Kerala High Court
Omanakunjamma vs The Deputy Collector And Competent ... on 28 February, 2019
Author: V.Chitambaresh
Bench: V.Chitambaresh
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE V.CHITAMBARESH
&
THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI
THURSDAY ,THE 28TH DAY OF FEBRUARY 2019 / 9TH PHALGUNA, 1940
CRP.No. 586 of 2014
AGAINST THE ORDER DATED 21-06-2014 IN I.A.NO.87/14 IN UNNUMBERED
O.P.(PMP) OF 2014 OF DISTRICT COURT, ERNAKULAM
REVISION PETITIONER/PETITIONER:
OMANAKUNJAMMA, AGED 63,
W/O.PARAMESWARAN KARTHA, VAKKATTUPURACKAL
PUTHENMADATHIL, PATTIMATTOM P.O., KIZHAKKAMBALAM
PIN - 683 562
BY ADV. SRI.P.MARTIN JOSE
ADV.PRIJITH.P
RESPONDENTS/RESPONDENTS:
1 THE DEPUTY COLLECTOR AND COMPETENT AUTHORITY (KERALA)
GAIL(INDIA)LTD, 2ND FLOOR, RUBICON BUILDINGS,
S.A.ROAD, VALANJAMBALAM, KOCHI - 682 016.
2 GAIL (INDIA) LIMITED KKMBMPL PROJECT REPRESENTED BY
ITS GENERAL MANAGER, 10TH FLOOR, REVENUE TOWER, PARK
AVENUE ROAD, ERNAKULAM - 682 011.
BY ADVS.
SHRI.P.VIJAYAKUMAR, ASG OF INDIA FOR R1 AND R2
SRI.K.ANAND (SR.)
SMT.LATHA KRISHNAN FOR R2
THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON
26.02.2019, THE COURT ON 28.02.2019 PASSED THE FOLLOWING:
C.R.P.No.586/2014
2
"CR"
V.CHITAMBARESH
&
R.NARAYANA PISHARADI, JJ.
**********************
Civil Revision Petition No.586 of 2014
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Dated this the 28th day of February, 2019
ORDER
R.Narayana Pisharadi, J Does Section 5 of the Limitation Act, 1963 apply to an application for determination of compensation filed under Rule 5 of the Petroleum and Minerals, Pipelines (Acquisition of Right of User in Land) Rules, 1963 (hereinafter referred to as 'the Rules') before the District Judge? This is the question to be answered in this reference.
2. The property of the petitioner was acquired for laying pipeline for carrying petroleum gas and compensation was granted to her under the Petroleum and Minerals, Pipelines (Acquisition of Right of User in Land) Act, 1962 (hereinafter referred to as 'the Act'). Aggrieved by the determination of the C.R.P.No.586/2014 3 amount of compensation, the petitioner filed application under Rule 5 before the District Court, Ernakulam. There was a delay of 645 days in filing that application. The petitioner had filed an application under Section 5 of the Limitation Act, 1963 for condoning the delay. It was dismissed by the District Court stating that the petitioner failed to show sufficient cause for the delay. The aforesaid order is challenged in the revision petition.
3. When the revision petition came up before the learned Single Judge, it was noticed that, in Petronet CCK Ltd. v. Vijayan [2005(1) KLT 773], this Court has held that Section 5 of the Limitation Act would apply to an application filed under Rule 5 but a contrary view has been taken by the Gujarat High Court in Gail (India) Ltd. v. Commanding Officer [2016 GLH (2) 7 ]. The reference is made to resolve the conflict.
4. Rule 5 of the Rules reads as follows:
"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 C.R.P.No.586/2014 4 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)".
5. Learned counsel for the petitioner submitted that the expression ''not later than ninety days'' in Rule 5 does not operate as a clause excluding the applicability of Section 5 of the Limitation Act, 1963. Learned counsel would contend that, since there is no specific exclusion of the provisions of the Limitation Act, Section 5 of the Limitation Act, 1963 is applicable to an application under Rule 5.
6. Learned senior counsel, who appeared for the respondents, contended that the expression ''not later than ninety days'' in Rule 5 provides the outer limit within which the application has to be filed before the District Judge and it excludes the applicability of the provisions of the Limitation Act. Learned senior counsel also referred to similar provisions in other enactments and the decisions of the Apex Court thereon in support of his contention.
7. Section 10(1) of the Act provides that where in the C.R.P.No.586/2014 5 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. Section 10(2) of the Act states that if the amount of compensation determined by the competent authority under sub- section (1) is not acceptable to either of the parties, the amount of compensation shall, on application by either of the parties to the District Judge within the limits of whose jurisdiction the land or any part thereof is situated, be determined by that District Judge.
8. At the outset it is to be mentioned that the respondents have got no plea that the District Judge who deals with the application under Section 10(2) of the Act is a persona designata and that he does not function as a Court.
C.R.P.No.586/20146
9. In Petronet (supra), a learned Single Judge of this Court has held that since there is no express exclusion of the provisions of the Limitation Act, the provision contained in Section 5 of the Limitation Act, 1963 would apply to an application under Rule 5.
10. In Gail (India) Limited (supra), the Gujarat High Court has referred to the decision in Petronet (supra) but opined that the said decision does not contain any discussion on the applicability or otherwise of the provisions of the Limitation Act to an application under Rule 5. The Gujarat High Court has held that there is no provision under the Act or the Rules under which the District Judge can entertain an application beyond a period of ninety days from the date of receipt of intimation under Rule 4(3) and the phrase ''not later than ninety days'' in Rule 5 would amount to an express exclusion within the meaning of Section 29(2) of the Limitation Act. The Gujarat High Court has observed that if it is held that there is power to condone the delay, the words ''not later than'' in Rule 5 would be rendered totally nugatory.
C.R.P.No.586/20147
11. At this juncture, we shall examine the similar provisions contained in other statutes which have been referred to by the learned senior counsel for the respondents.
12. Section 34(3) of the Arbitration and Conciliation Act, 1996 provides that an application for setting aside an arbitral award may not be made after three months have elapsed from the date on which the party making that application had received the arbitral award or, if a request had been made under section 33, from the date on which that request had been disposed of by the arbitral tribunal. The proviso to Section 34(3) of that Act states that if the Court is satisfied that the applicant was prevented by sufficient cause from making the application within the said period of three months it may entertain the application within a further period of thirty days, but not thereafter.
13. On interpretation of the expression 'not thereafter' in the proviso to Section 34(3) of the Arbitration and Conciliation Act, the Apex Court, in the very recent decision in M/s Simplex Infrastructure Ltd. v. Union of India [AIR 2019 SC 505], has held that the words "but not thereafter" make it abundantly C.R.P.No.586/2014 8 clear that as far as the limitation for filing an application for setting aside an arbitral award is concerned, the statutory period prescribed is three months which is extendable by another period of upto thirty days (and no more) subject to the satisfaction of the court that sufficient reasons were provided for the delay.
14. In Union of India v. Popular Construction Company [AIR 2001 SC 4010], the Apex Court referred to the expression "not thereafter" in the proviso to Section 34(3) of the Arbitration and Conciliation Act and held that the aforesaid phrase would amount to an express exclusion within the meaning of Section 29(2) of the Limitation Act, and would therefore bar the application of Section 5 of that Act. The Apex Court observed that to hold that the court could entertain an application to set aside the award beyond the extended period under the proviso would render the phrase "but not thereafter" wholly otiose.
15. Section 421(3) of the Companies Act, 2013 provides that every appeal under sub-section (1) shall be filed within a period of forty-five days from the date on which a copy of the order of the Tribunal is made available to the person aggrieved C.R.P.No.586/2014 9 and shall be in such form, and accompanied by such fees, as may be prescribed. The proviso to Section 421(3) of the Companies Act, 2013 states that the Appellate Tribunal may entertain an appeal after the expiry of the said period of forty-five days from the date aforesaid, but within a further period not exceeding forty-five days, if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal within that period.
16. In Bengal Chemists and Druggists Association v. Kalyan Chowdhury [AIR 2018 SC 807], the Supreme Court has interpreted the aforesaid provision and held that a cursory reading of the provision makes it clear that the proviso provides a period of limitation different from that provided in the Limitation Act, and also provides a further period not exceeding 45 days only if it is satisfied that the appellant is prevented by sufficient cause from filing the appeal within that period and in view of the special provision contained therein, Section 5 of the Limitation Act obviously cannot apply. The Apex Court held that it is a peremptory provision and if the delay occurred beyond the further period of 45 days is condoned, it would render otiose the C.R.P.No.586/2014 10 second time limit of 45 days, which is peremptory in nature.
17. Section 125 of the Electricity Act, 2003 provides that 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 the decision or order of the Appellate Tribunal, to him. The proviso to Section 125 of the Electricity Act, 2003 states that the Supreme 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. The Apex Court has held in a catena of decisions that Section 5 of the Limitation Act cannot be invoked by that Court for entertaining an appeal filed beyond the period of 120 days specified in Section 125 of the Electricity Act and its proviso and interpretation of Section 125 of the Electricity Act which may attract the applicability of Section 5 of the Limitation Act read with Section 29(2) thereof will defeat the object of the legislation, namely, to provide special limitation for filing an appeal against the decision or order of the Tribunal and the proviso to Section 125 will become nugatory C.R.P.No.586/2014 11 [See Chhattisgarh State Electricity Board v. Central Electricity Regulatory Commission : AIR 2010 SC 2061, Suryachakra Power Corporation Limited v. Electricity Department, Port Blair : (2016) 16 SCC 152 and ONGC v. Gujarat Energy Transmission Corporation Limited : AIR 2017 SC 1352].
18. There are several other enactments which contain specific provision prescribing the period within which an application or appeal has to be filed and which also prescribes a further grace period within which an application or appeal can be entertained on showing cause for the delay in not filing the same within the original period prescribed. In all such cases, it has been consistently held that delay in filing the application or appeal beyond the extended period cannot be condoned by invoking Section 5 of the Limitation Act. When any special statute prescribes certain period of limitation as well as provision for extension upto specified time limit, on sufficient cause being shown, then the period of limitation prescribed under the special law shall prevail and to that extent, the provisions of the C.R.P.No.586/2014 12 Limitation Act shall stand excluded.
19. In the instant case, Rule 5 prescribes a period of ninety days as the period of limitation within which an application has to be filed. Rule 5 does not specifically provide for any further period, beyond ninety days, during which an application can be entertained on showing sufficient cause for the delay. In the absence of such a specific period provided for condonation of delay, by virtue of the provisions contained in Section 29(2) of the Limitation Act, 1963, Section 5 of the limitation Act would apply to an application under Rule 5.
20. Section 29(2) of the Limitation Act, 1963 provides that where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4 to 24 (inclusive) shall apply only in so far as, and to the extent to C.R.P.No.586/2014 13 which, they are not expressly excluded by such special or local law.
21. Applicability of Section 29(2) of the Limitation Act, 1963 to a given case depends on the following requirements: (1) There must be a provision for period of limitation under any special or local law in connection with any suit, appeal or application. (2) 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: (1) 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. (2) 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. The object of Section 29(2) of the Limitation Act is to ensure that the C.R.P.No.586/2014 14 principles contained in Sections 4 to 24 of that Act apply to suits, appeals and applications filed in a Court under special or local laws also, even if it prescribes a period of limitation different from what is prescribed in the Limitation Act, except to the extent of express exclusion of the application of any or all of those provisions.
22. Rule 5 specifically prescribes 90 days as the period within which the application thereunder has to be filed. The Act or the Rules do not contain any express exclusion of the provision contained in Section 5 of the Limitation Act. True, there need not be an express reference made in the special or local law to the specific provisions of the Limitation Act of which the operation is to be excluded. On an examination of the relevant provisions of the statute, if it is clear that the provisions of the Limitation Act are necessarily excluded, then the benefits conferred therein cannot be called in aid to supplement the provisions of the Act. In our view, the scheme of the Act or the Rules or the provisions contained therein do not exclude the application of Sections 4 to 24 of the Limitation Act.
C.R.P.No.586/201415
23. The Rules came into force by a notification dated 05.04.1963 published in the gazette. The Limitation Act, 1963 came into force only on 01.1.1964. However, the Indian Limitation Act, 1908 has no application in the present case since that Act stands repealed by the Limitation Act, 1963 (See Mangu Ram v. Municipal Corporation of Delhi : AIR 1976 SC 105).
24. We cannot accept the contention of the learned senior counsel for the respondents that the expression ''not later than ninety days'' in Rule 5 amounts to specific exclusion of the provision contained in Section 5 of the Limitation Act, 1963 within the meaning of Section 29(2) of that Act. The aforesaid expression only prescribes the period of limitation for filing the application under Rule 5 and nothing more. If it is held that Section 5 of the Limitation Act would apply to an application under Rule 5, it would not render the expression ''not later than ninety days'' otiose or nugatory. The reason is that entertaining of an application under Rule 5 beyond the prescribed period of 90 days with the aid of Section 5 of the Limitation Act can be done only when the applicant shows sufficient cause for the delay. Only C.R.P.No.586/2014 16 if the statue had prescribed certain period of limitation as well as provision for extension upto specified time limit, on sufficient cause being shown, then only application of Section 5 of the Limitation Act would have rendered such provision in the special statute otiose or nugatory.
25. The decision of the Apex Court in Mangu Ram (supra) provides complete answer to the contention raised by the learned senior counsel for the respondents that the expression 'not later than ninety days' in Rule 5 operates as an outer limit within which the application has to be filed and that it excludes the applicability of Section 29(2) of the Limitation Act, 1963. In Mangu Ram (supra), the applicability of Section 5 of the Limitation Act, 1963 to an application filed under Section 417(4) of the Code of Criminal Procedure, 1898 arose. Section 417(4) of the Code of Criminal Procedure, 1898 provided that an application for special leave to appeal should be made before the expiry of sixty days from the date of the order of acquittal. An application to special leave filed beyond the period of sixty days was entertained by the High Court by invoking Section 5 of the C.R.P.No.586/2014 17 Limitation Act, 1963. The challenge made to the decision of the High Court was negatived by the Apex Court by holding as follows:
"Since under the Limitation Act, 1963 Section 5 is specifically made applicable by Section 29, sub- section (2), it can be availed of for the purpose of extending the period of limitation prescribed by a special or local law if the applicant can show that he had sufficient cause for not presenting the application within the period of limitation. It is only if the special or local law expressly excludes the applicability of Section 5, that it would stand displaced. ....................... It is true that the language of sub-section (4) of Section 417 is mandatory and compulsive, in that it provides in no uncertain terms that no application for grant of special leave to appeal from an order of acquittal shall be entertained by the High Court after the expiry of sixty days from the date of that order of acquittal. But that would be the language of every provision prescribing a period of limitation. It is because a bar against entertainment of an application beyond the period of limitation is created by a special or local law that it becomes C.R.P.No.586/2014 18 necessary to invoke the aid of Section 5 in order that the application may be entertained despite such bar. Mere provision of a perid of limitation in howsoever peremptory or imperative language is not sufficient to displace the applicability of Section
5. The conclusion is, therefore, irresistible that in a a case where an application for special leave to appeal from an order of acquittal is filed after the coming into force of the Limitation Act, 1963, Section 5 would be available to the applicant and if he can show that he had sufficient cause for not preferring the application within the time limit of sixty days prescribed in sub-section (4) of Section 417, the application would not be barred and despite the expiration of the time limit of sixty days, the High Court would have the power to entertain it."
(emphasis supplied)
26. The upshot of the discussion above is that application under Section 5 of the Limitation Act, 1963 is maintainable for invoking Rule 5 of the Petroleum and Minerals, Pipelines (Acquisition of Right of User in Land) Rules, 1963. We approve the decision of the learned single Judge in Petronet CCK Ltd. v. C.R.P.No.586/2014 19 Vijayan [2005(1) KLT 773]. With great respect, we cannot agree with the view taken by the Gujarat High Court in Gail (India) Ltd. v. Commanding Officer [2016 GLH (2) 7 ]. We answer the reference accordingly.
The Registry shall place the Civil Revision Petition for hearing before the Single Bench as per roster.
(sd/-) V.CHITAMBARESH, JUDGE (sd/-) R.NARAYANA PISHARADI, JUDGE jsr/27/02/2019 True Copy PS to Judge