Patna High Court - Orders
Bihar Industrial Area Development ... vs The State Of Bihar The Collector, Patna & ... on 13 November, 2017
Author: Hemant Kumar Srivastava
Bench: Hemant Kumar Srivastava
IN THE HIGH COURT OF JUDICATURE AT PATNA
First Appeal No. 96 of 2016
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Bihar Industrial Area Development Authority
.... .... Appellant/s
Versus
The State of Bihar the Collector, Patna & Ors
.... .... Respondent/s
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with
First Appeal No. 97 of 2016
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Bihar Industrial Area Development Authority
.... .... Appellant/s
Versus
The State of Bihar the Collector, Patna & Ors
.... .... Respondent/s
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Appearance :
(In FA No.96 of 2016)
For the Appellant/s : Mr. Sanjay Hegde, Sr. Adv.
Mr. Shashi Shekhar Dwivedi, Sr. Adv.
Mr. Parth Gaurav, Adv.
Mr. Yashraj Bardhan, Adv.
Mr. Bishwa Bandhu, Adv.
Mr. Pranjal Kishore Adv.
Anshu Raj Sinha, Adv.
For Respondent no. 3 & 4 Mr. Y.V. Giri, Sr. Adv.
Mr. Ambarish Kumar, Adv.
For the State Mr. Arun Kumar Bhagat, AC to AAG-12
(In FA No.97 of 2016)
For the Appellant/s : Mr. Sanjay Hegde, Sr. Adv.
Mr. Shashi Shekhar Dwivedi, Sr. Adv.
Mr. Parth Gaurav, Adv.
Mr. Yashraj Bardhan, Adv.
Mr. Bishwa Bandhu, Adv.
Mr. Pranjal Kishore Adv.
Anshu Raj Sinha, Adv.
For Respondent no. 3 Mr. Y.V. Giri, Sr. Adv.
Mr. Ambarish Kumar, Adv.
For respondent no. 1 Mr. Rakesh Ranjan, AC to AAG-12
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CORAM: HONOURABLE MR. JUSTICE HEMANT KUMAR
SRIVASTAVA
ORAL ORDER
9 13-11-2017I.A. No. 2859 of 2017 filed in F.A. No. 96 of 2016 and I.A. No. 2860 of 2017 filed in F.A. No. 97 of 2016 were heard Patna High Court FA No.96 of 2016 (9) dt.13-11-2017 2/14 together as both the aforesaid first appeals have arisen out of impugned judgment and award dated 05.07.2016/23.07.2016 passed by Chairman cum Presiding Officer, Land Acquisition, Rehabilitation and Resettlement Authority, Patna by which and whereunder he having exercised his power vested under Section 64 of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013(hereinafter referred to as "the Act, 2013") declared the private respondents to get enhanced compensation at the rate of Rs. 3,50,000/- per decimal along with other statutory benefits and directed the appellant to pay the compensation under the land acquisition cases.
2. Being aggrieved by the aforesaid judgment and award the appellant preferred above stated two separate appeals on 27.09.2016. The office of this court pointed out certain defects and accordingly, the appellant was asked to remove the aforesaid defects. The appellant removed all the defects but defect no. 6 was not removed within the time as granted by the court. However, subsequently, the aforesaid defect that is being defect no. 6 was removed by filing fresh certified copy of judgment and award. It is pertinent to mention here that when the memo of appeal was filed, the office pointed out defect no. 6 to this effect that certified copy Patna High Court FA No.96 of 2016 (9) dt.13-11-2017 3/14 of judgment and award furnished with memo of appeal does not bear seal of certified to be true with cage column. The office also pointed out that delay in furnishing the defect free certified copy of impugned judgment and award may affect the limitation. The appellant filed fresh certified copy of judgment and award on 07.02.2017 and after that the office reported on 04.03.2017 that there was delay of 121 days in filing F.A. No. 96 of 2016 whereas there was delay of 139 days in filing the F.A. No. 97 of 2016 and accordingly, vide order dated 08.03.2017 Lawazima Board granted time to file limitation petition as well as deficit court fee and thereafter, limitation petition under Section 5 of Limitation Act vide I.A. No. 2859 of 2017 and I.A. No. 2860 of 2017 were separately filed in both the above stated appeals.
3. Learned counsel appearing for the appellant in both the appeals submits that admittedly, the impugned judgment and award was passed on 23.07.2016 and the present appeals were filed on 27.09.2016 and, thereafter, there was only delay of four days. He further submits that as a matter of fact, the Act, 2013 vide Section 60(5) castes a duty upon the concerned authority to deliver copies of the award to the parties concerned within a period of 15 days from the date of such award but in the present case, no copy of the award was furnished to the appellant and, Patna High Court FA No.96 of 2016 (9) dt.13-11-2017 4/14 therefore, they applied for certified copy of impugned judgment and award and having got the certified copy of the award they filed the present appeals but concerned authorities supplied defective certified copies of the award and the office of this court instead of sending the certified copy of award to concerned authority for modification and correction of aforesaid certified copy, directed the appellant to remove the defect of the certified copy of the award but it was not in the control of the appellant to remove the aforesaid defect because the aforesaid error had been committed by the concerned authority and, therefore, the appellant applied for fresh certified copy of the award and as soon as they got the certified copy of the award, they filed fresh certified copy of the award before this court on 07.02.2017 and after that the stamp reporter gave his report regarding the period of limitation. The appellant then filed limitation petition under Section 5 of Limitation Act for condonation of delay in filing the present appeals. He submits that aforesaid fact demonstrates that delay, if any, in filing the appeals occurred due to supply of defective certified copies of the award as well as due to non compliance of Section 60(5) of the Act, 2013. He further submits that even if it assumed that there is delay in filing the present appeals, then also, delay is only for four days. He further submits that proviso of Patna High Court FA No.96 of 2016 (9) dt.13-11-2017 5/14 Section 74 of the Act, 2013 clearly says that the court may extend a further period of sixty days for filing appeal, if the court is satisfied that the appellant has been prevented by sufficient cause from filing the appeal within the period of sixty days from the date of award and the facts of the present case demonstrates that the appellant was prevented by sufficient cause from filing the appeal within the period prescribed of Section 74(1) of the Act, 2013 but they have filed the present appeal within the extended period of sixty days.
4. Learned counsel for the appellant further submits that even if it assumed that the Section 5 of Limitation Act is not applicable in the present case, then also, the aforesaid interlocutory applications may be treated to be filed under Section 74 of the Act, 2013 because mere wrong mentioning of provision in petition does not debar the appellant from placing the sufficient cause to show that he was prevented by sufficient cause from filing the appeal in time. In support of his contention, he referred the decision of Vijaya Bank vs. Shyamal Kumar Lodh reported in (2010) 7 SCC 635.
5. On the other hand, learned counsel appearing for the private respondents, at the very outset, raised the question of maintainability of aforesaid interlocutory applications arguing that Patna High Court FA No.96 of 2016 (9) dt.13-11-2017 6/14 Section 5 of Limitation Act is not applicable in the present case because Section 74 of the Act, 2013 clearly says that award passed by an Authority under Section 69 of the Act can be challenged in appeal before the High Court within sixty days from the date of the award and, therefore, the aforesaid provision goes to show that specific period of limitation for filing the appeal has been provided and, therefore, Section 5 of Limitation Act is not applicable in the present case. In support of his contention, he referred the decision of Chhattisgarh State Electricity Board vs. Central Electricity Regulatory Commission and Others reported in (2010) 5 SCC 23 wherein their Lordship in a case of Electricity Act 2003 held that under Section 125 of Electricity Act, 2003 any person aggrieved by any decision or order of the Appellate Tribunal may file an appeal to the Supreme Court within sixty days from the date of communication of decision or order and extension period is further sixty days under the proviso of aforesaid section and there is no provision in the Act for extension beyond that period. The Apex Court further goes to say that Electricity Act is a special legislation which is excluded from the purview of Limitation Act, 1963 by virtue of Section 29(2) of Limitation Act. On the strength of aforesaid decision, learned counsel appearing for the private respondents submits that Section Patna High Court FA No.96 of 2016 (9) dt.13-11-2017 7/14 125 of Electricity Act, 2003 is similar to the Section 74 of the Act, 2013 and, therefore, the proposition of law as laid down by the Apex Court in the aforesaid case shall apply to the present case also.
6. Learned counsel appearing for the private respondents submits that in view of specific provision of Section 74 of the Act, 2013, the court has got no jurisdiction to extend the period for filing the appeal beyond the period as mentioned in the aforesaid section itself. He relied upon decision of Union of India vs. Popular Construction Company reported in (2001) 8 SCC
470. He also relied upon decision of Rohitash Kumar and others vs. Om Prakash Sharma and others reported in (2013) 11 SCC 451 wherein the Apex Court of this country held that "Court cannot assume that Legislature while enacting statute has committed a mistake; it must proceed on the footing that Legislature intended what it has said; even if there is some defect in phraseology used in framing the statute." He further submits that even if it assumed that the appellant filed the present appeals after four days of delay, then also, no sufficient cause has been shown for condonation of the aforesaid delay because the averments made in interlocutory applications go to show that cause of delay has been explained only after pointing out the Patna High Court FA No.96 of 2016 (9) dt.13-11-2017 8/14 defect in certified copy of impugned judgment and award. He also submits that moreover, it is a admitted position that statutory period of filing appeal is only sixty days as per Section 74(1) of the Act, 2013 and the present appeals were not filed within the above stated period of sixty days and no petition for condonation of delay in filing the appeals was filed along with memo of appeal rather the petitions for condonation of delay were filed on 17.04.2017 i.e. much beyond period of sixty days. He, further, submits that after expiry of period of sixty days as well as extended period of sixty days, petition for condonation of delay cannot be entertained and the court cannot extend the period of limitation beyond above stated period of sixty days and extended period of sixty days. Therefore, in the aforesaid circumstance also, interlocutory applications filed on behalf of the appellant are liable to be dismissed. He further submits that proviso of Section 74 of the Act, 2013 can only be made applicable when there is prayer for condonation of delay within extended period of sixty days and if no prayer within extended period of sixty days is made, the court cannot condone the delay suo motu and, therefore, these appeals should be dismissed being time barred.
7. Having heard the contentions of both the parties, I have gone through the record along with relevant provisions of the Patna High Court FA No.96 of 2016 (9) dt.13-11-2017 9/14 Act, 2013. Section 74 of the Act, 2013 provides period of sixty days from the date of award for filing appeal and the proviso of aforesaid Section says that the court may extend further period of sixty days if court is satisfied that the appellant was prevented by sufficient cause from filing the appeal. Therefore, it is clear that aforesaid section contains specific period of limitation for filing appeal under the aforesaid Act. Section 29(2) of the Limitation Act, 1963 says 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 as, and to the extent to which, they are not expressly excluded by such special or local law. Section 29(2) of the Limitation Act, 1963 goes to show that if special or local law contains specific period of limitation and excludes the period of limitation as prescribed by the Schedule of limitation, in that event, the provisions of Limitation Act shall not apply. It is an admitted position that Section 74 of the Act, 2013 specifically provides sixty days period of limitation and further Patna High Court FA No.96 of 2016 (9) dt.13-11-2017 10/14 sixty days extended period of limitation for filing appeal and, therefore, in view of Section 29(2) of Limitation Act, 1963, in my view, Section 5 of Limitation Act shall not apply in the present case. No doubt, the above stated interlocutory applications have been filed under Section 5 of Limitation Act which is not applicable in the present case but even then mere mentioning of wrong section does not affect the right of appellant to make prayer for condonation of delay if he is entitled for the aforesaid relief otherwise. Therefore, even if it is taken into consideration that Section 5 of Limitation Act is not applicable in the present case, then also, the interlocutory applications filed on behalf of the appellant can be treated to be filed under Section 74 of the Act, 2013.
8. Admittedly, the impugned judgment and award was passed on 05.07.2016/23.07.2016 whereas present appeals were filed on 27.09.2016 and the limitation petitions were filed on 17.04.2017 when the stamp reporter pointed out the defect. It is an admitted position that appellant filed the present appeals after 66 days from the date of award and not within sixty days from the date of award. However, after filing of the appeals the office of this court pointed out that impugned award does not bear seal of certified to be true and accordingly, the appellant was directed to Patna High Court FA No.96 of 2016 (9) dt.13-11-2017 11/14 remove the aforesaid defect. It is pertinent to note here that it is prevalent practice of this court that ordinarily when any defect in certified copy of judgment and decree is found, the office of this court ordinarily suggests for sending down the judgment and decree for modification but in the present case, the appellant was asked to remove the aforesaid defect though the appellant was not responsible for the aforesaid defect. However, the appellant on 07.02.2017 filed fresh copy of impugned judgment and award and after that the stamp reporter made report regarding the limitation. The appellant after the above stated report of stamp reporter filed petition for condonation of delay. It is obvious from the aforesaid fact that the concerned authority supplied defective copies of award to the appellant and the appellant filed the present appeals along with aforesaid defective copies of the award on 27.09.2016. What happened after 27.09.2016, that was beyond the control of the appellant because when office of this court pointed out defect in certified copies of impugned judgment and award, the appellant immediately, applied for fresh certified copy of impugned award and having obtained fresh certified copy of impugned award filed the same before this court on 07.02.2017 and, thereafter, when the question of limitation was raised, he immediately filed interlocutory applications for condonation of delay. Therefore, in Patna High Court FA No.96 of 2016 (9) dt.13-11-2017 12/14 the aforesaid circumstance, even if it assumed that there is delay in filing the present appeals, then also, there is only delay of six days and for the remaining delays the appellant cannot be made responsible.
9. In para-3 of supplementary affidavit, it has specifically been pleaded on behalf of the appellant that delay in filing the appeal within sixty days from the date of passing of judgment and award was due to wrong counting of the period of limitation and that was without any deliberate intention. Therefore, the aforesaid fact goes to show that the appellant has properly explained the delay and in my view, the appellant was prevented by sufficient cause from filing the present appeal.
10. Learned counsel for the appellant has raised question that prayer for condonation of delay was made much beyond period of sixty days as well as extended period of sixty days and, therefore, this court cannot entertain the aforesaid prayer. Admittedly, in the present appeals, applications for condonation of delay were made on 17.04.2017 whereas both the above stated appeals were filed on 27.09.2016 though along with defective certified copies of impugned judgment and award and subsequently, the aforesaid defect was removed. Therefore, it is admitted position that appeals had already been filed within the Patna High Court FA No.96 of 2016 (9) dt.13-11-2017 13/14 extended period of sixty days though prayer for condonation of delay was made beyond the extended period of sixty days. Proviso of Section 74 of the Act, 2013 says that court on being satisfied that the appellant was prevented by sufficient cause from filing the appeal within the period as prescribed under Section 74(1) of the Act may allow further period of sixty days for filing the appeal. Therefore, the aforesaid provision clearly goes to show that aforesaid section states about filing of the appeal and not for filing of petition for condonation of delay. Therefore, in my view, even if after extended period of sixty days petition for condonation of delay is filed and the court is satisfied that the appellant was prevented to file appeal within period of sixty days the court can extend further period of sixty days for filing the appeal and, therefore, in my view, it is not necessary to file petition for condonation of delay within the extended period of sixty days rather petition for condonation of delay can be filed even after expiry of extended period of sixty days, if the appeal had already been filed within extended period of sixty days. Therefore, in the aforesaid circumstance, in my view, there is no substance in the objections raised on behalf of the respondents.
11. On the basis of aforesaid discussions, both the above stated interlocutory applications are allowed and delay in Patna High Court FA No.96 of 2016 (9) dt.13-11-2017 14/14 filing the present appeals is, hereby, condoned. Accordingly, both the appeals are admitted.
12. Let these matters be listed in the next week for hearing on I.A. No. 1469 of 2017 as well as I.A. No. 1472 of 2017.
(Hemant Kumar Srivastava, J) SHAHZAD/-
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