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
4limits 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
