Date : 05/05/2015
COMMON ORAL JUDGMENT
1. Rule. Learned advocates for the respective respondents waive service of notice of rule. Since all these petitions involve similar questions of law, the same were taken up for hearing together and are disposed of by this common judgment.
2. All these petitions except Special Civil Application No.14358/2013 have been filed by GAIL (India) Limited challenging the orders passed by the learned Additional District Judge, Vadodara on the delay condonation applications filed by the respondent - claimants whereby the applications have been allowed and the delay caused in filing the applications under sub-section (2) or (5) of section 10 of the Petroleum and Minerals Pipeline Act, 1962 (hereinafter referred to as "the P&MP Act") has been condoned.
3. Special Civil Application No.14358/2013 has been filed by the original claimant challenging the order dated 31 st May, 2013 passed by the learned 2nd Additional District Judge, Dahod in Civil Miscellaneous Application No.5/2013 whereby the application filed by GAIL (India) Limited seeking condonation of delay caused in filing the application under section 10 of the P&MP Act has been allowed.
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4. In all these cases, pursuant to orders passed by the competent authority under the P&MP Act, awarding compensation to the claimants, the aggrieved party namely, GAIL (India) Limited/the claimants filed applications before the District Court under section 10 of the P&MP Act. However, there was a delay in filing such applications and hence, the concerned parties had also moved applications under section 5 of the Limitation Act seeking condonation of the delay caused in filing such applications. By separate orders passed on such applications, the learned Additional District Judge has allowed the applications and has condoned the delay, which has given rise to the present petitions.
5. Mr. Shalin Mehta, Senior Advocate, learned counsel with Mr. Vishwas Shah, learned advocate appearing on behalf of GAIL (India) Limited assailed the impugned orders by submitting that provisions of the Limitation Act would not apply to an application made either under sub-section (2) or sub-section (5) of section 10 of the P&MP Act and hence, the learned District Judge was not justified in allowing the applications for condonation of delay. The attention of the court was invited to the relevant provisions of the P&MP Act to point out that under the scheme of the said Act, section 10 makes provision for compensation in respect of any damage or loss or injury sustained by any person interested in the land under which the pipeline is proposed to be, or is being, or has been laid. Under sub-section (2), if the compensation determined by the competent authority under sub-section (1) is not acceptable to either of the parties, the amount of compensation shall, on application by either of the parties to Page 3 of 34 C/SCA/7917/2014 JUDGMENT the District Judge within the limits of whose jurisdiction the land or any part thereof is situated, be determined by the District Judge. It was submitted that similarly, in case of land, under sub-section (5) of section 10, the market value of the land on the said date, is required to be determined by the competent authority and if the value so determined by that authority is not acceptable to either of the parties, it shall, on application made by either of the parties to the District Judge referred to in sub-section (2), be determined by that District Judge. It was pointed out that the decision of the District Judge under sub-section (2) or sub-section (5) of section 10 of the P&MP Act shall be final. The attention of the court was further invited to section 14 of the P&MP Act which provides for 'Bar of jurisdiction of civil courts'. It was submitted that, therefore, by virtue of section 14, the jurisdiction of the Civil Courts in respect of any matter which the competent authority is empowered by or under the Act to determine, is expressly barred. It was submitted that on a perusal of the provisions of the Act, it is apparent that the same is a complete Code in itself and provides for a complete mechanism for acquisition of right of user in land for laying pipelines for the transport of petroleum and minerals as well as for compensation thereof. Therefore, the Act being a complete Code in itself, it is not necessary to refer to any other provision of law including the Limitation Act. According to the learned counsel, nothing is lacking in the Act and the determination of compensation thereunder is without taking recourse to any other provision of law. Referring to rule 5 of the Petroleum and Minerals Pipeline (Acquisition of Right of User in Land) Rules, 1963 (hereinafter referred to as "the rules"), it was pointed out that under the said rule, any party aggrieved by the determination of the Page 4 of 34 C/SCA/7917/2014 JUDGMENT amount of compensation is required to prefer an application to the District Judge within the limits of whose jurisdiction the land or any part thereof is situated, not later than ninety days of the receipt of the intimation from the competent authority under rule 4(3) of the rules. It was submitted that, therefore, under the said rule, the application under section 10 of the P&MP Act has to be filed not later than ninety days of the receipt of the intimation from the competent authority and in the entire Act, or the rules framed thereunder, there is no provision for condonation of delay. Therefore, section 5 of the Limitation Act would not apply to an application made under sub-section (2) or (5) of section 10 of the P&MP Act.
5.1 In support of such submission, the learned counsel placed reliance upon the decision of the Supreme Court in the case of Commissioner of Customs and Central Excise v. Hongo India Private Limited and Another, (2009) 5 SCC 791, wherein the court in the context of the provisions of the Central Excise Act, 1944 had observed that under section 35-H thereof, an application to the High Court was to be made within a period of one hundred and eighty days of the date upon which the order is served upon such party and that there is no clause for condoning the delay, if reference is made beyond the said prescribed period. The court held that the language used in sections 35, 35-B, 35-EE, 35-G and 35-H makes the position clear that an appeal and reference to the High Court should be made within 180 days only from the date of communication of the decision or the order. In other words, the language used in other provisions makes the position clear that the legislature intended the appellate authority to entertain the appeal by condoning the delay only up to 30 Page 5 of 34 C/SCA/7917/2014 JUDGMENT days after expiry of 60 days which is the preliminary limitation period for preferring an appeal. In the absence of any clause for condoning the delay by showing sufficient cause after the prescribed period, there is complete exclusion of section 5 of the Limitation Act. The court, accordingly, held that the High Court was justified in holding that there was no power to condone the delay after expiry of the prescribed period of 180 days.
5.2 Reference was made to the decision of the Supreme Court in the case of Chhattisgarh State Electricity Board v. Central Electricity Regulatory Commission and Others, (2010) 5 SCC 23, wherein the question before the court was whether section 5 of the Limitation Act, 1963 can be invoked by the Supreme Court for allowing the aggrieved person to file an appeal under section 125 of the Electricity Act, 2003 after more than 120 days from the date of communication of the decision or order of the Appellate Tribunal for Electricity. On behalf of the appellant, it was contended before the Supreme court that even though in terms of the proviso to section 125 of the Electricity Act, the court can extend the time for filing an appeal up to a maximum of 60 days only, power under section 5 read with section 29(2) of the Limitation Act can be exercised for condonation of delay beyond the period of 120 days. Reliance was placed upon the decision of the Supreme Court in the case of Mukri Gopalan v. Cheppilat Puthanpurayil Aboobacker, (1995) 5 SCC 5. On behalf of the respondent, it was argued that in view of the plain language of the proviso to section 125 of the Electricity Act, the Supreme Court has no power to extend the period for filing an appeal beyond 120 Page 6 of 34 C/SCA/7917/2014 JUDGMENT days and the provisions of the Limitation Act could not be invoked for negating the legislative intendment to prescribe special limitation for filing an appeal against any decision or order of the Tribunal. The court considered the scheme of the said Act and noted that section 125 provided for an appeal to the Supreme Court against any order or decision of the Tribunal which could be filed within 60 days from the date of communication of such decision or order of the Tribunal. The proviso to section 125 empowers the court to entertain an appeal for a further period not exceeding sixty days, if it was satisfied that the appellant was prevented by sufficient cause from filing the appeal within the said period. The court further took note of the fact that section 145 of the Electricity Act declares that no civil court shall have the jurisdiction to entertain any suit or proceeding in respect of any matter which an assessing officer referred to in section 126 or an appellate authority referred to in section 127 or the adjudicating officer appointed under the Act is empowered by or under the Act to determine and no injunction shall be granted in such matters. The court observed that the use of the expression "within a further period of not exceeding 60 days" in the proviso to section 125 makes it clear that outer limit for filing an appeal is 120 days. The court further took note of the fact that there is no provision in the Act under which the court can entertain an appeal filed against the decision or order of the Tribunal after more than 120 days and held that the exclusion of the jurisdiction of the civil courts qua an order made by the adjudicating officer is also a pointer in that direction. Reference was made to the provisions of section 29(2) of the Limitation Act as well as to the previous decisions of the Supreme Court and it was held that section 5 of the Limitation Page 7 of 34 C/SCA/7917/2014 JUDGMENT Act cannot be invoked by the Supreme Court for entertaining an appeal filed against the decision or order of the Tribunal beyond the period of 120 days specified under section 125 of the Electricity Act and its proviso. The court observed that any interpretation of section 125 of the Electricity Act which may attract the applicability of section 5 of the Limitation Act read with section 29(2) thereof would defeat the object of the legislation, namely, to provide special limitation for filing an appeal against the decision or order of the Tribunal and proviso to section 125 would become nugatory.
5.3 Mr. Mehta submitted that in the facts of the present case also, the scheme of the Act and the rules framed thereunder is similar to the scheme under the Electricity Act whereby rule 5 of the rules provides for making an application not later than ninety days from the date of intimation of the order of the competent authority and section 14 of the P&MP Act bars the jurisdiction of the civil court in respect of any matter which the competent authority is empowered and also provides that no injunction shall be granted by any court or other authority in respect of any action taken or proposed to be taken in pursuance of any power conferred by or under the Act. Reliance was placed upon the decision of a Full Bench of this court in the case of Panoli Intermediate (India) Pvt. Ltd. v. Union of India rendered on 13th March, 2015 in Special Civil Application No.18542/2014 and allied matters wherein the court observed that the limitation provided under section 35 of the Central Excise Act, cannot be condoned in filing an appeal beyond the period of thirty days as provided by the proviso nor can the appeal be filed beyond the period of ninety days. Reliance was also placed upon the decision of the Page 8 of 34 C/SCA/7917/2014 JUDGMENT Supreme Court in the case of Popat Bahiru Govardhane and Others v. Special Land Acquisition Officer and Another, (2013) 10 SCC 765, wherein the court in the context of section 28-A of the Land Acquisition Act, 1894 held that an application under section 28A of the Act has to be filed within the period of limitation as prescribed thereunder, which requires that an application for redetermination is to be made within three months from the date of the award of the court. The court further held that it is settled legal position that the law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribes and that the court has no power to extend the period of limitation on equitable grounds.
5.4 The learned counsel for the petitioners very fairly drew the attention of the court to the decision of the Andhra Pradesh High Court in the case of Desam Venkateswara Reddy v. Special Deputy Collector rendered on 5th June, 2014 in Writ Petition No.6783/2006 wherein the court placing reliance upon the decision of the Supreme Court in the case of Mukri Gopalan v. Cheppilat Puthanpurayil Aboobacker (supra) held that the appellate authority constituted under section 18 of the Kerala Rent Act, 1965, functions as a court and the period of limitation prescribed therein under section 18 governing appeals by aggrieved parties will be computed keeping in view the provisions of section 4 to 24 of the Limitation Act, 1963. The court observed that such proceedings would attract section 29(2) of the Limitation Act and consequently, section 5 of the Limitation Act would also be applicable to such proceedings. Reference was also made to the decision of the Kerala High Court in the case of Safiya v.
Page 9 of 34C/SCA/7917/2014 JUDGMENT The Deputy Collector rendered on 22nd February, 2010 in C.R.P. No.372/2005 wherein the court, in the context of section 10 of the P&MP Act, observed that while it is true that the Act being a special statute, the provisions of the Limitation Act are not applicable and, therefore, section 5 cannot be invoked, the said court in its previous decision in C.R.P. No.370/2005 had held that the court has power to condone the delay in filing the petition as provided under rule 5 of the Rules and that there was no reason to take a different view. Reference was also made to the decision of the Kerala High Court in the case of Petronet CCK Ltd. v. Vijayan, 2005 (1) KLT 773, wherein the court in the context of rule 5 of the P&MP Rules, placed reliance upon the decision of the Supreme Court in the case of Mukri Gopalan v. C.P. Aboobacker (supra) and expressed the view that since there is no express exclusion of the Limitation Act, section 5 of the Limitation Act can be applied. It was submitted that the decisions of other High Courts which take a contrary view do not lay down the correct proposition of law and hence, the petitions are required to be allowed by holding that the District Judge has no power to condone the delay caused in moving the applications under section 10(2) and section 10(5) of the P&MP Act.
6. Mr. M.T.M. Hakim, learned advocate appearing on behalf of the petitioner in Special Civil Application No.14358/2013 submitted that rule 5 of the P&MP Rules provides that an application to the District Judge is required to be made not later than ninety days of receipt of the intimation. Under the scheme of P&MP Act and the rules framed thereunder, there is no power vested in the court to condone the delay beyond a period of ninety days. The attention of the Page 10 of 34 C/SCA/7917/2014 JUDGMENT court was invited to the provisions of rule 6 of the P&MP Rules which provide for deposit of compensation under section 11 and says that the Central Government, the State Government or the Corporation, as the case may be, shall, within twenty- one days of the receipt of the intimation under rule 4 deposit the compensation amount in such treasury and under such head of account as may be specified therein. It was submitted that, therefore, on a reading of rule 5 as well as rule 6 of the P&MP Rules, it is apparent that the filing of the application under section 10 as well as depositing of compensation under section 11 are all subject to receipt of intimation from the competent authority under rule 4(3) of the said rules. Reference was made to sub-rule (3) of rule 4 of the P&MP Rules which provides that the competent authority shall, on receipt of the claim for compensation, make such inquiry as provided in rule 4A and fix the compensation and thereafter inform the parties referred to in sub-section (2) and sub- section (5) of section 10 of the amount of compensation so fixed. It was submitted that, therefore, sub-rule (3) of rule 4 of the P&MP Rules casts an obligation upon the competent authority to intimate the concerned parties about the fixation of compensation. Reference was made to rule 8 of the P&MP Rules which provides for 'Mode of service of notice, etc.' to submit that the manner and mode by which notice is to be served upon the party is set out in the said rule. It was submitted that, therefore, intimation or information under sub- rule (3) of rule 4 of the P&MP Rules is required to be given in terms of rule 8 thereof which provides as to how such service is to be effected. It was submitted that it is only when such service is effected and due intimation is given under sub-rule (3) of rule 4 that the limitation would start running. Therefore, Page 11 of 34 C/SCA/7917/2014 JUDGMENT the period of ninety days referred to in rule 5 of the P&MP Rules would have to be computed from the date of receipt of intimation, service whereof has to be effected as per rule 8. The attention of the court was invited to the decision of this court in the case of Urvarshidevi Jaidipsinh Maharaul v. Union of India, 2014 (2) GCD 1234 (Guj.), wherein the court has considered the entire scheme of the Act, to submit that the same is a complete Code in itself. It was pointed out that the court in the said decision has observed that unless intimation of fixation of compensation is received from the competent authority under rule 4(3) by a person/party, such person if aggrieved by such fixation of an amount, would have no opportunity to prefer an application under section 10(2) of the Act to the District Judge for determination of compensation within the prescribed time limit of ninety days of the receipt of intimation from the competent authority under rule 4(3) of the P&MP Rules. It was submitted that, therefore, in terms of rule 5 of the P&MP Rules, limitation would commence only after the intimation is duly served upon the party in terms of rule 8 thereof. Reference was made to the impugned order passed by the learned Additional District Judge to submit that the contentions raised on behalf of the petitioner to the effect that the provisions of the Limitation Act would not be applicable to an application made under section 10(2) and 10(5) of the Act, have not even been considered. It was submitted that in the petitions filed by GAIL, the respondents - claimants have not been intimated about the order passed by the competent authority and hence, it is not permissible for the petitioner - GAIL to raise any objection to the effect that the appeal is beyond the prescribed period of limitation.
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7. In rejoinder, Mr. Shalin Mehta, learned counsel for the petitioner - GAIL (India) Limited invited the attention of the court to a statement prepared by the petitioner indicating dates on which payments had been made to the respondents - claimants, to submit that, therefore, the claimants were well aware of the order of compensation made by the competent authority despite which they had not made the applications before the District Judge within the prescribed period of limitation. It was submitted that even in case no intimation of the order of competent authority is given in terms of rule 4(3) of the P&MP Rules, once the claimants have knowledge of the determination of market price by the competent authority in view of the compensation being paid to them, the limitation would start from the date of such knowledge. It was submitted that, therefore, the applications being barred by limitation, could not have been entertained by the District Court.
8. In sur-rejoinder, Mr. Hakim, learned counsel submitted that limitation is a mixed question of law and facts and no facts as stated before this court with regard to the claimants having knowledge about the making of the order passed by the competent authority have been pleaded or proved before the District Court. It was submitted that, therefore, in these petitions under Article 227 of the Constitution of India, for the first time, it is not open for the petitioners to raise disputed questions of fact.
9. This court has considered the submissions advanced by the learned advocates for the respective parties and has perused the decisions which have been cited at the bar. Before adverting to the merits of the rival contentions, Page 13 of 34 C/SCA/7917/2014 JUDGMENT reference may be made to the relevant provisions of the P&MP Act. The P&MP Act has been enacted to provide for the acquisition of the right of user in the land for laying pipelines for the transport of petroleum and minerals and for the matters connected therewith. Section 10 thereof provides for 'Compensation' and reads thus:-
10. COMPENSATION (1) Where in the exercise of the powers conferred by section 4, section 7 or section 8 by any person, any damage, loss or injury is sustained by any person interested in the land under which the pipeline is proposed to be, or is being, or has been laid, the Central Government, the State Government or the corporation, as the case may be, shall be liable to pay compensation to such person for such damage, loss or injury, the amount of which shall be determined by the competent authority in the first instance.
(2) If the amount of compensation determined by the competent authority under sub-section (1) is not acceptable to either of the parties, the amount of compensation shall, on application by either of the parties to the District Judge within the limits of whose jurisdiction the land or any part thereof is situated, be determined by the District Judge.
(3) The competent authority or the District Judge while determining the compensation under sub-section (1) or sub-section (2), as the case may be, shall have due regard to the damage or loss sustained by any person interested in the land by reason of-
(i) the removal of trees or standing crops, if any, on the land while exercising the powers under section 4, section 7 or section 8;
(ii) the temporary severance of the land under which the pipeline has been laid Page 14 of 34 C/SCA/7917/2014 JUDGMENT from other lands belonging to, or in the occupation of, such person; or
(iii) any injury to any other property, whether movable or immovable, or the earnings of such persons caused in any other manner;
Provided that in determining the compensation no account shall be taken of any structure or other improvement made in the land after the date of the notification under sub-section (1) of section 3.
(4) Where the right of user of any land has vested in the Central Government, the State Government or the Corporation, the Central Government, the State Government or the Corporation, as the case may be, shall, in addition to the compensation, if any, payable under sub-section (1), be liable to pay to the owner and to any other person whose right of enjoyment in that land has been affected in any manner whatsoever by reason of such vesting, compensation calculated at ten per cent of the market value of that land on the date of the notification under sub-section (1) of section 3.
(5) The market value of the land on the said date shall be determined by the competent authority and if the value so determined by that authority is not acceptable to either of the parties, it shall, on application by either of the parties to the District Judge referred to in sub-section (2), be determined by that District Judge.
(6) The decision of the District Judge under sub-section (2) or sub-section (5) shall be final.
10. Section 14 of the P&MP Act bears the heading 'Bar of Jurisdiction of Civil Courts' and lays down that save and otherwise expressly provided in the Act, no civil court shall have jurisdiction in respect of any matter which the competent authority is empowered by or under the Act to determine and Page 15 of 34 C/SCA/7917/2014 JUDGMENT no injunction shall be granted by any court or other authority in respect of any action taken or proposed to be taken in pursuance of any power conferred by or under the Act. Section 17 of the P&MP Act bears the heading 'Power to make rules' and lays down that the Central Government may, by notification in the Official Gazette, make rules for carrying out the provisions of the Act. In exercise of powers conferred by section 17 of the P&MP Act, the Central Government has made rules, called the Petroleum and Minerals Pipelines (Acquisition of Right of User in land) Rules, 1963. While the P&MP Act does not prescribe any period of limitation for making any application under sub-section (2) or sub-section (5) of section 10 thereof, rule 5 of the P&MP Rules which bears the heading 'Application to the District Judge for determination of compensation' provides that any party aggrieved by the determination of the amount of compensation may prefer an application to the District Judge within the limits of whose jurisdiction the land or any part thereof is situated, not later than ninety days of the receipt of the intimation from the competent authority under rule 4(3). Thus, the P&MP Act or the rules framed thereunder do not provide for condonation of any delay caused in making an application under sub-section (2) or sub-section (5) of section 10 thereof. However, section 29(2) of the Limitation Act provides that 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 insofar Page 16 of 34 C/SCA/7917/2014 JUDGMENT as, and to the extent to which, they are not expressly excluded by such special or local law. Indubitably, the P&MP Act is a special law and rule 5 of the rules framed thereunder prescribes a period of limitation different from the period prescribed by the Schedule to the Limitation Act. Therefore, ordinarily the provisions of section 3 of the Limitation Act would apply as if such period is the period prescribed by the Schedule and for the purpose of determining the period of limitation prescribed for such application by the special law, the provisions contained in sections 4 to 24 (inclusive) of the Limitation Act shall apply. However, sub-section (2) of section 29 of the Limitation Act, also carves out an exception by providing that the provisions of the said sub-section shall apply to the extent to which, they are not expressly excluded by the special or local law. Therefore, if the special law expressly excludes the applicability of the provisions of the Limitation Act the provisions of section 3 to 24 of the Limitation Act would not apply and there would be no power vested in the court or the concerned authority to condone the delay caused in filing the suit, appeal or application.
11. In the above backdrop, the short and neat question of law which arises for consideration in this batch of petitions is as to whether the provisions of section 29(2) of the Limitation Act would be applicable to the provisions of the P&MP Act and rules so as to vest in the District Judge, the power to condone the delay caused in making an application under sub-section (2) or sub-section (5) of section 10 of the Act?
12. At this juncture, reference may be made to various decisions on which reliance has been placed by the learned Page 17 of 34 C/SCA/7917/2014 JUDGMENT counsel for the respective parties as well as by the different High Courts. In Mukri Gopalan v. Cheppilat Puthanpurayil Aboobacker (supra), the Supreme Court held that for the applicability of sub-section (2) of section 29 of the Limitation Act to the facts of a given case and for importing the machinery of the provisions containing sections 4 to 24 of the Limitation Act the following two requirements have to be satisfied by the authority invoking the said provision. (I) There must be a provision for period of limitation under any special or local law in connection with any suit, appeal, or application.
(ii) The said prescription of period of limitation under such special or local law should be different from the period prescribed by the Schedule to the Limitation Act. If the aforesaid two requirements are satisfied, the consequences contemplated under section 29(2) would automatically follow. These consequences are as under:
(i) In such a case section 3 of the Limitation Act would apply as if the period prescribed by the special or local law was the period prescribed by the Schedule.
(ii)For determining any period of limitation prescribed by such special or local law for a suit, appeal or application all the provisions containing sections 4 to 24 (inclusive) would apply insofar as and to the extent to which they are not expressly excluded by such special or local law.
13. In Commissioner of Excise and Customs v.
Hongo India Private Limited (supra), the Supreme Court held thus:-
"14. Article 214 of the Constitution of India makes it clear that there shall be a High Court for each State and Page 18 of 34 C/SCA/7917/2014 JUDGMENT Article 215 states that every High Court shall be a court of record and shall have all the powers including the power to punish for contempt of itself. Though we have adverted to Section 35-H in the earlier part of our order, it is better to extract sub-section (1) which is relevant and we are concerned with in these appeals:
"35-H. Application to High Court - (1) The Commissioner of Central Excise or the other party may, within one hundred and eighty days of the date upon which he is served with notice of an order under section 35-C passed before the 1st day of July, 2003 (not being an order relating, among other things, to the determination of any question having a relation to the rate of duty of excise or to the value of goods for purposes of assessment), by application in the prescribed form, accompanied, where the application is made by the other party, by a fee of two hundred rupees, apply to the High Court to direct the Appellate Tribunal to refer to the High Court any question of law arising from such order of the Tribunal."
Except providing a period of 180 days for filing reference application to the High Court, there is no other clause for condoning the delay if reference is made beyond the said prescribed period.
15. We have already pointed out that in the case of appeal to the Commissioner, Section 35 provides 60 days' time and in addition to the same, the Commissioner has power to condone the delay up to 30 days, if sufficient cause is shown. Likewise, Section 35-B provides 90 days' time for filing appeal to the Appellate Tribunal and sub- section (5) therein enables the Appellate Tribunal to condone the delay irrespective of the number of days, if sufficient cause is shown. Likewise, Section 35-EE which provides 90 days' time for filing revision by the Central Government and, proviso to the same enables the revisional authority to condone the delay for a further period of 90 days, if sufficient cause is shown, whereas in the case of appeal to the High Court under Section 35-G and reference to the High Court under Section 35-H of the Act, total period of 180 days has been provided for availing the remedy of appeal and the reference. However, there is no further clause empowering the High Court to condone the delay after the period of 180 days.
Page 19 of 34C/SCA/7917/2014 JUDGMENT
16. Reliance was placed on Section 5 and Section 29(2) of the Limitation Act which read as under:
"5. Extension of prescribed period in certain cases.-Any appeal or any application, other than an application under any of the provisions of Order 21 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 within such period.
29. Savings.-(1) Nothing in this Act shall affect Section 25 of the Indian Contract Act, 1872 (9 of 1872).
32. As pointed out earlier, the language used in Sections 35, 35-B, 35-EE, 35-G and 35-H makes the position clear that an appeal and reference to the High Court should be made within 180 days only from the date of communication of the decision or order. In other words, the language used in other provisions makes the position clear that the legislature intended the appellate authority to entertain the appeal by condoning the delay only up to 30 days after expiry of 60 days which is the preliminary limitation period for preferring an appeal. In the absence of any clause condoning the delay by showing sufficient cause after the prescribed period, there is complete exclusion of Section 5 of the Limitation Act. The High Court was, therefore, justified in holding that there was no power to condone the delay after expiry of the prescribed period of 180 days.
33. Even otherwise, for filing an appeal to the Commissioner, and to the Appellate Tribunal as well as revision to the Central Government, the legislature has provided 60 days and 90 days respectively, on the other hand, for filing an appeal and reference to the High Court larger period of 180 days has been provided with to enable the Commissioner and the other party to avail the same. We are of the view that the legislature provided sufficient time, namely, 180 days for filing reference to the High Court which is more than the period prescribed for an appeal and revision.
Page 20 of 34C/SCA/7917/2014 JUDGMENT
34. Though, an argument was raised based on Section 29 of the Limitation Act, even assuming that Section 29(2) would be attracted, what we have to determine is whether the provisions of this section are expressly excluded in the case of reference to High Court.
35. It was contended before us that the words "expressly excluded" would mean that there must be an express reference made in the special or local law to the specific provisions of the Limitation Act of which the operation is to be excluded. In this regard, we have to see the scheme of the special law here in this case is the Central Excise Act. The nature of the remedy provided therein is such that the legislature intended it to be a complete Code by itself which alone should govern the several matters provided by it. If, on an examination of the relevant provisions, it is clear that the provisions of the Limitation Act are necessarily excluded, then the benefits conferred therein cannot be called in aid to supplement the provisions of the Act. In our considered view, that even in a case where the special law does not exclude the provisions of Sections 4 to 24 of the Limitation Act by an express reference, it would nonetheless be open to the court to examine whether and to what extent, the nature of those provisions or the nature of the subject-matter and scheme of the special law exclude their operation. In other words, the applicability of the provisions of the Limitation Act, therefore, is to be judged not from the terms of the Limitation Act but by the provisions of the Central Excise Act relating to filing of reference application to the High Court.
36. The scheme of the Central Excise Act, 1944 supports the conclusion that the time limit prescribed under Section 35-H(1) to make a reference to the High Court is absolute and unextendable by court under Section 5 of the Limitation Act. It is well-settled law that it is the duty of the court to respect the legislative intent and by giving liberal interpretation, limitation cannot be extended by invoking the provisions of Section 5 of the Limitation Act."
14. In Chhattisgarh State Electricity Board v.
Page 21 of 34C/SCA/7917/2014 JUDGMENT Central Electricity Regulatory Commission (supra), the Supreme Court held thus:-
"25. Section 125 lays down that any person aggrieved by any decision or order of the Tribunal can file an appeal to this Court within 60 days from the date of communication of the decision or order of the Tribunal. Proviso to Section 125 empowers this Court to entertain an appeal filed within a further period of 60 days if it is satisfied that there was sufficient cause for not filing appeal within the initial period of 60 days. This shows that the period of limitation prescribed for filing appeals under Sections 111(2) and 125 is substantially different from the period prescribed under the Limitation Act for filing suits, etc. The use of the expression "within a further period of not exceeding 60 days" in the proviso to Section 125 makes it clear that the outer limit for filing an appeal is 120 days. There is no provision in the Act under which this Court can entertain an appeal filed against the decision or order of the Tribunal after more than 120 days.
26. The object underlying establishment of a special adjudicatory forum i.e. the Tribunal to deal with the grievance of any person who may be aggrieved by an order of an adjudicating officer or by an appropriate Commission with a provision for further appeal to this Court and prescription of special limitation for filing appeals under Sections 111 and 125 is to ensure that disputes emanating from the operation and implementation of different provisions of the Electricity Act are expeditiously decided by an expert body and no court, except this Court, may entertain challenge to the decision or order of the Tribunal. The exclusion of the jurisdiction of the civil courts (Section
145) qua an order made by an adjudicating officer is also a pointer in that direction.
27. It is thus evident that the Electricity Act is a special legislation within the meaning of Section 29(2) of the Limitation Act, which lays down that where any special or local law prescribes for any suit, appeal or application a period of limitation different from the one prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and provisions contained in Sections 4 to 24 (inclusive) shall Page 22 of 34 C/SCA/7917/2014 JUDGMENT apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application unless they are not expressly excluded by the special or local law."
15. In the light of the principles enunciated in the above decisions, the language employed in the rule and the scheme of the P&MP Act, are required to be examined. As noticed earlier, the P&MP Act does not prescribe any period of limitation for making any application under sub-section (2) or sub-section (5) of section 10 of the Limitation Act. Limitation is prescribed under rule 5 of the P&MP Rules. At this juncture, reference may be made to the scheme of the P&MP Act to ascertain as to whether the same is in the nature of a complete Code, as is sought to be contended on behalf of the petitioner. The Preamble of the P&MP Act provides that it is an Act to provide for the acquisition of right of user in land for laying pipelines for the transport of petroleum and minerals and for matters connected therewith. Section 3 thereof provides for 'Publication of notification for acquisition', section 4 provides for the power to enter and survey the land under which the Central Government, State Government or Corporation proposes to lay pipelines for transporting petroleum or any mineral. Section 5 provides for hearing of objections of any person interested. Section 6 provides for 'Declaration of acquisition of right of user'. Under the scheme of the P&MP Act, upon issuance of notification under sub- section (3) of section 3 for acquisition of any land, objections are to be submitted within twenty-one days thereof, as provided under sub-section (1) of section 5 thereof. If no objections are received and the objections which are received are disallowed, the competent authority is required to make a Page 23 of 34 C/SCA/7917/2014 JUDGMENT report to the Central Government which, if satisfied that the land is required for laying any pipeline, shall declare by notification, that the right of user in the land for laying pipelines should be acquired. On publication of declaration, the right of user vests in the Central Government. Under section 7, upon the right of the user being vested in the Central Government or the State Government, as the case may be, any person so authorised can enter the land and can lay pipelines. Section 8 provides for 'Power to enter the land for inspection' and section 9 imposes restrictions regarding use of land in respect of which declaration has been made under sub- section (3) of section 6 of the Act. Section 10 provides for determination of compensation and section 11 provides for 'Deposit and payment of compensation'. Section 12 provides that the competent authority shall have all the powers of a civil court while trying a suit under the Code of Civil Procedure, 1908 in respect of the matters enumerated thereunder. Section 13 provides for 'Protection of action taken in good faith' and section 14 bars the jurisdiction of the civil courts in respect of any matter which the competent authority is empowered under the Act to determine and further provides that no injunction shall be granted by any court or other authority in respect of any action taken or proposed to be taken under any power conferred by or under the Act. Section 15 provides for 'Penalty' and section 16 provides that notwithstanding anything contained in the Code of Criminal Procedure, 1898, an offence falling under sub-section (2) of section 15 shall be deemed to be cognizable within the meaning of the Code. Section 17 empowers the Central Government to make rules for carrying out the purposes of the Act and section 18 provides that the provisions of the Act shall Page 24 of 34 C/SCA/7917/2014 JUDGMENT be in addition to and not in derogation of any other law for the time being in force relating to acquisition of land. Therefore, on an overall view of provisions of the Act, it is apparent that it is a complete Code in respect of acquisition of right of user in land for laying pipelines for transport of petroleum and minerals and for the determination in payment of compensation thereof. As rightly submitted by the learned counsel for the petitioner, it is not necessary to fall back on any other provisions of law for the purpose of deciding any application under the P&MP Act. It is in the light of the aforesaid scheme of the P&MP Act, that the provisions of rule 5 of the P&MP Rules are required to be interpreted. Rule 5, as noticed earlier, provides that any party aggrieved by the determination of the amount of compensation may prefer an application to the District Judge within the limits of whose jurisdiction the land or any part thereof is situated, not later than ninety days of the receipt of the intimation from the competent authority under rule 4(3). The expression used in the rule is "not later than ninety days". The question that arises for consideration is as to what meaning can be attributed to such expression and whether under the scheme of the Act and the Rules, section 29(2) of the Limitation Act shall be applicable. In the opinion of this court, from the language employed in rule 5, the crucial words used are "not later than ninety days". The expression "not later than ninety days" makes it clear that the outer limit for filing an application under sub-section (2) or sub-section (5) as the case may be, of section 10 of the P&MP Act is ninety days. There is no provision under the P&MP Act or the P&MP Rules under which the District Judge can entertain an application beyond a period of 90 days from the date of receipt of intimation under rule 4(3).
Page 25 of 34C/SCA/7917/2014 JUDGMENT Therefore, the phrase "not later than ninety days" would amount to an express exclusion within the meaning of section 29(2) of the Limitation Act and would, therefore, bar the application of section 5 of that Act. Therefore, if it is held that the court can entertain an application beyond the period prescribed in rule 5 of the P&MP Rules, it would render the words "not later than" wholly otiose. It is settled legal position that every word used by the legislature in a statute is required to be assigned some meaning. If it is held that there is a power to condone the delay, the words "not later than" would be rendered totally nugatory. The Supreme Court in the case of Union of India v. Popular Construction Company, (2001) 8 SCC 470 has, in the context of section 34 of the Arbitration and Conciliation Act, 1996 held that the crucial words are "but not thereafter". The court was of the opinion that this phrase would amount to an express exclusion within the meaning of section 29(2) of the Limitation Act and would, therefore, bar the application of section 5 of that Act. Parliament did not need to go further. To hold that the court could entertain an application to set aside the award beyond the extended period under the proviso, would render the phrase "but not thereafter" wholly otiose. No principle of interpretation would justify such a result. Under the circumstances, while the P&MP Act does satisfy the two requirements of section 29(2) of the Limitation Act namely, that it is a special law and there is a provision for limitation under such special law in connection with an application made under sub-section (2) or sub-section (5) of section 10 and the prescription of such limitation under such special law is also different from the period prescribed under the Limitation Act, however, the same also expressly excludes the applicability of the provisions of sections 4 to 24 Page 26 of 34 C/SCA/7917/2014 JUDGMENT of the Act in view of the language employed in rule 5 of the P&MP Rules which says that an application for determination before the District Court has to be made not later than ninety days of the receipt of the intimation from the competent authority. In the aforesaid premises, the provisions of section 5 of the Limitation Act would not be applicable to an application made under sub-section (2) or sub-section (5) of section 10 of the Act and hence, the District Judge has no power or authority to condone the delay caused in making an application under the said sub-sections. The learned District Judge was, therefore, not justified in condoning the delay caused in filing the applications filed by the respondents.
16. In this regard, a perusal of the impugned orders passed by the learned Additional District Judge in each of the applications reveals that the applications for condonation of delay have been allowed merely on the question of hardship without so much as adverting to the contentions raised with regard to non-applicability of the provisions of the Limitation Act to an application made under sub-section (2) or sub- section (5) of section 10 of the Limitation Act. As held by the Supreme Court in the case of Popat Bahiru Govardhane v. Special Land Acquisition Officer (supra), it is settled legal position that the law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribes. The court has no power to extend the period of limitation on equitable grounds. The statutory provision may cause hardship or inconvenience to a particular party but the court has no choice but to enforce it giving full effect to the same. The legal maxim dura lex sed lex which means "the law is hard but it is the law", stands attracted in Page 27 of 34 C/SCA/7917/2014 JUDGMENT such a situation. It has consistently been held that "inconvenience is not" a decisive factor to be considered while interpreting a statute. "A result flowing from a statutory provision is never an evil. A court has no power to ignore that provision to relieve what it considers a distress resulting from its operation."
17. As regards the decision of the Kerala High Court in Safiya v. the Deputy Collector (supra), the court has observed that while it is true that the P&MP Act being a special statute, the provisions of the Limitation Act are not applicable and therefore the provisions of section 5 of the Limitation Act cannot be invoked. However, having regard to the fact that in an earlier decision that court had considered a similar issue and held that the court had the power to condone the delay in filing the petition as provided under rule 5 of the P&MP Rules, the court found no reason to take a different view. The said decision does not contain any discussion on the applicability or otherwise of the provisions of the Limitation Act to an application under sub-section (2) or (5) of section 10 of the P&MP Act. In the case of Desam Venkataswara Reddy v. The Special Deputy Collector & Competent Authority (supra) the Andhra Pradesh High Court placed reliance upon the decisions of the Supreme Court in The Kerala State Electricity Board Trivandrum v. T. P. Kunhaliumma, (1976) 4 SCC 634 and in Mukri Gopalan v. Cheppilat Puthanpurayil Aboobacker, (1995) 5 SCC 5, while holding that an application under section 5 of the Limitation Act for condonation of delay is maintainable before the District Judge for invoking the provisions of section 10 of the P&MP Act. In The Kerala State Electricity Board Trivandrum v. T. P. Page 28 of 34 C/SCA/7917/2014 JUDGMENT Kunhaliumma, the Supreme Court was dealing with a case where the District Judge had held that the application under section 16(3) of the Indian Telegraph Act, 1885 claiming enhancement of compensation was governed by Article 137 of the Limitation Act, 1963 and the petition was filed beyond three years and was barred by time. The High Court, in revision, condoned the delay in filing the petitions. The Supreme Court held that Article 137 of the Limitation Act will apply to any petition or application filed under any Act to a civil court and set aside the judgment of the High Court. It may be noted that sub-section (3) of section 16 of the Indian Telegraph Act provides that if any dispute arises concerning the sufficiency of the compensation to be paid under section 10, clause (d), it shall, on application for the purpose by either of the disputing parties to the District Judge within whose jurisdiction the property is situated, be determined by him. Thus, unlike the provisions of the P&MP Rules, sub-section (3) of section 16 of the Indian Telegraph Act does not provide for any period of limitation for filing a petition/application thereunder. Evidently, therefore, the provisions of Article 137 of the Limitation Act would be attracted. As regards the decision of the Supreme Court in Mukri Gopalan v. Cheppilat Puthanpurayil Aboobacker (supra), the court held that the appellate authority constituted under section 18(1) has to decide a lis between parties in a judicial manner and subject to the revision of its order, the decision would remain final between the parties. It may be noted that under the P&MP Act, the District Judge is not an appellate authority but is an authority which determines the compensation in respect of any damage, loss or injury sustained by any person interested in the land under which the pipeline is proposed to Page 29 of 34 C/SCA/7917/2014 JUDGMENT be, or has been laid or the market value of such land. Besides, sub-section (2) of section 18 of the Kerala Buildings (Lease and Rent Control) Act, 1965 provides for preferring an appeal within a period of thirty days from the date of the order passed by the Rent Control Court. The said Act or rules do not provide for any outer limit for filing such appeal as in the case of rule 5 of the P&MP Rules. Therefore, it is in view of the absence of any exclusionary clause excluding the application of the provisions of the Limitation Act to the provisions of the said Act, that the Supreme Court has held that the provisions of section 29(2) of the Limitation Act would be applicable. Under the circumstances, neither of the above two decisions of the Supreme Court would have any applicability to the facts of the present case. This court, therefore, respectfully is unable to concur with the view adopted by the Kerala High Court and the Andhra Pradesh High Court in the above decisions.
18. At this juncture, it may be noted that in all these matters, it is an admitted position that the concerned parties had come before the court with applications for condonation of delay. Therefore, the parties, whether the claimants or GAIL (India) Limited were under an impression that there was a delay in filing the applications before the learned District Judge. The concerned Additional District Judge has, therefore, decided the applications on merits and has condoned the delay. It appears that it has not been contended before the court below that there was no delay in filing the applications under sub-section (2) or sub-section (5) as the case may be, of section 10 of the P&MP Act, in view of the fact that the respondents - claimants were not intimated about the award passed by the competent authority and that there was a total non-compliance of the provisions of rule 8 of the P&MP Rules.
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19. As can be seen from the impugned orders, the learned Additional District Judge has proceeded on the footing that the provisions of the Limitation Act would be applicable to an application made under sub-section (2) or sub-section (5) as the case may be, of section 10 of the P&MP Act and has thereafter condoned the delay. As held hereinabove, the provisions of the Limitation Act would not be applicable to an application under sub-section (2) or sub-section (5) of section 10 of the Act and, therefore, the reasoning adopted by the learned Additional District Judge while condoning the delay in filing the applications, cannot be accepted. However, it is the case of the respondents/claimants that rule 5 of the P&MP Rules provides for making an application under sub-section (2) or (5) of section 10 of the P&MP Act within a period of ninety days from the date of receipt of intimation from the competent authority under rule 4(3), however, they had never been intimated about the passing of the award in terms of rule 8 of the P&MP Rules and hence, there is no starting point for computation of the limitation of ninety days, and consequently, there is no delay in filing the applications. On behalf of the petitioner, it has been stated that the respondents-claimants were aware of the passing of the award and that they had been issued cheques and had also been informed of passing of the award at the time of issuance of the cheques and hence, the contention that since intimation under rule 4(3) was not received by them, the limitation would not start running is too hypertechnical.
20. In the opinion of this court, the question as to whether the respondents had been informed about the fixing Page 31 of 34 C/SCA/7917/2014 JUDGMENT of compensation by the competent authority as contemplated under rule 4(3) of the P&MP Rules or as to whether they had knowledge about the passing of such order, despite which they had not filed the applications under sub-section (2) or sub- section (5) of section 10 of the Act within the prescribed period of limitation as is sought to be contended on behalf of the petitioner - GAIL, is a disputed question of fact which has to be asserted, pleaded and proved before the concerned court. Having regard to the fact that the entire proceedings before the Additional District Judge proceeded on the footing that there was a delay, without any contention based upon rule 5 of the P&MP Rules being raised before the court, this court is of the view that the matters are required to be remitted to the learned District Judge for the purpose of deciding the same afresh after affording an opportunity of hearing to the parties. Having regard to the provisions of sub-rule (3) of rule 4 and rule 8 of the P&MP Rules, it would be open for the respondents/claimants to contend before the learned District Judge that there is no delay in filing the applications under sub- section (2) or sub-section (5) as the case may be, of section 10 of the P&MP Act in view of the fact that in terms of rule 5 of the P&MP Rules, the period of limitation would start running only from the date of intimation under sub-rule (3) of rule 4 of the said rules.
21. In the light of the above discussion, all the petitions are allowed. The impugned orders, except in Special Civil Application No.14358/2013, passed by the learned Additional District judge are hereby quashed and set aside and the matters are remanded to the learned District Judge for the purpose of deciding the same afresh on the question as to Page 32 of 34 C/SCA/7917/2014 JUDGMENT whether or not the applications were filed beyond the prescribed period of limitation. It will be open for the parties to amend the pleadings and lead evidence in support of their submissions. The applications for condonation of delay are only for the purpose of examining as to whether or not, in fact, there is any delay in making the applications. In case the court comes to the conclusion that there is a delay, the applications would have to be rejected on the ground of being barred by limitation. Rule is made absolute accordingly, to the aforesaid extent.
22. Insofar as Special Civil Application No.14358/2013 is concerned, the same has been filed by the respondent - claimant in relation to an application for condonation of delay made by GAIL (India) Limited. In this regard, a perusal of the record of the petition reveals that vide communication dated 29th August, 2012, the respondent GAIL (India) Limited was informed by the competent authority and Deputy Collector about the making of the order of compensation with a request to deposit the amount towards payment of compensation. Moreover, in the application made by GAIL under sub-section (2) of section 10 of the Act, it has been stated that the impugned award had been received by GAIL on 29th August, 2012 and that there was a delay of 66 days in filing the said application. Evidently, therefore, despite intimation as contemplated under sub-rule (3) of rule 4 of the Rules having been received by it, GAIL had made the application after a delay of 66 days. In the light of the fact that there is no power vested in the District Judge to condone the delay caused in filing an application under sub-section (2) or sub-section (5) of section 10 of the Act, the impugned order passed by the Page 33 of 34 C/SCA/7917/2014 JUDGMENT learned Additional District Judge condoning the delay caused in filing the application cannot be sustained. The petition, therefore, succeeds and is accordingly allowed. The impugned order dated 31st May, 2013 passed by the learned 2nd Additional District Judge, Dahod in Civil Miscellaneous Application No.5/2013 is hereby quashed and set aside. Rule is made absolute accordingly with no order as to costs.
( Harsha Devani, J. ) hki Page 34 of 34