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
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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,
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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