Himachal Pradesh High Court
State Of Himachal Pradesh vs M/S S V Global Mill on 27 October, 2022
Author: Sandeep Sharma
Bench: Sandeep Sharma
REPORTABLE
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 27TH DAY OF OCTOBER, 2022
.
BEFORE
HON'BLE MR. JUSTICE SANDEEP SHARMA
CIVIL MISC. PETITION (MAIN) NOS. 1347-51 & 1362 OF 2022
1. CIVIL MISC. PETITION (MAIN) NO. 1347 OF 2022
Between:-
1. STATE OF HIMACHAL PRADESH
THROUGH ITS PRINCIPAL SECRETARY (PWD) TO
THE GOVERNMENT OF HIMACHAL PRADESH,
SHIMLA-171002.
2. SUPERINTENDING ENGINEER, HPPWD CIRCLE
HAMIRPUR, DISTRICT HAMIRPUR, H.P.
3. LAND ACQUISITION COLLECTOR, HPPWD (CZ)
MANDI, HIMACHAL PRADESH
APPLICANTS
(BY MR. NARINDER GULERIA,
ADDITIONAL ADVOCATE GENERAL
WITH MS. SVANEEL JASWAL,
DEPUTY ADVOCATE GENERAL)
AND
1. HOSHIAR SINGH
SON OF LATE SHRI BHAGWAN SINGH
2. PARVEEN KUMARI
DAUGHTER OF LATE SHRI BHAGWAN SINGH
3. KALASHO DEVI
WD/O LATE SHRI BHAGWAN SINGH
4. SWARAN SINGH
SON OF LATE SHRI DHIAN SINGH
5. KASHMIRA DEVI
WIDOW OF LATE SHRI DHIAN SINGH
6. AMIT PARIHAR
SON OF LATE SHRI KARAN SINGH
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2
7. AKSHAY PARIHAR
SON OF LAT SHRI KARAN SINGH
8. SUDESH KUMARI
W/O LATE SHRI KARAN SINGH
.
9. MANKA DEVI
DAUGHTER OF LATE SHRI BHAGWAN SINGH
ALL RESIDENT OF VILLAGE & POST OFFICE
JALARI, TEHSIL NADAUN, DISTRICT
HAMIRPUR, H.P.
RESPONDENTS
(BY MR. VIRENDER THAKUR, ADVOCATE)
2. CIVIL MISC. PETITION (MAIN) NO. 1348 OF 2022
Between:-
1. STATE OF HIMACHAL PRADESH
THROUGH ITS PRINCIPAL SECRETARY (PWD) TO
THE GOVERNMENT OF HIMACHAL PRADESH,
SHIMLA-171002.
2. SUPERINTENDING ENGINEER, HPPWD CIRCLE
HAMIRPUR, DISTRICT HAMIRPUR, H.P.
3. LAND ACQUISITION COLLECTOR, HPPWD (CZ)
MANDI, HIMACHAL PRADESH
APPLICANTS
(BY MR. NARINDER GULERIA,
ADDITIONAL ADVOCATE GENERAL
WITH MS. SVANEEL JASWAL,
DEPUTY ADVOCATE GENERAL)
AND
KASHMIR SINGH
SON OF SHRI HARNAM SINGH,
RESIDENT OF VILLAGE & POST OFFICE JALARI
TEHSIL NADAUN, DISTRICT HAMIRPUR, H.P.
RESPONDENT
(BY MR. VIRENDER THAKUR, ADVOCATE)
3. CIVIL MISC. PETITION (MAIN) NO. 1349 OF 2022
Between:-
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3
1. STATE OF HIMACHAL PRADESH
THROUGH ITS PRINCIPAL SECRETARY (PWD) TO
THE GOVERNMENT OF HIMACHAL PRADESH,
SHIMLA-171002.
2. SUPERINTENDING ENGINEER, HPPWD CIRCLE
.
HAMIRPUR, DISTRICT HAMIRPUR, H.P.
3. LAND ACQUISITION COLLECTOR, HPPWD (CZ)
MANDI, HIMACHAL PRADESH
APPLICANTS
(BY MR. NARINDER GULERIA,
ADDITIONAL ADVOCATE GENERAL
WITH MS. SVANEEL JASWAL,
DEPUTY ADVOCATE GENERAL)
AND
VANEET KUMAR
SON OF LATE SHRI JAGIR SINGH,
RESIDENT OF VILLAGE & POST OFFICE JALARI
TEHSIL NADAUN, DISTRICT HAMIRPUR, H.P.
RESPONDENT
(BY MR. VIRENDER THAKUR, ADVOCATE)
4. CIVIL MISC. PETITION (MAIN) NO. 1350 OF 2022
Between:-
1. STATE OF HIMACHAL PRADESH
THROUGH ITS PRINCIPAL SECRETARY (PWD) TO
THE GOVERNMENT OF HIMACHAL PRADESH,
SHIMLA-171002.
2. SUPERINTENDING ENGINEER, HPPWD CIRCLE
HAMIRPUR, DISTRICT HAMIRPUR, H.P.
3. LAND ACQUISITION COLLECTOR, HPPWD (CZ)
MANDI, HIMACHAL PRADESH
APPLICANTS
(BY MR. NARINDER GULERIA,
ADDITIONAL ADVOCATE GENERAL
WITH MS. SVANEEL JASWAL,
DEPUTY ADVOCATE GENERAL)
AND
SANTOSH KUMAR
SON OF SHRI GOPAL SINGH,
RESIDENT OF VILLAGE & POST OFFICE JALARI
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TEHSIL NADAUN, DISTRICT HAMIRPUR, H.P.
RESPONDENT
(BY MR. VIRENDER THAKUR, ADVOCATE)
5. CIVIL MISC. PETITION (MAIN) NO. 1351 OF 2022
Between:-
.
1. STATE OF HIMACHAL PRADESH
THROUGH ITS PRINCIPAL SECRETARY (PWD) TO
THE GOVERNMENT OF HIMACHAL PRADESH,
SHIMLA-171002.
2. SUPERINTENDING ENGINEER, HPPWD CIRCLE
HAMIRPUR, DISTRICT HAMIRPUR, H.P.
3. LAND ACQUISITION COLLECTOR, HPPWD (CZ)
MANDI, HIMACHAL PRADESH
APPLICANTS
(BY MR. NARINDER GULERIA,
ADDITIONAL ADVOCATE GENERAL
WITH MS. SVANEEL JASWAL,
DEPUTY ADVOCATE GENERAL)
AND
ONKAR SINGH
SON OF SHRI RAM SINGH,
RESIDENT OF VILLAGE & POST OFFICE JALARI
TEHSIL NADAUN, DISTRICT HAMIRPUR, H.P.
RESPONDENT
(BY MR. VIRENDER THAKUR, ADVOCATE)
6. CIVIL MISC. PETITION (MAIN) NO. 1362 OF 2022
Between:-
1. STATE OF HIMACHAL PRADESH
THROUGH ITS PRINCIPAL SECRETARY (PWD) TO
THE GOVERNMENT OF HIMACHAL PRADESH,
SHIMLA-171002.
2. SUPERINTENDING ENGINEER, HPPWD CIRCLE
HAMIRPUR, DISTRICT HAMIRPUR, H.P.
3. LAND ACQUISITION COLLECTOR, HPPWD (CZ)
MANDI, HIMACHAL PRADESH
APPLICANTS
(BY MR. NARINDER GULERIA,
ADDITIONAL ADVOCATE GENERAL
WITH MS. SVANEEL JASWAL,
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5
DEPUTY ADVOCATE GENERAL)
AND
RANBIR SINGH
SON OF SHRI GOPAL SINGH,
RESIDENT OF VILLAGE & POST OFFICE JALARI
.
TEHSIL NADAUN, DISTRICT HAMIRPUR, H.P.
RESPONDENT
(BY MR. VIRENDER THAKUR, ADVOCATE)
These petitions coming on for orders this day, the court passed the following:
O R D E R
Since by way of above captioned applications filed under S.5 of Limitation Act, prayer has been made on behalf of the applicants for condoning the delay in filing the accompanying appeals filed under S.74 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (hereinafter, '2013 Act') against a common award dated 3.10.2020 passed by learned Additional District Judge, Hamirpur, Himachal Pradesh in Land Reference Petitions Nos. 2 of 2018 RBT No. 8/18 (CMP(M) No. 1347 of 2022), 4 of 2018 RBT No. 4/18 (CMP(M) No. 1348 of 2022), 5 of 2018 RBT No. 5/18 (CMP(M) No. 1349 of 2022), 9 of 2018 (CMP(M) No. 1350 of 2022) 10 of 2018 (CMP(M) No. 1351 of 2022) and 8 of 2018 (CMP(M) No. 1362 of 2022), all the applications were clubbed and heard together and are now being disposed of vide common order.
2. Though, vide order dated 17.10.2022, this court, while issuing notices to the respondents, granted time to file replies to the applications, but Learned Counsel appearing for the non-applicant(s), while inviting attention of this Court to judgment dated 25.9.2019 passed by High Court of Karnataka at Bengaluru in case titled The Deputy Commissioner vs M/S S V Global Mill ::: Downloaded on - 03/11/2022 20:29:52 :::CIS 6 Limited, vehemently argued that the applications filed for condonation of delay as detailed herein above, are not maintainable and deserve to be dismissed outrightly. However, this Court enabling learned Additional Advocate General to go through aforesaid judgment, adjourned the matter for .
today.
3. Precisely, the facts relevant for the adjudication of the present applications are that the Superintending Engineer, 8th Circle, Hamirpur, being aggrieved and dissatisfied with award dated 3.10.2020 passed by learned Additional District Judge, Hamirpur in the land reference petitions as detailed herein above, has filed Regular First Appeals under S.74 of the 2013 Act but since there is delay of around one year, eight months and four days in all the appeals, applications under S.5 of the Limitation Act, which are being considered and decided by way of instant order, have been filed praying therein for condonation of delay.
4. Government of Himachal Pradesh issued Notification dated 31.7.2015/28.10.2015, under S.11 of the 2013 Act, for acquisition of the land comprising of Khasra Nos. 48, 51, 55, 58, 61, 74 and 75/1, measuring 0-26-47 hectares situate in Village Jalari Badiara, Tehsil Nadaun, District Hamirpur, Himachal Pradesh for the construction of "Nadaun-Sujanpur via Bara road". District Collector, Hamirpur and approved the rate of Rs.1,000/- per square metres vide letter dated 11.1.2017 which was found just and fair by the Land Acquisition Collector. The Land Acquisition Collector assessed the value of the land at Rs. 26,47,000/- and also awarded compulsory acquisition charges amounting to Rs. 26,47,000/- and additional market value @12% per annum under S.30(1)-(3) of the 2013 Act with effect from 31.7.2015 to 38.2.2017 and 9.12.2015 to 28.2.2017, amounting to Rs. 4,80,634/- and thus total ::: Downloaded on - 03/11/2022 20:29:52 :::CIS 7 compensation amounting to Rs. 57,74,634/- was awarded in favour of the respondents/claimants, claimants being aggrieved on account of quantum of compensation awarded by Land Acquisition Collector filed reference petitions praying therein for enhancement of compensation. Reference Court held the .
claimants entitled for compensation qua acquired land @Rs.1050/- and consortium @100% and additional amount at the rate of 12% of the market value with effect from 31.7.2015 till 29.5.2017, interest by way of damages @ 11% of market value w.e.f. 9.7.1968 till 31.7.2015 and 15% from the date of Notification dated 31.7.2015 till the date of payment as per provisions of Ss. 72 and 84 of the 2013 Act.
5. Being aggrieved and dissatisfied with the aforesaid award passed by Reference Court below, applicants have approached this Court by way of regular first appeals under S.74 of the 2013 Act, which have been not registered yet on account of delay in maintaining the appeal. For condonation of delay in filing the appeals, applicants have filed applications under S. 5 of Limitation Act.
6. As per report of the Registry, there is delay of one year, eight months and four days in maintaining all the appeals.
7. Averments contained in the applications, praying therein for condonation of delay, if read in their entirety, reveal that the sole ground set up for condonation of delay is lengthy administrative process. It has been averred in the application that the matter remained pending before various authorities, whose approval was necessarily required for filing the appeals.
8. Though, in the case at hand, no reply has been filed to the applications, but it has been argued by Mr. Virender Thakur, learned counsel for the respondents/claimants that that the applications under S. 5 of ::: Downloaded on - 03/11/2022 20:29:52 :::CIS 8 Limitation Act are not maintainable in view of the specific provisions contained under S.74(1)of the 2013 Act itself, wherein specific period of limitation of 60 days for filing appeal against the award/order passed under S. 69 of the Act has been provided. Mr. Thakur argued that since the 2013 Act is a special .
statute, S.5 of Limitation Act is not applicable in view of the provisions of S. 29 of the Limitation Act, which itself provides that in case specific period of limitation is provided under special Act to file a suit, appeal etc, application, if any, under S.5 of the Limitation Act, shall not be maintainable. To support his aforesaid contention, he placed reliance upon judgment rendered by High Court of Karnataka at Bengaluru in The Deputy Commissioner v. M/s. S.V. Global Mill Limited, decided on 25.9.2019, wherein admittedly, it has been held that in light of S.29(2) of the Limitation Act, application, if any, filed under S. 5 of Limitation Act, for condonation of delay in filing appeal under S. 74(1) of the 2013 Act, is not maintainable.
9. Mr. Narinder Guleria, learned Additional Advocate General, while refuting aforesaid submission made on behalf of learned counsel for the respondents, argued that though the 2013 Act is a special enactment, but S. 74(1) of the said Act does not exclude provisions of Ss. 4 to 24 of the Limitation Act, as such, application filed under S. 5 of Limitation Act, praying therein for condonation of delay is maintainable. He further argued that the provisions of S. 5 of Limitation Act, are applicable and even if the appeal is filed beyond the period of 120 days, there is scope for condoning the same under S. 5 of the Limitation Act. He further submitted that S.29(2) of the Limitation Act, does not exclude the provisions of Ss. 4 to 24 of the Limitation Act, particularly, S.5 thereof. Lastly, he submitted that the right to file an appeal is a statutory right and as such, same cannot be curtailed on mere ::: Downloaded on - 03/11/2022 20:29:52 :::CIS 9 technicalities. However, he fairly admitted that the detailed law has been laid on the issue by High Court of Karnataka at Bengaluru in S.V. Global Mill Limited (supra).
10. Before ascertaining the correctness of the rival submissions made by .
Learned Counsel appearing for the parties, this court deems it necessary to take note of S.74 of the 2013 Act as well as Ss. 3, 5 and 29 of the Limitation Act, which read as under:
"2013 Act:
"74. Appeal to High Court.-(1) The Requiring Body or any person aggrieved by the Award passed by an Authority under section 69 may file an appeal to the High Court within sixty days from the date of Award: Provided that the High Court may, if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal within the said period, allow it to be filed within a further period not exceeding sixty days. (2) Every appeal referred to under sub-section (1) shall be heard as expeditiously as possible and endeavour shall be made to dispose of such appeal within six months from the date on which the appeal is presented to the High Court.
Explanation.--For the purposes of this section, "High Court" means the High Court within the jurisdiction of which the land acquired or proposed to be acquired is situated."
xxx Limitation Act:
"3. Bar of limitation.--(1) Subject to the provisions contained in sections 4 to 24 (inclusive), every suit instituted, appeal preferred, and application made after the prescribed period shall be dismissed, although limitation has not been set up as a defence. (2) For the purposes of this Act,--(a) a suit is instituted,--
(i) in an ordinary case, when the plaint is presented to the proper officer;
(ii) in the case of a pauper, when his application for leave to sue as a pauper is made; and
(iii) in the case of a claim against a company which is being wound up by the court, when the claimant first sends in his claim to the official liquidator;
(b) any claim by way of a set off or a counter claim, shall be treated as a separate suit and shall be deemed to have been instituted--
(i) in the case of a set off, on the same date as the suit in which the set off is pleaded;::: Downloaded on - 03/11/2022 20:29:52 :::CIS 10
(ii) in the case of a counter claim, on the date on which the counter claim is made in court;
(c) an application by notice of motion in a High Court is made when the application is presented to the proper officer of that court."
xxx .
"5. Extension of prescribed period in certain cases.--Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 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. Explanation.--The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section."
xxx "29. Savings.--(1) Nothing in this Act shall affect section 25 of the Indian Contract Act, 1872 (9 of 1872).
(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.
(3) Save as otherwise provided in any law for the time being in force with respect to marriage and divorce, nothing in this Act shall apply to any suit or other proceeding under any such law.
(4) Sections 25 and 26 and the definition of "easement" in section 2 shall not apply to cases arising in the territories to which the Indian Easements Act, 1882 (5 of 1882), may for the time being extend."
It would also be useful to extract Sections 4 and 12 to 14 of the Limitation Act as under:
"4. Expiry of prescribed period when court is closed.-- Where the prescribed period for any suit, appeal or application expires on a day when the court is closed, the suit, appeal or application may be instituted, preferred or made on the day when the court reopens.
Explanation.--A court shall be deemed to be closed on any day within the meaning of this section if during any part of its normal working hours it remains closed on that day.
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11. As per non-applicants/respondents, appeal, if any, against order passed under S. 69 of the 2013 Act, can be filed within a period of 60 days from the date of award and/or if the appellant satisfies the court that it was prevented by sufficient cause from filing the appeal within the said limitation, .
he could prefer an appeal within further period not exceeding 60 days. Since, in the case at hand, appeals have been filed beyond the period of 120 days (60+60 days) from the date of award, the question which remains to be decided in the instant proceedings, is, "whether delay beyond 120 days, if any, in maintaining the appeal can be condoned by applying provisions of S. 5 of Limitation Act? Another question which needs determination in the case at hand is, "whether application under S.5 of the Limitation Act is maintainable under S.74(1) of the 2013 Act?"
12. Though the learned Additional Advocate General attempted to carve out a case that provisions of S.5 of Limitation Act are applicable, even if appeals under S. 74(1) of 2013 Act are filed beyond the period of limitation but having carefully perused the provisions contained under S. 29(2) of the Limitation Act, this court finds it difficult to agree with the aforesaid contention of learned Additional Advocate General.
13. Plain reading of S.29(2) of the Limitation Act clearly suggests 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 in so far ::: Downloaded on - 03/11/2022 20:29:52 :::CIS 12 as, and to the extent to which, they are not expressly excluded by such special or local law.
14. Since, in the case at hand, there is a specific bar under S.74(1) of the 2013 Act to entertain appeal after expiry of 120 days (60+60 days), there .
appears to be merit in the contention of learned counsel for the respondents that the application under S.5 of Limitation Act, praying therein to condone the delay in filing appeal under S.74(1) of the 2013 Act is not maintainable. Under S.74 of the 2013 Act, it has been provided that a person aggrieved, may file appeal in the High Court within 60 days of passing of an award. Provisions of aforesaid Section provide that, if the High Court is satisfied that the appellant was prevented by sufficient cause from filing the appeal within the said period, it can allow the party to file an appeal within a period, not exceeding 60 days.
15. S.5 of Limitation Act permits extension of prescribed period and if the applicant satisfies the appellate court that he has sufficient cause for not filing the appeal or make an application within the period of limitation but by not prescribing, whereas, under provisions of S.74(1) of the 2013 Act, extension beyond the period of limitation is only 60 days from the date of expiry of initial period of 60 days but since extended period allowed stands already fixed under S.74 of 2013 Act, question remains to be decided that, "whether S.5 of Limitation Act applies and/or whether it is excluded in view of specific provision under S.74(1) of the 2013 Act.
16. Having perused judgment passed by Hon'ble Apex Court in Union of India v. Popular Construction Company (2001)8 SCC 470 and other judgments of Hon'ble Apex Court i.e. Garikapati Veeraya v. N. Subbaiah, AIR 1957 SC 540, Anant Mills Company Limited v. State of Gujarat, AIR 1975 SC 1234, Ganga Bai v. Vijay Kumar, (1974 2 SCC 393), Sita Ram v. ::: Downloaded on - 03/11/2022 20:29:52 :::CIS 13 State of U.P, (1979) 2 SCC 656, N. Balakrishnan v. M. Krishnamurthy, (1998) 7 SCC 123, State of Madhya Pradesh v. Pradeep Kumar, (2000) 7 SCC 372, State of Orissa v. Mamata Mohati, (2011) 3 SCC 436, Hukumdev Narain Yadav v. Lalit Narian Mishra, (1974) 2 SCC 133, Nasiruddin v. Sita .
Ram Agarwal, (2003) 2 SCC 577, Fairgrowth Investments v. Cuttodian (2004) 11 SCC 472, Singh Enterprises v. Commissioner of Central Excise, Jamshedpur, (2008) 3 SCC 70, Commissioner of Customs, Central Excise, Noida v. Punjab Fibres Limited, Noida, (2008) 3 SCC 73, Good Earth Steeis (P) Limited v. Commissioner of Central Excise, (2008)3 SCC 77, Consolidated Engineering Enterprises v. Prl. Secretary, Irrigation Department, (2008) 7 SCC 169, State of Goa v. Western Builders, (2006) 6 SCC 239, Coal India Limited v. Ujjal Transport Agency, (2011) 1 SCC 117, Commissioner of Central Excise & Customs v. Hongo India (P) Ltd. (2009) 5 SCC 791, Smt. Hetal Alpesh Muchhala v. Adityesh Educational Institute & others, (2009) SCC Online Bom. 1454, Chhattisgarh State Electricity Board v. Central Electricity Regulatory Commission and others, (2010) 5 SCC 23, Mukri Gopalan v. Cheppilat Puthanpurayil Aboobacker, (1995) 5 SCC 5, Harish Chandra Raj Singh v. Land Acquisition Officer, AIR 1961 SC 1500, Transport Commissioner v. Nand Singh, (1979) 4 SCC 19, Muthiah Chettiar v. CIT, AIR 1951 Mad 204, CCE v. M.M. Rubber Co., 1992 Supp (1) SCC 471, Ketan v. Special Director, Directorate of Enforcement and Antoher, (2011) 15 SCC 30, M.P. Steel Corporation v. C.C.E. (2015) 7 SCC 58, Bihar Industrial Area Development Authority v. The State of Bihar, The Collector, Patna and others, First Appeal No. 96/2016, D.D. 13.11.2017, State of Haryana v. Hindustan Machine Tools Limited, AIR 2015 P&H 45, Oil and Natural Gas ::: Downloaded on - 03/11/2022 20:29:52 :::CIS 14 Corporation Limited v. Gujarat Energy Transmission Corporation Limited and others, (2017) 5 SCC 42, Patel Brothers v. State of Assam, (2017) 2 SCC 350, P. Radha Bai and others v. Ashok Kumar and another, AIR 2018 SC 5013, Bengal Chemists and Druggists Association v. Kalyan .
Chowdhury, (2018) 3 SCC 41, Partap Singh v. Directorate of Enforcement, (1985) 2 SCC 71, Mangu Ram v. MCD, (1976) 1 SCC 391, Nasir Ahmmed v. National Investigation Agency, (2015) 3 KLT 320, Farhan Sheikh bv. State (National Investigation Agency), (2019) SCC Online Del. 9158, Abdul Ghafoor and another v. State of Bihar, (2011) 14 SCC 465, Simplex Infrastructure Limited v. Union of India, (2019) 2 SCC 455, Basavaraj v. Land Acquisition Officer, (2013) 14 SCC 81, Rohitash Kumar and others v. Om Prakash and others, (2013) 11 SCC 451, this court is persuaded to conclude that S.74 of the 2013 Act excludes application of S.5 of Limitation Act for condonation of delay in filing the appeal under S.74 of 2013 Act. Limitation of 60 days for filing appeal is as per provisions of S.74 of the 2013 Act.
17. Aforesaid view taken by this Court is further fortified by detailed judgment passed by High Court of Karnataka at Bengaluru on 25.9.2019, as discussed supra, wherein said High Court, while taking note of various judgments on the subject, passed by Hon'ble Apex Court, has categorically held that the phrase, "within sixty days from the date of the award" in S.74(1)of the 2013 Act and expression, "a further period not exceeding sixty days", in the proviso thereto, amounts to interpreting .. that there is specific period of limitation prescribed under
18. It has been further held by High Court of Karnataka that special statute having specific provision regarding limitation would prevail over the Limitation ::: Downloaded on - 03/11/2022 20:29:52 :::CIS 15 Act, which is a general law and S.5 is not applicable to S. 74, as it provides specific period of limitation, different from what is prescribed under Art. 116 of the Schedule of Limitation Act. High Court of Karnataka at Bengaluru, held in S.V. Global Mill (supra) as under:
.
"88. Applying the aforesaid judicial dicta, it is held that the phrase 'within sixty days from the date of the Award' in Section 74(1) of the 2013 Act and the expression "within a further period not exceeding sixty days" in the proviso thereto must be interpreted to mean that there is a specific limitation prescribed in the 2013 Act, which is a code by itself in the matter of grant of fair compensation in respect of acquisition of land and other matters incidental thereto. Therefore, the special statute having a specific provision regarding limitation period would prevail over the Limitation Act, which is a general law and hence, Section 5 of the Limitation Act is not applicable to Section 74(1) of the 2013 Act as it prescribes a specific period of limitation different from what is prescribed under Article 116 of the Schedule to the Limitation Act.
89. But, the matter does not end. The further consideration which has to be made is as to whether the other provisions of the Limitation Act which are applicable to appeals would apply to Section 74 of the 2013 Act having regard to Section 29(2) of the Limitation Act. While on a consideration of the scheme of the 2013 Act, in light of the decisions of the Hon'ble Supreme Court, it is held that Section 5 of the Act does not apply, it is necessary to consider as to whether Sections 4 and 12 to 14 would apply. Thus, the interpretation is to be placed on the expression "within sixty days from the date of the Award" in Section 74(1) of the 2013 Act. Does it mean that the said period of sixty days must be calculated in a mechanical or pedantic manner or in a practical way? If Section 12 of the Limitation Act is considered, it is noted that in computing the period of limitation for any appeal, the day from which such period is to be reckoned has to be excluded i.e., date of the award in the instant case. In other words, the day on which the judgment i.e., the Award in the instant case, was made or drawn has to be excluded. This is also having regard to Section 9 of the General Clauses Act, 1899. The time taken for preparing the certified copy of the Award sought to be appealed against, has to be excluded. If an extreme situation is considered, there could be expiry of sixty days from the date of the Award in the preparation of the certified copy of the award itself, in that, after the pronouncement of the judgment, the reference court would take some time for the preparation of the award and thereafter the certified copy of the Award would have to be made ready, by which time, sixty days may lapse from the date of the award. In such a case, there is no doubt further period of sixty days for filing of the appeal under the proviso to Section 74(1) of the 2013 Act, would apply. But the question is, if for any reason beyond the control of the appellant the certified copy of the Award is received by the aggrieved party beyond 120 days, i.e., (60 days + ::: Downloaded on - 03/11/2022 20:29:52 :::CIS 16 60 days) from the date of the Award, then whether the period of limitation could be construed by exclusion of the periods mentioned under Section 12 of the Limitation Act. While considering the expression 'sixty days from the date of the Award' and 'further period not exceeding sixty days', in our view, the day on which the Award was signed which is the date of the Award would have to be excluded. Further, the period taken for preparation .
of the certified copy of the judgment and Award would also have to be excluded. If after such exclusion of the aforesaid period, if the appeal is filed within a period of sixty days, then the there would be no delay in filing of the appeal to the High Court. If it is beyond that period, then the proviso would apply, provided the appeal is filed within sixty days as mentioned in the proviso to Section 74(1) of 2013 Act.
90. Similarly, under Section 13 of the Limitation Act, while computing the period of limitation prescribed for filing of an appeal under Section 74(1) of the 2013 Act in cases where leave to sue or appeal as a pauper is applied for, the time during which the appellant has been prosecuting in good faith his application for such leave regarding payment of the Court fees prescribed for filing of an appeal to the High Court, shall have to be excluded by treating the appeal as having the same force and effect as if the court fees had been paid in the first instance. Section 13 of the Limitation Act may have relevance to appeals filed by land losers as court fees would have to be paid on the enhanced compensation sought by the land- loser.
91. Similarly, in computing the period of limitation for filing an appeal under Section 74(1) of the 2013 Act, the time spent in prosecuting bona fide with due diligence an appeal before an appellate court not being the competent court in good faith has to be excluded. In fact, Section 14 of the Limitation Act has been made applicable to Section 34(3) of the Arbitration Act in the cases of Popular Construction Limited, Consolidated Engineering Enterprises, Ketan, Western Builders, Simplex Infrastructure Limited and such other cases where provisions similar to Section 74(1) of the 2013 Act have been considered.
92. Thus, there can be no exception to the period of limitation to file an appeal to the High Court and the 60 days has to be computed after application of Sections 12, 13 and 14 of the Limitation Act. In other words, while applying the period of limitation prescribed under Section 74(1) of the 2013 Act in the matter of filing an appeal to the High Court against the judgment and Award of the reference court, while considering as to whether the appeal filed is within the period of 60 days, the exclusion of time as envisaged under Sections 12, 13 and 14 must be made applicable. In our view, such an interpretation would also be in consonance with Article 300A of the Constitution, which recognizes the Constitutional right of a person to his property as no person can be deprived of such a Constitutional right except by authority of law. The same is also in line with the interpretation made by the Hon'ble Supreme Court vis-à-vis other special statutes. Further, on a reading of Section 74(1) of the 2013 Act, there is no bar, either express or implied, which excludes application ::: Downloaded on - 03/11/2022 20:29:52 :::CIS 17 of Sections 12 to 14 of Limitation Act. On the other hand, if a mechanical interpretation is given to the words "within sixty days from the date of the Award" and the expression "a further period not exceeding sixty days", without taking into consideration Sections 12, 13 and 14 of the Limitation Act, it would result in violation of the Constitutional right of a land-loser to seek enhancement by filing an appeal to the High Court and also disable .
him from seeking enhancement of compensation. The application of Sections 12 to 14 of Limitation Act is in order to advance justice as the reasons for exclusion of the periods mentioned in those Sections while computing the limitation period are those which are beyond the control of the party seeking to file an appeal to the High Court. In the same vein Section 4 of the Limitation Act is applicable. Thus, a pedantic interpretation of the 2013 Act must be avoided. It must be interpreted in such a manner that the judicial dicta with regard to the applicability of a distinct limitation period under the Special Act in light of Section 29(2) of the Limitation Act on the one hand, is balanced with the Constitutional right of a land-loser on the other hand. This would also advance the cause of justice of the stake holders involved in the acquisition of land under the 2013 Act as in the instant case."
19. In view of the detailed discussion made supra, this court is of the view that the applications under S.5 of Limitation Act are not maintainable for condoning the delay in filing the appeals under S.74 of the 2013 Act, in view of specific bar under S.74(1) of the said Act, whereby specific period of limitation has been given as 60 days, which can be extended upto further 60 days. Thus, no appeal beyond the period of total 120 days (60+60 days) is maintainable and therefore, the present applications are not maintainable and deserve to be dismissed.
20. Consequently, in view of detailed discussion made above and law taken note supra, present applications are dismissed as not maintainable.
(Sandeep Sharma), Judge October 27, 2022 (vikrant) ::: Downloaded on - 03/11/2022 20:29:52 :::CIS