GOVERNMENT OF BANGLADESH Vs. MOSLEM MIA

JUDGEMENT

(1.) This appeal by special leave Is from the judgment dated July 20, 1970 passed by & Division Bench of the High Court of East Pakistan is Civil Rule No. 729 (f) of 1970 rejecting the application for Condonation of delay in filing the appeal from the award dated September 10, 1969 given by the Additional District Judge and Arbitrator Dacca in Arbitration Case No. 158 of 1967 arising out of L.A. Case No. 138 of 1961-62.

(2.) Short point for our consideration is as to whether in view of the fact that since the acquisition of land was made under section 93A of the Town Improvement Act, 1953 which does not provide for appeal and there being also no Rules framed there under for the purpose of providing any limitation for approaching the. High Court against an award under the Act, the High Court ought to have held that the appeal had been filed within the period of limitation, which would be three years in this case. Facts in short are, that the properties in question belonging to the respondent Moslem Mia were requisitioned under section 93A of the Town Improvement Act by the erstwhile province of East Pakistan at the instance of the Dacca Improvement Trust on May 31, 1962 and the same was finally acquired on February 14, 1965. A sum of Taka 3,42,374,69 was assessed as compensation and the respondent withdrew the said amount. On reference to the Arbitrator by the respondent the Arbitrator by his judgment dated September 10, 1967 passed an award for Rs.5,86,768,84 with a direction for payment of interest @6% till the date of final payment in Arbitration Case No. 158 of 1967. The then province of-East Pakistan preferred an appeal being F.A.T.No.311 of 1970 against the said award on March 16. 1970 before the High Court out of time by 56 days. A petition for condonation of delay was filed explaining how the petitioner was prevented by sufficient cause to present the memorandum of appeal within time. At the first instance rule was issued upon the respondent to show came as to why the delay in presenting the appeal should not be condoned for the reasons stated in the petition. On hearing the parties and upon consideration of the cause shown by the respondent, the rule was discharged and the petition was rejected on July 28, 1977. This judgment is under appeal.

(3.) Mr. Abdul Wadud Bhuiyan, the learned Assistant Attorney General appearing for the appellant, submitted that before the High Court the delay of 56 days in preferring the appeal was adequately explained, but the learned Judges without properly appreciating the fact and circumstances stated in the petition for condonation of delay and without properly appreciating the principle enunciated in the case of Superintendent of Central Excise, Lyallpur Vs. Ch, Fakir Muhammad (1958) 10 DLR (SC) 168 refused to condone the delay. In support of his contention Mr. Bhuiyan submitted that in the absence of any provision under the Town Improvement Act relating to limitation for filing the appeal, the High Court was wrong in holding that the appeal was time barred, by applying the provisions of the East Bengal (Emergency) Requisition of Property Act. 1948, although in the absence of any provision of limitation in the Statute itself the period of limitation of three years as provided in Article 181 of the Limitation Act was applicable, Mr. Bhuiyaa submitted with reference to the statements made that in the petition for condonation of delay that in any view of the matter, the delay in presenting the memorandum of appeal was sufficiently explained, but the learned Judges on an erroneous view that the petitioner being the Government was asking for an extended period of limitation. It was conceded by the appellant before the High Court that the appeal against the award made by the Arbitrator would be governed by Rule 16 of the East Bengal Emergency Requisition of Property Rules, 1948 which lays down that such an appeal is required to be filed within sis weeks from the date of receipt of the notice of intimation from the Arbitrator about the making of the award. Since it was conceded that the appeal was governed by the East Bengal Emergency Requisition of Property Rules, 1948 the contention that in the absence of any period of limitation provided In the Town Improvement Act, 1953, the period of limitation as provided in Article 181 of the Limitation Act was applicable is without and basis. Oar consideration, therefore, is confined to the question as to whether the High Court was justified in rejecting the petition for condonation of delay on the ground that the delay of 56 days has not been sufficiently explained.