Varghese vs The State Of Kerala

Kerala High Court

Varghese vs The State Of Kerala on 20 May, 2024

                 IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                  PRESENT
                 THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN
           Monday, the 20th day of May 2024 / 30th Vaisakha, 1946

                             CRP NO. 2 OF 2019


IA 4872/2015 IN OP(ELE) 648/2015 OF ADDITIONAL DISTRICT COURT - I, THRISSUR.

REVISION PETITIONER/ PETITIONER:

     VARGHESE, AGED 57 YEARS, S/O THOMA, NELLIPILLY HOUSE,
     MATTATHURUKUNNU. P.O, MUKUNDAPURAM TALUK, THRISSUR DISTRICT,
     PIN-680684.

    BY ADVS. M/S P.SAMSUDIN & JITHIN LUKOSE.


RESPONDENTS/ RESPONDENTS:


  1. THE STATE OF KERALA, REPRESENTED BY DISTRICT COLLECTOR,
     THRISSUR, CIVIL STATION, AYYANTHOLE-680003, THRISSUR DISTRICT.
  2. THE DEPUTY MANAGER, POWER GRID CORPORATION, CONSTRUCTION AREA
     OFFICE, 400/220 KV SUB STATION, KUMARAPURAM.P.O-683565, PALLIKKARA,
     KOCHI.
  3. SPECIAL TAHSILDAR, L.A, POWER GRID CORPORATION, CONSTRUCTION AREA
     OFFICE,400/220 KV SUB STATION, KUMARAPURAM.P.O-683565, PALLIKKARA,
     KOCHI.

    BY GOVERNMENT PLEADER FOR R1 & R3
    BY ADV.SRI.E.M.MURUGAN FOR R2
     This Civil Revision Petition having come up for            orders   on
20-05-2024, the court on the same day passed the following.

                                                                     [PTO]
                    C.JAYACHANDRAN, J.

------------------------------------- C.R.P.No.2 of 2019

------------------------------------- Dated, this the 20th day of May, 2024 REFERENCE ORDER The applicability of Section 5 of the Limitation Act to an original proceeding under Section 16(3) of the Indian Telegraph Act is the issue involved in this Revision Petition.

2. The Original Petition - O.P.(Electricity) No.648/2015 - was preferred with a petition to condone the delay of 271 days before the First Additional District Court, Thrissur. The court found that the delay is not 271 days, but 3 years 10 months and 10 days. Relying upon Article 137 of the Limitation Act, the learned District Judge found that the Original Petition is preferred beyond the limitation period of three years. Accordingly, I.A.No.4872/2015, the application under Section 5 of the Limitation Act, was dismissed vide the impugned order dated C.R.P.No.2 of 2019

- 2 -

15.09.2018. Consequently, the Original Petition was also dismissed vide a separate order dated 15.09.2018.

3. Heard Sri.P.Samsudin, learned counsel for the petitioner; Sri.S.Unnikrishnan, learned Government Pleader on behalf of the 1st respondent/State and 3rd respondent, Tahsildar and Sri.E.M.Murugan, learned counsel for the 2nd respondent, Power Grid Corporation.

4. According to the learned counsel for the Petitioner, no period is prescribed under Section 16(3) of the Indian Telegraph Act to prefer a petition on the ground of inadequacy of compensation. Referring to Section 2(a) of the Limitation Act, it was argued that an 'applicant' includes a petitioner and as per Section 2(b), an 'application' includes a petition. Learned counsel would then rely on Section 2(l) to contend that a 'suit' does not include an appeal C.R.P.No.2 of 2019

- 3 -

or an application. Section 5 of the Limitation Act permits condonation of delay in any appeal or an application, wherefore, Section 5 is applicable to a 'petition' under Section 16(3)of the Indian Telegraph Act, since, 'application' includes a petition, going by Section 2(b), is the contention raised. Learned counsel placed heavy reliance upon a judgment of the learned Single Judge of this Court in Raghavan Nair v. K.S.E.B. [1989 (2) KLT 825]. Relying on paragraph no.4 of the said judgment, it was pointed out that, no authority holding a contrary legal position has been cited before the learned Single Judge in that case, which position prevails even now, is the argument of the petitioner's counsel. Learned counsel also addressed arguments based on the Section 29(2) of the Limitation Act, to contend that the provisions of Sections 4 to 24 of the Limitation Act will apply to a proceeding under the Indian Telegraph Act as well, inasmuch as, the said provisions are not specifically C.R.P.No.2 of 2019

- 4 -

excluded by that special statute. In this regard, learned counsel placed reliance upon a Bench decision of this Court in Omanakunjamma v. Deputy Collector and Competent Authority (Kerala) and another [2019 (2) KHC 12], as also, on a judgment of a learned Single Judge in Petronet CCK Ltd. v. Vijayan [2005 (1) KLT 773]. On the applicability of Article 137 of the Limitation Act, learned counsel relied upon a three Judges Bench decision of Honourable Supreme Court in K.S.E.B v. T.P.K [AIR 1977 SC 282].

5. Per contra, learned counsel for the 2nd respondent would submit that, the petition which is preferred under Section 16(3) is an Original Petition, having all the trappings of an original proceeding, just like a suit, wherefore, Section 5 of the Limitation Act cannot be made applicable. According to the learned counsel, the term 'application' employed in Section 5 cannot include an Original Application, or for C.R.P.No.2 of 2019

- 5 -

that matter an Original Petition, which stands at par with an Original Suit. If Section 5 is not applicable, the instant Original Petition is hopelessly barred by the Law of Limitation, is the submission made. It was also submitted that, no sufficient cause has been shown to condone the delay of more than 300 days, even assuming Section 5 applies.

6. Having heard the learned counsel appearing on both sides, this Court finds that the solitary judgment, which was brought to my notice on the point is the one rendered by a learned Single Judge in Raghavan Nair (supra). There, the precise issue as to whether Section 5 of the Limitation Act applies to a proceeding under Section 16(3) of the Indian Telegraph Act fell for consideration. The learned Single Judge found that the proceeding under Section 16(3) is only an 'application' and not a 'suit'. On that solitary finding, it was held that Section 5 of C.R.P.No.2 of 2019

- 6 -

the Limitation Act applies to a proceeding under Section 16(3) of the Indian Telegraph Act.

7. Having bestowed my attention to Raghavan Nair (supra), I am of the opinion that the issue requires more clarity and elucidation. Of course, the view taken by the learned Single Judge in Raghavan Nair (supra) is a plausible view. However, the question as to whether a proceeding under Section 16(3) of the Indian Telegraph Act is an original proceeding, which is akin to that of a suit and also as to, whether Section 5 of the Limitation Act can apply to the same, viewed from that angle, is not seen addressed. It is settled that Section 5 cannot be applied to a suit, which is instituted beyond the prescribed period. While Section 3 speaks of 'suit instituted', 'appeal preferred' and 'application made', Section 5 speaks only of 'any appeal' or 'any application'. Therefore, it is clear that a 'suit instituted' as contained in Section 3 of C.R.P.No.2 of 2019

- 7 -

the Limitation Act is specifically carved out of the purview of Section 5. If we go merely by the nomenclature, Section 5 applies to 'any application' and Section 16(3) of the Indian Telegraph Act speaks of an 'application' by either of the disputing parties before the District Judge. It could thus be possibly argued that Section 5 applies to an application under Section 16(3) of the Indian Telegraph Act. However, the reason and logic as to why Section 5 is specifically made inapplicable to a suit, which is an original proceeding; and as to whether the same logic would apply to an original proceeding under Section 16(3) of the Indian Telegraph Act, requires a deeper consideration; and an authoritative pronouncement is required by a Division Bench of this Court to clarify the legal position.

8. It is true that a Division Bench in Omanakunjamma (supra) held that Section 5 applies C.R.P.No.2 of 2019

- 8 -

to a proceeding under Rule 5 of the Petroleum and Minerals, Pipelines (Acquisition of Right of User in Land) Act, 1962. However, this Court notice that the said Act prescribes a separate period of limitation, different from the one prescribed in the schedule to the Limitation Act, wherefore, the situation is governed by Section 29(2) of the Limitation Act.

9. In the instant case, Indian Telegraph Act is silent about any such period, within which proceeding under Section 16(3) has to be initiated, wherefore, one has to necessarily fall back on the residuary Article 137 of the Limitation Act. Therefore, the judgments in Omanakunjamma (supra) and in Petronet CCK Ltd. (supra) are of little avail in the present context. In K.S.E.B (supra), the three judges bench of the Honourable Supreme Court held that Article 137 of the Limitation Act governs the period within which a proceeding under C.R.P.No.2 of 2019

- 9 -

Section 16(3) of the Telegraph Act has to be initiated. In paragraph no.18, the Honourable Supreme Court held that the definition of the words 'applicant' and 'application' contained in Sections 2(a) and 2(b) of the Limitation Act indicates that the Act applies to petitions, original or otherwise, under special laws. However, it was held so, only to find that Article 137 of the Limitation Act applies not merely to applications under the Code of Civil Procedure, but also, to applications under special laws.

10. In this regard, this Court also notice that the Honourable Supreme Court as held in Mukri Gopalan v. Cheppilat Puthanpurayil Aboobacker [(1995) 5 SCC 5] that Section 5 of the Limitation Act applies to appeals under Kerala Buildings (Lease and Rent Control) Act, 1965. Similarly in Sree Gajanana Motor Transport Co. Ltd. v. Karnataka State Transport Appellate Tribunal C.R.P.No.2 of 2019

- 10 -

[AIR 2003 Karnataka 326], the Karnataka High Court held that Section 5 of the Limitation Act applies to proceedings under the Motor Vehicles Act, since Motor Vehicles Act do not specifically exclude Section 5 of the Limitation Act.

11. In the above referred facts and circumstances, the matter is referred for consideration and an authoritative pronouncement by a Division Bench. Registry is directed to place the matter before the Honourable the Chief Justice for the needful in this behalf.

Sd/-

C.JAYACHANDRAN, JUDGE ww 20-05-2024 /True Copy/ Assistant Registrar