S.M Thakur v. State Of Bihar

Sinha, J.:— These two cases raise questions of first impression which do not ordinarily arise in these Courts. The questions which arise in both these cases are (1) whether section 5 of the Limitation Act can be applied, to them, and whether, if we decide that the provisions of section 5 of the Limitation Act are available to the appellant, in the peculiar circumstances of these cases, the delay in filing the two appeals should be condoned.

The facts of these two cases are similar except in one respect that, whereas Miscellaneous Appeal 80 of 1950 arises out of the award in Land Acquisition Case no. 40 of 1946 arising out of Case no. 1 of 1943–1944, Miscellaneous Appeal 90 of 1950 arises out of Land Acquisition Case no. 39 of 1946 arising out of Case no. 1 of 1942–1943. This difference has been sought to be made use of by the learned Council for the appellant, as will presently appear. The other facts of the case may be stated as common to both the cases as follows: Two appeals were filed on the 21st of March, 1950, from two awards, dated the 13th of December, 1949, of the District Judge of Bhagalpur under rule 75-A of the Defence of India Rules read with section 19 of the Defence of India Act. On the 11th December, 1949, the appellant made an application for a certified copy of the awards. The requisite stamps were notified on the 22nd of December, 1949, and were delivered on the 23rd December, 1949. The copy was ready for delivery on the 7th of January, 1950, and was actually made over on the 9th of January, 1950. The formal notice of the signing of the award was served on the appellant, according to the affidavit, on the 6th of January, 1950, though according to the statement of the learned Advocate for the appellant, it was on the 7th on of January, 1950. The statement on affidavit may be acted, upon in preference to the statement at the Bar. The learned Stamp Reporter made a report to the effect that, as the appeals had been filed beyond six weeks from the date of the receipt of the notice of the signing of the award, they were out of time. After that report of the Stamp Reporter, these applications under section 5 of the Limitation Act have been made for condoning the delay, and the grounds stated for doing so are that, to the petitioner's knowledge, there was no limitation for filing appeal provided under the Defence of India. Act or the Rules made thereunder, and that the petitioner was advised by his lawyer, a pleader of Bhaglapur which advice he acted upon, that the ordinary period of ninety days provided for filing anneals to this Court would be applicable, and that he would, get the benefit of the time requisite for obtaining a certified copy.

There is mo doubt that, if the provisions of section 5 of the Limitation Act can be invoked in aid of the petitioner, in the special circumstances of this case, sufficient grounds had been made out for condoning the delay. It has taken us some amount of research to find out the relevant provisions of the law regulating anneals to this Court from an award of the nature aforesaid. It is true that neither the Defence of India Act nor the Rules made thereunder by the Central Government, contain any provisions relating to the period of limitation for filing appeals against an award of the nature contemplated by the Act and the Rules. By a notification, dated the 96th of May 1943, by the Government of Bihar published in the Bihar Gazette Extraordinary of that dale, rules have been framed called the Bihar War Acquisition of Property Compensation Rules, 1943. Rule 18 is in these terms:—

“When the Arbitrator has made his award, he shall sign it and shall give notice in writing to the parties to the reference of the making and signing thereof. He shall also rend a copy of the sward to the person or persons to be compensated and forward to the Collector, the award in original together with the records of the proceedings.”

And rule 20, which is the rule providing for a period of limitation, is in these terms:—

“Any appeal against the award of the Arbitrator shall be preferred within six weeks of the receipt by the parties of the notice referred to in rule 18,”

The relevant portions of section 29 of the Limitation Act are in these terms:—

“(2) Where any special or local law prescribes 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—

(a) the provisions contained in section 4, sections 9 to 18 and section 22 shall apply only in so far as and to the extent to which, they are not expressly excluded by such special or local law; and

(b) the remaining provisions of this Act shall not apply.”

It will be seen from the provisions, quoted above, of section 29 of the Limitation Act that if these rules are within the purview of the words “special or local law” then section R of the Limitation Act is entirely out of the way. The sections of the Limitation Act like section 4, sections 9 to 18 and section 22 are to apply not entirely but only to the extent they are not expressly excluded by such special or local law.

It was attempted to be argued on behalf of the appellant, that, the special rule of limitation provided by the rules aforesaid do not come within the purview of special or local law, and that, therefore, section 29 of the Limitation Act cannot stand in the way of the appellant. But, in my opinion, there is no substance in this contention, because a special law means law enacted for special cases in special circumstances a distinguished from the genera law which applies generally. The Indian Limitation Act is an example, of the general law of limitation which applies to all classes of cases dealt with by the Act. The rules framed under the Defence of India Act were rules made for purposes of emergency and the exigencies of the war.

It was next contended on behalf of the appellant that, at least one of the cases, namely, Miscellaneous Appeal 90 arose out of Case no. 1 of 1942–1943 before the rules in question were promulgated. But the award has come into existence after those rules have been framed. Hence, the award in question comes within the mischief of the rules which came into existence some years before the awards were made. Hence, the decision of a Division Bench of the Madras High Court in Kullegall Silk Filatures, Ltd. v. Province of Madras is of no assistance. In view of these considerations, it must be held that the appellant is not entitled to the benefit of section 5 of the Limitation Act. The appeals must, therefore, be held to be barred by the special rule of limitation laid down by, the rule quoted above made under the Defence of India Act.

The appeals must, therefore, be dismissed. There will be no order as to costs.

C.P Sinha, J.:— I agree.

Applications rejected.

Appeals dismissed.

K.D