Bangladesh Vs. Moslem Mia, 31 DLR (AD) 45

Case No: Civil Appeal No. 139 of 1977

Court: Appellate Division ,,

Advocate: Mr. Abdul Wadud Bhuiyan,,

Citation: 31 DLR (AD) (1979) 45

Case Year: 1979

Appellant: Government of Bangladesh

Respondent: Moslem Mia

Subject: Procedural Law,

Delivery Date: 1978-3-16

 
Supreme Court
Appellate Division
(Civil)
 
Present:
Kemaluddin Hossaian CJ   
Ruhul Islam J
K.M. Subhan J
 
Bangladesh
........................ Appellant
Vs. 
Moslem Mia
......................Respondent.
 
Judgment
March 16, 1978.
 
Limitation Act, 1908
Article 181
Appeal against the award of the arbitrator as to the amount of compensation— Time-limit for preferring such appeal is governed by the E.B. Emergency Requisituion of Property Rules, 1984— When such appeal is filed out of time as provided in the Emergency Requisition of Property Rules, the plea that since the Town Improvement Act does not provide any period of limitation, the time for preferring appeal will be governed by article 181 of the Limitation Act is without basis.
 
Case Referred to-
Superintendent of Cen­tral Excise, Lyallpur Vs. Ch, Fakir Muham­mad (1958)10 DLR (SC) 168.
 
Lawyers Involved:
Abdul Wddud Bhuiyan. Assistant Attorney General instructed by A.W. Mailik, Advocate-on- Record—For the Appellant.
Ex-parte—For the Respondent.
 
Civil Appeal No. 139 of 1977
On appeal from the judgment and order dated July 26, 1970 passed by the High Court in Civil Rule No. 729 (f) of 1970.
 
JUDGMENT
 
Rahul Isam, J.
 
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 @6½% 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.
 
4.    The arbitrator appointed in this matter passed the award on September 10, 1969 and the petitioner was intimated about the award on October- 21. 1969 As per Rule 16 of the East Bengal Emergency Requisition of Pro­perty Rules 1948 the appeal was required to be filed by January 12, 1970 but the memo­randum of appeal was filed on March 16, 1970, that is, out of time by 56 days. The delay was explained stating that on Novem­ber 19, 1966, the Legal Remembrancer re­ceived the proposal of filing the appeal from the respective Department, but in the absence of necessary fund made available by the requiring body, namely Dacca Improvement Trust no positive step could be taken. The Legal Remembrancer instructed the Additional Deputy Commissioner, Dacca to re­quest the requiring body for arranging neces­sary fund. Ultimately the requiring body wrote a letter to the Additional Deputy Com­missioner Dacca on January 23,1970 for filing appeal through their Legal Adviser. The Additional Deputy Commissioner, how ever, informed the requiring body on January 31, 1970 about his inability to execute power in favour of any private lawyer. Thereafter the requiring body sent papers direct to the Assistant Government pleader. High Court on February 12, 1970 with instruction to file the appeal. It took some time for sett­ling the terms of appointment and ultimately the case record was sent to the Legal Remem­brancer's office on March 10, 1970, with request to file the appeal on revision with an application for condonation of delay. The memorandum of appeal was presented on March 16. 1979.
 
5.    From the facts stated above it app­ears that the requiring body was not at all diligent in the matter of taking steps for filing appeal. The High Court rightly   remarked that there were no facts to explain as to why the requiring body took 56 days for sending the case record to the Legal Remem­brancer with instruction to file the appeal; and that in the absence of any affidavit or application filed by the requiring body, the learned Judges felt it difficult to condone the delay on the ground that the appellant was prevented by sufficient cause to present the memorandum of appeal in time.
 
6.    The learned Assistant Attorney-Gene­ral practically repeated the same submiss­ions as made before the High Court that delay was on account of the lime consumed in processing matter in the departments, and there was no wilful laches in the matter. He, however, submits 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 out of time, although in the instant ease period of limitation is three years as provided under Article 181 of the Limitation Act was available.
 
7.    We do not find any in any of the contentions raised by the learned Assistant Attorney- General. Firstly, the delay in filing appeal could not lie explained and we do not find any wrong in the order refusing to condone the delay; and secondly, it having been conceded that for preferring no appeal the provisions of the East Bengal (Emergency) Requisition of Property Rules, 1948 were applicable the period of limitation in this re­gard would be governed by rule 16 of the said Rules which provides that such' an ap­peal is required to be tiled within 6 weeks from the date of receipt of the-notice of intimation from the Arbitrator about the making of the award, accordance with this Rule, the appeal was required to be filed by- January 19, 1970 but the appeal was filed on March 16, 197o, that is, out -of -time by 56 days. In our opinion, the High Court was fully justi­fied in applying the principle as laid down in the case of Central Excise, Lyallpur V. Ch. Fakir Muhammad, (1958) 10 DLR (SC) 165 to the effect that no extended per­iod of limitation is provided for Government as litigants before this Court; and the Go­vernment, enjoying unusual facilities for preparation and conduct of their cases as against those available to private litigants, the Go­vernment do not need any greater latitude in respect of limitation than the ordinary litigant. We do sot find any substance in this appeal.
 
In the result, the appeal is dismissed. We make no order as to cost.
 
Ed.