Uttarakhand High Court
Rajesh Sah And Others ... vs State Of Uttarakhand Through ... on 1 April, 2021
Reserved on: 12.03.2021
Delivered on 01.04.2021
HIGH COURT OF UTTARAKHAND
AT NAINITAL
Writ Petition No.170 of 2018 (M/S)
Rajesh Sah and others ....Petitioners
Vs.
State of Uttarakhand through Collector Nainital
And another ....Respondents
Advocate : Mr. Mahavir Singh Tyagi, Senior Advocate for the petitioners.
Mr. Ajay Singh Bisht, Additional Chief Standing Counsel for the State of
Uttarakhand.
Hon'ble Sharad Kumar Sharma, J.
The brief facts, which engages consideration in the present writ
petition are, that the petitioners, contends to be the owner of 21.061
hectares of land, which was claimed to be situated at village Chakmoti
Bagh, Tehsil, Nainital. In the proceedings, which was held under the Forest
Act, before the Forest Settlement Officer; as defined under Sub Section (2)
of Section 2 of the Act, there has been a specific case of the petitioners that
they have been recorded in the revenue records, as owner of the land and in
support thereto, the petitioners had placed on record the Khatauni of the
land pertaining to 1420 to 1425 fasli and under the strength of which the
petitioners contends that since they being the recorded owners of the
property in question, they would be entitled for to be paid with the
adequate compensation, as was to be determined by the Forest Settlement
Officer, under the provisions of The Indian Forest Act, 1927 as provided
under Section 11 of the Act (hereinafter to be called as Act of 1927).
2. A notification being Notification No.6119/14-2-93-4(14) 92
dated 25.06.1993; was issued by the respondent State by invoking the
provisions contained under Section 4 of the Indian Forest Act of 1927,
intending for the declaration of land as a reserved forest, which included
the land of the petitioners, as to be a part of acquired reserve forest. As a
consequence of intention of the State to declare the land as to be a reserve
forest and which was inclusive of the land, which was recorded with the
petitioners, the Forest Settlement Officer by invoking the provisions
contained under Section 6 of the Indian Forest Act, 1927 had issued a
proclamation, and had invited the objections from the land owners by
issuing a notification to the said effect on 10.07.1995. As a consequence of
the notification, which was issued under Section 6 of the Act, soliciting an
objection from the petitioners, as against the proposal of the State under
Section 4, for declaration of reserve forest, in pursuance to the notification,
which was issued under Section 4 of the Act, on 25.06.1993, admittedly,
the records shows that the petitioners did file their objection, before the
Forest Settlement Officer and as a consequence of it, it was instituted
which was registered as Case No.37 of 1995-1996, with regard to the
aforesaid acquisition proceedings for declaration of reserve forest, of the
land of the petitioners, as referred above and for proceeding further for
commutation as per Section 16 of the Forest Act, 1927. Section 16 of the
Indian Forest Act, 1927 is extracted hereunder:-
"16. Commutation of rights.-In case the Forest Settlement-officer
finds it impossible having due regard to the maintenance of the
reserved forest, to make such settlement under section 15 as shall
ensure the continued exercise of the said rights to the extent so
admitted, he shall, subject to such rules as the State Government
may make in this behalf, commute such rights, by the payment to
such persons of a sum of money in lieu thereof, or by the grant of
land, or in such other manner as he thinks fit."
3. The proceedings before the Forest Settlement Officer, under
Section 16, for the purposes of determination of compensation, which the
petitioners were entitled to receive, from the respondents, as a consequence
of acquisition of their property, for declaration of a reserve forest, the
proceedings were held on merit and consequently, by an order of
08.06.2016, as was rendered in Case No.37 of 1995-1996, the Forest
Settlement Officer; had made a reference for deciding the controversy in
the light of the provisions contained under Section 11(2)(ii) of the Forest
Act, which was the foundation and the basis of the agreement between the
petitioners, as well as the respondents and it was referred to be decided as
per Section 20 of the Forest Act which is extracted here under:-
"11(2) (ii) If such claim is admitted in whole or in part, the Forest
Settlement-officer shall either."
4. Immediately as per the reference, which was made on
08.06.2016, the Forest Settlement Officer vide his Communication vide
Letter No.2239/RA-Akhaya 2016 dated 10.06.2016, had written to the
Joint Secretary, State, informing about the decision taken by it for the
purposes of determination of the compensation, which was to be made
payable to the petitioners as per Section 4 of the Act, to be read alongwith
Section 6 and Section 11(2)(ii) of the Act of 1927. In continuation, thereto,
and the reference, which was made to the State Government, the Joint
Secretary, to the State of Uttarakhand Administration, vide its
Communication of 1690/X-2-2016-15(29)/2002 dated 18.07.2016, has
written to the Chief Conservator of Forest; for the purposes of
determination of the adequacy of the compensation and alongwith the said
correspondence made with the Chief Conservator of Forest, he has also
appended therewith the copy of the judgment of 08.06.2016, as was arrived
at by the Forest Settlement Officer paving the reasons for justifying the
compensation determined and payable to the petitioners, as was determined
by him as per Section 11(2)(ii) of the Act.
5. During this process of determination of compensation, which
was determined to be made payable to the petitioners under the Indian
Forest Act, and in pursuance to the action contemplated to be undergone
for deciding the claim under Section 20 of the Act and when the reference
was made to the State Government, as per the petitioners' contention in the
writ petition was that, the petitioners on 06.12.2016, had submitted a
representation to the Secretary to the State of Uttarakhand, contending
therein that a appropriate decision with regards to the adequate payment of
compensation to be taken in the light of the provisions contained under
Section 20 of the Act, and it should not be exclusively based upon the
determination, which has been made by the Forest Settlement Officer on
08.06.2016. Apart from the aforesaid representation of 06.12.2016, the
petitioners have also simultaneously represented their claim for the grant
and determination of an appropriate and adequate compensation by filing a
representation before the Principal Secretary, Forest and Environment too
on 18.05.2017. The petitioners in their representation, which was
submitted to the Principal Secretary, Forest and Environment on
18.05.2016; had also appended some of the documents, in support of their
claim, which was supplied to them on an application, which was moved by
the petitioners under Section 6 of the Right to Information Act, wherein
they have prayed for to supply the information with regards to the decision
which had been taken on the petitioners' representation, as referred
aforesaid and what parameters have been adopted by the respondents for
the purposes of an appropriate determination of compensation, which the
petitioners contended to be entitled to receive under Section 20 of the
Indian Forest Act of 1927.
6. The petitioners had come up in the writ petition, with the case
that in response to their application under Section 6 of the Right to
Information Act, the departmental Information Officer of the Forest
Department, vide its communication of 24.07.2017, under the authority of
the Under Secretary, has issued a Communication Letter No.1188/X-
2/2017-15(29)/2017, whereby alongwith it, a D.O. letter was also annexed
with it, showing that the aforesaid communication and references as
already dealt with above dated 18.07.2016, 10.02.2017, 24.07.2017, the
determination of the compensation as made on 08.06.2016, was held and
found to be an appropriate determination.
7. So far as the petitioners are concerned, they do not refute or
deny the veracity of the determination of compensation, which was made
by the order of 08.06.2016 of the Forest Settlement Officer, but as far as
their grievance in the present writ petition is concerned, it is limited to the
extent that the appeal, which was preferred by the State, under Section 17
of the Forest Act, before the District Judge, Nainital, on 08.10.2017, since
it was a highly belated appeal, which was preferred under Section 17,
which though it did accompany with it an application for delay
condonation under Section 5 of the Limitation Act, seeking a condonation
of delay of one year and four months, which has chanced in filing the
appeal by the State. The said application under Section 5 of the Limitation
Act, which was registered as Misc. Case No.116 of 2017. On the said
application, the notices were issued to the petitioners, on which, the
petitioners on 10.10.2017 had filed their objection to the delay
condonation. In the objection thus filed to the delay condonation
application by the petitioners, have raised the following, initial objections:-
i. That once the statute, under Section 17 of the Act, contemplates of or
grants a liberty of preference of an appeal, within three months only, in
that eventuality, the appeal could not have been instituted by the State,
after the expiry of the aforesaid period, which was self contained under the
appellate provisions of the Act of 1927.
(ii) As far as the appellate provisions contained under the Forest Act of
1927, is concerned in its applicability to the State of Uttar Pradesh, the
Section 17, as made applicable therein reads as under:-
"17. Appeal from order passed under Section 11, Section 12,
Section 15 or Section 16-Any person who has made a claim under
this Act, or any Forest Officer or other person generally or
specifically empowered by the State Government in this behalf
may, within three months from the date of the order passed on such
claim by the Forest Settlement Officer under Section 11, Section
12, Section 15 or Section 16, present an appeal from such order to
the District Judge.
Explanation.-In this section and in the succeeding section of
this Chapter, 'District Judge' means the District Judge of the
district in which the land is situate, and includes an Additional
District Judge to whom an appeal is transferred by the District
Judge."[Vide U.P. Act 23 of 1965, S.5.]
(iii) In principle if the provisions as made applicable by U.P.
Amendment Act No.23 of 1965; is taken into consideration, it entails
filling of an appeal aggrieved against the orders passed under Section 11,
12 and 15 or Section 16, of the Act. Hence, that provision has construed
that the period of limitation, as prescribed therein for three months from
the date of order, it would statutorily mean the period of limitation as it has
to be determined from the date of notice, actual or constructive, as to be
the consideration for the purposes of determining the aspect of limitation,
in preference of an appeal, under the Act.
8. The modalities adopted for deciding the appeal under Section
18 of the Act, has yet again which has been distinctly made applicable in
the State of Uttar Pradesh by virtue of the U.P. Amendment Act No.23 of
1965, which too would be applicable in the State of Uttarakhand as per the
provisions contained under Section 87 of the Reorganization Act.
9. The manner in which, the appeal is to be preferred and hast to
be decided by the District Judge, and where it even also confers the power
of remand on a District Judge, it would be treated that the District Judge
who is dealing with an appeal under Section 17, which has been preferred
as per the provisions contained under Section 18; has got all the trappings
of a Court/Tribunal and as such the savings Clause of the Limitation Act
provided under Section 29 of the Limitation Act, would be applicable.
Section 18 as it applied to the State of Uttarakhand reads as under:
"18. Appeal under Section 17.-(1) Every appeal under
Section 17 shall be made by petition in writing and may be
delivered to the Forest Settlement Officer, who shall forward
it without delay to the District Judge."
(2) The District Judge, may, after giving to the parties an
opportunity of being heard, confirm, set aside or modify the
order under appeal or remand the case to the Forest
Settlement Officer with such directions as he thinks fit.
(3) During the pendency of the appeal the District Judge
may, for sufficient cause, stay, on such terms, if any, as he
thinks fit, the operation of the order appealed from and pass
any incidental or consequential order.
(4) The order passed on the appeal shall, subject to the
provisions of Section 22, be final."[Vide U.P. Act 23 of 1965,
S.6.].
10. The petitioners in their objection have taken a specific plea that
the registration of the Misc. Case No.116 of 2017, which was filed by the
State, along with Section 5 of the Limitation Act, seeking condonation of
delay, was not tenable for the reason being that since the proceedings,
being the proceedings, which were regulated by the provision of a special
statute i.e. Act of 1927 and once the Act itself has not made the provisions
of Limitation Act applicable, hence their case was that the provisions of
Section 5, of the Limitation Act, was not available to the respondents, in
order to enable them to file a delay condonation application under Section
5 of the Limitation Act, alongwith the appeal, which was preferred by them
under Section 17 of the Act and hence, their contention is that the delay
condonation application, as preferred by the respondents alongwith the
appeal under Section 17 of the Act of 1927; could not have been
considered, by applying the general principles of limitation and the ratio
laid down by the Hon'ble Apex Court, wherein it was governing the
percept of taking a lenient view for the purposes of the consideration of
condonation of delay, in a judicial proceedings.
11. In response to it, the learned counsel for the respondents had
submitted that it is not in controversy that if Section 4 of the Forest Act, is
read with Section 6, of the Act and the parameters, which are provided
therein for the purposes of determination of compensation for the land
contemplated under Section 11, it entails a determination of a
compensation, for the purposes of land, which has been taken over by the
State, for its declaration, as a reserve forest, thus practically it's a
determination of civil rights of a citizen and hence, he submits that in such
an eventuality, where the Act is silent with regards to the applicability of
the provisions of Limitation Act and particularly Section 5, in such an
eventuality the savings clause as contemplated under Section 29(2) of the
Limitation Act, will come into play and in that eventuality, the respondents
contend that their application for condonation of delay in an appeal which
is preferred under Section 17 of the Act of 1927, would be tenable and it
has been rightly considered and condoned by the learned District Judge in
appeal, under the Act. Besides this also that the Forest Act, 1972, does not
exclusively exclude the applicability of the Limitation Act, by a specific
incorporation, of an exclusion clause under the Act, thus this provision of
Section 29 of the Limitation Act hence would apply, over the appeals
under Section 17 of the Forest Act.
12. The learned Senior Advocate Mr. Mahavir Singh Tyagi, while
refuting the set of argument, which had been extended by the learned
Additional Chief Standing Counsel Mr. Ajay Singh Bisht, had submitted
that the arguments extended by the counsel for the respondents, for the
purposes of extension of the concept of condonation of delay, which has
been contemplated to be generally made applicable under the savings
clause provided under Section 29(2) of the Limitation Act, would not
apply in the present circumstances, for the reason being that he contends
that if the language of Section 29(2) of Limitation Act itself, which is
extracted hereunder:-
"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."
13. The aforesaid exception clause of Section 29(2) of the
Limitation Act, would be attracted only when the proceedings are being
held by the courts, since District Judge, here mentioned in Section 17,
would not fall to be, within the definition of Court, hence according to him
Section 29 (2), would not be attracted in the circumstances of the present
case.
14. His submission is that the aforesaid provision if, it is taken into
consideration, the aforesaid provisions would be made applicable only in
those proceedings in which the provision of Section 5 of the Limitation
Act, are not made applicable and are the proceedings which are being held
before a Court. The distinction which has been carved out by the learned
Senior Advocate, is that the rescue to Section 29(2) of Limitation Act,
would only be made applicable in those cases; where the proceedings are
being drawn and held before the "Court" and since particularly in the
matter herein under the Forest Act, 1927, where the appeal is provided
under Section 17 of the Act, before the learned District Judge, the learned
District Judge, will not be treated, as to be a "Court" for the purposes to
enable and permit the respondents to take the shelter of the provisions
contained under Sub Section (2) of Section 29 of the Limitation Act and
hence, he contends that until and unless the appellate forum provided under
Section 17 of the Forest Act, itself has a trapping of being a "Court", the
benefit of Section 29(2), cannot be made available to the respondents,
while filing of the appeal before District Judge under Section 17 of the Act
of 1927, the District Judge is not acting as a "Court", hence Section 29(2)
will not apply.
15. In support of their contention, the counsel for the parties have
supported their case under the strength of various authorities rendered by
the Hon'ble Apex Court, which are being dealt with respectively
hereunder.
16. The counsel for the petitioners in support of his contention has
made reference to number of authorities, which he wants to place reliance,
in order to substantiate his case, that the shelter under Section 29(2), was
not available to the State for the purposes of condonation of delay, in a
proceedings of an appeal which is contemplated under Section 17 of the
Forest Act, on the ground that the Act itself has not made the provisions
contained under Section 5 of the Limitation Act, applicable. In the chain of
said authorities, the reference made therein by the counsel for the
petitioners is to the judgment reported in (2009) 5 Supreme Court Cases
791, Commissioner of Customs and Central Excise vs. Hongo India
Private Limited and others, particularly he has draw the attention of this
Court to the logic and rationale which has been given by the Hon'ble Apex
Court in Paragraphs 5, 6, 7, 8, 19 & 20 of the said judgment, which are
extracted hereunder:-
"5) Section 35B speaks about appeals to the Appellate Tribunal.
Any person aggrieved by certain decisions/orders passed by the
Commissioner of Central Excise or Commissioner (Appeals), may
prefer an appeal to the Appellate Tribunal within three months from
the date on which the order sought to be appealed against is
communicated to the officer concerned or the other party. Sub-
section (5) enables the Appellate Tribunal to condone delay even
beyond the prescribed period if there was sufficient cause for not
presenting it within that period.
6) Section 35-EE provides revision by Central Government. As per
sub-section (2), an application under sub-section (1) shall be made
within three months from the date of the communication. However,
proviso to sub-section (2) enables the revisional authority to
condone the delay for a further period of ninety days, if sufficient
cause is shown.
7) Unamended Section 35-G speaks about Appeal to the High
Court. Sub-section 2(a) enables the aggrieved person to file an
appeal to the High Court within 180 days from the date on which
the order appealed against is received by the Commissioner of
Central Excise or the other party. There is 4 no provision to
condone the delay in filing appeal beyond the prescribed period of
180 days.
8) Unamended Section 35-H speaks about reference application to
the High Court. As per sub-section (1), the Commissioner of
Central Excise or other party within a period of 180 days of the
date upon which he is served with notice of an order under Section
35C direct the Tribunal to refer to the High Court any question of
law arising from such order of the Tribunal. Here again as per sub-
section (1), application for reference is to be made to the High
Court within 180 days and there is no provision to extend the
period of limitation for filing the application to the High Court
beyond the said period and to condone the delay.
19) As pointed out earlier, the language used in Sections 35, 35B,
35EE, 35G and 35H makes the position clear that an appeal and
reference to the High Court should be made within 180 days only
from the date of communication of the decision or order. In other
words, the language used in other provisions makes the position
clear that the legislature intended the appellate authority to
entertain the appeal by condoning the delay only up to 30 days after
expiry of 60 days which is the preliminary limitation period for
preferring an 18 appeal. In the absence of any clause condoning the
delay by showing sufficient cause after the prescribed period, there
is complete exclusion of Section 5 of the Limitation Act. The High
Court was, therefore, justified in holding that there was no power to
condone the delay after expiry of the prescribed period of 180 days.
Even otherwise, for filing an appeal to the Commissioner, and to
the Appellate Tribunal as well as revision to the Central
Government, the legislature has provided 60 days and 90 days
respectively, on the other hand, for filing an appeal and reference to
the High Court larger period of 180 days has been provided with to
enable the Commissioner and the other party to avail the same. We
are of the view that the legislature provided sufficient time, namely,
180 days for filing reference to the High Court which is more than
the period prescribed for an appeal and revision.
20) Though, an argument was raised based on Section 29 of the
Limitation Act, even assuming that Section 29(2) would be
attracted what we have to determine is whether the provisions of
this section are expressly excluded in the case of reference to High
Court. It was contended before us that the words "expressly
excluded" would mean that there must be an 19 express reference
made in the special or local law to the specific provisions of the
Limitation Act of which the operation is to be excluded. In this
regard, we have to see the scheme of the special law here in this
case is Central Excise Act. The nature of the remedy provided
therein are such that the legislature intended it to be a complete
Code by itself which alone should govern the several matters
provided by it. If, on an examination of the relevant provisions, it is
clear that the provisions of the Limitation Act are necessarily
excluded, then the benefits conferred therein cannot be called in aid
to supplement the provisions of the Act. In our considered view,
that even in a case where the special law does not exclude the
provisions of Sections 4 to 24 of the Limitation Act by an express
reference, it would nonetheless be open to the court to examine
whether and to what extent, the nature of those provisions or the
nature of the subject-matter and scheme of the special law exclude
their operation. In other words, the applicability of the provisions of
the Limitation Act, therefore, to be judged not from the terms of the
Limitation Act but by the provisions of the Central Excise Act
relating to filing of reference application to the High Court. The
scheme of the 20 Central Excise Act, 1944 support the conclusion
that the time limit prescribed under Section 35H(1) to make a
reference to High Court is absolute and unextendable by court
under Section 5 of the Limitation Act. It is well settled law that it is
the duty of the court to respect the legislative intent and by giving
liberal interpretation, limitation cannot be extended by invoking the
provisions of Section 5 of the Act."
17. The backdrop in the aforesaid case of Commissioner of
Customs (Supra), under which the Hon'ble Apex Court, was then dealing
with the aspect pertaining to the period of limitation, which was prescribed
by the Appellate Tribunal under Section 35(B) of the Act, to be three
month's only, it was in the context of a reference application, which was
instituted with the delay, under an unamended Section 35(H) of Central
Excise Act, 1944. In the said case, over the application for reference, the
High Court had exercised its advisory jurisdiction in the case, where the
substantial question of a public importance was raised before the High
Court to be considered in those circumstances, the issue was whether all
the matters, which are referred to by the Commissioner of Customs and
Central Excise, who approached the High Court of Judicature at Allahabad,
in the said case by way of a reference under Section 35 H(1), whether the
latitude of limitation, which was specifically contained under Section
35(B); could at all be attracted or extended by attracting the principles as
provided under Section 29(2) of the Limitation Act. The principles
enunciated therein particularly, as referred in para 19 of the judgment, it
was on the basis of a judgment which was rendered by the Hon'ble Apex
Court, in the matters of Poplar Construction Company, as reported in
(2001) 8 Supreme Court Cases 470, wherein the concept of limitation,
which was being dealt with therein, was under the context of the
applicability of Limitation Act of 1963, in relation to the proceedings,
which were drawn under Section 34 of Arbitration of Conciliation Act
1996, as it was engaged consideration in the Poplar Construction Company
Case (Supra). In the said case, the application was dismissed by the High
Court on the ground that the bar of limitation, under Section 34 of the
Arbitration Act of 1996, would apply, the Division Bench in the said case
has rejected the appeal and had upheld the finding of the learned Single
Judge; to the effect that the provisions under Section 34 of the Arbitration
and Conciliation Act, challenging the propriety of an award in view of the
provisions contained under Section 13 to be read with Section 16 of the
Arbitration Act, which was later on made applicable, the Court has
observed that the concept of limitation under the proviso to Sub Section (3)
of Section 34, since it uses the word "but not thereafter", means that the
statute particularly when it provides a cut of for, that the proceedings under
Section 34, cannot be drawn beyond the specified period and there is a
specific bar in initiation of the proceedings, it was under those
circumstances that the Court has held that the provisions of Section 29(2)
of the Limitation Act, would not be applicable therefore, the bar of
application of Section 5 of Limitation Act would apply. This is not the case
at hand. Where any such bar by use of language "but not thereafter", has
been used or made applicable, thus the said ratio would not apply.
18. In the present case, where the limitation has been prescribed,
for an appeal under Section 17 of the Act, particularly as per the provisions
that was made enforceable in the State of Uttar Pradesh, which was later on
adopted under the Re-organization Act by the State of Uttarakhand, the
appellate provisions under Section 17 of the Act, which provides for an
appeal under the Forest Act, against an order passed under Sections 11, 12,
15 and 16 of the Forest Act, does not uses the word or language, "but not
thereafter". Meaning thereby, there was no specific and absolute
restrictions which was imposed that no appeal or the appeal itself would be
specifically barred; if it is preferred beyond the period of three months as
prescribed therein in order to oust the applicability of the savings Clause
provided under Section 29(2) of the Limitation Act. Hence, in the matters
of Commissioner of Customs and Central Excise (Supra), the Hon'ble
Apex Court under the aforesaid circumstances, while dealing with the
applicability of the savings Clause of Section 29(2), has taken a view that
since in the said case Sub Section (3) of Section 34, had specifically
prohibited institution of the proceedings, its there the Hon'ble Apex Court
has held that Section 29(2), would not apply, that is not the case at hand.
Hence, the said principle as argued by the learned Senior counsel, for the
petitioner would not be applicable in the present case.
19. The reference to yet another judgment, which has been made
by the learned counsel for the petitioners is that reported in (2004)11
Supreme Courte Cases, 456; L.S. Synthetics Ltd. vs. Fairgrowth
Financial Services Ltd. and another, though the counsel for the
petitioners had made reference to number of paragraphs for example
paragraphs 32, 34, 35, 36, 37, 38, 39, 40, 41 and 42, but in order to
substantiate his arguments, dealing with the concept of the applicability of
Section 29(2), I am of the view that in order to deal with the tenacity of the
argument, the reference to the aforesaid paragraphs may not be of much
relevance, once the background of the said case itself if it is taken into
consideration. As per the factual aspect therein, it was a case of a regular
civil appeal, which was under consideration under the terms of the
provisions of the special court i.e. Trial of Offences Relating to
Transactions In Securities, Act 1992, which was being dealt with by way
of a special power which was conferred on the courts. The principles as
given therein the reference of which has been made by the learned counsel
by, drawing the attention of this Court to the contents of para 33, a
reference which is required to be made is to the contents of para 33 also,
which is quoted hereunder:-
"33. The Limitation Act, 1963 is applicable only in relation to
certain applications and not all applications despite the fact that
the words "other proceedings" were added in the long title of
the Act in 1963. The provisions of the said Act are not
applicable to the proceedings before bodies other than courts,
such as quasi-judicial tribunal or even an executive authority.
The Act primarily applies to the civil proceedings or some
special criminal proceedings. Even in a Tribunal, where the
Code of Civil Procedure or Code of Criminal Procedure is
applicable; the Limitation Act 1963 per se may not be applied
to the proceedings before it. Even in relation to certain civil
proceedings, the Limitation Act may not have any application.
As for example, there is no bar of limitation for initiation of a
final decree proceedings or to invoke the jurisdiction of the
Court under Section 151 of the Code of Civil Procedure or for
correction of accidental slip or omission in judgments, orders
or decrees; the reason being that these powers can be exercised
even suo motu by the Court and, thus, no question of any
limitation arises."
20. There the concept, that the word used "other proceedings",
under the Limitation Act, would exclude its application to the proceedings,
which are provided under a special statue, the provisions of the said Act,
which has been held that it will not be applicable to the proceedings, before
other than the courts or as such quasi-judicial Tribunal or even an
executive authorities, where it has been held that even in relation to the
civil proceedings the Limitation Act may not have any application, but as
far as the example of a bar of limitation in initiation of a proceedings
against a final decree or to invoke the jurisdiction of Court under Section
151 of Code of Civil Procedure could not be done. The said judgment in its
para 33 and that as referred to in para 35, was then dealing as to the nature
of the body which had been constituted to deal with a controversy, if it has
got a trappings of a court, the Court though in its literal sense does not
mean or could be confined to mean to the statutory courts only, but it
would also be including within it the District Judges, who had been
specifically conferred with the powers to decide the appeal, under the
statute, and particularly the courts thus created under the Act or has got an
adjudicatory rights for deciding the civil rights of a person and particularly
in relation to the immovable property. In that eventuality, the provisions of
the Limitation Act, as contemplated under Section 29(2) would be
applicable to the District Courts, in view of the principles, which has been
referred in para 41 of the said judgment, which is quoted hereunder:-
"41. A statute of limitation bars a remedy and not a right.
Although a remedy is bared, a defence can be raised. In
construing a special statute providing for limitation,
consideration of plea of hardship is irrelevant. A special statute
providing for special or no period of limitation must receive a
liberal and broader construction and not a rigid or a narrow
one. The intent and purport of the Parliament enacting the said
Act furthermore must be given its full effect. We are therefore,
of the opinion that the provisions of the Limitation Act have no
application, so far as directions required to be issued by the
Special Court relating to the disposal of attached property, are
concerned."
Wherein it has been held, that even if a statute creates a bar of
applicability of limitation Act, but that bar will not be treated as to be a bar
which is created for the purposes of enforcement of a civil right which are
protected by the Constitution, which happens to be the case in the instant
case, that is for the purposes of determination of an appropriate
compensation which has to be made payable to the land looser, whose land
has been acquired for the purposes of declaration of a Reserve Forest under
the special statute. Hence, even if the principles of para 41 of L.S.
Synthetios (Supra) is taken into consideration; providing for or dealing
with issue of limitation under a statute, or a special statute providing no
period of limitation, it has been held that it should be liberally construed
with a broader prospective, in order to protect a constitutional and civil
right and not otherwise. Hence, the said principles would also not to be
applicable in the instant case.
21. The learned senior counsel for the petitioner has referred to yet
an another judgment, reported in (1985) 3 Supreme Court Cases, 590
Sakuru v. Tanji; particularly he has referred to para 3 and 4 of the said
judgment, which is extracted hereunder:-
"3. After hearing both sides we have unhesitatingly come to
the conclusion that there is no substance in this appeal and that
the view taken by the Division Bench in Venkaiah's case is
perfectly correct and sound. It is well settled by the decisions
of this Court in Town Municipal Council, Athani v. Presiding
Officer, Labour Court, Nityananda M. Joshi and Ors. v. Life
Insurance Corporation of India and Ors. and Sushila Devi v.
Ramanandan Prasad and Ors. that the provisions of the
limitation Act, 1963 apply only to proceedings in "Courts" and
not to appeals or applications before bodies other than Courts
such as quasi-judicial Tribunals or executive authorities,
notwithstanding the fact that such bodies or authorities may be
vested with certain specified powers conferred on Courts under
the Codes of Civil or Criminal Procedure. The Collector before
whom the appeal was preferred by the appellant herein under
Section 90 of the Act not being a Court, the Limitation Act, as
such, had no applicability to the proceedings before him.
But even in such a situation the relevant special statute may
contain an express provision conferring on the appellate,
authority, such as the Collector, the power to extend the
prescribed period of limitation on sufficient cause being shown
by laying down that the provisions of Section 5 of the
Limitation Act shall be applicable to such proceedings. Hence
it becomes necessary to examine whether the Act contains any
such provision entitling the Collector to invoke the provisions
of Section 5 of the Limitation Act for condonation of the delay
in the filing of the appeal.
The only provision relied on by the appellant in this connection
is Section 93 of the Act which, as it stood at the relevant time,
was in the following terms:
93. Limitation - Every appeal and every application for
revision under this Act shall be filed within sixty days from the
date of the order against which the appeal or application is
filed and the provisions of the Indian Limitation Act, 1908
shall apply for the purpose of the computation of the said
period.
On a plain reading of the section it is absolutely clear that its
effect is only to render applicable to the proceedings before the
Collector, the provisions of the Limitation Act relating to
'computation of the period of limitation. The provisions
relating to computation of the period of limitation are
contained in Sections 12 to 24 included in Part III of the
Limitation Act, 1963. Section 5 is not a provision dealing with
computation of the period of limitation . It is only after the
process of computation is completed and it is found that an
appeal or application has been filed after the expiry of the
prescribed period that the question of extension of the period
under Section 5 can arise. We are, therefore, in complete
agreement with the view expressed by the Division Bench of
the High Court in Venkaiah's case that Section 93 of the Act
did not have the effect of rendering the provision of Section 5
of the Limitation Act, 1963 applicable to the proceedings
before the Collector.
4. Our attention was drawn to the fact that subsequent to
the decision of the High Court, the State Legislature has
enacted the Andhra Pradesh Tenancy Laws (Amendment) Act,
1979 - Act 2 of 1979, whereby Section 93 of the Act has been
amended and the provisions of Section 5 of the Limitation Act,
1963 have now been expressly made applicable to appeals and
revisions preferred under Sections 90 and 91 of the Act. We
see no force in the contention advanced on behalf of the
appellant that the said amendment is clarificatory in nature.
The provisions of Section 93 as they stood prior to this
amendment were free from any ambiguity and called for no
clarification. The Legislature has also not given any indication
of any intention to clarify but, on the other hand, what has been
done by it is to amend the section with only prospective effect.
The amended provisions of Section 93 are, therefore, of no
assistance to the appellant in this case which is governed by the
section as it was originally enacted.
22. If the principles of applicability of Limitation Act, is taken into
consideration in the light of the observations which has been made in para
3 and 4, it was in the context of an appeal, which was provided, to be
preferred by aggrieved person before the Collector, under Section 19 of
the Andhra Pradesh (Telangana) Area, Tenancy and Agricultural
Lands Act, 1950. The concept therein as referred to in para 3, is that a
decision of a court or an authority vested with the power to adjudicate and
when the adjudication it determines the right of an individual the strict
principles of the limitation prescribed under the special statute, ought not
create a bar for the purposes of enforcement of a right, which was
conferred on an individual and when there is a deprivation of an individual
right in relation to an immovable property, protected by Article 300A of
the Constitution of India. Particularly when it aims to achieve the appellate
remedial platform for protection of right over immovable right, as its an
adjudication of a right.
23. Another judgment on which the reference has been made by
the counsel for the petitioners is that as reported in (1996) 9 Supreme
Court Cases, 414 Officer on Special Duty (Land Acquisition) And
Another vs. Shah Manilal Chandulal and Others and he has made
reference to the contents of paragraphs 4, 5, 6, 7, 8 and 12 which are
extracted hereunder:-
4. The question, therefore, is: whether Section 5 of the
Limitation Act would apply? The High Court relied upon Sub-
section (3) of Section 18 which was made by way of a local
amendment, i.e., Land Acquisition (Maharashtra Extension and
Amendment) Act XXXVIII of 1964 which reads thus:
Any order made by the Collector on an application under
this section shall be subject to revision by the High
Court, as if the Collector were a Court subordinate to the
High Court within the meaning of Section 115 of the
Code of Civil Procedure, 1908.
5. It would appear that the High Court of Gujarat has taken
consistent view that, by operation of Sub-section (3), as the
Collector was designated to be a court subordinate to the High
Court under Section 115, Civil Procedure Code [for short,
"CPC"], Section 5 of the Limitation Act [26 of 1963] stands
attracted. Though, Sub-section (3) of Section 18, by virtue of
local amendments, treated the Collector as court for a limited
purpose of exercising revisional jurisdiction under Section 115,
CPC to correct errors of orders passed by the Collector under
Section 18, he cannot be considered to be a court for the
purpose of Section 5 of the Limitation Act. Section 5 of the
Limitation Act stands attracted only when LAO acts as a court.
6. The question is: whether the view of the High Court is
correct in law? Section 3 of the Limitation Act casts a duty on
the court to apply the prescribed limitation and irrespective of
the fact that deference of limitation was not taken, the court is
enjoined to ensure that no suit etc. is laid beyond the
prescribed limitation unless the exceptions for extension of
time are found in Section 4 to 24 [both inclusive] and Section 5
is one of them and extends the prescribed time occupied by
those sections. Section 5 of the Limitation Act extends the
prescribed period of limitation in certain cases on showing
sufficient cause which would be a question of fact in each case.
7. Any appeal or application other than an application under
any of the provisions of Order 21 of the CPC may be admitted
after the prescribed period, if the applicant or appellant
satisfies the court that he had sufficient cause for not instituting
the suit or preferring the appeal or- making the application
within such period. Explanation is not necessary for the
purpose of this case. Hence omitted. If the suit is barred by
limitation prescribed by the Limitation Act, an application for
extension of the prescribed time may be made to the court and
the applicant may satisfy the court that he had sufficient cause
for not preferring the appeal or making the application within
such period. The question, therefore, is: whether the Collector
is a court for the purpose of Section 18(1) of the Act?
8. The right to make application in writing is provided under
Section 18(1). The proviso to Sub-section (2) prescribes the
limitation within which the said right would be exercised by
the claimant or dissatisfied owner. In Mohd. Hasnuddin v.
State of Maharashtra MANU/SC/0311/1978 : [1979]2SCR265
, this Court was called upon to decide in a reconvene under
Section 18 made by the Collector to the court beyond the
period of limitation, whether the court can go behind the
reference and determine the compensation, though the
application for reference under Section 18 was barred by
limitation? This Court had held that the Collector is required
under Section 18 to make a reference on the fulfillment of
certain conditions, namely, (i) written application by interested
person who has not accepted the award; (ii) nature of the
objections taken for not accepting the award; and (iii) time
within which the application shall be made. In para 22 after
elaborating those conditions as conditions precedent to be
fulfilled, it held that the power to make a reference under
Section 18 is circumscribed by the conditions laid down
therein and one such condition is a condition regarding
limitation to be found in the proviso. The Collector acts as a
statutory authority. If the application is not made within time,
the Collector will not have the power to make reference. In
order to determine the limitation on his own power, the
Collector will have to decide whether the application presented
by the claimant is or is not within time and specify the
conditions laid down under Section 18. Even if the reference is
wrongly made by the Collector, the court will have to
determine the validity of the reference because the very
jurisdiction of the court to hear a reference depends upon a
proper reference being made under Section 18. If the reference
is not proper there is no jurisdiction in the court to hear the
reference. It was, therefore, held that it is the duty of the court
to see that the statutory conditions laid down in Section 18
including the one relating to limitation, have been complied
with and the application is not time-barred. It is not debarred
from satisfying itself that the reference which it is called upon
to hear is a valid reference. It has to proceed to determine
compensation and if it is time-barred, it is not called upon to
hear the same. It is only a valid reference which gives
jurisdiction to the court. Therefore, the court has to ask itself
the question whether it has jurisdiction to entertain the
reference. If the reference is beyond the prescribed period by
the proviso to Sub-section (2) of Section 18 of the Act and if it
finds that it was not so made, the court would decline to
answer the reference. Accordingly, it was held that since the
reference was made beyond the limitation, the court was
justified in refusing to answer the reference.
12. In Nityananda, M. Joshi and Ors. v. Life Insurance
Corporation of India and Ors. MANU/SC/0320/1969 :
(1969)IILLJ711SC , a Bench of three Judges of this Count was
to consider whether the industrial Tribunal is a court within the
meaning of the Industrial Disputes Act when it entertains
application under Section 33C(1) and (2) of the Industrial
Disputes Act, 1947. It was held that Article 137 of the
Schedule to the Limitation Act applies to an application
referable under the CPC and it contemplates an application to
the court as provided in the Third Schedule to the Limitation
Act. Section 4 of the Limitation Act also refers to the closure
of the court. Section 5 of the Limitation Act applies only to a
court which is to entertain an application or an appeal after the
prescribed period has expired on its satisfying that the
applicant had sufficient cause for not preferring the appeal or
making application. The Labour Court was held not a court
within, the Limitation Act when it exercises the power under
Section 33C(1) and (2) of the Industrial Disputes Act, 1947."
24. In the said case, the question which was involved under
consideration was the preference of a reference proceedings under Section
18 of the Land Acquisition Act, 1894, wherein under Sub Section (2) of
Section 18, it had created a bar that the Collector/Land Acquisition Officer,
who was exercising not an adjudicatory right or judicial rights, but was an
only since exercising a right of making a reference for an adjudication to a
court which are provided under the Land Acquisition Act, that itself for the
purposes of deciding the quantum of compensation, in these circumstances
there it was held that the reference authority under Section 18 of the Lan
Acquisition Act, will have no power to condone the delay, where the
delayed reference is preferred; and that too for the reason being that it was
held that the Collector therein would not fall to be within the ambit of the
definition of Court provided under Section 3(d) of the Act, and the said
principle as dealt with in para 11 of the said judgment is extracted
hereunder:-
11. The question emerges: whether the LAO/Collector acts as a
court? Section 3(d) defines "Court" to mean the principal Civil
Court of original jurisdiction or a principal Judicial officer
within any special local limits appointed thereunder to perform
the functions of the court under the Act. "Collector" has been
defined in Clause 3(c) to mean the Collector of district and
includes a Deputy Commissioner etc. appointed by the
appropriate government to perform the functions of the
Collector under the Act. He is variously called the
Collector/LAO. It would thus be clear that the Act made a
distinction between the Collector and the court. The
Collector/LAO performs the statutory functions under the Act
including the one making the award under Section 11 and
referring a written application made under Section 18(1) of the
Act to the court and complies with Sections 19 and 20 of the
Act. The dichotomy of the Collector and the court cannot be
lost sight of.
25. The said judgment was also laying down the principle from a
different prospective, where the High Court relied upon Sub Section (3) of
Section 18 of the said Act made by way of local amendment that is the
Land Acquisition Maharashtra Extension and Amendment Act of
1964. There the Court has exercised the powers of extension of delay in the
preference of a reference under Section 18. Hence, if in its totality, if the
said judgment is taken into consideration, I am of the view that the factual
backdrop particularly, as referred to in para 18 of the said judgment, which
is extracted hereunder:-
"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."
Is under altogether a different prospective and concept where
by way of a statutory amendment, the Land Acquisition Act which was
made by the State of Maharashtra, the principles of limitation, was being
read in relation to a power of condonation of delay for making a references
by the Collector, who was held not to be a court under an Act, which has
got no adjudicatory rights. Hence, the said judgment too would not be
applicable in the light of the present case, where I have already held and is
of a firm opinion, that where the determination of compensation is
enshrined as per the principles of Constitution of India and the power to
decide the same by its quantification has been vested with the District
Judge, the interpretation of the District Judge the term which has been used
under Section 17, by the U.P. State Amendment, would mean that it was
exercising the powers of a Court to adjudicate one of the rights which has
been vested and protected in an individual under the Constitution of India.
As the same finds place in the list III i.e. Concurrent List of the
Constitution of India, as was substituted w.e.f. 01/11/1956, vide its entry
42. Principles on which compensation for property acquired or
requisitioned for the purposes of Union or of a State or for any other public
purpose is to be determined and the form and the manner in which the
compensation is to be given. Hence its a constitutional function which has
been vested with the District Court, which would be deemed to be court for
the purposes to attract Section 29 (2) of the Limitation Act, which would
be applicable for the appeals under Section 17 of the Forest Act 1927.
26. The judgment relied by the counsel for the petitioners as
reported in (2015) 7 Supreme Court Case, 58 M.P. Steal Corporation
vs. Commissioner of Central Exercise, would not apply in the present
case, as it was a case where the principles of applicability of Section 14,
before the Court or the Civil proceedings was being dealt with in the light
of the limitation which has been provided for preference of an appeal under
Section 128 of the Customs Act. In the said case which has been relied the
factual backdrop as engaged therein, was that the petitioners therein were
engaged in a business of ship breaking activity and in that case, it was the
implications of Section 14 which was more predominantly being
considered for the purposes of an appeal which was contemplated under
Section 128 and particularly, the said judgment was dealing with the
concept and the circumstances of the applicability of the provisions
contained under Section 14 of the Limitation Act, to the appeals under the
Custom Act and hence, the reference made to the aforesaid paragraphs,
could be summarised to be considered in the light of the observations,
which was made by the Hon'ble Apex Court as referred to in para 17,
which is quoted hereunder:-
"17. Sections 13, 21 and Articles 124, 130 and 131 of the
Limitation Act are again important in understanding what is
meant by the expression "Court". They are set out below:
"13. Exclusion of time in cases where leave to sue or
appeal as a pauper is applied for.--In computing the period
of limitation prescribed for any suit or appeal in any case
where an application for leave to sue or appeal as a pauper has
been made and rejected, the time during which the applicant
has been prosecuting in good faith his application for such
leave shall be excluded, and the court may, on payment of the
court fees prescribed for such suit or appeal, treat the suit or
appeal as having the same force and effect as if the court fees
had been paid in the first instance."
And that to under the principles, which was a case which was,
in those circumstances was confronted by the attraction of Section 14 of
the Limitation Act, and the reference in relation thereto may be had from
the contents of para 28, also which was dealing with the concept of an
appellate authority, which was vested with it under Section 13 of the
Kerala Building (Lease and Rent Control Act), 1965; where the provisions
of Section 29(2) was being attracted for the purposes of extending the
period of limitation for the purposes of a preference of an appeal, even in
the said case also the ratio laid down was under a different context
altogether where the attraction of the principles of Section 14 of the
Limitation Act, was being read in consonance to the appeals which was
contemplated under Section 128 of the Customs Act and which was more
or less a compensatory and penal provisions and would be having the
trappings of a taxing law, where, the bar of limitation cannot be liberally
construed and hence, the same would not apply.
27. A reference was made by the learned senior counsel for the
petitioners, is to the judgment reported in (1997) 6 Supreme Court Cases
280, Tota Ram vs. State of U.P. and Others and particularly the counsel
has referred to para 3 of the judgment, which is quoted hereunder:-
"3. A reading thereof clearly that a person whose land is
acquired under a common notification issued under Section
4 910 of the Act but who failed to avail of the remedy of the
remedy of reference under section 18, is eligible to make a written
application within three months from the date of the award of the
court enacting the compensation. It has been interpreted by this
court that the "court " means court of original civil jurisdiction to
whom reference under section 18 would lie. Admittedly, the award
of the reference court having been made on May 18, 1990, the
limitation began to run from that date. The proviso to Section 28-
A gives a right to the persons to obtain the certified copy of the
award and decree and the time taken for obtaining the certified
copy of the award and the decree shall be excluded in computing
the period of three months. In view of the express language, the
question of knowledge does not arise and, therefore, the plea of the
petitioner that the limitation of three months begins to start from
the dare of the knowledge is clearly unsustainable and cannot be
accepted in that behalf."
28. With all due reverence and humility at my command, I am of
the view that the factual backdrop of the said case, before I deal with the
findings observed in para 3, it has had to be read with in the context of para
2, of the said judgment also, which was dealing with the prospect of a
redetermination of amount of compensation; on the basis of an award of a
court particularly, as envisaged under Section 28 A of the Land
Acquisition Act. Hence, it was in the context of application of Section 28
A, where the land was acquired by virtue of issuance of a common
notification under Section 4, it was a case and a situation, where the land
looser had failed to avail the remedy of making a reference under Section
18 of the Land Acquisition Act, where the question arose as to whether the
period of limitation could be enhanced for making a reference its there the
concept, which has been decided was that the courts referred under the
Acquisition Act, would mean the Court of "Original Civil Jurisdiction".
Hence, the said judgment too was under altogether a different concept and
context and facts and circumstances of the case, which would not apply in
the present case.
29. Lastly, this Court cannot be oblivious to consider the
principles, which had been laid down by the Hon'ble Apex Court in the
judgment of (2011) 8 Supreme Court 708, Rajeev Sarin and another vs.
State of Uttarakhand and others; where in the said judgment, the
Hon'ble Apex Court while dealing with the impact and effect of Article
300-A of the Constitution of India, the aspect of a deprivation of a property
suffered by a person as a consequence of acquisition, it has been held that
the deprivation of a property may be that by virtue of the amendment made
in the constitution Article 19 (1) (f) might have been deleted, as the right to
property has no longer been a fundamental right, but then that illusion of
deletion of Article 19 (1)(f) from the Constitution, would simultaneously
had to be read by way of an insertion which was made to Article 300-A,
that the compensation as a consequence of taking over of an immovable
property, cannot be an artificial and illusionary and it has to be an actual
determination and as per my view, wherever it is the determination of a
compensation, which is payable and an adjudicatory right is given in to a
Court, under a special statue, the principles of Limitation under Section
29(2) of Limitation Act, would be attracted. A reference may be had to
para 68 to 78 of the said judgment which is referred to hereunder:-
"68. The incident of deprivation of property within the
meaning of Article 300A of the Constitution normally occurred
mostly in the context of public purpose. Clearly, any law,
which deprives a person of his private property for private
interest, will be amenable to judicial review. In last sixty years,
though the concept of public purpose has been given quite
wide interpretation, nevertheless, the "public purpose" remains
the most important condition in order to invoke Article 300A
of the Constitution.
69. With regard to claiming compensation, all modern
constitutions which are invariably of democratic character
provide for payment of compensation as the condition to
exercise the right of expropriation. Commonwealth of
Australia Act, a French Civil Code (Article 545), the 5th
Amendment of the Constitution of U.S.A. and the Italian
Constitution provided principles of "just terms", "just
indemnity", "just compensation" as reimbursement for the
property taken, have been provided for.
70. Under Indian Constitution, the field of legislation covering
claim for compensation on deprivation of one's property can be
traced to Entry 42 List III of the Seventh Schedule of the
Constitution. The Constitution (7th Amendment) Act, 1956
deleted Entry 33 List I, Entry 36 List II and reworded Entry 42
List III relating to "acquisition and requisitioning of property".
The right to property being no more a fundamental right, a
legislation enacted under the authority of law as provided in
Article 300A of the Constitution is not amenable to judicial
review merely for alleged violation of Part III of the
Constitution.
71. Article 31A was inserted by the Constitutional (1st
Amendment) Act, 1951 to protect the zamindari abolition laws.
The right to challenge laws enacted in respect of subject matter
enumerated under Article 31A(1) (a) to (g) of the Constitution
on the ground of violation of Article 14 was also
constitutionally excluded. Further, Article 31B read with Ninth
Schedule of the Constitution protects all laws even if they are
violative of the Part III of the Constitution. However, it is to be
noted that in the Constitutional Bench decision in I.R. Coelho
v. State of Tamil Nadu, this Court has held that the laws added
to the Ninth Schedule of the Constitution, by violating the
constitutional amendments after 24.12.1973, would be
amenable to judicial review on the ground like basic structure
doctrine.
72. It has been contended by ld. senior counsel appearing for
the Appellants that the action taken by the Respondents must
satisfy the twin principles viz. public purpose and adequate
compensation. It has been contended that whenever there is
arbitrariness by the State in its action, the provisions of Article
14, 19 and 21 would get attracted and such action is liable to
be struck down. It was submitted that the KUZALR Act does
not provide for any principle or guidelines for the fixation of
the compensation amount in a situation when no actual income
is being derived from the property in question.
73. It was further submitted that the inherent powers of public
purpose and eminent domain are embodied in Article 300A,
and Entry 42 List III, "Acquisition and Requisitioning of
Property" which necessarily connotes that the acquisition and
requisitioning of property will be for a public use and for
compensation and whenever a person is deprived of his
property, the limitations as implied in Article 300A as well as
Entry 42 List III will come into the picture and the Court can
always examine the legality and validity of the legislation in
question. It was further submitted that awarding nil
compensation is squarely amenable to judicial review under
Articles 32 and 226 of the Constitution of India.
74. It is the case of the State that the statutory scheme under
the UPZALR Act, 1950 is provided in Section 39(1) (e) in
respect of forests. The said section provides for two methods
for computation of compensation, namely, the average annual
income of last 20 to 40 years as provided in Section 29(1) (e)
(i) and the estimate of annual yield on the date of vesting as
provided in Section 39(1) (e) (ii). It was further argued that in
respect of KUZALR Act, the same U.P. Legislature which had
the example of Section 39(1)(e) deliberately dropped the
second sub-clause and limited the compensation only to the
average annual income of the last 20 years. From this it was
argued that where there is no annual income, there would be no
compensation.
75. It had been further argued that since the expression
"average annual income" under Section 39(1) (e) (i) has
already been judicially interpreted in the case of Ganga Devi v.
State of U.P. MANU/SC/0502/1972 : (1972) 3 SCC 126 to
mean "actual" annual income and not an estimate, therefore, if
the forest land is not earning any income, then in the statutory
formula set out in KUZALR Act, it would not be entitled to
any compensation.
76. The Government is empowered to acquire land by
exercising its various statutory powers. Acquisition of land and
thereby deprivation of property is possible and permissible in
accordance with the statutory framework enacted. Acquisition
is also permissible upon exercise of police power of the State.
It is also possible and permissible to acquire such land by
exercising the power vested under the Land Acquisition Act.
This Act mandates acquisition of land for public purpose or
public use, which expression is defined in the Act itself. This
Act also empowers acquisition of land for use of companies
also in the manner and mode clearly stipulated in the Act and
the purpose of such acquisition is envisaged in the Act as not
public purpose but for the purpose specifically enumerated in
Section 40 of the Land Acquisition Act. But, in case of both
the aforesaid manner of acquisition of land, the Act envisages
payment of compensation for such acquisition of land and
deprivation of property, which is reasonable and just.
77. Article 31(2) of the Constitution has since been repealed by
the Constitution (44th Amendment) Act 1978. It is to be noted
that Article 300A was inserted by the Constitution (44th
Amendment) Act, 1978 by practically reinserting Article 31(1)
of the Constitution. Therefore, right to property is no longer a
fundamental right but a right envisaged and conferred by the
Constitution and that also by retaining only Article 31(1) of the
Constitution and specifically deleting Article 31(2), as it stood.
In view of the aforesaid position the entire concept to right to
property has to be viewed with a different mindset than the
mindset which was prevalent during the period when the
concept of eminent domain was the embodied provision of
fundamental rights. But even now as provided under Article
300A of the Constitution the State can proceed to acquire land
for specified use but by enacting a law through State
legislature or by Parliament and in the manner having force of
law.
78. When the State exercises the power of acquisition of a
private property thereby depriving the private person of the
property, provision is generally made in the statute to pay
compensation to be fixed or determined according to the
criteria laid down in the statute itself. It must be understood in
this context that the acquisition of the property by the State in
furtherance of the Directive Principles of State Policy was to
distribute the material resources of the community including
acquisition and taking possession of private property for public
purpose. It does not require payment of market value or
indemnification to the owner of the property expropriated.
Payment of market value in lieu of acquired property is not a
condition precedent or sine qua non for acquisition. It must be
clearly understood that the acquisition and payment of amount
are part of the same scheme and they cannot be separated. It is
true that the adequacy of compensation cannot be questioned in
a court of law, but at the same time the compensation cannot
be illusory.
30. Hence, for the reason aforesaid, the authorities which had been
relied by the counsel for the petitioners in order to substantiate his
argument that the Limitation Act, would not be applicable to the District
Judge, who was being conferred with the power under Section 17 of the
Forest Act, is not acceptable by this Court and hence, the argument as
extended in relation to the authorities relied by the learned Senior Counsel
for the petitioners is under altogether a different context and would not
apply
31. On scrutiny of the aforesaid rationale adopted, in their tenacity
of arguments by the respective counsels for the parties, this Court is of the
opinion that the argument as extended by the learned Senior Counsel, for
the petitioners that the definition of "District Judge", with whom the
appellate power, is vested under Section 17 of the Forest Act of 1927, will
not have the trappings of "the Court", and hence, under Section 29(2) of
the Limitation Act, would apply is not acceptable by this Court and I held
that District Judge therein is a court determining compensation as
mandated by the Constitution of India, exercising its adjudicatory rights
after scrutinization of evidence as regards to its adequacy and entitlement
of compensation payable to the land looser, since it determines the civil
rights, it has all the trappings of the "Court", and hence Section 29 (2) of
the Limitation Act would apply.
32. The logic for it is that if the Constitution of India is taken into
consideration, particularly that as the provisions initially, which existed
under Article 19(1)(f), where the right to property was contained and
contemplated, under the Constitution and it was later, on omitted by the
Constitution's 44th Amendment Act, 1978, and it, stood protected by the
provisions contained under Article 300 A, which was too was introduced
and inserted by Chapter IV of the Constitution by its 44th Amendment Act,
1978, which provided that an owner of the property, which is a fact, not
disputed in the present case, that it was vested with the petitioners, in an
eventuality, if any interference over his estates, are required to be made, it
could be made only, as per the authority of law and that is why the
deprivation of a land belonging to the petitioners in order to bring the Act
within the ambit of the provisions contained Article 300 A, the State has,
had to have its recourse under Section 4, to be read with Section 6 of the
Forest Act of 1927. Meaning thereby, the declaration of the land belonging
to the petitioners, as recorded in the Khatauni, as a reserve forest, was as
per the due process of law provided under Article 300-A of the
Constitution.
33. Reverting back to the question of limitation, as sought to be
argued by the learned Senior Counsel for the petitioners, under the light of
the provisions contained under Section 29(2) of the Limitation Act, that it
is absolutely only made applicable to the courts and here since the
appellate power is vested to the District Judge, was not the "Court",
Section 5 to be read with Section 29(2) of the Limitation Act, would not
apply, is not acceptable, for the reason being that taking over of a land as
per the constitutional mandate, after due and complete recourse to the
process of the law provided under a central legislature i.e. Forest Act and
particularly when the appellate provisions is vested with the District Judge,
and when it is for the purposes of determination of the adequacy of
compensation, in relation to the land, which had been taken over; it
provides an adjudicatory rights to the court of District Judge in a statutory
appeal, under a Central Act, to determine an adequacy of a compensation
payable as a consequence of taking over of private land, and its scrutiny in
the appellate jurisdiction, I am of the view that the conferment of appellate
power of a District Judge under Section 17 of the Act, to deal with an
appeal, which entails a power to adjudicate of an individual's right of
determination of the aspect of adequacy of compensation for an immovable
assets, is an exercise of adjudicatory right and hence, as per the opinion of
this Court, the District Judge would be treated to be a "Court of Principal
Civil Jurisdiction" as contemplated under the General Clauses Act and
hence, the provisions of Sub Section (2) of Section 29 of the Limitation
Act, would be available to the respondents for the purposes, where under
the special Statue, the provisions of Limitation Act, has not been
specifically made applicable by its inclusion under the Act. Hence, the
logic assigned in the impugned judgment of 13.12.2017, by allowing the
Misc. Case No.116 of 2017, which was preferred by the respondents
seeking the condonation of delay in preference of an appeal, may be
principally it is based upon applying a general law of Limitation, on the
basis of the ratio as has been dealt with therein above, but even for the time
being if that is taken into consideration its spirit entailed that it ought to
have been a merit adjudication of an appeal, which was preferred by the
State as against the judgment dated 08.06.2016, of the Forest Settlement
Officer, as already observed above, since, it was a determination of right
which was falling within the ambit of the Constitutional mandate, Sub
Section (2) of Section 29 of the Limitation would be available and
applicable in the present circumstances of the case. Consequently, for the
aforesaid reasons, this Court is afraid to accept the argument of learned
Senior Advocate.
34. Consequently, for the reasons aforesaid writ petition fails and
is dismissed.
35. However, there would be no order to cost.
(Sharad Kumar Sharma, J.)
Arti/
