Andhra HC (Pre-Telangana)
Desam Venkateswara Reddy vs 1.The Special Deputy Collector & ... on 5 June, 2014
Equivalent citations: AIR 2015 (NOC) 444 (HYD.), 2014 AIR CC 3187 (HYD) (2014) 5 ANDHLD 94, (2014) 5 ANDHLD 94
THE HONBLE SRI JUSTICE A.V.SESHA SAI WRIT PETITION NOs.6783 OF 2006, 05-06-2014 Desam Venkateswara Reddy ...PETITIONER 1.The Special Deputy Collector & Competent Authority (Land Acquisition), Gas Authority of India Ltd., G.Konduru (V), Vijayawada, Krishna District. 2. The Deputy Manager, GAIL, G.Konduru Village,Vijayawada, Krishna District....RESPONDENTS Counsel for Petitioner: Sri J.U.M.V.Prasad Counsel for Respondent No.1: G.P. for Land Acquisition Counsel for Respondent No.2: K.Venkata Rao <GIST: >HEAD NOTE: ? Cases referred 1.AIR 1977 SC 282(1) 2.(1995) 5 SCC 5 THE HONBLE SRI JUSTICE A.V.SESHA SAI WRIT PETITION NOs.6783 OF 2006, 16012 AND 16131 OF 2007 COMMON ORDER:
Since these three Writ Petitions, filed under Article 226 of the Constitution of India, raise common questions of law and involve similar facts with slight variations, these three Writ Petitions are heard together and are being disposed of by this common order.
W.P.No.6783 of 2006 is filed, questioning the orders passed by the learned II Additional District Judge, Vijayawada, in I.A.No.9200 of 2005 in L.A.O.P.No. Nil of 2005 dated 09.03.2006.
W.P.No.16012 of 2007 is filed, questioning the orders passed by the learned II Additional District Judge, Vijayawada, in I.A.No.2042 of 2006 in L.A.O.P (SR) No.21635 of 2006 dated 22.11.2006.
W.P.No.16131 of 2007 is filed, questioning the orders passed by the learned II Additional District Judge, Vijayawada, in I.A.No.2041 of 2006 in L.A.O.P (SR) No.21634 of 2006 dated 22.11.2006.
Heard Sri J.U.M.V.Prasad, learned counsel for the petitioners in all the three Writ Petitions and Sri K.Venkata Rao, learned Standing Counsel for the respondents.
The facts and circumstances, in a nutshell, leading to filing of the present Writ Petitions are as under:
The respondent-Gas Authority of India Ltd., acquired the lands of the petitioners herein for laying gas pipeline and paid compensation under the provisions of the Petroleum Mineral Pipelines (Acquisition of Right of User in Land) Act, 1962 (hereinafter called as the Act). According to the petitioner in W.P.No.6783 of 2006, he received the said amount under protest and requested for award copy, but the respondents kept quiet, which compelled the petitioner to submit representations on 15.06.2005 and 27.06.2005 to refer the matter to the Civil Court for the purpose of claiming enhancement of the compensation and it is also the case of the petitioner that she requested the authorities to furnish the original proceedings/award copy to enable her to file appropriate petition before the Civil Court for enhancement but the said requisition was not considered, which prompted her to file W.P.No.20279 of 2005 before this Court, seeking a direction to the first respondent to refer the earlier petition dated 28.08.2003 to the Civil Court or in alternative to furnish the original award copy and the said Writ Petition was disposed of on 29.09.2005, directing the petitioner in W.P.No.6783 of 2006 to approach the Court of the District Judge concerned directly under Section 10(2) of the Act.
In W.P.No.16012 of 2007, it is the case of the petitioner that the respondents acquired her land wherein she raised 262 teak trees, 2 neem trees, 60 banginapally mango trees, bitter gourd crop and drumsticks and received compensation of Rs.1,38,070/- by way of cheque. It is also the case of the petitioner in W.P.No.16012 of 2007 that being an old woman suffering from illness and taking medical treatment, she could not file the application for enhancement of compensation within time before the District Court.
Coming to W.P.No.16131 of 2007, it is the case of the petitioner herein that the respondent-authorities acquired his land also for which they paid compensation and at the time of awarding compensation he was in abroad and in his absence, his son received compensation under protest.
In W.P.No.6783 of 2006, the petitioner filed I.A.No.9200 of 2005, seeking condonation of delay of 976 days in filing O.P. before the learned District Judge and in W.P.No.16012 of 2007, the petitioner filed I.A.No.2042 of 2006, seeking condonation of delay of 771 days in filing O.P. before the learned District Judge and in W.P.No.16131 of 2007, the petitioner filed I.A.No.2041 of 2006, seeking condonation of delay of 771 days in filing O.P. before the learned District Judge. Learned II Additional District Judge, Vijayawada, by virtue of orders dated 09.03.2006, 22.11.2006 and 22.11.2006, dismissed the said I.A.Nos.9200 of 2005, 2042 of 2006 and 2041 of 2006 filed by the petitioners herein respectively.
Calling in question the validity and the legal acceptability of the said orders, dismissing the condone delay applications filed by the petitioners herein, the three Writ Petitions, have been filed. Counter affidavits have been filed in all the Writ Petitions denying the averments made in the writ affidavits and in direction of the justifying the impugned orders passed by the learned II Additional District Judge, Vijayawada.
The contentions of the learned counsel for the petitioners are as under:
(1) The orders of the learned II Additional District Judge, Vijayawada, dismissing condone delay applications are erroneous and contrary to law.
(2) The impugned orders are opposed to the very spirit and object of the provisions of the Act and the Limitation Act. (3) The learned II Additional District Judge, Vijayawada, grossly erred in failing to consider the averments in the affidavit filed in support of the condone delay applications.
(4) The orders of the learned II Additional District Judge, Vijayawada, are contrary to the judgment of the Honble Supreme Court in The Kerala State Electricity Board, Trivandrum v. T.P.Kunhaliumma and Mukri Gopalan v. Cheppilat Puthanpurayil Aboobacker .
(5) The learned II Additional District Judge, Vijayawada, grossly erred in not adopting liberal approach having regard to the facts and circumstances of the case.
(6) The learned II Additional District Judge, Vijayawada, ought to have afforded opportunity to the petitioners to agitate their claim on merits.
The contentions of the learned Standing Counsel for the respondents are as under:
(1) The applications filed by the petitioners herein for condonation of delay are not maintainable as the provisions of the Limitation Act cannot be made applicable.
(2) The petitioners herein failed to assign proper and sufficient reasons in the affidavits filed in support of the delay petitions, as such the II Additional District Judge, Vijayawada, is perfectly justified in rejecting the same.
(3) Since the learned II Additional District Judge, Vijayawada, while dismissing the condone delay applications assigned proper and cogent reasons, the said orders passed by the learned II Additional District Judge, Vijayawada, are not amenable to the judicial review under Article 226 of the Constitution of India.
In the light of the pleadings, submissions and contentions, now the questions, which fall for consideration of this Court are whether the orders passed by the II Additional District Judge, Vijayawada, are sustainable and tenable and whether the same require any correction by way of judicial review by this Court under Article 226 of the Constitution of India?
The Parliament enacted the Petroleum Mineral Pipelines (Acquisition of Right of User in Land) Act, 1962, for the purpose of acquisition of right of user in land for laying pipelines for transport of petroleum and minerals and the matters connected therewith. The said legislation came into force in the State of Andhra Pradesh w.e.f. 15.03.1964. Section 3 of the said Act empowers the Central Government to issue public notification in the official Gazette for acquisition of right of user for laying pipelines, Section 4 deals with the power of enter, survey etc., Section 5 deals with hearing of objections, Section 6 deals with declaration of acquisition of right of user, Section 7 empowers the Central or State Government or Corporation to lay pipelines, Section 8 authorizes to enter land for inspection etc., and Section 9 deals with restrictions regarding the use of land. Section 10(1) of the Act obligates the Central, State Government or Corporation to pay compensation for damage, loss or injury, which shall be determined by the competent authority.
Sections 10 and 11, which are highly germane and pertinent for the present subject matter read as under:
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, by determined by that 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 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, 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 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.
11. Deposit and payment of compensation :- (1) The amount of compensation determined under Section 10 shall deposited by the Central Government, the State Government or the Corporation, as the case may be, with the competent authority within such time and in such manner as may be prescribed.
(2) If the amount of compensation is not deposited within the time prescribed under sub-section (1), the Central Government, the State Government or the Corporation, as the case may be, shall be liable to pay interest thereon at the rate of six per cent per annum from the date on which the compensation had to be deposited till the date of actual deposit.
(3) As soon as may be after the compensation has been deposited under sub-section (1), the competent authority shall, on behalf of the Central Government, the State Government or the Corporation, as the case may be, pay the compensation to the persons entitled thereto.
(4) Where several persons claim to be interested in the amount of compensation deposited under sub-section (1), the competent authority shall determine the persons who in its opinion are entitled to receive the compensation and the amount payable to each of them.
(5) If any dispute arises as to the appointment of the compensation or any part thereof or as to the persons to whom the same or any part thereof is payable, the competent authority shall refer the dispute to the decision of the District Judge within the limits of whose jurisdiction the land or any part thereof is situated and the decision of the District Judge thereon shall be final.
A reading of the provisions of Section 10(2) of the Act makes it manifest that the said provision of law gives right to approach the District Judge for determination of proper compensation and Section 10(4) of the Act also obligates the Central or State Government or Corporation to pay compensation at 10% of the market value of the land on the date of notification under Section 4(1) of the Act to the owner in addition to the above compensation, if any payable under sub-Section (1) of the said section. As per Section 10(2) of the Act, aggrieved party can file an application before the District Judge for fixation of proper compensation and as per Section 10(6) of the Act, the decision of the District Judge under sub-Section (2) of Section 10 shall be final.
In exercise of the powers conferred under Section 17 of the Act, the Central Government framed the Rules called the Petroleum and Minerals, Pipelines (Acquisition of Right of User in Land) Rules, 1963 (hereinafter called the Rules). Rule 5 of the said Rules stipulates as under:
5. Application to the District Judge for determination of compensation:-
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).
As per the above said Rule 5 of the Rules, any party aggrieved by the determination of the amount of compensation can file an application before the District Judge not later than 90 days of the receipt of the intimation from the competent authority under Rule 4(3) of the Rules.
In W.P.No.6783 of 2006, it is precisely the case of the petitioners herein in the affidavit filed in support of the delay application that the authorities paid compensation on 17.02.2003 and he filed representations on 15.06.2005 and 27.06.2005, requesting for reference to Civil Court for enhancement and it is also his case that he made a request for providing an award copy and the authorities did not respond to the same, which prompted him to file W.P.No.20279 of 2005 and in pursuance of the orders of this Court in the said Writ Petition, he filed petition before the District Court with a delay of 976 days. In the affidavit filed in support of the delay application, the petitioner in W.P.No.6783 of 2006 categorically stated that the Act is not familiar as such he sent his request to the competent authority-cum-Special Deputy Collector to refer his claim for enhancement to the District Court, but he did not receive any information from the authorities, which prompted him to approach this Court by filing W.P.No.20279 of 2005 and in pursuance of the orders of this Court in the said Writ Petition, he filed an application with a delay of 976 days before the learned District Judge, as such, the said delay is not a deliberate one. It is also his case that he bonafidely pursued with the authorities for enhancement of the compensation.
In W.P.No.16012 of 2007, the petitioner filed an application for enhancement with a delay of 771 days. In the affidavit filed in support of the delay application filed under Section 5 of the Limitation Act, she categorically stated that because of her old age and illness, she could not file the application for enhancement within the stipulated time and enclosed a medical certificate.
In W.P.No.16131 of 2007, the petitioner filed I.A.No.2041 of 2006, seeking condonation of delay of 771 days in filing the said application in filing application for enhancement before the District Judge. In the supporting affidavit, he categorically stated that at the time of awarding compensation, he was in abroad and his son received the amount of compensation under protest.
The learned II Additional District Judge, Vijayawada, by virtue of the impugned orders, dismissed the said delay applications filed by the petitioners herein on merits and maintainability also. In the considered opinion of this Court, a reading of the orders impugned would clearly show that the learned District Judge did not properly advert to the averments in the affidavits filed in support of the delay applications. Obviously, the learned District Judge dismissed the applications filed by the petitioners herein on two grounds, one is failure to assign proper reasons for day-to-day delay and secondly, on the ground of maintainability of Section 5 application. The reasons assigned by the petitioners in the affidavits filed in support of the condone delay applications, by any stretch of imagination cannot be said to be unreasonable. On the other hand, the valuable rights of the petitioners herein in respect of their private properties are involved. It is also a settled preposition of law that while dealing with applications under Section 5 of the Limitation Act, the attitude of the Courts is required to be liberal and hyper technical attitude cannot be resorted to. The legislation under which the respondent authorities entered into the lands of the petitioners herein is an exproprietary legislation, which authorizes the state and its instrumentalities to invoke the provisions of the said legislation without the consent of the owners of the properties. Therefore, it is incumbent on the part of the Courts to have a liberal approach while dealing with the property rights. The reason assigned by the learned District Judge that the petitioners herein failed to explain day- to-day delay is also highly unsustainable.
Coming to the maintainability of the applications under Section 5 of the Limitation Act, the said aspect is no longer res integra in view of the judgments of the Honbe Supreme Court in the case of The Kerala State Electricity Board, Trivandrum v. T.P.Kunhaliumma (1 supra) and Mukri Gopalan v. Cheppilat Puthanpurayil Aboobacker (2 supra).
In The Kerala State Electricity Board, Trivandrum v. T.P.Kunhaliumma (1 supra), the Honble Apex Court held in paragraph Nos.18 and 22 as under:
The alteration of the division as well as the change in the collocation of words in Article 137 of the Limitation Act, 1963 compared with Article 181 of the 1908 Limitation act shows that applications contemplated under Article 137 are not applications confined to the Code of Civil Procedure. In the 1908 Limitation Act there was no division between applications in specified cases and other application as in the 1963 Limitation Act. The words any other application under Article 137 cannot be said on the principle of edjusdem generis to be applications under the Civil Procedure Code other than those mentioned in Part I of the third division. Any other application under Article 137 would be petition or any application under any Act. But it has to be an application to a Court for the reason that Sections 4 and 5 of the 1963 Limitation Act speak of expiry of prescribed period if applicant or the appellant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application during such period.
The conclusion we reach is that Article 137 of the 1963 Limitation act will apply to any petition or application filed under any Act to a civil Court. With respect we differ from the view taken by the two Judge Bench of this Court in Athani Municipal Council case (AIR 1969 SC 1335) (supra0 and hold that Article 137 of the 1963 Limitation Act is not confined to applications contemplated by or under the Code of Civil Procedure. The petition in the present case was to the District Judge as a Court.
The petition was one contemplated by the Telegraph Act for judicial decision. The petition is an application falling within the scope of Article 137 of the 1963 Limitation Act.
For the foregoing reasons we accept the appeal and set aside the judgment of the High Court. The appellant will pay cost to the respondent in accordance with the order made at the time of granting special leave.
In Mukri Gopalan v. Cheppilat Puthanpurayil Aboobacker (2 supra), the Honble Apex Court held in paragraph Nos.7 to 13, 16, 20 and 22 as under:
As noted earlier the appellate authority, namely the District Judge, Thallassery has taken the view that since he is a personal designata he cannot resort to Section 5 of the Limitation Act for condoning the delay in filing appeal before him. So far as this reasoning of the appellate authority is concerned Mr. Nariman, learned counsel for respondent fairly stated that he does not support this reasoning and it is not his say that the appellate authority exercising powers under Section 18of the rent Act is a personal designata. In our view the said fair stand taken by learned counsel for respondent is fully justified. It is now well settled that an authority can be styled to be a persona designata if powers are conferred on a named person or authority and such powers cannot be exercised by anyone else. The scheme of the Act to which we have referred earlier contraindicates such appellate authority to be a persona designata. It is clear that the appellate authority constituted under Section 18(1) has to decide lis between parties in a judicial manner and subject to the revision of its order, the decision would remain final between the parties. Such an authority is constituted by designation as the District Judge of the district having jurisdiction over the area over which the said Act has been extended. It becomes obvious that even though the District Judge concerned might retire or get transferred or may otherwise cease to hold the office of the District Judge his successor-in-office can pick up the thread of the proceedings from the stage where it was left by his predecessor and can function as an appellate authority under Section 18. If the District Judge was constituted as an appellate authority being a persona designata or as a named person being the appellate authority as assumed in the present case, such a consequence, on the scheme of the Act would not follow. In this connection, it is useful to refer to a decision of this Court in the case of Central Talkies Ltd. v. Dwarka Prasad (AIR 1961 SC 606 : (1961) 1 Crl.L.J.
740). In that case Hidayatullah, J. speaking for the Court had to consider whether Additional District Magistrate empowered under Section 10(2) of Criminal Procedure Code to exercise power of District Magistrate was a persona designata. Repelling the contention that he was a persona designata the learned Judge made the following pertinent observations:
A persona designata is a person who is pointed out or described as an individual, as opposed to a person ascertained as a member of a class, or as filling a particular character. (See Osborns Concise Law Dictionary, 4th Edn., p.253). In the words of Schwabe, C.J. in Parthasaradhi Naidu v. Koteswara Rao (ILR (1924) 47 Mad 369 : AIR 1924 Mad 561 (FB), personae designatae are persons selected to act in their private capacity and not in their capacity as Judges. The same consideration applies also to a well-known officer like the District Magistrate named by virtue of his officer, and whose powers the Additional District Magistrate can also exercise and who can create other officer equal to himself for the purposes of the Eviction Act. The decision of Sapru, J. in the Allahabad case, with respect, was erroneous.
Applying the said test to the facts of the present case it becomes obvious that appellate authorities as constituted under Section 18 of the Rent Act being the District Judges they constituted a class and cannot be considered to be persona designata. It is true that in this connection, the majority decision of the High Court in Jokkim Fernandez v. Amina Kunhi Umma (AIR 1974 Ker. 162 : 1973 KLT 138) also took a contrary view. But the said view also does not stand scrutiny in the light of the statutory scheme regarding constitution of appellate authority under the Act and the powers conferred on and the decisions rendered by it.
Once it is held that the appellate authority functioning under Section 18 of the Rent Act is not a persona designata, it becomes obvious that it functions as a Court. In the present case all the District Judges having jurisdiction over the areas within which the provisions of the Rent Act have been extended are constituted as appellate authorities under Section 18 by the Government notification noted earlier. These District Judges have been conferred the powers of the appellate authorites. It becomes therefore, obvious that while adjudicating upon the dispute between the landlord and tenant and while deciding the question whether the Rent Control Courts order is justified or not such appellate authorities would be functioning as Courts. The test for determining whether the authority is functioning as a Court or not has been laid down by a series of decisions of this Court. We may refer to one of them, in the case of Thakur Jugal Kishore Sinha v. Sitamarhi Central Coop. Bank Ltd. ((1967) 3 SCR 163 : AIR 1967 SC 1494). In that case this Court was concerned with the question whether the Assistant Registrar of Cooperative Societies functioning under Section 48 of the Bihar and Orissa Cooperative Societies Act, 1935 was a Court subordinate to the High Court for the purpose of Contempt of Courts Act, 1952. While answering the question in the affirmative, a Division Bench of this Court speaking through Mitter, J. placed reliance amongst others on the observations found in the case of Brajnandan Sinha v. Jyoti Narain ((1955) 2 SCR 955 : AIR 1956 SC 66) wherein it was observed as under:
It is clear, therefore, that in order to constitute a Court in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial tribunal, power to give a decision or a definitive judgment which has finality and authoritativeness which are the essential tests of a judicial pronouncement.
Reliance was also placed on another decision of this Court in the case of Virindar Kumar Satyawadi v. State of Punjab ((1955) 2 SCR 1013 : AIR 1956 SC 153). Following observations found (at SCR p. 1018) therein were pressed in service:
It may be stated broadly that what distinguishes a Court from a quasi-judicial tribunal is that it is charged with a duty to decide disputes in a judicial manner and declares the rights of parties in a definitive judgment. To decide in a judicial manner involves that the parties are entitled as matter of right to be heard in support of their claim and to adduce evidence in proof of it. And it also imports an obligation on the part of the authority to decide the matter on a consideration of the evidence adduced and in accordance with law. When a question therefore arises as to whether an authority created by an Act is a Court as distinguished from a quasi-judicial tribunal, what has to be decided is whether having regard to the provisions of the Act it possesses all the attributes of a Court.
When the aforesaid well settled tests for deciding whether an authority is a Court or not are applied to the powers and functions of the appellate authority constituted under Section 18 of the Rent Act, it becomes obvious that all the aforesaid essential trappings to constitute such an authority as a Court are found to be present. In fact, Mr. Nariman, learned counsel for respondent also fairly stated that these appellate authorities would be Courts and would not be persona designata. But in his submission as they are not civil Courts constituted and functioning under the Civil Procedure Code, as such, they are outside the sweep of Section 29(2) of the Limitation Act. It is therefore, necessary for us to turn to the aforesaid provision of the Limitation Act. It reads as under:
29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4 to 24 (inclusive) shall apply only insofar as, and to be extent to which, they are not expressly excluded by such special or local law.
A mere look at the aforesaid provision shows for its applicability 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 by 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.
In the light of the aforesaid analysis of the relevant clauses of Section 29(2) of the Limitation Act, let us see whether Section 18 of the Rent Act providing for a statutory appeal to the appellate authority satisfies the aforesaid twin conditions for attracting the applicability of Section 29(2) of the Limitation Act. It cannot be disputed that Kerala Rent Act is a special Act or a local law. It also cannot be disputed that it prescribes for appeal under Section 18 a period of limitation which is different from the period prescribed by the schedule as a Schedule to the Limitation Act does not contemplate any period of limitation for filing appeal before the appellate authority under Section 18 of the Rent Act or in other words it prescribes nil period of limitation for such an appeal. It is not well settled that a situation wherein a period of limitation is prescribed by a special or local law for an appeal or application and for which there is no provision made in the Schedule to the Act, the second condition for attracting Section 29(2) would get satisfied. As laid down by a majority decision of the Constitution Bench of this Court in the case of Vidyacharan Shukla v. Khubchand Baghel (AIR 1964 SC 1099 : (1964) 6 SCR
129), when the First Schedule of the Limitation Act prescribes no time-limit for a particular appeal, but the special law by limiting it provides for a different period, while the former permits the filing of an appeal at any time, the latter limits it to be filed within the prescribed period. It is therefore, different from that prescribed in the former and thus Section 29(2) would apply even to a case where a difference between the special law and Limitation Act arose by the omission to provide for limitation to a particular proceeding under the Limitation Act.
It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that Section, all the provisions of Sections 4 to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Section 29(2) of Limitation Act can be said to have been satisfied. That was the view taken by the minority decision of the learned Single Judge of Kerala High Court in Jokkim Fernandez v. Amina Kunti Umma. The majority did not agree on account of its wrong supposition that appellate authority functioning under Section18 of the Rent Act is a persona designata. Once that presumption is found to be erroneous as discussed by us earlier, it becomes at once clear that minority view in the said decision was the correct view and the majority view was an erroneous view.
It is also necessary to note the change in the statutory settings of Section 29(2) as earlier obtained in the Indian Limitation Act, 1908 and the present Limitation Act of 1963. Section 29(2) as found in Indian Limitation Act, 1908 read as follows:
29. (2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed therefor by the First Schedule, the provisions of Section 3 shall apply, as if such period were prescribed therefor in that Schedule, and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law-
(a) the provisions contained in Section 4, Sections 9 to 18, and Section 22 shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law; and (b) the remaining provisions of this Act shall not apply.
As per this sub-section, the provisions contained in certain sections of the Limitation Act were applied automatically to determine the periods under the special laws, and the provisions contained in other sections were stated to apply only if they were not expressly excluded by the special law. The provision (Section
5) relating to the power of the Court to condone delay in preferring appeals and making applications came under the latter category. So if the power to condone delay contained in Section 5 had to be exercised by the appellate body it had to be conferred by the special law. That it why we find in a number of special laws a provision to the effect that the provision contained in Section 5 of the Limitation Act shall apply to the proceeding under the special law. The jurisdiction to entertain proceedings under the special laws is sometimes given to the ordinary Courts, and sometimes given to separate tribunals constituted under the special law. When the special law provides that the provision contained in Section 5 shall apply to the proceedings under it, it is really a conferment of the power of the Court under Section 5 to the tribunals under the special law whether these tribunals are Courts or not. If these tribunals under the special law should be courts in the ordinary sense an express extension of the provision contains in Section 5 of the Limitation Act will become otiose in cases where the special law has created separate tribunals to adjudicate the rights of parties arising under the special law. That is not the intention of the legislature.
Mr. Nariman, learned counsel for respondent tried to salvage the situation by submitting that even if conditions for applicability of Section 29(2) get satisfied, Section 29(2) itself will not apply to them unless it is held that the appellate authority functioning as a Court was constituted under the Civil Procedure Code. He contended that unless such Courts functioning under special law or local law are constituted under the Civil Procedure Code, Section 29(a) cannot apply to them. This submission is required to be started to be rejected as it would amount to moving in a circle. If according to Mr. Nariman section 29(2) can apply to only those Courts which are constituted under the Civil Procedure Code then the entire scheme of Limitation Act from Sections 3 to 24 onwards would apply to proceedings of such Courts on its own force and in that eventuality provisions contained in Section 29(2) for applying Sections 4 to 24 of Limitation Act, 1963 to such Courts proceedings would be rendered otiose and redundant. Mr. Nariman tried to get out of this situation by submitting that because of provisions of first part of Section 29(2), Section 3 of the Limitation act, 1963 is treated to have applied to the periods of limitation prescribed by such special or local law by a deeming fiction. There may be situations wherein even Courts constituted under special or local law which are governed by Civil Procedure Code may have prescribed period of limitation for suit, appeal or application under such special or local law and for which provision might not have been made under Schedule to the Limitation Act and only for such Courts an express provision has to be made for applying Sections 4 to 24 of the Limitation Act as found in second part of Section 29(2) but for which such a machinery may not be available for computing such periods of limitation even though by a legal fiction Section 3 of the Limitation Act would apply. It is difficult to countenance this submission. The express language of Section 29(2) clearly indicates that such special or local law must provide for period of limitation for suit, appeal or application entertainable under such special or local law the legislature has made available the machinery of Sections 4 to 24 inclusive as found in Limitation Act. Nowhere is it indicated that as per Section 29(2) the Courts functioning under such special or local law must be governed whole hog by Civil Procedure Code.
Our attention was also invited by counsel for the appellant to a later decision of this Court in the case of Sahkari Ganna Vikas Samiti Ltd. v. Mahabir Sugar Mills (P) Ltd. ((1981) 4 SCC 158 :
AIR 1982 SC 119). In that case, a Bench of two learned Judges was concerned with the question whether Divisional Commissioner acting under the U.P. Sugarcane (Regulation of Supply and Purchase) Act, 1953 acted as a revenue Court or whether he was a persona designata. It was held that the Divisional Commissioner had been constituted as appellate authority under the Act. That showed that the Divisional Commissioner was made an appellate Court not as persona designata but as a revenue Court. That being so, it was obvious that Section 5 of the Act applied to appeals before Divisional Commissioner and he could condone the delay in filing appeals. It becomes obvious that this Court in the aforesaid decision was dealing with revenue Court constituted under U.P. Sugarcane (Regulation of Supply and Purchase) Act, which was a special law. It was in terms held that Section 5 of the Limitation Act was applicable to revisional proceedings before such revenue Courts. It is of course true as pointed out by Mr. Nariman that in the said decision no other decision of this Court was cited and Section 29(2) was not expressly referred to but the ratio of the decision is necessarily and implicitly based on the applicability of Section 29(2) but for which Section 5 of the Limitation act would not have been made applicable to such revision proceedings before revenue Court functioning under the special law. Before parting with the discussion on this question we may also refer tone submission of Shri Nariman. He submitted that Sections 4 to 24 of the Limitation Act would apply to civil Courts as duly constituted under the Civil Procedure Code and if that is so even if they are to be made applicable to suit, appeal or application governed by periods of limitation prescribed by any special or local law, they necessarily require such suit, appeal or application to be filed under special or local law before full-fledged civil Courts as otherwise Sections 4 to 24 by themselves would not apply to them. It is difficult to agree.
It has to be kept in view that Section 29(2) gets attracted for computing the period of limitation for any suit, appeal or application to be filed before authorities under special or local law if the conditions laid down in the said provision are satisfied and once they get satisfied the provisions contained in Sections 4 to 24 shall apply to such proceedings meaning thereby the procedural scheme contemplated by these sections of the Limitation Act would get telescoped into such provisions of special or local law. It amounts to a legislative shorthand. Consequently, even this contention of Shri Nariman cannot be countenanced.
As a result of the aforesaid discussion it must be held that 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 Sections 4 to 24 of the Limitation Act, 1963. Such proceedings will attract Section 29(2) of the Limitation Act and consequently Section 5 of the Limitation Act would also be applicable to such proceedings. Appellate authority will have ample jurisdiction to consider the question whether delay in filing such appeals could be condoned on sufficient cause being made out by the applicant concerned for the delay in filing such appeals. The decision rendered by the High Court in the present case as well as by the appellate authority taking contrary view are quashed and set aside. The proceedings are remanded to the Court of the appellate authority, that is, District Judge, Thalassery. Rent Control Appeal No.9of 1994 filed before the said authority by the appellant is resorted to its file with a direction that the appellate authority shall consider I.A.No.56 of 1994 filed by the applicant for condonation of delay on its own merits and then proceed further in accordance with law. Appeal is allowed accordingly. In the facts and circumstances of the case there will be no order as to costs.
From a reading of the above judgments rendered by the Honble Apex Court, now it would be very much clear that application under Section 5 of the Limitation Act for condonation of delay is maintainable before the District Judge for invoking the provisions under Section 10 of the Act. In view of the above reasons, this Court has absolutely no hesitation to hold that the orders passed by the learned II Additional District Judge, Vijayawad, dismissing applications filed by the petitioners herein are neither sustainable nor tenable in the eye of law. Therefore, the present Writ Petitions are liable to be allowed.
For the aforesaid reasons and having regard to the law propounded by the Honble Apex Court in the above-referred judgments, these three Writ Petitions are allowed and consequently I.A.Nos.9200 of 2005, 2042 of 2006 and 2041 of 2006 stand allowed and the learned II Additional District Judge, Vijayawada, shall proceed with the determination of compensation in accordance with law. No order as to costs. Miscellaneous petitions, if any, pending shall stand closed. _______________ (A.V.SESHA SAI, J) 5th June 2014