Venkareddy Parasareddy Alawandi and Another Vs. Secretary, Revenue Department, Vidhana Soudha, Bangalore and Another - Court Judgment

Excerpt:
- labour & services. subsistence allowance: [subhash b. adi, j] petitioner, a helper, was discharged from service - non-payment of subsistence allowance during suspension - whether enquiry is vitiated? held, even assuming that, the management is under obligation to pay the subsistence allowance to the employees, non-payment of subsistence allowance that itself may not vitiate the enquiry proceedings, unless a case is made out by the petitioner that, on account of non-payment of the subsistence allowance, it has prejudiced his case before the enquiry officer. there is no evidence to show, as to how the non-payment of subsistence allowance has prejudiced the case of the petitioner. the charge having been proved and the enquiry being held as fair and proper, there is no justification to interfere with the award. - the contra view taken by that court was held to be not a good law and accordingly, the same was overruled. the same question had arisen in kerala where there is no specific local provision like section 18(3) locally amended by maharashtra and gujarat. 29(2). 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 which, they are not expressly excluded by such special or local law'.from a reading of section 5 of the limitation act, it is clear that an appeal or application may be admitted by the court, if it is satisfied that there is sufficient cause for not preferring the appeal or making the application within the prescribed period.orderthe petitioners in these writ petitions filed applications under section 28-a of the land acquisition act, 1894 (for short 'la act'), for re-determination of the amount of compensation on the basis of the award passed by the learned civil judge in lac nos. 65 and 66 of 1985, dated 17-3-1988 before the assistant commissioner, savanur sub-division, savanur, who has been appointed as deputy commissioner under section 3(c) of the act. the said applications were rejected by the assistant commissioner by his order dated 3-5-1990 as belated as the reasons assigned for condoning the delay are not satisfactory. these orders are called in question by the petitioners in these writ petitions.2. sri katarki, learned counsel for the petitioners contended that the assistant commissioner was not right in recording the finding that the reasons assigned by the petitioners are not satisfactory without considering the reasons assigned for the delay in filing the applications as the said reasons constitute sufficient cause for condonation of delay under section 5 of the limitation act.3. in reply to the said submission sri r.k. hatti, learned government pleader, submits that the la act, is a special law and any application to be filed shall be within the period of limitation as provided under the act, and further submitted that section 5 of the limitation act has no application for condonation of delay in entertaining the applications filed under section 28-a of the act. it is further submitted that the applications filed by the petitioners in these two cases are admittedly barred by time and therefore the assistant commissioner was right in rejecting the applications of the petitioners on the ground of delay.4. the facts in these cases are:--the lands of the petitioners were acquired for the purpose of construction of an irrigation tank. after the passing of the award by the assistant commissioner, some of the land owners who lost their lands filed applications under section 18(1) of the la act and on the said applications, the assistant commissioner referred the matter to the learned civil judge. on reference, the learned civil judge by his award dated 17-3-1988 enhanced the compensation from rs. 2,500/- per acre to rs. 7,500/- per acre. thereafter, on the basis of the award of the learned civil judge, the petitioners filed applications for re-determination of the amount of compensation on 29-1-1990, that is, almost after about one year and ten months. the said applications were rejected by the l.a.o., firstly on the ground of delay and secondly on the ground that the reasons shown for delay in filing the applications were not satisfactory.5. from the facts narrated above, admittedly the applications filed by the petitioners under section 28-a of the act, are barred by limitation. therefore, the questions now arise for consideration are:--(i) whether section 5 of the limitation act, is applicable for the purpose of condoning delay in filing the application under section 28-a of the act?(ii) if applicable, whether the reasons assigned by the petitioners for the delay in filing the application before the assistant commissioner constitute sufficient cause for condoning the delay?6. section 28-a of the la act, reads as follows.- 're-determination of the amount of compensation on the basis of the award of the court.--(1) where in an award under this part, the court allows to the applicant any amount of compensation in excess of the amount awarded by the collector under section 11, the persons interested in all the other land covered by the same notification under section 4, sub-section (1) and who are also aggrieved by the award of the collector may, notwithstanding that they had not made an application to the collector under section 18, by written application to the collector within three months from the date of the award of the court require that the amount of compensation payable to them may be re-determined on the basis of the amount of compensation awarded by the court: provided that in computing the period of three months within which an application to the collector shall be made under this sub-section, the day on which the award was pronounced and the time requisite for obtaining a copy of the award shall be excluded'. from a reading of the above said section, it is clear that an application for re-determination of the amount of compensation has to be filed within three months from the date of the award of the court and under the proviso, the date of the award and the requisite time for obtaining the certified copy of the award shall be excluded for the purpose of calculating the three months provided, for filing the application under section 28-a(1) of the act.7. sri katarki, learned counsel for the petitioners contended that the delay in filing the applications under section 28-a of the la act deserves to be condoned as there is sufficient cause under section 5 of the limitation act, as the applicability of section 5 of the limitation act, is not expressly excluded by la act, relying upon section 29 of the limitation act. in support of this contention he relied upon the decision of the full bench of the bombay high court in the case of bhupal premchand shah and others v state of maharashtra. in this decision, the full bench of bombay high court, considering the law laid down by the division bench of that court in prabhakar vasudev gadgil v p. y. desh-pande, has held that the provisions of the limitation act, 1963, and section 5 in particular, are applicable to an application made to the collector under section 18(1) of the la act, requiring him to refer thematter for determination of the court. the decision rendered in p.v. gadgil's case, referred to above, was considered by the supreme court in the case of officer on special duty (land acquisition) and another v shah manilal chandulal and others, and it is held as follows.-'15. in p.v. gadgil's case, supra, the question similar to the one presently under consideration had directly arisen. section 5 of the limitation act was applied for condonation of the delay in seeking to make a reference under section 18. it was contended that by operation of sub-section (3) as also applicable to states of maharashtra and gujarat, the collector is a court which is amenable to revisional jurisdiction under section 115, cpc and that, therefore, section 5 of the limitation act would apply. the division bench negatived the contention and held that the collector is not a court under cpc attracting the provisions of the limitation act. the contra view taken by that court was held to be not a good law and accordingly, the same was overruled. the same question had arisen in kerala where there is no specific local provision like section 18(3) locally amended by maharashtra and gujarat. contention was raised that by operation of sub-section (2) of section 29 of the limitation act, section 5 stands attracted since there is no express exclusion of the limitation under the act. therefore, the delay was condonable. the division bench negatived the contention and held that the collector is not a court under section 5 of the limitation act. sub-section (2) of section 29 did not apply. same is the view of the andhra pradesh high court in special deputy collector land acquisition, anantapur v k. kodandaramacharlu'.in view of the aforesaid decision, the decision of the full bench of the bombay high court is of no assistance to the petitioners.8. sri r.k. hatti, learned government pleader, submitted that in view of the law laid down by the supreme court in officer on special duty's case, supra, and also in view of the decision of this court, section 5 of the limitation act, has no application for the purpose of condoning the delay in filing the application under section 28-a of la act, since the assistant commissioner is not a court. sections 5 and 29(2) of the limitation act read thus.-'5. extension of prescribed period in certain cases.--any appeal or any application, other than an application under any of the provisions of order xxi of the code of civil procedure, 1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period. 29(2). 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 which, they are not expressly excluded by such special or local law'. from a reading of section 5 of the limitation act, it is clear that an appeal or application may be admitted by the court, if it is satisfied that there is sufficient cause for not preferring the appeal or making the application within the prescribed period. under section 29 of the limitation act, any special or local law prescribes for any suit, appeal or application a period of limitation different from 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 shall apply only insofar as and to the extent to which they are not expressly excluded by such special or local law.the la act, which is a special law prescribes a period of limitation of three months for the purpose of filing an application under section 28a of the act. the provisions of the said act, also provides that the day on which the award was pronounced and the time requisite for obtaining the certified copy shall be excluded for the purpose of calculating the period of three months provided for under section 28-a of the la act. at the same time no power is conferred on the deputy commissioner (assistant commissioner) to entertain the application filed after the period of three months after excluding the time as per the proviso to section 28-a of the act. this court in the case of mary d'souza v land acquisition officer and assistant commissioner, kundapur and another, has held that the provisions of section 5 of the limitation act, 1963 cannot be invoked for condoning the delay in making an application for reference under section 18 of the la act beyond the period of 90 days prescribed in the said section. the supreme court also in officer on special duty's case, supra, considering all the decisions of the supreme court rendered earlier has held as follows.-'17. it is to remember that the land acquisition (amendment) act (68 of 1984) was enacted prescribing the limitation to exercise the power under sections 4, 6 and 11 and also excluded the time occupied due to stay granted by the courts. taking cognizance of the limitation prescribed in proviso to sub-section (2) of section 18, the provisions of the limitation act, were not expressly extended. though section 29(2) of the limitation act is available and the limitation in proviso to sub-section (2) of section 18 may be treated to be special law, in the absence of such an applicationby land acquisition (amendment) act (68 of 1984), the act specifically maintains distinction between the collector and the court and the collector/lao performs only statutory duties under the act, including one while making reference under section 18. it is difficult to construe that the collector/lao while making reference under section 18, as statutory authority still acts as a court for the purpose of section 5 of the limitation act. 18. though hard it may be, in view of the specific limitation provided under proviso to section 18(2) of the act, we are of the considered view that sub-section (2) of section 29 cannot be applied to the proviso to sub-section (2) of section 18. the collector/lao, therefore, is not a court when he acts as a statutory authority under section 18(1). therefore, section 5, of the limitation act cannot be applied for extension of the period of limitation prescribed under proviso to sub-section (2) of section 18. the high court, therefore, was not right in its finding that the collector is a court under section 5 of the limitation act'. 9. in view of the law laid down by the supreme court in the case referred to above, the deputy commissioner is a statutory authority under the act and not a court, and therefore, section 5 of the limitation act is not applicable for the purpose of condonation of delay in filing the application under section 28-a of the act.10. as i have held that section 5 of the limitation act, has no application to entertain an application under section 28-a filed beyond the period of limitation, there is no reason to consider whether the reasons assigned for the delay in filing the application constitute sufficient cause for condonation of delay.11. in these cases, admittedly, the applications filed by the petitioners before the assistant commissioner under section 28-a of the act, are barred by limitation and therefore, the assistant commissioner was right in rejecting the applications filed under section 28-a of the la act.12. for the reasons stated above, the writ petitions are rejected.

Judgment:
ORDER

The petitioners in these writ petitions filed applications under Section 28-A of the Land Acquisition Act, 1894 (for short 'LA Act'), for re-determination of the amount of compensation on the basis of the award passed by the learned Civil Judge in LAC Nos. 65 and 66 of 1985, dated 17-3-1988 before the Assistant Commissioner, Savanur Sub-Division, Savanur, who has been appointed as Deputy Commissioner under Section 3(c) of the Act. The said applications were rejected by the Assistant Commissioner by his order dated 3-5-1990 as belated as the reasons assigned for condoning the delay are not satisfactory. These orders are called in question by the petitioners in these writ petitions.

2. Sri Katarki, learned Counsel for the petitioners contended that the Assistant Commissioner was not right in recording the finding that the reasons assigned by the petitioners are not satisfactory without considering the reasons assigned for the delay in filing the applications as the said reasons constitute sufficient cause for condonation of delay under Section 5 of the Limitation Act.

3. In reply to the said submission Sri R.K. Hatti, learned Government Pleader, submits that the LA Act, is a special law and any application to be filed shall be within the period of limitation as provided under the Act, and further submitted that Section 5 of the Limitation Act has no application for condonation of delay in entertaining the applications filed under Section 28-A of the Act. It is further submitted that the applications filed by the petitioners in these two cases are admittedly barred by time and therefore the Assistant Commissioner was right in rejecting the applications of the petitioners on the ground of delay.

4. The facts in these cases are:--

The lands of the petitioners were acquired for the purpose of construction of an irrigation tank. After the passing of the award by the Assistant Commissioner, some of the land owners who lost their lands filed applications under Section 18(1) of the LA Act and on the said applications, the Assistant Commissioner referred the matter to the learned Civil Judge. On reference, the learned Civil Judge by his award dated 17-3-1988 enhanced the compensation from Rs. 2,500/- per acre to Rs. 7,500/- per acre. Thereafter, on the basis of the award of the learned Civil Judge, the petitioners filed applications for re-determination of the amount of compensation on 29-1-1990, that is, almost after about one year and ten months. The said applications were rejected by the L.A.O., firstly on the ground of delay and secondly on the ground that the reasons shown for delay in filing the applications were not satisfactory.

5. From the facts narrated above, admittedly the applications filed by the petitioners under Section 28-A of the Act, are barred by limitation. Therefore, the questions now arise for consideration are:--

(i) Whether Section 5 of the Limitation Act, is applicable for the purpose of condoning delay in filing the application under Section 28-A of the Act?

(ii) If applicable, whether the reasons assigned by the petitioners for the delay in filing the application before the Assistant Commissioner constitute sufficient cause for condoning the delay?

6. Section 28-A of the LA Act, reads as follows.-

'Re-determination of the amount of compensation on the basis of the award of the Court.--(1) Where in an award under this part, the Court allows to the applicant any amount of compensation in excess of the amount awarded by the Collector under Section 11, the persons interested in all the other land covered by the same notification under Section 4, sub-section (1) and who are also aggrieved by the award of the Collector may, notwithstanding that they had not made an application to the Collector under Section 18, by written application to the Collector within three months from the date of the award of the Court require that the amount of compensation payable to them may be re-determined on the basis of the amount of compensation awarded by the Court:

Provided that in computing the period of three months within which an application to the Collector shall be made under this sub-section, the day on which the award was pronounced and the time requisite for obtaining a copy of the award shall be excluded'.

From a reading of the above said section, it is clear that an application for re-determination of the amount of compensation has to be filed within three months from the date of the award of the Court and under the proviso, the date of the award and the requisite time for obtaining the certified copy of the award shall be excluded for the purpose of calculating the three months provided, for filing the application under Section 28-A(1) of the Act.

7. Sri Katarki, learned Counsel for the petitioners contended that the delay in filing the applications under Section 28-A of the LA Act deserves to be condoned as there is sufficient cause under Section 5 of the Limitation Act, as the applicability of Section 5 of the Limitation Act, is not expressly excluded by LA Act, relying upon Section 29 of the Limitation Act. In support of this contention he relied upon the decision of the Full Bench of the Bombay High Court in the case of Bhupal Premchand Shah and Others v State of Maharashtra. In this decision, the Full Bench of Bombay High Court, considering the law laid down by the Division Bench of that Court in Prabhakar Vasudev Gadgil v P. Y. Desh-pande, has held that the provisions of the Limitation Act, 1963, and Section 5 in particular, are applicable to an application made to the Collector under Section 18(1) of the LA Act, requiring him to refer thematter for determination of the Court. The decision rendered in P.V. Gadgil's case, referred to above, was considered by the Supreme Court in the case of Officer on Special Duty (Land Acquisition) and Another v Shah Manilal Chandulal and Others, and it is held as follows.-

'15. In P.V. Gadgil's case, supra, the question similar to the one presently under consideration had directly arisen. Section 5 of the Limitation Act was applied for condonation of the delay in seeking to make a reference under Section 18. It was contended that by operation of sub-section (3) as also applicable to States of Maharashtra and Gujarat, the Collector is a Court which is amenable to revisional jurisdiction under Section 115, CPC and that, therefore, Section 5 of the Limitation Act would apply. The Division Bench negatived the contention and held that the Collector is not a Court under CPC attracting the provisions of the Limitation Act. The contra view taken by that Court was held to be not a good law and accordingly, the same was overruled. The same question had arisen in Kerala where there is no specific local provision like Section 18(3) locally amended by Maharashtra and Gujarat. Contention was raised that by operation of sub-section (2) of Section 29 of the Limitation Act, Section 5 stands attracted since there is no express exclusion of the limitation under the Act. Therefore, the delay was condonable. The Division Bench negatived the contention and held that the Collector is not a Court under Section 5 of the Limitation Act. Sub-section (2) of Section 29 did not apply. Same is the view of the Andhra Pradesh High Court in Special Deputy Collector Land Acquisition, Anantapur v K. Kodandaramacharlu'.

In view of the aforesaid decision, the decision of the Full Bench of the Bombay High Court is of no assistance to the petitioners.

8. Sri R.K. Hatti, learned Government Pleader, submitted that in view of the law laid down by the Supreme Court in Officer on Special Duty's case, supra, and also in view of the decision of this Court, Section 5 of the Limitation Act, has no application for the purpose of condoning the delay in filing the application under Section 28-A of LA Act, since the Assistant Commissioner is not a Court. Sections 5 and 29(2) of the Limitation Act read thus.-

'5. Extension of prescribed period in certain cases.--Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.

29(2). 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 which, they are not expressly excluded by such special or local law'.

From a reading of Section 5 of the Limitation Act, it is clear that an appeal or application may be admitted by the Court, if it is satisfied that there is sufficient cause for not preferring the appeal or making the application within the prescribed period. Under Section 29 of the Limitation Act, any special or local law prescribes for any suit, appeal or application a period of limitation different from 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 shall apply only insofar as and to the extent to which they are not expressly excluded by such special or local law.

The LA Act, which is a special law prescribes a period of limitation of three months for the purpose of filing an application under Section 28A of the Act. The provisions of the said Act, also provides that the day on which the award was pronounced and the time requisite for obtaining the certified copy shall be excluded for the purpose of calculating the period of three months provided for under Section 28-A of the LA Act. At the same time no power is conferred on the Deputy Commissioner (Assistant Commissioner) to entertain the application filed after the period of three months after excluding the time as per the proviso to Section 28-A of the Act. This Court in the case of Mary D'Souza v Land Acquisition Officer and Assistant Commissioner, Kundapur and Another, has held that the provisions of Section 5 of the Limitation Act, 1963 cannot be invoked for condoning the delay in making an application for reference under Section 18 of the LA Act beyond the period of 90 days prescribed in the said section. The Supreme Court also in Officer on Special Duty's case, supra, considering all the decisions of the Supreme Court rendered earlier has held as follows.-

'17. It is to remember that the Land Acquisition (Amendment) Act (68 of 1984) was enacted prescribing the limitation to exercise the power under Sections 4, 6 and 11 and also excluded the time occupied due to stay granted by the Courts. Taking cognizance of the limitation prescribed in proviso to sub-section (2) of Section 18, the provisions of the Limitation Act, were not expressly extended. Though Section 29(2) of the Limitation Act is available and the limitation in proviso to sub-section (2) of Section 18 may be treated to be special law, in the absence of such an applicationby Land Acquisition (Amendment) Act (68 of 1984), the Act specifically maintains distinction between the Collector and the Court and the Collector/LAO performs only statutory duties under the Act, including one while making reference under Section 18. It is difficult to construe that the Collector/LAO while making reference under Section 18, as statutory authority still acts as a Court for the purpose of Section 5 of the Limitation Act.

18. Though hard it may be, in view of the specific limitation provided under proviso to Section 18(2) of the Act, we are of the considered view that sub-section (2) of Section 29 cannot be applied to the proviso to sub-section (2) of Section 18. The Collector/LAO, therefore, is not a Court when he acts as a statutory authority under Section 18(1). Therefore, Section 5, of the Limitation Act cannot be applied for extension of the period of limitation prescribed under proviso to sub-section (2) of Section 18. The High Court, therefore, was not right in its finding that the Collector is a Court under Section 5 of the Limitation Act'.

9. In view of the law laid down by the Supreme Court in the case referred to above, the Deputy Commissioner is a statutory authority under the Act and not a Court, and therefore, Section 5 of the Limitation Act is not applicable for the purpose of condonation of delay in filing the application under Section 28-A of the Act.

10. As I have held that Section 5 of the Limitation Act, has no application to entertain an application under Section 28-A filed beyond the period of limitation, there is no reason to consider whether the reasons assigned for the delay in filing the application constitute sufficient cause for condonation of delay.

11. In these cases, admittedly, the applications filed by the petitioners before the Assistant Commissioner under Section 28-A of the Act, are barred by limitation and therefore, the Assistant Commissioner was right in rejecting the applications filed under Section 28-A of the LA Act.

12. For the reasons stated above, the writ petitions are rejected.