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1981 DIGILAW 258 (KER)

RAMAN v. KUNHIPENNU

1981-09-26

K.BASKARAN

body1981
Judgment :- 1. The question of law that falls for decision in this writ petition is whether Art.137 of the Limitation Act. 1963. is applicable to execution proceedings before the Land Tribunal constituted under S 99 of the Kerala Land Reforms Act, Act 1 of 1964 as amended by Act 35 of 1969 (the Act) 2. The 2nd respondent, the Land Tribunal, by its order dated 4-4-1972, a true copy of which is Ext. P-1, had allowed the petitioner's application O. A. No 73 of 1972 under S.77 of the Act for shifting the kudikidappu in the occupation of the 1st respondent from the land described in the A schedule to the land described in the B Schedule to the petition. 0 P. No 4789 of 1972 filed by the Ist respondent against Ext. P-1 order having been dismissed by this Court as per judgment dated 26-2-1973, a true copy of which is Ext P-2. the petitioner in May 1980 filed I A No 26 of 1980 requesting the Land Tribunal to put the petitioner in possession of the A schedule property in implementation of its order Ex. P-1, by shifting the kudikidappu of the 1st respondent to the land described in the B schedule to the petition. The petitioner bad in the meanwhile executed a deed of transfer of the land described in the B schedule to the petition in favour of the Ist respondent and had also deposited with the Land Tribunal the shifting charges in compliance with the directions contained in Ext. P-1 order. The petition LA. No. 26 of 1980 was resisted by the 1st respondent mainly on the ground that it was barred by Limitation under Art.137 of the Limitation Act, 1963. Accepting the contention of the 1st respondent, the land Tribunal dismissed the application by its order dated 9 9-1980, a true copy of which is Ext P-5: hence this writ petition for quashing Ext. P-5 order of the Land Tribunal. 3. On behalf of the petitioner it was submitted that the Land Tribunal had committed a grave error of law in passing Ext. P-5 order on the assumption that the provisions of the Limitation Act, 1963, applied generally to the proceedings under the Act. P-5 order of the Land Tribunal. 3. On behalf of the petitioner it was submitted that the Land Tribunal had committed a grave error of law in passing Ext. P-5 order on the assumption that the provisions of the Limitation Act, 1963, applied generally to the proceedings under the Act. The counsel for the 1st respondent, however, sought to sustain the order contending that the Land Tribunal has all the taperings of an ordinary court of civil judicature, placing reliance on the ruling of a Division Bench of this Court in Kunhayamma v. Munsiff Land Tribunal (1979 KLT. 663). 4. It is a well accepted proposition that Art.181 of the Limitation Act, 1908, applied only to applications under the Code of Civil Procedure-vide the decisions of the Supreme Court in Shal Mulchand & Co. Ltd. v. Jawahar Mills Ltd , Salem (AIR. 195 SC. 98); Bombay Gas Co. Ltd. v. Gopal Bhiva (AIR. 1964 SC.752); and Prativa Bose v. Rependra Deb Raikat (AIR. 1965 SC. 540). The further question to be decided is whether Art.137 of the Limitation Act, 1963, has been so widely worded as to include within its sphere applications other than those filed under the Code of Civil Procedure. The term 'application' as defined in clause (b) of S.2 of the Limitation Act, 1963, includes "petitions' and to that extent the scope of the Limitation Act stands enlarged. It would appear that the intention of the legislature was that the Limitation Act, 1963, should apply not only to applications under the Code of Civil Procedure, but also to applications and petitions under other enactments. 5. The enlarged scope of the applicability of Art.137 of the Limitation Act, 1963, in comparison to Art.181 of the Limitation Act of 1908 has been considered by the Supreme Court in Athani Municipality v. Labour Court, Hubli (AIR. 1969 SC. 1335); Nityanand v L.I C. of India (AIR: 1970 SC. 209); Sushilq Devi v Ramanandan Prasad (AIR, 1976 SC i77); Mohd. Ashfaq v. S.T.A.T, U P. (AIR. 1976 SC 2161); and Kerala S. E Board v. T. P. Kunhaliumma,1976 KLT. 810= (AIR. 1977 SC 282). The view expressed by the Supreme Court in Athani Municipality v Labour Court Hubli (AIR. 1335); Nityanand v L.I C. of India (AIR: 1970 SC. 209); Sushilq Devi v Ramanandan Prasad (AIR, 1976 SC i77); Mohd. Ashfaq v. S.T.A.T, U P. (AIR. 1976 SC 2161); and Kerala S. E Board v. T. P. Kunhaliumma,1976 KLT. 810= (AIR. 1977 SC 282). The view expressed by the Supreme Court in Athani Municipality v Labour Court Hubli (AIR. 1969 SC- 1335) was that Art.137 of the Schedule to the Limitation Act, 1963, did not apply to applications under S.33C (2) of the Industrial Disputes Act-vide paragraphs II and 12 of the decision at pages 1343 and 1344 of the report. The view expressed was that Art.137 only contemplated applications to courts, the reason being that under the third division of the Limitation Act, 1965, all other applications mentioned in the various Articles were applications filed in a court; further, S.4 of the Limitation Act, 1963, provided for the contingency when the prescribed period for any application expired on a holiday and the only contingency contemplated was "when the court is closed". It was pointed out therein that under S 5 of the Limitation Act it was only the court which was enabled to admit an application after the prescribed period had expired if the court was satisfied that the applicant had sufficient cause for not preferring the application On these reasons the Supreme Court held that the scheme of the Indian Limitation Act was that it only dealt with applications to courts, and that the Labour Court was not a court within the Indian Limitation Act, 1963. The Supreme Court, however, in Nityanand v. LIC of India (AIR 1970 SC.209) hastened to add in Para.4 of the decision, at page 210 of the report, that it was not necessary to express any view on the first ground given in that decision, and added that it seemed that it might require serious consideration whether applications to courts under other provisions, apart from the Code of Civil Procedure, were included within Art.137 of the Limitation Act, 1963 or not. In Sushila Devi v. Ramanandan Prasad (AIR. 1976 SC. In Sushila Devi v. Ramanandan Prasad (AIR. 1976 SC. 177) in Para.6 at page 182 of the report, the Supreme Court held: "Under S.5 of the Limitation Act an appeal or application 'may be admitted after the prescribed period if the appellant or applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period". The Collector to whom the application was made was not a Court, though S.13 of the Act (Kosi Area (Restoration of Lands to Raiyats) Act (30 of 1951)) vested him with certain specified powers under the Code of Civil Procedure; also, the kind of application that was made had no time limit prescribed for it, and no question of extending the time could therefore arise " Thereafter came the decision of the Supreme Court in Mohd. Ashfaq v. S. T. A T., U. P. (AIR. 1976 S. C. 2161) wherein in Para.8 of the decision, at page 2168 of the report, the Supreme Court observed as follows: "Now the question which arises is: does S.5 of the Limitation, 1963 apply so as to empower the Regional Transport Authority, for sufficient cause, to entertain an application for renewal even where it is delayed by more than 15 days? S.29, sub-section (2) of the Limitation Act. 1963 makes S.5 applicable in the case of an application for renewal unless its applicability can be said to be expressly excluded by any provision of the Act. The only provision of the Act sought to be pressed into service for this purpose was subsection (3), Does sub-section (3) expressly exclude further extension of time under S 5? If it does, then S.5 cannot be availed of by the appellant for condonation of the delay. Sub-section (3) in so many terms says that the Regional Transport Authority may condone the delay in making of an application for renewal and entertain it on merits provided the delay is of not more than 15 days. This clearly means that if the application for renewal is beyond time by more than 15 days, the Regional Transport Authority shall not be entitled to entertain it. or in other words, it shall have no power to condone the delay. This clearly means that if the application for renewal is beyond time by more than 15 days, the Regional Transport Authority shall not be entitled to entertain it. or in other words, it shall have no power to condone the delay. There is thus an express provision in sub-section (3) that delay in making an application for renewal shall be condensable only if it is of not more than 15 days and that expressly excludes the applicability of S.5 in cases where an application for renewal is delayed by more than 15 days." 6. It has already been noticed that in Nitvanand v. L I. C of India (AIR.1970 S. C. 209) the Supreme Court had observed that it might require serious consideration whether applications to courts under other provisions, apart from the Code of Civil Procedure, were included within Art.137 of the Limitation Act, 1963, or not. The above indication given in that decision came up for fuller consideration in Kerala S. E Board v T. P. Kunhaliumma, 1976 KLT. 810 = AIR. 1977 S.C. 282). In that case the respondent before the Supreme Court had filed a petition before the District Judge, Tellicherry under S.16 (5) of the Indian Telegraphs Act, 1885, claiming enhanced compensation. The appellant Board raised a contention that the petition was barred by time under Art.137 of the Limitation Act, 1963. The District Judge held that the application was governed by Art.137 of the 1963 Limitation Act and therefore the petition filed beyond three years was barred by time. In revision this Court set aside the order of the District Judge, condoling the delay in filing the application; and remitted the matter to the District court for disposal in accordance with law. Ft is aggrieved by the decision of this Court that the appellant Board appealed to the Supreme Court. After elaborate consideration on the relevant provisions of the; Indian Limitation Act, with particular emphasis to the impact of the changes brought about by Art.137 of the Schedule to the Limitation Act. 1963, in Para.22 of the decision; at page 286 of the report, the Supreme Court held: "The conclusion we reach is that Art.137 of the 1963 Limitation Act will apply to any petition or application filed under any Act to a civil court. 1963, in Para.22 of the decision; at page 286 of the report, the Supreme Court held: "The conclusion we reach is that Art.137 of the 1963 Limitation Act will apply to any petition or application filed under any Act to a civil court. With respect we differ from the view taken by the two Judge Bench of this Court in Athani Municipal Council case (AIR. 1969 S. C 1335) (supra) and hold that Art.137 of the 1963 Limitation Act is not confined to applications contemplated by or under the Code of Civil procedure. The petition in the present case was to the District Judge as a court. The petition was one contemplated by the Telegraphs Act for judicial decision. The petition is an application falling within the scope of Art.137 of the 1963 Limitation Act." In view of the decision of the Supreme Court there could be no doubt that the provisions of the Limitation Act would apply not only to applications made to a court under the provisions of the Code of Civil Procedure, but also to applications or petitions filed under any act to a civil court. 7. Having noticed that the provisions of the Limitation Act would apply to applications under other enactments made to a court, it has to be examined whether the Land Tribunal constituted under S 99 of the Act is a court The counsel for the Ist respondent submitted that the Land Tribunals have the characteristics of a court as indicated in Para.20 of the decision of the Supreme Court in Electricity Board's case, 1976 KLT. 810 = (AIR. 1977 SC 282) which reads as follows : " Again, in S.34 of the Telegraph Act reference is made to payment of court-fees and issue of processes both of which suggest that the ordinary machinery of a court of civil jurisdiction is being made available for The settlement of these disputes." This passage taken out of context may lead to a wrong appreciation of the spirit underlying the decision of the Supreme Court If the requirement of payment of court-fees and issue of processes by itself would confer the status of a court on a Tribunal, the Supreme Court in the earlier decision in Sushila Devi's case (AIR. 1970 SC. 1970 SC. 209) would have held that the Labour Court was a court, and the applications or petitions made to it would be governed by Art.137 of the Limitation Act, 1963. The counsel for the 1st respondent then submitted that a Division Bench of this Court in Kunhayamma v. Munsiff Land Tribunal (1979 KLT. 663) had held that the provisions of the Limitation Act would apply to the proceedings before the Land Tribunal; and therefore it has to be held in this case that the dismissal of the application I.A. No. 26 of 1979 as the barred by the Land Tribunal was perfectly valid. The specific question that was raised in the writ appeal which resulted in the decision in Kunhymma's case (1979 KLT 663) was whether in respect of an execution application filed before the Land Tribunal there was power in the Land Tribunal to excuse the delay in filing the said application. S.108 of the Act provided: "Unless otherwise specifically provided in this Act, the provisions of S.5 of the Indian Limitation Act, 1908, shall apply to all proceedings under this Act." Though S.29(2) of the 1963 Limitation Act in terms would not apply to the proceedings before the Land Tribunal, in the light of the rulings given by the Supreme Court already noticed, S.5 of the Limitation Act nevertheless would apply to proceedings before the Land Tribunal unless specifically excluded by the provisions in the Act by the doctrine of incorporation. That the legislature in its wisdom has chosen not to incorporate all the provisions of the Limitation Act, but restricted application to S.5 thereof, indicates that in the absence of any other provision in the Act, Art.137 of the schedule to the Limitation Act would not be applicable to the proceedings before the Land Tribunal. As far as execution applications are concerned, the legislature did not consider the need to confer the status of a court on the Land Tribunal with respect to all the proceedings before it; and that is in contrast with the specific provisions made in R.22(2) of the Kerala Land Reforms (Tenancy) Rules, 1970, with respect to the application for recovery of arrears of rent determined under sub-section (2) of S.26 of the Act. I am, therefore, of the view that the decision of the Division Bench in Kunhayamma's case (1979 KLT. I am, therefore, of the view that the decision of the Division Bench in Kunhayamma's case (1979 KLT. 663) could not be considered to be an authority for the proposition that the Limitation Act would apply to all proceedings before the Land Tribunal. The Land Tribunal has placed reliance on the decision of a single Bench of the Calcutta High Court in R.K. Kajaria v. C Engineering (India) Ltd. (AIR 1972 Calcutta 381) It is true, as observed in that judgment, the scope of Art.137 of the 1963 Limitation Act is wider than that of Art.181 of the Limitation Act of 1908. It is not necessary here to consider whether in that case the conclusion that Art.137 applies to application for pre-emption by applicants under S.8(1) of the West Bengal Land Reforms Act is arrived at after being satisfied that the test laid down by the Supreme Court that such application should be made to a court, was fulfilled. 8. The Division Bench of this Court has held in Beeran v. Rajappan (1980 KLT. 210) that the Claims Tribunal constituted under S.110 of the Motor Vehicles Act, 1929, is not a Court to attract the jurisdiction under S.115 of the Code of Civil Procedure; another Division Bench of this court in ESI Corporation v Ramadas Raddiar (1980 KLT.425) has held that the law of limitation would have no scope for operation in respect of any claims arising under S.45A of the Employees State Insurance Act, 1948, as it does not envisage an action in court for enforcing a right A Full Bench of this Court in Commissioner of Agri Income Tax v Thalayar Rubber Industries Ltd , 1981 KLT.398 = 1981 (2) ILR. Kerala 113) has taken the view that the Agricultural Income Tax Appellate Tribunal has no jurisdiction to condone the delay in filing an application for reference under sub-section (1) of S.60 of the Agricultural Income Tax Act, 1950 (Kerala Act 22 of 1950) as S.5 and 14 of the 1963 Limitation Act could be relied on for extension of time only in respect of a proceeding in court not before a Tribunal or other authority, under any local or special law. The position of the Land Tribunal except to the extent specifically provided for in the Act itself for the application of the provisions of the Limitation Act of 1963 is not, in my view, any way different from that of the Industrial Tribunal, Labour Court/Motor Accidents Claims Tribunal or the Agricultural Income Tax Appellate Tribunal etc., and, therefore, the preponderance of judicial opinion is in favour of holding that the provisions of the Limitation Act. 1963, unless there is a specific provision to the contrary in the Act itself, would not be applicable to the Land Tribunal The decision of this Court in Cheru Ouseph v. Kunhipaihumtna (198! KLT. 495) has no bearing to the question of limitation. For the foregoing reasons I hold that the 2nd respondent Land Tribunal was clearly in error in holding that the petitioner's application to put the petitioner in possession of the A schedule property by shifting the Ist respondent to the B schedule property described in the schedule to the petition was barred under Art.137 of the Limitation Act, 1963. The writ petition is, therefore, allowed, the impugned order Ext. P-5 is quashed, and the 2nd respondent Land Tribunal is directed to restore the application to file and to deal with it according to law. There will be no order as to costs.