2019 (9) TMI 1717 - KARNATAKA HIGH COURT

Enhancement of compensation - Section 54(1) of the Land Acquisition Act, 1894/Section 74(1) of 2013 Act - condonation of delay in filing appeal u/s 5 of Limitation Act - Right to file an appeal to the High Court by a person being aggrieved by an award passed by the reference Court - HELD THAT:- It is a settled position of law that the right to file an appeal is a statutory right or a creature of the statute and no other right to file an appeal can be recognized de hors a statute. A right of appeal is a creature of statute and no appeal can be filed unless it is clearly expressed in terms of a statute. Further, the right of appeal is a substantive right and not merely a matter of procedure. It is a vested right which can be exercised when the adverse judgment is pronounced. Though it exists from the date the lis commences, such right is governed by the law prevailing on the date of the institution of the suit or proceeding and not by the law that prevails on the date of its decision or on the date of the filing of the appeal.

In Anant Mills Company Limited vs. State of Gujarat, [1975 (1) TMI 62 - SUPREME COURT] (Anant Mills Company), it has been held that though the right of appeal is a creature of a statute, there is no reason why the legislature while granting the right cannot impose conditions for the exercise of such right so long as the conditions are not so onerous as to amount to unreasonable restrictions rendering the right almost illusory.

There is a fundamental distinction between a right to file a suit and right to file an appeal which has been explained by Y.V. Chandrachud J. (as he then was) in the case of Ganga Bai vs. Vijay Kumar, [1974 (4) TMI 95 - SUPREME COURT].

Filing of a suit or an appeal within the prescribed period of limitation - HELD THAT:- In N. Balakrishnan v. M. Krishnamurthy, [1998 (9) TMI 602 - SUPREME COURT] (N. Balakrishnan), the Hon'ble Supreme Court has held Rules of limitation are not meant to destroy the rights of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time - In State of Madhya Pradesh vs. Pradeep Kumar, [2000 (9) TMI 1042 - SUPREME COURT] (Pradeep Kumar), on the question of a belated appeal being unaccompanied by an application seeking condonation of delay and the consequences of not filing the said application along with the memorandum of appeal and the fact that the said defect is curable, the Hon'ble Supreme Court has observed The effort of the Court should not be one of finding means to pull down the shutters of adjudicatory jurisdiction before a party who seeks justice, on account of any mistake committed by him, but to see whether it is possible to entertain his grievance if it is genuine.

Analysis of Section 74(1) of 2013 Act and Section 29(2) of Limitation Act - Whether Section 74(1) of 2013 Act, which is a special law prescribing a different period of limitation than as prescribed under the schedule to the Limitation Act, in terms of Section 3 of the Limitation Act excludes the application of Sections 4 to 24 (inclusive) of the Limitation Act and particularly Section 5 thereof? - HELD THAT:- If on a reading and interpretation of Section 74(1) of 2013 Act it is held that Sections 4 to 24 (inclusive) of the Limitation Act are expressly excluded, then there cannot be any extension of time or condonation of delay as sought for by the appellant under Section 5 of the Limitation Act. On the other hand, if on a plain reading and interpretation of Section 74(1) of 2013 Act, it is held that Sections 4 to 24 (inclusive) of the Limitation Act are not excluded under Section 74(1) of 2013 Act, then the application filed by the appellant under Section 5 of the Limitation Act has to be held to be maintainable and considered.

The proviso to Section 74(1) of the 2013 Act is similar to the proviso to Section 125 of the Electricity Act. But, the main Section under Section 125 of the said Act prescribes a limitation of sixty days from the date of the communication of the decision or order by the appellate tribunal to an aggrieved party. Under Section 74(1) of the 2013 Act, the limitation period prescribed is sixty days from the date of the award and not from the date of the communication of the award. After considering Section 29(2) of the Limitation Act in light of Section 125 of the Electricity Act, the Hon'ble Supreme Court considered the scheme of Electricity Act and observed that it is a self-contained comprehensive legislation and a special adjudicatory forum i.e., Tribunal has been established to deal with a grievance of any person who may be aggrieved by an order of an adjudicating officer or of an appropriate Commission.

Thus, whenever there is a special enactment prescribing a limitation period different from the Limitation Act, it is necessary to consider as to whether Section 5 of the Limitation Act is excluded. of course, in Section 29(2) of the Limitation Act, the expression used is "expressly excluded by special or local law". But, with the passage of time, the expression "expressly excluded" has also been interpreted to also mean exclusion by necessary implication having regard to the scope, object and scheme of the special law being a code by itself prescribing a limitation period different from the Limitation Act, which would exclude application of Section 5 of the Limitation Act - in computing the period of limitation for filing an appeal under Section 74(1) of the 2013 Act, the time spent in prosecuting bona fide with due diligence an appeal before an appellate court not being the competent court in good faith has to be excluded. In fact, Section 14 of the Limitation Act has been made applicable to Section 34(3) of the Arbitration Act.

Thus, there can be no exception to the period of limitation to file an appeal to the High Court and the 60 days has to be computed after application of Sections 12, 13 and 14 of the Limitation Act. In other words, while applying the period of limitation prescribed under Section 74(1) of the 2013 Act in the matter of filing an appeal to the High Court against the judgment and Award of the reference court, while considering as to whether the appeal filed is within the period of 60 days, the exclusion of time as envisaged under Sections 12, 13 and 14 must be made applicable. In our view, such an interpretation would also be in consonance with Article 300A of the Constitution, which recognizes the Constitutional right of a person to his property as no person can be deprived of such a Constitutional right except by authority of law.

Thus, Section 74(1) of 2013 Act is already interpreted in light of Section 29(2) of the Limitation Act by holding that Section 5 thereof is not applicable whereas Section 4 and Sections 12, 13 and 14 are applicable while computing the period of limitation of 60 days + 60 days. As already noted, there is no indication as to when the certified copy was delivered to the appellant even though it was prepared on 01/12/2018 and the appellant was required to appear on 10/12/2018. In the instant case, while we accept the contentions of learned counsel for the respondent that Section 5 of the Limitation Act is not applicable to Section 74(1) of the 2013 Act and there cannot be any condonation of delay as contemplated under the said Section in the instant case, nevertheless, Sections 4, 12 to 14 of the Limitation Act are applicable to Section 74(1) of the 2013 Act while computing the period of sixty days + sixty days under Section 74(1) of the 2013 Act. Further, we do not venture to condone any delay that has occurred in filing of this appeal under Section 5 of the Limitation Act as the same is not applicable to Section 74(1) of the 2013 Act.

Ignorance of law is no excuse. In the instant case, there is a blatant ignorance of law on the part of the Department/State. Therefore, it is necessary for all concerned to become aware of the specific period of limitation prescribed under Section 74(1) of the 2013 Act so that the right to file an appeal is not lost either on account of ignorance of the provision or due to laxity in acting within time.

Appeal dismissed.