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.
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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
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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
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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
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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
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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
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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
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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
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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
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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
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[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
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20-05-2024 /True Copy/ Assistant Registrar
