STATE OF KERALA Vs. AYILAMMAL SYAMALA THAMBURATTI

JUDGEMENT

(1.) This appeal is preferred under S.8A of the Kerala Private Forests (Vesting and Assignment) Act, 1971, (hereinafter, the Act) from the decision of the Forest Tribunal, Palghat, under S.8 thereof in O. A. No. 503 to 506 of 1975 on its file. Besides providing for an appeal to this Court from such a decision, S.8A also prescribes therefor a period of limitation of 60 days from the date of the decision: If the time requisite for obtaining the certified copy of the order produced along with this appeal is excluded, it is well within time; and otherwise it is out of time. The principal point that is mooted herein is this question of limitation, and the answer thereto depends on the applicability or otherwise of S.12 of the Limitation Act, 1963 to this appeal.

(2.) It is not disputed that the Act is a 'special or local law' falling within S.29(2) of the Limitation Act, 1963. Nor can there be now any controversy as regards the applicability of S.4 to 24 of the Limitation Act, 1963, as provided for by S.29(2) thereof and subject to the limitations mentioned in that section to an appeal preferred under a special or local law. That provision reads:

(3.) It will be noticed that S.29(2) consists of two parts. The first part says that '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 S.3 shall apply as if such period were the period prescribed by the Schedule'. The second part says that '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 S.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'. One construction placed on the first limb of the section by some decisions was that it would be attracted only where for the identical appeal for which a period of limitation has been prescribed by the special or local law, a period has also been prescribed by the Schedule to the Limitation Act and there is difference between these two periods, the one prescribed by the special or local law and the other prescribed by the Schedule. On that basis the view taken in these cases was that where the Schedule has not prescribed a period of limitation for an appeal falling under the special or local law, there are no two different periods of limitation prescribed so far as such a case is concerned, one prescribed by the Schedule and another by the special or local law and that, therefore, the first part of S.29 would not govern such a case, and consequently, the second part, which should, according to those decisions, be read in conjunction with the first part, could not be invoked for exclusion of time for determining the period of limitation. And looking at the Schedule, it will be seen that it deals only with appeals preferred under the Code of Civil Procedure and does not refer to any other appeal except those preferred under the Code of Criminal Procedure and one preferred from the decision of a High Court to that Court, with the result that the first and second parts of S.29 would not govern cases where the right of appeal is conferred by a special or local law. However, this view is no more good law in view of the decisions of the Supreme Court in Kaushalya Rani v. Gopal Singh ( AIR 1964 SC 260 ) and Vidyacharan Shukla v. Khubchand Baghel ( AIR 1964 SC 1099 : 1964 (6) SCR 129 ) where that Court approved the contrary view taken by Chagla C. J. in Canara Bank Ltd. v. Warden Insurance Co. Ltd. ( ILR 1952 Bom. 1083 ) holding that even where there was no provision in the first schedule for an appeal in situation identical with that for which the special law provides, the test of 'a prescription of a period of limitation different from the period prescribed by the First Schedule' is satisfied. (See Vidyacharan Shukla v. Khubchand Baghel, 1964 (6) SCR 129 at pages 133-34 and 154-57). Mudholkar J. with whom Raghubar Dayal J. concurred disagreed with the majority decision on this point as above indicated (see p. 171) but he agreed with Subba Rao J. who construed the second limb of S.29(2) also as being wide enough to include a suit, appeal or application under a special or local law even if no period of limitation is prescribed in the First Schedule. The appeal considered in Vidyacharan Shukla's case was one preferred to the High Court under S.116A of the Representation of the People Act, 1951, from an order of the Election Tribunal dismissing an election petition; and, the question of limitation of that appeal was considered by that Court with reference to S.12 and 29(2) of the Indian Limitation Act, 1908. S.12 and 29(2) of the Limitation Act, 1963 are substantially the same as those obtained in the prior Act, and therefore, the legal principles would be the same under the corresponding provisions of the present Limitation Act.