MC(CRP)/7/2004 of Smti Kobe Ete Vs State of AP on 21 December 2004

MC(CRP) 7/2004BEFORE

THE HON' BLE MR. JUSTICE H. N. SARM( 1 ) Heard Mr. T. Michi, the learned counsel for the petitioner and Mr. N. Tagia, learned counsel for the respondent No. 4 and Ms. G. Deka, learned Govt. Advocate Tor the respondent No. 1, 2 and 3..

( 2 ) By this application the petitioner prayea for condoning the delay of 41 days (?) in filing the Civil Revision Petition No. 1360/2004. Notice of the afores1d application was issued on Ol. 07. 2004 in pursuant to which the respondent No. 4 nas filed his objection resisting the prayer for condoning the delay of 4ldays.

( 3 ) In the affidavit 1n opposition the respondent No. 4 has denied the correctness of the statement made in the petition. Tne petitioner's case 1s that, she 1Ss a lady staying at Along in the West Siang District and she entrusted her casewitn an Advocate namely Sri Gilli Ate to file the present revision petition. ButLater on it was found that the said Advocate did not file the petition and nas—Left Itanagar. After constant persuasion the petitioner could obtain the necessary papers of the case from the said Advocate and there after she entrusted witntne present Aavocate for filing the case and in the process there has been delayof 41 days for filing the revision. The petitioner 1S a Layman and the delay inTiling the petition has been caused for the reasons beyond ner control. Accordlngty, Mr. T. Micni, learned counsel for the petitioner submits that the delay inTiling the revision petition snould be condoned.|

( 4 ) At this stage Mr. N. Tagia, learned counsel for the respondent No. 4 has railsed an issue regarding the maintainability of tne present Misc. Case. Mr. Taga nas pointed out tnat under Section 50 of The Assam Frontier (Administration ofJustice) Regulation, 1945, tne High Court may, on application or otherwise, calLt for the proceedings of any original case or appeal decided by the Deputy Commssioner and not appealable under this Regulation and may pass sucn orders as itmay deem fit. Thus the High Court is entrusted with the power of revision against the orders mentioned in Section 50 of the regulation. Section 51 provides \every petition of appeat under Section 4/7 or Section 48 and every application undeSection 50 shall be accompanied by a copy of the order against whicn the appealOr application 1s made, and shall be filed within thirty days of the date of such oraer, excluding the time taken in procuring a copy of the order. \ Under Section 52 it 1S provided tnat the High Court shatt follow the principles of IndianLimitation Act, 1908 in disputes between persons who are not indigenous to tne|Union Territory of Arunacnal Pradesh. Further Section 29 of tne Limitation Act,1963 provides that, \wnere any special or local law prescribes for any suit, appeal or application a period of Limitation different from the period prescribed by tne scnedule, the provisions of Section 3 shall apply as if sucn period were tne period prescribed by the Schedule anda for the purpose of determining any perod of Limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4 to 24 (inclusive) Snall apply only in so for as, and to the extent to which, they are not expressly excludedby sucn special or local lLaw\.

( 5 ) Referring to the aforesaid sections Mr. N. Tagia nas submitted that the Assam Frontier (Administration of Justice) Regulation, 1945, being a special/localLaw and under the provisions of Section 52 of the said Regulation not having prOovided that tne Limitation Act would be applicable for indigenous persons, the rovision of Section 5 of the Limitation Act 1S not applicable and the delay in f1ling the petition cannot be condoned.|

( 6 ) Mr. T. Micni1, on the other nand has pointed out that this point has not ben taken out in the affidavit in opposition filed by the petitioner and accordingly 1t may not be permitted to raise at the stage of hearing. He further submits

that the practice of this Court since the days of its establishment is that thedelay in filing any sucn revision petition by an indigenous person 1S being conqoned by tnis Court by applying the provision of Section 5 of the Limitation Actin case there 1S any delay and the practice prevalent so long snould not be disturoed and it snould pe allowed to pe condoned. It has peen Turtner submitted tnat on proper interpretation of Section 52 of the Regulation, the aforesaid contention of the learned counsel for the respondent is not tenable.

( 7 ) Since the question regarding the maintainability of the petition, as raiseaq by Mr. Tagia, goes to the very root of tne case and tne matter 1s of importane, I do not tike to tnrow out the objection on the aforesaid ground raised by the petitioner. The utility of the state of Limitation nas not been the matter ofany dispute. It 1s stated that the Act of Limitation 1s a set of repose, peace ana justice. It 1s stated to be repose because it extinguishes state daemand and uits title. In other words, controversies are restricted to a fixed period of time otnerwise they would become immortal and ever Lasting. Limitation secures peace as it ensures security of rights anda secures justice as by Lapse of time evience in support of rignt may destroy. Limitation 1s thus rests on sound public policy. On the expiry of tne period of Limitation a valuable right accrues upon tne other party. The provisions of applicability of the Limitation act are also enshrined in the Assam Frontier (Administration of Justice) Regulation, 1945. Golng througn the various provisions of the said regulations it cannot be said tnattne scheme of the Act altogetner excludes the Law of Limitation rather, in tne.various clauses of the aforesaid regulations, it recognizes the need of applicab1lity of the law of limitation. Limitation as provided by various statutes, notonly prescribes the period of Limitation within which period the party must approacned the authority, it also provides, in certain circumstances, under whicn aperiodg may be excused for not approaching the autnority within the period of Liitation. Under the Limitation Act, 1908 (Since repealed) and the Limitation Act,1963 also vide Section 5 provides such a power upon the Court to extend the prescribed period of Limitation in certain cases, when the appellant or the applicant satisfies the Court that, he has sufficient cause for not preferring the appeal or petition witnin the specific period of limitation. Turning to Section 29 ofT tne Limitation Act, 1963, the said Section 1S a Saving Section incorporated itne 1963 Act. Section 29 of the Limitation Act, 1963 1S quoted nerein below :

\section 29.- (1) Notning in this Act snatl affect Section 25 of the Indian Contract Act, 18/72 (9 of 18/72 ). (2) Where any special or local law prescribes forny suit, appeal or application a period of limitation different from the periodprescribed by the schedule, the provisions of Section 3 snallt apply as if such eriod were the period prescribed by tne Scnedule 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 Section 4 of 24 (inclusive)Snalt apply only in so for as, and to the extent to which, they are not expressLy excluded by such special or local law. (3) Save as otnerwise provided in anyLaw for the time being in force with respect to marriage and divorce, nothing intnis Act snatl apply to any suit or other proceeding under any sucn Law. (4) Sections 25 and 26 and the definition of \easement\ in Section 2 snalt not apply to cases arising in the territories to wnicn the Indian Easement Act, 1882 (5 of1882), may for the time being extend. \

( 8 ) Section 51 of the Assam Frontier (Administration of Justice) Regulation, l945 provides tnat \every petition of appeal under Section 4/7 or Section 48 and very application under Section 50 shall be accompanied by a copy of the order against which the appeal or application 1S made, and shall be filed within thirtydays of the date of such order, excluding the time taken in procuring a copy oftne order. \ Under Section 50 of the Assam Frontier (Administration of Justice)Regulation, 1945, tne High Court may, \on application or otherwise, catl Tor theproceedings of any original case or appeal decided by the Deputy Commissioner anad not appealable under this Regulation and may pass sucn orders as it may deem Tit. \ Here the High Court can exercise revisionat power on two counts: (1) by suo moto, and (2) by application of a party. If tne High Court, in a given case,tninks it prudent to exercise revisional power suo moto, in that event no question arises as to the applicability of the period of Limitation of 30 days as prov1deq in Section 51. The period of 30 days as provided in Section 51 appears to be applicable only in cases when the revisional power 1s exercised on the application of the private party.|

( 9 ) Again Section 52 of the Regulation provides as follows :

\the High Court, the Court of Deputy Commissioner, Assistant Commissioner snatlbe guided by the spirit, but snatlt not be pound by the Letter, of the Code of Cvil Procedure, 1908 and snallt follow subject to any express provisions of theserules, 1n principles of the Indian Limitation Act, 1908 in disputes between persons who are not indigenous to the Union Territory of Arunachal Pradesn. \Section 52 expressly provides that tne Hign Court snatl follow, subject to the expressed provisions of these rules, tne principles of Indian Limitation Act, 1908, in disputes between persons who are not indigenous to the Union Territory ofArunachal Pradesn. Section 52 does not speak of anything specifically regardingapplicability of tne Limitation Act so far the indigenous persons are concerned.

( 10 ) The preamble of the Assam Frontier (Administration of Justice) Regulation, 1945, provides as follows : \a Regulation to consolidate and amend the Law governing the administration of justice in the Frontier Tracts of Assam. Whereas it1s expedient to consolidate and amend the Law governing the administration of Justice in the Balipara, Lakhimpur, Sadiya and Tirap Frontier Tracts of Assam. Now, therefore, the Governor of Assam, in exercise of the powers conferred by thesub-section (2) of Section 92 of the Government of Indian Act, 1935, 1S pleasedto make the following Regulation. \

( ll ) The aforesaid regulation naving been erected for governing the administration of justice in tne Balipara, Laknimpur, Sadiya and Tirap Frontier Tracts ofAssam 1S a local law witnin the meaning of Section 29 of the Limitation Act. TheAssam Frontier (Administration of Justice) Regulation, 1945, (hereinafter as 1945 Regulation) to some extent ameliorate tne other substantive provisions of Laws sucn as the Code of Civil Procedure, Code of Criminat Procedure and the Like.Tne said 1945 Regulation had to be enacted to suit tne need of the people of theatoresaiad tract.

( 12 ) Now naving satisfied the requirement of Section 29 (2) of the LimitationAct so far the provisions regarding the local law or special law 1S concerned, we are to see at this stage wnether Section 52 of the 1945 Regulation can be interpreteda to exclude the provisions of Sections 4 to 24 of tne Limitation Act, 193 in the context of tne said 1945 Regulation. On a bare reading of Section 29 (2) shows that such exclusion 1S permissible so far as and to the extent to whnicnthey are not expressly excluded by the speciat or local law. Section 52 of the 1945 Regulation incorporates specific provisions regarding applicability of the principles of the Limitation Act so for the persons who are not indigenous to thepresent State of Arunacnal Pradesh. It has not provided expressly about the appLicability or non applicability of tne provisions of tne Limitation Act so for tne indigenous persons are concerned and Section 52 1s silent about it. On the otner hand, as discussed hereinabove, the scneme of the 1945 Regulation do not excLuded the applicability of the provisions of the Limitation altogether. Section29 (2) of the Limitation Act clearly indicates that such special or local Law must provided the period for limitation under sucn laws and Tor computing the perlod of Limitation under such special or local law, the provisions as contained inSections 4 to 24 (inclusive) as found in the Limitation Act snallt apply. Sectin 29 (2) gets attracted for computing tne period of Limitation for any suit, appeal or application to be filed before authorities under special or local law if tne conditions laid down therein are satisfied and once tney get satisfied, tneprovisions contained in Sections 4 to 24 of the Limitation Act snatlt apply to sch proceedings which obviously means that the procedural scneme contemplated bytnese sections of tne Limitation Act would be applicable in case of filing appeaL/revision under the provisions of special or local Law.|

( 13 ) Turning to expression \expressly excluded\ in Section 29 (2) of the Limitation Act, the said expression is clearly demonstrative. It signifies exclusionby wants. It witt not mean exclusion by a process of construction or by reasoning. If we are to exclude the provisions of applicability of tne principles of theIndian Limitation Act, tnen we are to go for reasoning to the extent that as tne said Section 52 makes a provision of applicability of the Limitation Act so Tar the persons who are not indigenous to the State of Arunacnalt Pradesh, therefoe, tne persons whno are indigenous to the State of Arunacnat Pradesh, are excludaq. Such a construction wilt go against the provisions of the expression \expresLy excluded. \

( 14 ) Anotner aspect of the matter also cannot be Ltost sight out. The consistet practice prevalent in tnis part of the country 1s in favour of applicability ofT Section 5 of the Limitation Act in case there occurs delay in filing a revisin petition under Section 50 of the 1945 Regulation for sufficient cause. Tne aforesaid practice 1S being followed by tnis High Court since its inception, which1S by now, has attained tne force of law. Tne people of the State of Arunachal Pragesn are now accustomed with the applicability of the said provision of Section 5 of the Limitation Act and alt the Litigants wno are required to approach theCourt, and when the period of Limitation 1s expired for sufficient reason, tneytake shelter under Section 5 of the Limitation Act for condoning the delay in f1ling the appeal/application by snowing sufficient cause. Tne aforesaid practiceshould not be Lightly uprooted or revoked. In Tact, I do not find any justification for revoking tne aforesaid practice, which 1S being followed Tor more thanNnatf a century by now by tnis High Court.

( 15 ) In view of the aforesaid discussions and decisions, I hola that the provision of Section 5 of the Limitation Act 1S applicable when there occurs delay inTiling a revision application under Section 50 of The Assam Frontier (Adqministation of Justice) Regulation, 1945, by an indigenous person of Arunachal Pradesh. The objections raised by Mr. N. Tagia regarding non-maintainability of the petition are not sustainable. Mr. Tagia in his usual fairness, nowever, has not ralsed any objection on the merit of the case. On perusal of tne averments made inthe application under Section 5 of tne Limitation Act and otner materials on record I find that there is sufficient cause for condoning the delay in filing thisapplication. No willful Laces or negligence can also be attributed to the petit10oner.

( lo ) Accordingly the delay of 41 days in filing the revision petition 1S condoned, and the Misc. Case 1S allowed making nowever no order as to costs.