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Omanakunjamma vs The Deputy Collector And … on 28 February, 2019

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
———————————————-
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.586/2014
6

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.586/2014
7

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.586/2014
15

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

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