SURYA MOHAN THAKUR Vs. STATE OF BIHAR

JUDGEMENT

(1.) These two cases raise questions of first impression which do not ordinarily arise in these Cts. The questions which arise in both these eases are (1) whether Section 5, Limitation Act, can be applied to them, & (2) whether, if we decide that the provisions of Section 5, Limitation Act, are available to the applt. in the peculiar circumstances of these cases, the delay in filing the two appeals should be condoned.

(2.) The facts of the3e two eases are similar except in one respect that, whereas Misc. Appeal 80 of 1950 arises out of the award in Land Acquisition Case No. 40 of 1946 arising out of case No. 1 of 1943-44, Misc. Appeal 90 of 1950 arises out of Land Acquisition Case No. 39 of 1946 arising out of Case No. 1 of 1942-43. This difference has been sought to be made use of by the learned Cousel for the applt. as will presently, appear. The other facts of the case may be stated as common to both the cases as follows : Two appeals were filed on 21-3-1950 from two awards dated 13-12-1949, of the District Judge of Bhagalpur Under Rule 75A, Defence of India Rules, read with Section 19, Defence of India Act. On 14-12-1949, the applt. made an appln. for a certified copy of the awards. The requisite stamps were notified on 22-12-1949, & were delivered on 23-12-1949. The copy was ready for delivery on 7-1-1950, & was actually made over on 9-1-1950. The formal notice of the signing of the award was served on the applt., according to the affidavit, on 6-1-1950, though, according to the statement of the learned Advocate for the applt. it was on 7-1-1950. The statement on affidavit may be acted upon in preference to the statement at the Bar. The learned Stamp Reporter made a report to the effect that, as the appeals had been filed beyond six weeks from the date of the receipt of the notice of the signing of the award, they were out of time. After that report of the Stamp Reporter, these applns. under Section 5, Limitation Act, have been made for condoning the delay, & the grounds stated for doing so are that, to the petnr's knowledge, there was no limitation for filing appeals provided under the Defence of India Act or the rules made thereunder; and that the petnr. was advised by his lawyer, a pleader of Bhagalpur, which advice he acted upon, that the ordinary period of ninety days provided for filing appeals to this Court would fee applicable, & that ho would get the benefit of the time requisite for obtaining a certified copy.

(3.) There is no doubt that, if the provisions of Section 5, Limitation Act, can be invoked in aid of the petnr. in the special circumstances of this case, sufficient grounds had been made out for condoning the delay. It has taken us some amount of research to find out the relevant provisions of the law regulating to appeals to this Ct. from an award of the nature aforesaid. It is true that neither the Defence of India Act nor the rules made thereunder by the Central Government contain any provisions relating to the period of limitation for filing appeals against an award of the nature contemplated by the Act and the rules. By a notification, dated 26-5-1943, by the Govt. of Bihar published in the Bihar Gazette (Extraordinary) of that date, rules have been framed called the Bihar (War Acquisition of Property) Compensation Rules, 1943. Rule 18 is in these terms: