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Judgments of Supreme Court of India and High Courts

Bihar Industrial Area … vs The State Of Bihar The Collector, … on 13 November, 2017

IN THE HIGH COURT OF JUDICATURE AT PATNA
First Appeal No. 96 of 2016

Bihar Industrial Area Development Authority
…. …. Appellant/s
Versus
The State of Bihar the Collector, Patna Ors
…. …. Respondent/s

with
First Appeal No. 97 of 2016

Bihar Industrial Area Development Authority
…. …. Appellant/s
Versus
The State of Bihar the Collector, Patna Ors
…. …. Respondent/s

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

CORAM: HONOURABLE MR. JUSTICE HEMANT KUMAR
SRIVASTAVA
ORAL ORDER

9 13-11-2017 I.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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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/-

U

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