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2010 DIGILAW 615 (KAR)

Narayanaswamy v. The Tahasildar

2010-05-13

ANAND BYRAREDDY

body2010
JUDGMENT :- (This Writ Petition is filed under Articles 226 and 227 of the Constitution of India praying to quash the Order dated 04.11.2008 in Mis.Appeal No. 54/2007 passed by the Learned District and Sessions Judge, Fast Track Court-V, Bangalore Rural District, Bangalore vide Annexure-J.) Heard the Counsel for the petitioner and the counsel for the respondents. 2. The present petition is filed primarily on the ground that the impugned order is passed on an appeal against an order under Section 3(2) of the Karnataka Village Offices Abolition Act, 1961 (hereinafter referred to as ‘the Act’ for brevity). It is contended that Section 3(2) prescribes a period of 90 days from the date of decision to file an appeal. In the facts and circumstances of the case, the order impugned before the court below was passed on 10.12.1999 whereas the appeal was filed as on 24.8.2007. However, in filing the appeal, respondents 2 and 3 had filed an application under Section 5 of the Limitation Act, 1963, seeking condonation of delay, which has been allowed in considering the appeal on merits. This, according to the counsel for the petitioner, was impermissible as the statute prescribed a period of 90 days. The said Act prescribing such period of limitation would exclude the application of the Limitation Act, 1963 and therefore, Section 5 of the Limitation Act, 1963, could not have been pressed into service, especially having regard to the inordinate delay that was involved. Further, he would point out that the second respondent had also filed a civil suit, a copy of the plaint is annexed to the writ petition at Annexure-D and the Counsel would draw attention to Paragraph-12, to indicate that only was the appeal filed after a period of eight years, even the admitted position that after coming to know of the impugned order, he had remained complacent without choosing to file appeal for a period of over eighteen months and therefore, viewed from any angle, it could not be said that the court below was justified in entertaining the application under section 5 of the Limitation Act, 1963, in permitting the second respondent to pursue the appeal and it is this limited aspect on which the petitioner seeks to rest his case. 3. 3. While the counsel for respondent no.2 would submit that though sub-section (2) of Section (3) of the Act prescribes a period of 90 days to file an appeal, what would be relevant is the date of knowledge of the decision by the said respondent. In this regard, he would place reliance on a judgment of this court Shavangouda Basangouda Pavadigoundra vs. Laxmappa Gangappa Bashidoni and Others, ILR 1975 Kar. 1294, which has relied upon the observations of the Supreme Court in Raja Harish Chandra Raj Singh vs. The Deputy Land Acquisition Officer, AIR 1961 SC 1500 , and which has been followed by a Division Bench of this court in R. Venkataramaiah vs. T. Narayana Shastry and other, 1969 (2) My.LJ 204, wherein while referring to the above decisions, this court has held follows: “4. Following the above decision, a Division Bench of this Court in R. Venkataramaiah vs. T.Narayana Shastry and others,(5) has held in a case arising under the provisions of the Karnataka (personal and Miscellaneous) Inams Abolition Act, I 954, that insofar as an appeal filed under Section 28(1) of that Act was concerned, the time for filing the appeal had to be reckoned from the date on which the appellant came to know of the order appealed against or had opportunity to know that such an order had been passed and not from the date on which it was signed by the Officer who made it. In reaching the said conclusion, the Division Bench also relied upon another decision of the Supreme Court in State of Punjab vs. Mst.Qwsar Jehan Begum and Another (6). In view of the observations made by the Supreme Court in Raja Harish Chandra’s case and by this court in R.Venkataramaiah’s case, it has to be held that the decision in the case of Majali Group Grama Vividha Udeshagala Sahakari Sangha (W.P.No.1440/1971) on the question of limitation is not good law. In interpreting the provision of the Act relating to limitation as explained by the Supreme Court in Raja Harish Chandra’s case, the court will not be exposed to the criticism that it is doing so on equitable considerations. The Legislature could not have intended while enacting S.3(2) of the Act that time would begin to run against a party although he had neither the knowledge nor an opportunity to know that an order had been passed against him. The Legislature could not have intended while enacting S.3(2) of the Act that time would begin to run against a party although he had neither the knowledge nor an opportunity to know that an order had been passed against him. The interpretation placed by the District Judge is strictly in accordance with law”. He would hence submit that it is the date of knowledge of the decision that was relevant. Hence, even though the statute prescribed a period of limitation of 90 days, it was permissible to prefer an appeal from the date of knowledge and the period of limitation has to be construed from the date of knowledge. Hence, the counsel would submit that the impugned judgment was in order. 4. While the counsel for the petitioner would point out, by way of reply, that even if the ratio laid down in the said decisions cited by the respondent’s counsel is to be accepted, the appeal would have to be filed within 90 days, which is the prescribed period of limitation from the date of knowledge. Even if so construed, the petitioner’s appeal was belated by over 18 months and therefore, was beyond the period of limitation prescribed and the decision cited cannot be pressed into service by the counsel for the respondent. 5. In the above circumstances, the only question is, whether the second respondent could file an appeal beyond time and seek condonation of delay under Section 5 of the Limitation Act, 1963. An application under Section 5 of the Limitation Act is relevant only if the provisions of the Limitation Act are applicable. In the event that the period of limitation is prescribed under a special statute, an application under Section 5 of the said Act could not be pressed into service. This apart, if the ratio of the decisions cited above are to be applied, it may be possible in a given case, that a appellant could bring a appeal within the period of limitation prescribed under a special act from the date of knowledge. But even if this position is applied in the case on hand, it cannot be said that the appeal was filed within the period of limitation prescribed under the provision. But even if this position is applied in the case on hand, it cannot be said that the appeal was filed within the period of limitation prescribed under the provision. In this light of the matter, the impugned order would suffer from these two infirmities, in that, the lower court could not have exercised power under Section 5 of the Limitation Act in condoning the delay and even if the law as laid down by the aforesaid decisions is to be applied, the appeal was far beyond the period of limitation prescribed and therefore is bad in law. Accordingly, the writ petition is allowed. Annexure-J is quashed.