Uttarakhand High Court opines on Condonation of Delay and Right to Property

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Case Name: Rajesh Sah and Ors. v. State of Uttarakhand through Collector, Nainital and Anr. Writ Petition No. 170 of 2018 

Excerpt

The High Court of Uttarakhand examined the Principles of the Limitation Act and the nuances of land acquisition in India, since the repeal of The Right to Property as a Fundamental Right. 

Facts 

The Writ Petition arose out of the acquisition of land belonging to the Petitioner as reserved forest land situated in village Chakmoti Bagh, Tehsil, Nainital. The proceedings took place before the Forest Settlement Officer, under the Indian Forest Act, 1927. The Petitioners contended that since they were the recorded owners of the property in question, they may be paid adequate compensation, and this was to be determined by the Forest Settlement Officer. The Respondent State invoked the provisions contained under Section 4 of the Indian Forest Act of 1927 and issued a notification, intending to declare land in question as Reserved Forest Land. A consequent notification was issued to solicit oppositions, if any, to the proposed land acquisition. The Petitioners filed an opposition, which was registered subsequently as the abovementioned case. The Forest Settlement Officer had written to the Joint Secretary, State of Uttarakhand, informing about the decision taken by it for determination of the compensation, which was to be made to the Petitioners by giving a reference written to the Chief Conservator of Forest for determination of the adequacy of the compensation. Besides, the Petitioners also filed an RTI asking for information regarding the decision which had been taken for the Petitioners’ representation, and the parameters that had been adopted by the respondents for determination of compensation as decided by the authorities. 

As for the Petitioners, they did not refute the veracity of the determination of compensation by the Forest Settlement Officer, but as far as their grievance in the present Writ Petition was concerned, it was limited to the extent that the appeal which was preferred by the State, under Section 17 of the Forest Act before the District Judge, Nainital, since it was a highly belated appeal, which was preferred under Section 17, which though it did accompany with an application seeking condonation of delay of one year and four months, which had occurred in the filing of the appeal by the State. The said application was registered subsequently along with the opposition of the Petitioners to the condonation delay. 

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Arguments for the Petitioners 

The Petitioners’ Counsel argued that seeking condonation of delay, was not maintainable since the proceedings were regulated by the provision of a special statute which itself has not made the provisions of the Limitation Act applicable, hence the Limitation Act could not be not available to the Respondents. They contended that the delay condonation application, filed with the regular application under the Forest Act could not be reviewed, by applying the general principles of limitation. 

The Petitioners also contended that Section 29 (2) which provided the savings clause and had been relied on by the Respondents could not apply, as the language of the statute itself precluded it from application in the present case. Arguing that this provision would be relevant only if the proceedings were being held by the ‘Courts’ and since District Judge, mentioned in Section 17, would not fall in that category, Section 29 (2), could not be made applicable in the present circumstances of the case.

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The Counsel argued, relying on several authorities such as the language used in Sections 35, 35B, 35EE, 35G, and 35H, and contended that the language used in these provisions made the position clear that the legislature intended to entertain appeals by condoning delays only up to 30 days after expiry of the prescribed 60 days which was the preliminary limitation period for preferring an appeal. In the absence of any clause condoning the delay by showing sufficient cause after the prescribed period, there was complete exclusion of Section 5 of the Act.

Arguments for the Respondents 

The Counsel for the Respondents submitted that in a case like this where the Act was silent about the applicability of the provisions of the Limitation Act, the Savings Clause given under Section 29 (2) of the Limitation Act, will positively come into play. The Respondents argued that their application for condonation of delay in an appeal preferred under the Forest Act, would be indeed maintainable and that it had been rightly considered by the learned District Judge. They also argued that since this was also an appeal under the Forest Act, which did not exclusively exclude the applicability of the Limitation Act, by any form of an exclusion clause, the provision of the Limitation Act would apply under the statute. 

Observations of the Court

The Court observed the principles laid down by the Supreme Court in Rajeev Sarin and Another vs. State of Uttarakhand and Others (2011) 8 SCC 708, where the Court dealt with the impact of Article 300A of the Constitution of India and “the aspect of a deprivation of a property suffered by a person as a consequence of the acquisition, it had been held that the deprivation of property might be that by the virtue of the Amendment made in the Constitution vide Article 19(1)(f) might have been deleted and that while the Right to Property was no longer a Fundamental Right, its deletion had to be read with the insertion of Article 300A. It also observed that any compensation offered for any acquisition “could not be artificial and illusionary” and had to be an actual and valid determination and that wherever it was a matter of determining compensation, which was to be paid and any auxiliary rights and was given to a Court, the Principles of Limitation under Section 29 (2) would indeed be applicable. 

Therefore, the authorities relied upon by the Petitioners in the matter did not apply to the ‘District Judge’ and did not apply to the Court, and that the arguments of the Petitioners’ Counsel could not apply to this context. The court held that the District Judge therein was a Court that determined compensation as mandated by the Constitution and thereby determined the civil rights of the parties involved and therefore would fall within the definition of ‘Court’. Following these reasons, the Court dismissed the Petition. 

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Click here to view the Judgement.


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