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CASE NO.:

Appeal (civil) 4688 of 1998

PETITIONER:

Gopal Sardar

RESPONDENT:

Karuna Sardar

DATE OF JUDGMENT: 09/03/2004

BENCH:

Shivaraj V. Patil & D.M. Dharmadhikari

JUDGMENT:

J U D G M E N T

WITH

CIVIL APPEAL NO. 444 OF 2000

SHIVARAJ V. PATIL J.

CIVIL APPEAL NO. 4688 OF 1998

The respondent made an application under Section 8

of the West Bengal Land Reforms Act, 1955 (for brevity

'the Act') in the Munsif Court claiming right of pre-

emption on the basis of vicinage being the owner of

adjoining plots of land purchased on 20.7.1966 and

1.6.1981. According to her, the appellant tried to

take forcible possession of the plot no. 1368 adjoining

to the east of his land. It is her case that she came

to know on 18.9.1985 that the appellant had purchased

the said plot no. 1368 on 17.8.1979, which is adjoining

the respondent's plot no. 1366. The appellant

contested the case denying the material incidents and

inter alia contending that the application made under

Section 8 of the Act was barred by limitation. The

Munsif Court condoned the delay on the ground that the

respondent had no knowledge of the sale till the date

of application and that there was sufficient cause for

not making the application within time but dismissed

the application on merits finding that on the date of

transfer, the respondent was not possessing the longest

common boundary. The appeal filed by the respondent

against the said order of the Munsif Court was

dismissed by the learned Addl. District Judge both on

the ground of limitation as well as on merits. In

other words, on merits, the learned Addl. District

Judge concurred with the finding recorded by the Munsif

Court and reversed its finding on the limitation

holding that the application filed by the respondent

was barred by time. The respondent approached the High

Court by filing a revision petition under Section 115

of the Code of Civil Procedure. The High Court held

that the period under Article 137 in the Schedule of

the Limitation Act, 1963 (for short `Limitation Act')

was applicable to the case. In that view, the High

Court upheld the order passed by the Munsif Court

condoning the delay for making the application. The

High Court also held that the respondent was entitled

to get the order of pre-emption on the basis of

purchase in 1966 in view of the amendment of 1981. In

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the result, the High Court set aside the order of the

Addl. District Judge and remitted the case to the first

appellate court (District Judge) to decide on merits.

Hence, this appeal.

CIVIL APPEAL NO. 444 OF 2000

The appellant made an application to enforce right

of pre-emption under Section 8 of the Act as a

contiguous land owner in the Munsif Court stating that

he came to know about the sale deed of the land in

question on 18.2.1989. She immediately rushed to the

office of the sub-Registrar and on search came to know

of the existence of the sale deed dated 27.5.1983. The

application under Section 8 was filed within time from

the date of knowledge; an application under Section 5

of the Limitation Act also was filed for condonation of

delay in filing the application under Section 8 of the

Act; the Munsif Court dismissed the application filed

under Section 5 of the Limitation Act; consequently

rejected the application filed under Section 8 of the

Act. Aggrieved by the said order of the Munsif Court,

the appellant filed Civil Revision No. 56 of 1991 in

the District Court under Section 115-A of the Code of

Civil Procedure; the learned District Judge condoned

the delay in making application under Section 8 of the

Act applying Article 137 of the Limitation Act, set

aside the order of the Munsif Court and remitted the

case to the Munsif Court to decide the application made

under Section 8 of the Act on merits. The respondent

moved the High Court under Article 227 of the

Constitution of India challenging the aforementioned

order of the District Judge. The High Court by the

impugned order, set aside the order of the learned

Addl. District Judge holding that the claim made by the

appellant was barred by limitation following the

Division Bench decision of the High Court reported in

Serish Maji vs. Nishit Kumar Dolui [1999 (1) C.H.N.

365]. Consequently, the High Court dismissed the

application filed by the appellant under Section 8 of

the Act. Hence, this appeal.

Mr. Ranjit Kumar, learned senior counsel for the

respondent in C.A. No. 444 of 2000 and Shri Shibshankar

Sarkar, learned senior counsel for the appellant in

C.A. No. 4688 of 1998 contended that an application

made under Section 8 of the Act is a suit; hence

Section 5 of the Limitation Act does not apply in

making an application under Section 8 of the Act;

Schedule to the Limitation Act contains three

divisions, relating to suits, appeals and applications

respectively; Article 97 of the Limitation Act relates

to enforcement of right of pre-emption and there is no

reference to pre-emption suit anywhere else in the

Schedule; Under Article 97, the period of limitation

prescribed is one year. As per Section 29(2) of the

Limitation Act, the period of limitation prescribed

under any special or local law for any suit, appeal or

application is different from the period prescribed in

the Schedule of the Limitation Act. Section 3 of the

Limitation Act shall apply as if such period is the

period prescribed by the Schedule of the Limitation Act

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

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contained in Sections 4 to 24 shall apply in so far as

and to the extent to which they are not expressly

excluded by such special or local law. The learned

senior counsel submitted that under Section 14H of the

Act, a period of limitation is prescribed for filing an

appeal or revision; in the second proviso thereto, it

is expressly provided that Section 5 of the Limitation

Act shall apply to an appeal under the said Section.

Under Section 14(O) for filing an appeal, 30 days is

the period of limitation prescribed. Expressly,

provision is also made in the same Section enabling the

appellate authority to permit further time for filing

an appeal on sufficient cause being shown. Again under

Section 19(2), a period of limitation of 30 days is

prescribed for filing an appeal and in the proviso

attached to the said sub-section, it is clearly and

expressly stated that the provisions of Section 5 of

the Limitation Act shall apply to an appeal under the

said Section. Under Section 8 of the Act, for filing

an application for pre-emption, various periods of

limitation are prescribed but unlike under other

provisions aforementioned, no provision is made for

applying Section 5 of the Limitation Act. Hence, by

necessary implication the application of Section 5 of

the Limitation Act is excluded to such proceedings. It

was also urged that the Act is a complete Code relating

to pre-emption proceedings. Even after amendment of

certain provisions of the Act, no such provision was

made under Section 8 to apply Section 5 of the

Limitation Act. The learned senior counsel cited few

decisions in support of their submissions. They urged

that the impugned order in C.A. No. 4688 of 1998 cannot

be sustained and the impugned order made in C.A. No.

444 of 2000 is to be upheld.

Mr. M.N. Krishnamani, learned senior counsel for

the appellant in C.A. No. 444/2000 and the learned

counsel for the respondent in C.A. No. 4688/1998

contended that Sections 8 and 9 of the Act speak of

`application' and not of `suit'; hence, Section 5 of

the Limitation Act applies; exclusion of application of

provisions of Limitation Act is to be made in special

Act and such exclusion must be made expressly as

required under Section 29(2) of the Limitation Act;

there is no scope for implied exclusion contrary to the

statutory requirement. They also cited some decisions

in support of their case. In reply, Shri Ranjit Kumar,

the learned senior counsel, drew our attention to

section 8 of the Limitation Act.

In the light of the submissions made by the

learned counsel for the parties in both these appeals,

basically the only short question that arises for

consideration is whether Section 5 of the Limitation

Act is applicable to an application made under Section

8 of the Act having regard to Section 29(2) of the

Limitation Act. Ultimate result in these appeals

depends on the answer to this question.

Before finding an answer to the question, it is

both useful and necessary to reproduce relevant

portions of the provisions of the Act and Limitation

Act: -

West Bengal Land Reforms Act, 1955

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"8. Right of purchase by co-sharer or

contiguous tenant \026 (1) If a portion or

share of a plot of land of a raiyat is

transferred to any person other than a co-

sharer of a raiyat in the plot of land, the

bargadar in the plot of land may, within

three months of the date of such transfer, or

any co-sharer of a raiyat in the plot of land

may, within three months of the service of

the notice given under sub-section (5) of

Section 5, or any raiyat possession land

adjoining such plot of land, may, within four

months of the date of such transfer, apply to

the Munsif having territorial jurisdiction

for transfer of the said portion or share of

the plot of land to him, subject to the limit

mentioned in section 14M on deposit of the

consideration money together with a further

sum of ten per cent of that amount."

"14H. Appeal and revision \026 An appeal, if

presented within thirty days from the date of

the order appealed against, shall lie to the

Munsif having jurisdiction from any order

made under sub-section (4) of section 14C or

Section 14E or Section 14G and his order

shall be final:

Provided that an application for

revision or modification of the order passed

by Munsif on appeal shall lie to the District

Judge if made within sixty days from the date

of the order:

Provided further that the provisions of

Section 5 of the Limitation Act, 1963 (Act 36

of 1963) shall apply to an appeal under this

Section."

"14-O. Appeal \026 Any person who is

aggrieved by any determination made by the

prescribed authority under Section 14N may,

within thirty days from the date of such

determination or within such further time as

the appellate authority may, on sufficient

cause being shown, allow, prefer an appeal to

such authority as the State Government may,

by notification in the Official Gazette,

specify in this behalf, against such

determination."

"19. Appeal \026 (1) An appeal shall lie

to the Collector, having jurisdiction over

the area in which the land is situated,

against any order made under Section 17 or

Section 18 or sub-section (3) of Section 21.

The Collector shall, on an appeal being

disposed of, send a copy of his order to the

officer or authority whose decision is

appealed against.

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(1A) ...................

(2) The period within which the appeal

mentioned in sub-section (1) must be filed

shall be thirty days from the date of the

order appealed against:

Provided that an appeal against any

order referred to in sub-section (2) of

section 18A made before the commencement of

the West Bengal Land Reforms (Amendment) Act,

1960 may be filed within ninety days of such

commencement:

Provided further that the provisions of

Section 5 of the Indian Limitation Act, 1908

shall apply to an appeal under this

Section."

(Emphasis supplied)

Provisions of Limitation Act:-

"2. Definitions \026 In this Act, unless the

context otherwise requires, -

(a) ...............................

(b) "application" includes a petition.

(c) to (k) ..............

(l) "suit" does not include an appeal or an

application;"

"3. Bar of limitation \026 (1) Subject to the

provisions contained in Sections 4 to 24

(inclusive), every suit instituted, appeal

preferred, and application made after the

prescribed period shall be dismissed although

limitation has not been set up as a

defence."

"5. Extension of prescribed period in

certain cases - Any appeal or any

application, other than an application under

any of the provisions of Order XXI of the

Code of Civil Procedure, 1908 may be admitted

after the prescribed period, if the appellant

or the applicant satisfies the court that he

had sufficient cause for not preferring the

appeal or making the application within such

period.

Explanation \026 The fact that the appellant or

the applicant was misled by any order,

practice or judgment of the High Court in

ascertaining or computing the prescribed

period may be sufficient cause within the

meaning of this Section."

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"8. Special exceptions \026 Nothing in Section

6 or in Section 7 applies to suits to enforce

rights of pre-emption, or shall be deemed to

extend, for more than three years from the

cessation of the disability or the death of

the person affected thereby, the period of

limitation for any suit or application."

"29. Savings \026

(1) ..................

(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."

"The Schedule

Description of suit

period of

limitation

Time from which period

begins to run

FIRST DIVISION \026 SUITS

Part IX \026 Suits relating to Miscellaneous Matters

Article 97:-

To enforce a right of pre-

emption whether the

right is founded on law or

general usage or on

special contract

One year

When the purchaser takes under

the sale sought to be impeached,

physical possession of the whole

or part of the property sold, or,

where the subject matter of the

sale does not admit of physical

possession of the whole or part

of the property, when the

instrument of sale is registered.

SECOND DIVISION \026 APPLICATIONS

Description of application

period of

limitation

Time from which period

begins to run

Part II \026 Other Applications

Article 137

For any other application

for which no period of

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limitation is provided

elsewhere in this division

3 years

When the right to apply accrues."

In Section 8 of the Limitation Act there is

reference to suits to enforce rights of pre-emption

stating therein that nothing in Section 6 or Section 7

applies to suits to enforce rights of pre-emption, or

shall be deemed to extend, for more than three years

from the cessation of the disability or the death of

the person affected thereby, the period of limitation

for any suit or application. In Article 97 of the

Schedule appended to the Limitation Act under the

heading suits relating to miscellaneous matters there

is reference to enforcement of rights of pre-emption.

Thus, there is reference to suits in Section 8 and

Article 97 of the Limitation Act, but there is no

reference to an application for enforcement of right of

pre-emption. Having regard to the fact that the Act is

a self-contained Code in relation to the enforcement of

rights of pre-emption and looking to the provisions of

the Limitation Act, as stated above, it appears to us

that when one applies for enforcement of rights of pre-

emption under Section 8 of the Act, the proceedings

initiated are in the nature of a suit. The words

"application" and "suit" have been defined in

Section 2(b) and 2(l) of the Limitation Act.

"Application" includes a petition but "suit" does

not include an appeal or an application. The Division

Bench of the Calcutta in Serish Maji (supra), after

elaborate consideration, referring to various decisions

and on analysis of different provisions, in paras 25 to

50 of the judgment has concluded that a proceeding

initiated by an application of Section 8 is to be

construed as a "suit" for the purpose of the

Limitation Act. We have good reason to approve the

said view. This being the position, Section 5 of the

Limitation Act is not attracted to the proceedings

initiated under Section 8 of the Act. The right

conferred under Section 8 is a statutory right. Even

otherwise, in our view, the position as regards to

applicability of Section 5 of the Limitation Act to an

application under Section 8 of the Act does not get

altered. As already stated above, the Act is a self-

contained Code inasmuch as the Act provides to enforce

the rights of pre-emption, forum is provided, procedure

is prescribed, remedies including the appeals and

revisions are provided, penalties are indicated for

non-compliance of the orders and powers are given for

restoration of land. Further period of limitation is

also specifically prescribed to make an application

under Section 8 of the Act and for preferring appeals

or revisions under the provisions of the Act. All

these and few other provisions are clear enough to

indicate that the Act is a complete Code in itself

dealing with the rights of pre-emption. Second proviso

to Section 14H specifically provides for the

application of Section 5 of the Limitation Act in the

matter of preferring an appeal or revision. Section

14-O(1) specifically enables the appellate authority to

allow to prefer an appeal even after the expiry of the

period of limitation prescribed on showing sufficient

cause. Similarly second proviso to Section 19(2) of

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the Act expressly provides for application of Section 5

of the Limitation Act to an appeal to be preferred

under the said Section. Section 51A of the Act deals

with preparation and revision of record-of-rights. Rule

26 of the Rules framed under the Act provides that

every appeal under Section 51A of the Act is to be

filed within one month from the date of passing of the

order appealed against. The proviso to the said Rule

states that an appeal may be admitted after the said

period if the appellant satisfies that he had

sufficient reasons for not preferring the appeal within

the said period. Thus either Section 5 of the

Limitation Act or its principles have been expressly

and specifically incorporated in the various Sections

afore-mentioned. In contrast although Section 8 of the

Act prescribes period of limitation for applying to

enforce pre-emption rights, it does not speak of

application of Section 5 of the Limitation Act or its

principles. If in the same Act, consciously and

expressly, the Legislature has made provision for

application of Section 5 of the Limitation Act or its

principles expressly and specifically to other

proceedings such as appeal or revision etc. and such a

provision is not made for initiation of the proceedings

under Section 8 of the Act, it necessarily follows that

the Legislature did not intend to give benefit of

Section 5 to the Limitation Act having regard to the

nature of rights of pre-emption which is considered a

weak right. In a recent decision of this Court in

Mattoo Devi (Smt.) vs. Damodar Lal (deceased) by Lrs. &

Ors. [(2001) 6 SCC 330] in para 8 it is stated thus:-

"8. On the basis of the aforesaid, Subba

Rao, J. with his usual felicity of expression

observed that the general law of pre-emption

does not recognise any right to claim a share

in the property sold when there are rival

claimants and pre-emption is a right to

acquire the whole of the property sold in

preference to other persons. The learned

Judge further relied upon the decision in the

case of Gobind Dayal v. Inayatullah (ILR

(1885) 7 All 775 : (1885) 5 AWN 228 (FB)) as

also the decision of the Lahore High Court in

the case of Mool Chand v. Ganga Jal (ILR

(1930) 11 Lah 258 (FB) : AIR 1930 Lah 356)

and summarised the law pertaining to the

right of pre-emption in the manner as below :

"(1) The right of pre-emption is not a

right to the thing sold but a right to

the offer of a thing about to be sold.

This right is called the primary or

inherent right. (2) The pre-emptor has a

secondary right or a remedial right to

follow the thing sold. (3) It is a right

of substitution but not of repurchase

i.e. the pre-emptor takes the entire

bargain and steps into the shoes of the

original vendee. (4) It is a right to

acquire the whole of the property sold

and not a share of the property sold.

(5) Preference being the essence of the

right, the plaintiff must have a

superior right to that of the vendee or

the person substituted in his place. (6)

The right being a very weak right, it

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can be defeated by all legitimate

methods, such as the vendee allowing the

claimant of a superior or equal right

being substituted in his place."

There is yet another good reason for insisting

that right of pre-emption must be exercised within the

period specified under Section 8 of the Act so that the

rights of purchasers of a land cannot be eclipsed for a

long time. Right of pre-emption was sought to be

exercised after six years and four years from the dates

of transfer respectively as against the period of four

months prescribed under Section 8 of the Act without

any scope for extension of that period. Sub-section (3)

was added to Section 8 of the Act by the West Bengal

Land Reforms (Amendment) Act, 1972 w.e.f. 15.2.1971.

Prior to 15.2.1971, an application under Section 8 was

required to be made to the "Revenue Officer

specifically empowered by the State Government in this

behalf". This phrase was substituted by the phrase

"Munsif having territorial jurisdiction" by the

aforementioned amendment. Even after this amendment

when an application is required to be made before the

Munsif Court, no amendment was made to Section 8 of the

Act either to apply Section 5 of the Limitation Act or

its principles so as to enable a party to make an

application after the expiry of the period of

limitation prescribed on showing sufficient cause for

not making an application within time. The Act is of

1955 and for all these years, no provision is made

under Section 8 of the Act providing for condonation of

delay. Thus, when Section 5 of the Limitation Act is

not made applicable to the proceedings under Section 8

of the Act unlike to the other proceedings under the

Act, as already stated above, it is appropriate to

construe that the period of limitation prescribed under

Section 8 of the Act specifically and expressly governs

an application to be made under the said Section and

not the period prescribed under Article 137 of the

Limitation Act.

An important departure is made in Section 29, sub-

section (2) of Limitation Act of 1963. Under the

Indian Limitation Act, 1908 Section 29(2)(b) provided

that for the purpose of determining any period of

limitation prescribed for any suit, appeal or

application by any special or local law the application

of Section 5 of the Limitation Act was specifically and

in clear terms excluded, but under Section 29(2) of the

present Limitation Act Section 5 shall apply in case of

special or local law to the extent to which they are

not expressly excluded by such special or local law.

In other words, application of Section 5 of the

Limitation Act stands excluded only when it is

expressly excluded by the special or local law. The

emphasis of the argument by the learned counsel, who

argued for the proposition that Section 5 of the

Limitation Act is applicable to an application made for

enforcement of rights of pre-emption under Section 8 of

the Act was on the ground that the Act has not

expressly excluded the application of Section 5 of the

Limitation Act.

In Hukumdev Narain Yadav vs. Lalit Narain Mishra

[(1974) 2 SCC 133], a bench of three learned Judges of

this Court, dealing with election petition under the

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Representation of People Act on the point of limitation

for filing an election petition, after examining the

provisions of the Representation of the People Act and

Section 29(2) of the Limitation Act, has held thus:-

"17. ..... Even assuming that where a

period of limitation has not been fixed for

election petitions in the Schedule to the

Limitation Act which is different from that

fixed under Section 81 of the Act, Section

29(2) would be attracted, and what we have to

determine is whether the provisions of this

Section are expressly excluded in the case of

an election petition. It is contended before

us that the words "expressly excluded"

would mean that there must be an 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. As

usual the meaning given in the Dictionary has

been relied upon, but what we have to see is

whether the scheme of the special law, that

is in this case the Act, and 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 view, 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.

The provisions of Section 3 of the Limitation

Act that a suit instituted, appeal preferred

and application made after the prescribed

period shall be dismissed are provided for in

Section 86 of the Act which gives a peremtory

command that the High Court shall dismiss an

election petition which does not comply with

the provisions of Sections 81, 82 or 117."

(emphasis supplied)

This Court in Anwari Basavaraj Patil & Ors. vs.

Siddaramaiah & Ors. [(1993) 1 SCC 636], again dealing

with the election petition under Representation of

People Act, after considering the relevant provisions

of the Representation of People Act and Section 29(2)

of the Limitation Act, took a view that the controversy

was practically concluded on the question of

applicability of Section 5 of the Limitation Act by the

decision of this Court in the case of Hukumdev Narain

Yadav (supra). Para 8 of the said judgment reads

thus:-

"8. In H.N.Yadav vs. L.N. Mishra, this Court

held that the words "expressly excluded"

occurring in Section 29(2) of the Limitation

Act do not mean that there must necessarily

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be express reference in the special or local

law to the specific provisions of the

Limitation Act, the operation of which is

sought to be excluded. It was held that if

on an examination of the relevant provisions

of the Special Act, it is clear that the

provisions of the Limitation Act are

necessarily excluded, then the benefits

conferred by the Limitation Act cannot be

called in aid to supplement the provisions of

the Special Act. That too was a case arising

under the Representation of People Act and

the question was whether Section 5 of the

Limitation Act is applicable to the filing of

the election petition. The test to determine

whether the provisions of the Limitation Act

applied to proceedings under Representation

of People Act by virtue of Section 29(2) was

stated in the following words: (SCC

p.147.para 18)

"The applicability of these provisions

has, therefore, to be judged not from

the terms of the Limitation Act but by

the provisions of the Act relating to

the filing of election petitions and

their trial to ascertain whether it is a

complete code in itself which does not

admit of the application of any of the

provisions of the Limitation Act

mentioned in Section 29(2) of that

Act."

(emphasis supplied)

A Bench of three learned Judges of this Court in

The Commissioner of Sales Tax, Uttar Pradesh, Lucknow

vs. M/s. Parson Tools and Plants, Kanpur [AIR 1975 SC

1039], dealing with the question of limitation in

relation to revision filed beyond time prescribed by

Section 10 of U.P. Sales Tax Act, 1948, in para 17, has

observed thus: -

"17. Thus the principle that emerges is that

if the legislature in a special statute

prescribes a certain period of limitation for

filing a particular application thereunder

and provides in clear terms that such period

on sufficient cause being shown, may be

extended, in the maximum, only upto a

specified time-limit and no further, then the

tribunal concerned has no jurisdiction to

treat within limitation, an application filed

before it beyond such maximum time-limit

specified in the statute, by excluding the

time spent in prosecuting in good faith and

due diligence any prior proceeding on the

analogy of Section 14(2) of the Limitation

Act."

In the same judgment it is expressed that "where the

legislature clearly declares its intent in the scheme

and language of a statute, it is the duty of the court

to give full effect to the same without scanning its

wisdom or policy, and without engrafting, adding or

implying anything which is not congenial to or

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consistent with such expressed intent of the law-

giver". The conclusion reached by the Division Bench

of the High Court in Serish Maji case (supra) that

Section 5 of the Limitation Act is not applicable to

proceedings under Section 8 of the Act is correct and

acceptable.

Section 8 of the Act prescribes definite period of

limitation of three months or four months, as the case

may be, for initiating proceedings for enforcement of

right of pre-emption by different categories of people

with no provision made for extension or application of

Section 5 of the Limitation Act. When in the same

statute in respect of various other provisions relating

to filing of appeals and revisions, specific provisions

are made so as to give benefit of Section 5 of the

Limitation Act and such provision is not made to an

application to be made under Section 8 of the Act, it

obviously and necessarily follows that the legislature

consciously excluded the application of Section 5 of

the Limitation Act. Considering the scheme of the Act

being self-contained code in dealing with the matters

arising under Section 8 of the Act and in the light of

the aforementioned decisions of this Court in the case

of Hukumdev Narain Yadav, Anwari Basavaraj Patil and

M/s. Parson Tools (supra), it should be construed that

there has been exclusion of application of Section 5 of

the Limitation Act to an application under Section 8 of

the Act. In view of what is stated above, the non-

applicability of Section 5 of the Limitation Act to the

proceedings under Section 8 of the Act is certain and

sufficiently clear. Section 29(2) of the Limitation

Act as to the express exclusion of Section 5 of the

Limitation Act and the specific period of limitation

prescribed under Section 8 of the Act without providing

for either extension of time or application of Section

5 of the Limitation Act or its principles can be read

together harmoniously. Such reading does not lead to

any absurdity or unworkability or frustrating the

object of the Act. At any rate in the light of the

Three-Judge Bench decision of this Court in Hukumdev

Narain Yadav case (supra) and subsequently followed in

Anwari Basavaraj Patil case (supra), even though

special or local law does not state in so many words

expressly that Section 5 of the Limitation Act is not

applicable to the proceedings under those Acts, from

the scheme of the Act and having regard to various

provisions such express exclusion could be gathered.

Thus, a conscious and intentional omission by the

Legislature to exclude application of Section 5 of the

Limitation Act to the proceedings under Section 8 of

the Act, looking to the scheme of the Act, nature of

right of pre-emption and express application of Section

5 of the Limitation Act to the other provisions under

the Act, itself means and amounts to "express

exclusion" of it satisfying the requirement of Section

29(2) of the Limitation Act.

The decision in Mangu Ram vs. Municipal

Corporation of Delhi [(1976) 1 SCC 392] is cited in

support of the submission that in the absence of

express exclusion of application of Section 5 of the

Limitation Act in the special law, benefit of Section 5

of Limitation Act could be availed. In that case,

special leave petitions were filed in this Court

against the condonation of delay to the application for

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the grant of special leave under Section 417 of Cr.P.C.

against acquittal of the petitioners by the trial court

in spite of the mandatory period of limitation provided

in sub-section (4) of Section 417. The question that

arose in that case was whether the decision of this

Court in Kaushalya Rani vs. Gopal Singh [1964 (4) SCR

982], in which it was held that Section 417 Cr.P.C.

excluded application of Section 5 of the Limitation Act

on a construction of Section 29(2)(b) of the old

Limitation Act of 1908 could be applied under the

corresponding provisions of the Limitation Act, 1963.

The decision of that case turned upon the facts of that

case in criminal appeals by comparison of the provision

of the old Limitation Act to the provision of the new

Limitation Act. The Division Bench of the Calcutta High

Court in Serish Maji (supra), referring to the

observation made in Mangu Ram (supra) that "mere

provision of a period of limitation in howsoever pre-

emptory or imperative language is not sufficient to

displace the applicability of Section 5", in para 11

of the judgment, has stated thus:-

"11. The observation does not help the

applicant. It assumes that an imperative

provision coupled with other factors might be

sufficient to exclude the applicability of

the Limitation Act. Ultimately it would be a

question of interpretation of the special or

local law in question."

Further the decision in Hukumdev Narain Yadav (supra)

was not brought to the notice of this Court when Mangu

Ram case (supra) was decided. In the light of the

three-Judge Bench decision of this Court in Hukumdev

Narain Yadav we do not find any good reason to take a

different view.

The case of Mukri Gopalan vs. Cheppilat

Puthanpurayil Aboobacker [(1995) 5 SCC 5] cited in

support of the submission that Section 5 of the

Limitation Act can be applied to a proceeding under

Section 8 of the Act also does not support the

submission for the reasons more than one. The short

question that arose for consideration in that decision

was "whether the appellate authority constituted under

Section 18 of the Kerala Buildings (Lease and Rent

Control) Act, 1965 has power to condone the delay in

the filing of appeal before it under the said

Section". On the facts of that case, it is clear that

the question that has arisen for consideration in these

appeals did not directly arise. In that case, the view

taken by Kerala High Court was that the appellate

authority has no power to condone the delay being a

persona designata. On examination of the provisions of

the Kerala Act, this Court held that appellate

authority was not a persona designata but it was

functioning as a court. Further, this Court taking

note of Section 29(2) as it stood in the Limitation

Act, 1908 and Section 29(2) of the Limitation Act,

1963, expressed the view that by virtue of Section

29(2) of the Limitation Act, 1963, the provisions of

Section 5 of the Limitation Act were automatically

applicable. A Division Bench of the Calcutta High

Court in Serish Maji (supra) has rightly distinguished

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the said case in para 12 thus:-

"12. Thus in Mukri Gopalan vs. C.P.

Aboobacker (AIR 1995 SC 2272) the Supreme

Court considered the legislative history of

Section 18 of the Kerala Building (Leasing

and Rent Control) Act, 1965 to construe

whether the appellate authority constituted

thereunder has the power to condone the delay

in filing of the appeal before it under that

section. The Supreme Court noted that the

Rent Act of 1965 was preceded by the Rent Act

of 1959. The 1959 Act contained a provision

expressly stating that the provisions of

section 5 of the Indian Limitation Act, 1908

would apply to all proceedings under the Act.

According to the Supreme Court, this was

necessary because section 29(2) of the Indian

Limitation Act, 1908 did not include section

5 as one of the provisions to be applied to

special or local laws. In the Limitation

act, 1963, section 5 has been included in

section 29(2) as one of the provisions which

would apply to special and local laws.

Therefore, when the Rent Act of 1965 was

enacted it was not necessary to include an

express provision incorporating the

provisions of section 5 of the Limitation

Act, because by virtue of section 29(2) the

provisions of section 5 would get

automatically attracted."

Incidentally it may also be mentioned that this

decision also was rendered by two learned Judges of

this Court. Thus, in our view, this case of Mukri

Gopalan (supra) does not help to say that Section 5 of

the Limitation Act is applicable to proceedings under

Section 8 of the Act.

Having regard to all aspects we answer the

question set out above in the negative.

Once it is held that the benefit of Section 5 of

the Limitation Act is not available to the proceedings

under Section 8 of the Act and the applications filed

under Section 8 of the Act are to be dismissed on that

ground, it is unnecessary to go into the merits of

these appeals on other issues.

We conclude that Section 5 of the Limitation Act

cannot be pressed into service in aid of a belated

application made under Section 8 of the Act seeking

condonation of delay. The right of pre-emption

conferred under Section 8 is a statutory right besides

being weak, it has to be exercised strictly in terms of

the said Section and consideration of equity has no

place. On the facts found in these appeals,

applications under Section 8 were not made within four

months from the date of transfer but they were made

four years and six years after the date of transfer

respectively which were hopelessly barred by time.

Benefit of Section 5 of the Limitation Act not being

available to the applications made under Section 8,

Section 3 of the Limitation Act essentially entails

their dismissal.

Thus, in the light of what is stated above, the

impugned order in civil appeal No. 4688 of 1998 is set

aside, the appeal is allowed and the application made

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by the respondent under Section 8 of the Act is

dismissed with no order as to costs.

Civil Appeal No. 444 of 2000 stands dismissed. No

costs.