28 Dec 2018 4:29 AM GMT
The legal issue which has impelled me to right this Article is as to whether Section 5 of the Limitation Act, 1963, enabling condonation of delay on the ground of sufficient cause, is applicable to applications filed before a District Judge under sub-section (2) or under sub-section (5) of Section 10 of the Petroleum and Minerals Pipelines (Acquisition of Right of User in Land) Act,...
The legal issue which has impelled me to right this Article is as to whether Section 5 of the Limitation Act, 1963, enabling condonation of delay on the ground of sufficient cause, is applicable to applications filed before a District Judge under sub-section (2) or under sub-section (5) of Section 10 of the Petroleum and Minerals Pipelines (Acquisition of Right of User in Land) Act, 1962 (hereinafter referred to as the “P & MP Act” for short). The conflict of judicial opinion by the High Courts of Kerala, Andhra Pradesh and Gujarat, has prompted me to make this attempt to delve deeper into the above issue. As far as I know, there is no direct ruling of the Supreme Court of India giving an authoritative interpretation of the provisions of P & MP Act. While the High Courts of Andhra Pradesh and Kerala have taken the view that the Limitation Act, 1963 is applicable to the applications referred to above, the High Court of Gujarat has taken a contrary view.
THE RELEVANT STATUTORY PROVISIONS
Before examining the relevant case law on the subject, it may be necessary to advert to the statutory provisions governing the issue.
The P & MP Act was brought into force simultaneously with the Act in the States of West Bengal, Bihar, Uttar Pradesh and Gujarat and in the Union Territory of Delhi by virtue of Section 1(3) of the Act. Subsequently, the Central Government by notifications in the official gazette declared that the P & MP Act shall apply -
1) to the States of Assam, Kerala, Madhya Pradesh, Maharashtra, Mysore and Rajasthan with effect from 12-06-1963
2) to the State of Punjab with effect from 12-08-1963
3) to the States of Orissa, Andhra Pradesh and Tamil Nadu with effect from 15-03-1964
4) to the Union Territory of Dadra and Nagar Haveli with effect from 11-11-2003, and
5) to the States of Uttaranchal, Jharkhand and Chhatisgarh with effect from 01-10-2003
Sections 10 and 11 of the P & MP Act, read as follows:-
“10. Compensation (1) Where in the 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.
(2) 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 pat thereof is situated, by determined by that District Judge.
(3) The competent authority, or the District Judge while determining the compensation under Sub-section (1) or subsection (2), as the case may be, shall have due regard to the damage or loss sustained by any person interested in the land by reason of.
(İ) the removal of trees or standing crops, if any, on the land while exercising the powers under Section 4, Section 7 of Section 8;
(İİ) the temporary severance of the land under which the pipeline has been laid from other land belonging to, or in the occupation of, such person; or
(İİİ) any injury to any other property, whether movable or immovable or the earnings of such persons caused in any other manner:
Provided that in determining the compensation no account shall be taken of any structure or other improvement made in the land after the date of the notification under sub-section (1) of Section 3.
(4) Where the right of user of any land has vested in the Central Government, the State Government or the Corporation, as the case may be, shall, in addition to the compensation; if any, payable under sub-section (1), be liable to pay to the owner and to any other person whose right of enjoyment in that land has been affected ain any manner whatsoever by reason of such vesting, compensation calculated at ten per cent of the market-value of that land on the date of the notification under sub-section (1) of Section 3.
(5)The market-value of the land on the said date shall be determined by the competent authority and if the value so determined by that authority is not acceptable to either of the parties, it shall, on application by either of the parties to District Judge referred to in sub-section (2), be determined by that District Judge.
(6) The decision of the District Judge under sub-section (2) of sub-section (5) shall be final.
11.Deposit and payment of compensation :- (1) The amount of compensation determined under Section 10 shall deposited by the Central Government, the State Government or the Corporation, as the case may be, with the competent authority within such time and in such manner as may be prescribed.
(2) If the amount of compensation is not deposited within the time prescribed under sub-section (1), the Central Government, the State Government or the Corporation, as the case may be, shall be liable to pay interest thereon at the rate of six per cent per annum from the date on which the compensation had to be deposited till the date of actual deposit.
(3) As soon as may be after the compensation has been deposited under sub-section (1), the competent authority shall, on behalf of the Central Government, State Government of the Corporation, as the case may be, pay the compensation to the persons entitled thereto.
(4) Where several persons claim to be interested in the amount of compensation deposited under sub-section (1), the competent authority shall determine the persons who in its opinion are entitled to receive the compensation and the amount payable to each of them.
(5) If any dispute arises as to the apportionment of the compensation or any part thereof or as to the person to whom the same or any part thereof is payable, the competent authority shall refer the dispute to the decision of the District Judge within the limits of whose jurisdiction the land or any part thereof is situated and the decision of the District Judge thereon shall be final.”
The Central Government has been given the power to frame rules for carrying out the provisions of the P & MP Act by virtue of Section 17. Sub-sections (1) and (2) of Section 17 read as follows :-
“17. Power to make rules. – (1) The Central Government may by notification in the Official Gazette, make rules for carrying out the [provisions] of this Act.
(2) In particular and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters namely:-
(a) the place at which and the manner in which the substance of the notification may be published under sub-section (3) of section 3;
(b) the time within which and the manner in which the amount of compensation may be deposited under sub – section (1) of section 3”
In exercise of the powers conferred by Section 17 of P & MP Act the Central Government has made the Petroleum and Minerals Pipelines (Acquisition of Right of User in Land) Rules, 1963 (hereinafter referred to as the “P & MP Rules” for short). The rule that is relevant for the present purpose is Rule 5 which is extracted hereinbelow:-
“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 limits of whose jurisdiction the land or any part thereof is situated, not later than ninety days of receipt of the intimation from the competent authority under rule 4(3).”
THE LEGAL IMPACT OF THE AFORESAID STATUTORY PROVISIONS
The compensation which is payable under Section 10 consists of two heads. One head of compensation is under Section 10(1) for the damage, loss or injury sustained by the person interested in the land on account of the exercise of the powers by the authorities or their men in entering upon and surveying the land under Section 4, in laying of pipelines etc. under Section 7 and in entering upon the land for repairs and maintenance of the pipelines etc. under Section 8. The other head of compensation is under Section 10(4) calculated at 10% of the market value of any land in respect of which the right of user has vested in the Central Government under Section 6(2) of the P & MP Act. The second head of compensation payable under sub-section (4) is in addition to the first head of compensation, if any, payable under sub-section (1). Both heads of compensation are to be determined by the competent authority under sub-sections (1) and (5) of Section 10 above. For the said purpose, Section 12 of the P & MP Act clothes the competent authority with certain powers of the Civil Court such as summoning and enforcing the attendance of any person and examining him on oath, requiring the discovery and production of any document, reception of evidence on affidavits, requisitioning any public record from any Court or office and issuing Commission for examination of witnesses. In the State of Kerala, in pursuance of a meeting chaired by the Chief Minister and attended by the stakeholders concerned, orders have been issued by the State Government as G.O.Rt. No. 5165/2017/RD dated 01-12-2017 laying down guidelines for the fixation of market value of different categories of land etc. Those guidelines are as follows :-
If the amount of compensation determined by the competent authority under sub-section (1) is not acceptable either to the person or persons interested in the land or to the GAIL or its agencies, sub-section (2) contains a provision for the party feeling aggrieved, to file an application before the District Judge having jurisdiction over the land for a determination of the compensation. Likewise, if any of the parties feel aggrieved by the amount of compensation arrived at by the competent authority on the basis of the market value of the land determined under sub-section (4) of Section 10, such party is given a right to file an application under sub-section (5) before the aforementioned District Judge for a determination of the market value of the land. If there is a dispute as to the apportionment of compensation, Section 11(5) provides for a reference of the same again to the District Judge whose decision in the matterwill be final. Thus, in cases where the compensation arrived at by the competent authority is not acceptable to either of the parties to the dispute or in cases where there is a dispute regarding the apportionment of compensation, the P & MP Act provides for the remedy by way of an adjudication by the District Judge having jurisdiction over the area. The P & MP Act does not prescribe any time limit within which the District Judge is to be approached. It is Rule 5 of the P & MP Rules which prescribes a time limit of 90 days. The P & MP Act does not also lay down the procedure to be followed by the District Judge. But sub-section (6) of Section 10 declares that the decision of the District Judge under sub-sections (2) and (5) shall be final.For the purpose of adjudication of the above issues, unlike in the case of the Competent Authority, there is no conformant of the powers of the Civil Court on the District Judge for obvious reasons. There is a protection given and a bar of suit provided under Section 13 for any action done in good faith. Section 14 bars the jurisdiction of the Civil Court in respect of any matter which the Competent Authority is empowered to do under the Act and there is a ban on any Court granting an injunction against any action taken under the act.
THE RELEVANT CASE LAW
The relevant case law governing the matter can now be examined:-
A.The law is well settled that the Limitation Act, 1963 applies only to Courts being part of the judicial branch of the State and does not apply to Tribunals and other quasi-judicial bodies.
1) Jagannath Prasad v. State of U.P – AIR 1963 SC 416 (held that the Sales Tax Officer under the U.P Sales Tax Act, 1948 was not a Court but merely an administrative Tribunal and hence there was no necessity for a written complaint against the accused by the Sales Tax Officer under Section 195 Cr.P.C for taking cognizance of an offence punishable under Section 471 IPC.)
2) Town Municipal Council, Athani v. Presiding Officer, Labour Court – AIR 1969 SC 1335 (held in paragraph 11 that an Industrial Tribunal or a Labour Court dealing with applications or references under the Industrial Disputes Act, 1947 are not Courts and they are not governed either by the CPC or by the Cr.P.C.)
3) Nityananda M Joshi v. The Life Insurance Corporation of India – AIR 1970 SC 209 – 3 Judges (held in paragraph 3 that the Limitation Act, 1963 only deals with applications to Courts and that the Labour Court is not a Court within the purview of the Limitation Act, 1963. The question as to whether Article 137 of the Limitation Act, 1963 governs applications to Courts under provisions other than the CPC was left open in paragraph 4 although doubt was expressed regarding the observations made in Athani Municipal Council’s Case (Supra).
4) Commissioner of Sales Tax, Uttar Pradesh v. M/S Parson Tools and Plants, Kanpur – AIR 1975 SC 1039 – 3 Judges (held that the Appellate Authority and the Revisional Authority (Judge (Revisions) under the U.P Sales Tax Act, 1948 are not “Courts” but are merely administrative tribunals and hence Section 14(2) of the Limitation Act, 1963 does not in terms apply to proceedings before such authorities. Also held that the general principles underlying Section 14(2) of the Limitation Act also cannot be imported).
5) Sushila Devi v. Ramanandan Prasad – AIR 1976 SC 177 (held that although the Kosi Area (Restoration of Lands to Raiyats) Act, 1951 vested certain specified powers under the CPC in the Collector,that would not make him a Court for the applicability of Section 5 of the Limitation Act).
6) Kerala State Electricity Board v. T. P. Kunhalumma – AIR 1977 SC 282 – 3 Judges (held in paragraph 17 that the provision in Section 16(3) of the Indian Telegraph Act, 1885 for determination of compensation indicates that the “District Judge” acts judicially as a Court and by virtue of Section 3 (15) of the General Clauses Act, 1897 District Judge means the Judge of a Principle Civil Court of original jurisdiction other than the High Court in the exercise of its original civil jurisdiction. Also held in paragraphs 18 and 19 that for the application of Article 137 of the Limitation Act, 1963, it is not necessary that the petition to the Court should be one filed under the CPC).
7) Sahkari Ganna Vikas Samiti Ltd. v. Mahibir Sugar Mills (P) Ltd. - AIR 1982 SC 119(held that the Divisional Commissioner acting under the U.P Sugarcane (Regulation of Supply and Purchase) Act, 1953 had been constituted as an Appellate Authority under the Act and was, therefore, a Revenue Court and not a persona designata and that Section 5 of the Limitation Act was applicable to him).
8) Sakuru v. Tanaji – AIR 1985 SC 1279 (held that Section 5 of the Limitation Act, 1963 cannot be invoked for condoning the delay in the filing of an appeal before the Collector acting as the Appellate Authority under the Andhra Pradesh (Telangana Area) Tenancy and Agricultural Lands Act, 1950. Athani Municipal Council, Nityananda M Joshi and Sushila Devi (Supra) relied on).
9) Mukri Gopalan v. Cheppilat Puthanpurayil Aboobacker – AIR 1995 SC 2272 (held that the District Judge functioning as an Appellate Authority under Section 18 of the Kerala Buildings (Lease and Rent Control) Act, 1965 is not a persona designata but a Court and in the absence of any express exclusion, Sections 4 to 24 including Section 5 of the Limitation Act, 1963 will apply to such Appellate Authority).
10) Officer on Special Duty (Land Acquisition) v. Shah Manilal Chandulal – (1996) 9 SCC 414 (held that Section 5 of the Limitation Act, 1963 cannot be applied for extension of the period of limitation prescribed under the proviso to Section 18(2) of the Land Acquisition Act, 1894 and, therefore, the Collector who is not a Court has no power to extend the time for making an application under Section 18(1) of the Land Acquisition Act seeking a reference to Court).
11) Ajaib Singh v. Sirhind Co-op. Marketing – cum – Processing Service Society Ltd – AIR 1999 SC 1351 (held that Article 137 of the Limitation Act does not apply to Industrial Tribunal or a Labour Court)
12) Consolidated Engineering Enterprises v. Principal Secretary, Irrigation Department – AIR 2009 SC Supp. 396 = (2008) 7 SCC 169 – 3 Judges (held thatthe Limitation Act, 1963 including Section 14 thereof is applicable to the Court where an application to set aside an arbitral award under Section 34 of the Arbitration and Conciliation Act, 1996, has been filed).
13) M. P. Steel Corporation v. Commissioner of Central Excise – (2015) 7 SCC 58 (held that the Limitation Act, 1963 applies only to Courts proper i.e. Courts as understood in the strict sense of being part of the judicial branch of the State. Further held that the principle of Section 14 of the Limitation Act could be extended to the appeal filed before the Commissioner of Customs (Appeals) for excluding the time taken for prosecuting an incompetent and abortive appeal before the CEGAT (Customs, Excise and Gold (Control) Appellate Tribunal).
14) Ratheesh v. A. M. Chacko and Another – 2018 (5) KHC 35 (Kerala) (A Division Bench of the Kerala High Court was considering the question whether a party who had suffered an ex-parte order of eviction at the hands of the Rent Control Court, could invoke Section 5 of the Limitation Act, 1963 for condoning the delay of 39 days which was far in excess of the outer limit of 15 days prescribed by the Rules for filing an application for setting aside the ex-parte order. Relying on M.P Steel Corporation (Supra) it was held that the Rent Control Court is only a persona designata and not a Court and that the Limitation Act would not apply to such a forum).
B. The real distinction between a “Court” and a “quasi-judicial Tribunal” has been judicially settled to hold that the expression “Court” is not necessarily a “Civil Court”.
1) Brajnandan Sinha v. Jyoti Narain – AIR 1956 SC 66 (The Supreme Court observed that in order to constitute a “Court” in the strict sense of the term, an essential condition is that the Court should have, apart from having some of the trappings of a judicial tribunal, power to give a decision or a definitive Judgment which has finality and authoritativeness which are the essential tests of a judicial pronouncement).
(See also Bharat Bank Ltd. v. Employees of Bharat Bank Ltd. – AIR 1950 SC 188; Maqbool Hussain v. State of Bombay – AIR 1953 SC 325; Sarathy v. State Bank of India – AIR 2000 SC 2023).
2) In Virindar Kumar Satyawadi v. State of Punjab – AIR 1956 SC 153the Apex Court observed as follows :-
“It may be stated broadly that what distinguishes a Court from a quasi-judicial tribunal is that it is charged with a duty to decide disputes in a judicial manner and declares the rights of parties in a definitive judgment. To decide in a judicial manner involves that the parties are entitled as a matter of right to be heard in support of their claim and to adduce evidence in proof of it. It also imports an obligation on the part of the authority to decide the matter on a consideration of the evidence adduced and in accordance with law. When a question, therefore, arises as to whether an authority created by an Act is a Court as distinguished from a quasi-judicial tribunal what has to be decided is whether having regard to the provisions of the Act it possesses all the attributes of a Court”.
C. The distinction between persona designata and Judge.
Dealing with an argument that the Chief Justice of the High Court and the Chief Justice of India exercising power under Section 11(6) of the Arbitration and Conciliation Act, 1996, were personae designatae, a Seven-Judge Bench of the Supreme Court in SBP and Co.v. Patel Engineering Ltd – (2005) 8 SCC 618 = AIR 2006 SC 450, observed as follows :-
“14. Normally, when a power is conferred on the highest judicial authority who normally performs judicial functions and is the head of the judiciary of the State or of the country, it is difficult to assume that the power is conferred on the Chief Justice as persona designata. Under S.11(6), the Chief Justice is given a power to designate another to perform the functions under that provision. That power has generally been designated to a Judge of the High Court or of the Supreme Court respectively. Persona designata, according to Black's Law Dictionary, means "a person considered as an individual rather than as a member of a class". When the power is conferred on the Chief Justices of the High Courts, the power is conferred on a class and not considering that person as an individual. In Central Talkies Ltd. v. Dwarka Prasad ( 1961 (3) SCR 495 : AIR 1961 SC 606 ) while considering the status in which the power was to be exercised by the District Magistrate under the United Provinces (Temporary) Control of Rent and Eviction Act, 1947 this Court held:
"A persona designata is 'a person who is pointed out or described as an individual, as opposed to a person ascertained as a member of a class, or as filling a particular character'. (See Osborne's Concise Law Dictionary, 4th Edn., p. 253.) In the words of Schwabe, C.J., in Kokku Parthasaradhi Naidu Garu v. Chintlachervu Koteswara Rao Garu( ILR 1924 (47) Mad. 369 : AIR 1924 Mad. 561 ), personae designatae are, 'persons selected to act in their private capacity and not in their capacity as Judges'. The same consideration applies also to a wellknown officer like the District Magistrate named by virtue of his office, and whose powers the Additional District Magistrate can also exercise and who can create other officers equal to himself for the purposes of the Eviction Act."
In Mukri Gopalan v. Cheppilat Puthanpurayil Aboobacker (1995 (5) SCC 5 ) this Court after quoting the above passage from Central Talkies Ltd. v. Dwarka Prasad (1961 (3) SCR 495 : AIR 1961 SC 606) applied the test to come to the conclusion that when S.18 of the Kerala Buildings (Lease and Rent Control) Act, 1965 constituted the District Judge as an Appellate Authority under that Act, it was a case where the authority was being conferred on the District Judges who constituted a class and, therefore, the Appellate Authority could not be considered to be persona designata. What can be gathered from P. RamanathaAiyar's Advanced Law Lexicon, 3rd Edn., 2005, is that "persona designata" is a person selected to act in his private capacity and not in his capacity as a judge. He is a person pointed out or described as an individual as opposed to a person ascertained as a member of a class or as filling a particular character. It is also seen that one of the tests to be applied is to see whether the person concerned could exercise the power only so long as he holds office or could exercise the power even subsequently. Obviously, on ceasing to be a Chief Justice, the person referred to in S.11(6) of the Act could not exercise the power. Thus, it is clear that the power is conferred on the Chief Justice under S.11(6) of the Act not as persona designata.”
D.When a statute directs that an application or appeal shall lie to a Court already established, then that application or appeal must be regulated by the practice or procedure of that Court.
1) In National Telephone Company Limited v. Postmaster General – 1930 AC 546, Viscount Haldane L.C. observed as follows:-
“When a question is stated to be referred to an established Court without more, it, in my opinion, imports that the ordinary incidents of the procedure of that Court are to attach, and also that any general right of appeal from its decisions likewise attaches”.
2) In Secretary of State for India v. Chellkani Rama Rao – AIR 1916 PC 21, the question that arose was as to whether the decision rendered by the District Court in an appeal preferred to it under Section 10 (ii) of the Madras Forest Act, 1882 could be taken up in appeal to the High Court and in further appeal to the Judicial Committee of the Privy Council. Rejecting the argument that the High Court had no jurisdiction to entertain any appeal from the decision rendered by the District Court, Lord Shaw who delivered the judgment of the Board observed as follows :-
“What happened in the present case was that the claim was rejected. An appeal by the respondents was thereupon made to the District Court and a decision was pronounced. It was contended on behalf of the appellant that all further proceedings in Courts in India or by way of appeal were incompetent, these being excluded by the terms of the Statute just quoted. In their Lordships’ opinion this objection is not well founded. Their view is that when proceedings of this character reach the District Court, that Court is appealed to as one of the ordinary Courts of the Country, with regard to whose procedure, orders and decrees the ordinary rules of Civil Procedure Code apply”
The aforesaid principle was reaffirmed by the Privy Council in Maung Ba Thaw v. Ma Pin – AIR 1934 PC 81. Again in R.M.A.R.A Adalkappa Chettiar v. R. Chandrasekhara Thevar – AIR 1948 PC 20, the Privy Council stated as follows :-
“Where a legal right is in dispute and the ordinary Courts of the country are seized of such dispute the Courts are governed by the ordinary rules of procedure applicable thereto and an appeal lies, if authorised by such rules, notwithstanding that the legal right claimed arises under a special statute which does not in terms confer a right of appeal.”
The aforesaid decisions of the Privy Council were referred to and followed by the Supreme Court of India in National Sewing Thread Co. Ltd, Chidambaram v. James Chadwick and Bros Ltd. – AIR 1953 SC 357.In paragraph 17 of KSEB v. T. P. Kunhalumma – AIR 1977 SC 282 a three Judge Bench of the Supreme Court reiterated the above principle. See also the Full Bench decision of the Kerala High Court in Ouseph Vareed v. Mary – 1968 KLT 583 = AIR 1969 Kerala 103 (FB).
This is the reason why there is no specific conferment of the powers of the Civil Court on the District Judge who is already exercising those powers by virtue of his position as a District Judge.
E.Where a provision in the statute provides for determination of compensation by a District Judge, It follows that the District Judge is to act judicially as a Court. (vide Para 17 of Kerala State Electricity Board v. T. P. Kunhalumma – (1976) 4 SCC 634 = AIR 1977 SC 282 – 3 Judges). The definition of the expression “District Judge” in Section 3(17) of the General Clauses Act, 1897 fortifies the above view.
It is relevant to note that while the Competent Authority who is not a Court is invested with some of the powers of a Civil Court for determining the dispute before him, no such conferment of power is given to the District Judge who by virtue of his position as a District Judge, has all the powers of a Civil Court.
F. Applicability of Section 29 (2) of the Limitation Act, 1963 : Rule 5 of P & MP Rules prescribe a period of limitation of 90 days for filing an application before the District Judge. The said period is different from the period prescribed by the Schedule to the Limitation Act, 1963. Hence, by virtue of Section 29(2) of the Limitation Act, Section 3 thereof shall apply as if 90 days was the period fixed by the Schedule to the Limitation Act and the provisions of Sections 4 to 24(including Section 5) of the Limitation Act will automatically apply unless expressly excluded by the P & MP Act or the Rules. Since there is no express exclusion of Sections 4 to 24 of the Limitation Act, 1963 in the P & MP Act or the Rules, those provisions of the Limitation Act are applicable to petitions filed before the District Judge either under Section 10 or under Section 11.
The phraseology employed in Section 29 (2) of the Limitation Act,1963 will indicate that there is an important departure made by the Legislature from the corresponding Section 29(2) of the Indian Limitation Act, 1908 which preceded the Limitation Act, 1963. The old Section 29 (2) and the present Section 29 (2) are given hereunder for comparison and study.
OLD SECTION 29(2)
(2) Where any special or local law prescribed for any suit, appeal or application a period of limitation different from the period prescribed therefor by the first schedule, the provisions of section 3 shall apply, as if such period were prescribed therefor in that schedule, and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law-
NEW SECTION 29(2)
(2) Where any special or local law prescribed 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 which, they are not expressly excluded by such special or local law.
This departure made by the Legislature was taken note of by the Supreme Court in paragraph 7 of Mangu Ram and Another v. Municipal Corporation of Delhi – AIR 1976 SC 105 and in paragraph 9 of Gopal Sardar v. Karuna Sardar – AIR 2004 SC 3608 to hold that while under old Section 29 (2) Section 5 of the Limitation Act, 1908 was specifically excluded for the purpose of determining the period of limitation prescribed for any suit, appeal or application by any special or local law, under new Section 29(2) Section 5 of the Limitation Act, 1963 shall automatically apply in the case of any special or local law unless expressly excluded by such special or local law.
G. Merely because the provision in the special or local law prescribing the time limit is couched in a peremptory or imperative language, that will not be sufficient to displace the applicability of Section 5 of the Limitation Act. (vide paragraph 8 of Mangu Ram and Another v. Municipal Corporation of Delhi – (1976) 1 SCC 392 = AIR 1976 SC 105). There the provision in the special statute was that “no application shall be entertained after the expiry of 60 days”. Such a provision was held to be insufficient to expressly exclude the applicability of Sections 4 to 24 of the Limitation Act, 1963.
The wording of Rule 5 of P & MP Rules which reads “not later than 90 days” cannot, therefore, be understood as expressly excluding the applicability of the Limitation Act to applications filed before the District Judge. Such expressions are used when the statute has to prescribe the outer limit for the exercise of power under the statute. First of all, the above words are not in the P & MP Act but only in the Rules. Secondly, those words are insufficient to exclude the applicability of the Limitation Act. Reliance placed by the learned Single Judge of the Gujarat High Court in the common judgment dated 05-05-2015 in GAIL (India) Ltd. v. Commanding Officer, on Chhattisgarh State Electricity Board v. Central Electricity Regulatory Commission– (2010) 5 SCC 23 = AIR 2010 SC 2061, does not appear to fortify the conclusion he reached in the case. In the above case before the Supreme Court, the question for decision was whether over and above the statutorily condonable delay of 60 days stipulated by the proviso to Section 125 of the Electricity Act, 2003, further delay in filing an appeal could be condoned by having recourse to Section 5 of the Limitation Act, 1963. The Supreme Court answered this question in the negative. The words “for a further period not exceeding 60 days” occurring in the proviso were interpreted to mean an exclusion of Sections 4 to 24 of the Limitation Act,1963 within the meaning of Section 29(2) thereof. The above verdict of the Supreme Court has subsequently been reiterated by a three Judge Bench of the Supreme Court in Oil and Natural Gas Corporation Ltd. v. Gujarat Energy Transmission Corporation Ltd – AIR 2017 SC 1352 where the Supreme Court has stressed that there cannot be a further condonation of delay over and above the statutorily condonable delay of 60 days under the proviso to Section 125 of the Electricity Act. Same is the position regarding Union of India v. Popular Construction Company – (2001) 8 SCC 470 where also there was a statutory provision in Section 34 of the Arbitration and Conciliation Act, 1996 for condoning the delay in filing the appeal on showing sufficient cause. The argument that over and above the aforesaid provision, further delay should be allowed to be condoned by resort to Section 5 of the Limitation Act was repelled by the Supreme Court.
The Gujarat High Court in GAIL (India) Ltd v. Commanding Officer was carried away by the phraseology in Rule 5 of the P & MP Rules to hold that the Limitation Act was expressly excluded. With due respect no such exclusion can be spelt out from the said rule.
H. Conflict of judicial opinion: The divergence of judicial opinion of the High Courts can now be examined.
A learned Single Judge of the Kerala High Court in Petronet CCK Ltd. v. Vijayan – 2005 (1) KLT 773 = ILR 2005 (3) Kerala 781, relying on Mangu Ram and Mukri Gopalan (Supra)has held that there is no express exclusion of Section 5 of the Limitation Act, 1963 in the P & MP Act or the Rules. The decision dated 05-06-2014 of the Andhra Pradesh High Court in Desam Venkateswara Reddy v. The Special Deputy Collector and Competent Authority – 2014 (5) ALD 94 is also to the above effect. But the High Court of Gujarat in the common judgment dated 05-05-2015 in GAIL (India) Ltd v. Commanding Officer and Others arising out of Special Civil Application No. 7917 / 2014 and connected cases, has held that recourse to the Limitation Act, 1963 cannot be had in respect of applications filed before the District Judge under Section 10 of P & MP Act . As discussed earlier, the learned Judge of the Gujarat High Court was mainly swayed by the decisions of the Supreme Court where, over and above the statutorily condonable delay in the matter of appeals, the request for condoning further delay by resort to Section 5 of the Limitation Act had been turned down by the Supreme Court. But in the light of the verdicts of the Supreme Court in Mukri Gopalan and the three Judge Bench decision in KSEB v. T.P Kunhalumma, which were binding precedents, the aforesaid view of the Gujarat High Court cannot be supported.
I. “Mukri Gopalan” unnecessarily targeted and collaterally stabbed : What remains to be considered is the avoidable impropriety shown by a two Judge Bench of the Supreme Court in P. Steel Corporation v. CCE – (2015) 7 SCC 58 in making certain observations against the ratio in Mukri Gopalan. The sole question germane for consideration in M. P. Steel Corporation was whether Section 14 of the Limitation Act, 1963 could be pressed into service for excluding the time taken for prosecuting an incompetent and abortive appeal before the CEGAT (Customs, Excise and Gold (Control) Appellate Tribunal) for condoning the delay in filing a proper appeal before the Commissioner of Customs (Appeals) as provided under Section 128 of the Customs Act, 1962. Paragraphs 5 to 19 (of SCC) in M. P. Steel Corporation considers the arguments and the legal provisions applicable to hold that the Limitation Act, 1963 applies only to suits, appeals and applications before a Court as understood in the strict sense of being part of the Judicial Branch of the State. In paragraphs 24 and 25 of the judgment the three-Judge Bench decision in CST v. Parson Tools and Plants – (1975) 4 SCC 22 is discussed to notice that the said verdict had held that Section 14 of the Limitation Act applies only to Courts and not to Tribunals. The judgment also notices that the three Judge Bench in Parson Tools had gone further to hold that even the general principles underlying Sections 5 and 14 of the Limitation Act would not be applicable to such Tribunals. But with due respect I would say that this two Judge Bench, overlooking the binding decision by the three Judge Bench in Parson Tools has extended the principle of Section 14 to the appeal before the Commissioner of Customs (Appeals) for excluding the time taken for prosecuting the abortive appeal before the CEGAT. If the learned judges felt that such a course would be the proper course for doing complete justice to the parties before them , well, the judges had the option , freedom and authority to do so by invoking Article 142 of the Constitution of India and not otherwise , in a case of that nature. In my humble opinion, reference to Mukri Gopalan in paragraphs 28, 29, 32 and 33 (of SCC) was uncalled for because in Mukri Gopalan the only question was whether the District Judge functioning as the Rent Control Appellate Authority had the power under Section 5 of the Limitation Act to condone the delay in filing the appeal before him. The learned Judges in M.P Steel Corporation, having noticed in paragraph 28 that Mukri Gopalan was distinguished in Om Prakash v. Ashwani Kumar Bassi – (2010) 9 SCC 183 on the ground that the District Judge discharging the functions of the Appellate Authority was a Court and not a persona designata and, therefore, entitled to resort to Section 5 of the Limitation Act, were, in my humble opinion, not justified in observing that Mukri Gopalan was not in tune with other binding decisions. A judicial verdict which is capable of being distinguished cannot obviously be wrong. Incidentally, in paragraph 14 of its verdict a Constitution Bench comprising of Seven Judges in SBP and Co. v. Patel Engineering Ltd – (2005) 8 SCC 618 = AIR 2006 SC 450, has approvingly noted the ratio in Mukri Gopalan’s case. It is pertinent to remember that in paragraph 23 of M. P. Steel Corporation, the learned Judges adverting to KSEB v. T. P. Kunhalumma – (1976) 4 SCC 634 had no difficulty to observe that the judgment in T. P. Kunhalumma’s case is an authoritative pronouncement by a three Judge Bench. The learned Judges were overlooking the fact that both in Kunhalumma and Mukri Gopalan it was the District Judge who was the adjudicating forum. If Mukri Gopalan which was noted with approval by the seven Judges Constitution Bench did not lay down the law correctly (my conviction is respectfully otherwise) the proper course should have been to have Mukri Gopalan reconsidered by a larger Bench of nine Judges.
After bestowing my anxious consideration to the statutory provisions and the relevant case law, I am of the considered opinion that the District Judge deciding the quantum of compensation under Section 10 and apportionment of compensation under Section 11 of the P & MP Act, is not acting as a persona designata but as a Court to which Sections 4 to 24 (including Section 5) of the Limitation Act, 1963 is applicable and that there is no express or implied exclusion of those provisions either in the P & MP Act or in the P & MP Rules, within the meaning of Section 29(2) of the Limitation Act, 1963.