ORDER N. N. Mithal, J.
1. This appeal under S. 54 of the Land Acquisition Act has been filed by the State of U. P. The appellant moved two applications at the time of filing this appeal. One appliction was for stay of execution of the decree and the other one for time to make good the deficient court fee. The second application was allowed and two months time was granted to pay up the court fee. The requisite court fee stamps were supplied on 16-9-1991. The other appliction could riot be disposed of as the appeal was reported to be beyond time by 91 days. As yet, no application seeking condonation of delay under S. 5 Limitation Act has been filed.
2. The respondents have also appeared by filing a caveat through Sri S.-K. Garg, Advocate. The appellant seeks to justify the filing of the appeal without any application under S. 5 Limitation Act. It was urged that since an appeal under Sec. 54 of the Land Acquisition Act is not regulated by Limitation Act no application under S. 5 thereof was essential. It was further urged that even assuming that the appeal was governed by Limitation Act there was no prescribed period of Limitation for filing such an appeal.
In view of these twin submissions it is urged that the appeal cannot be dismissed as barred by time.
3. The pith and substance of the argu ment is that the Land Acquisition Act is a complete Act in itself and wherever it was so required the Act itself prescribes its own period of Limitation for performing the neces sary acts thereunder. In such circumstances aid of Limitation Act cannot be sought unless it was specifically made applicable to pro ceedings under the Act. It was contended that no provision of Limitation Act, 1963 has been made applicable to Land Acquisition Act and therefore no plea as to bar of limitation can be raised to defeat an appeal under S. 54 of the Land Acquisition Act.
4. The argument though apparently attractive cannot be sustained on a closer scrutiny; The scheme of the Land Acquisition Act will reveal that during the process of a acquisition the proceedings take place in two distinct forum. The initial proceedings falling under Part-II of the Act are taken before the collector while later part of the proceedings falling under Ch. III lie within courts domain. After the collector makes his award under Sec. 11 of the Act the claimant (erstwhile owner of the property under acquisition) is given the right to challenge the collector's award by making an application setting out the objection or grounds on which the collector's award is challenged. The collector is then under an obligation to refer this application to the Court along with a statement as prescribed by Sec. 18 of the Land Acquisition Act. Proceedings before the Court on such reference are taken in open court as prescribed under Sec. 22. According to S. 26 the award must be in writing and signed by the Judge and shall specify the amount of compensation for the land and other things in accordance with S. 23 of the Act. S. 26(2), however, creates a legal fiction and grants the status of a decree and judgment to the Courts' award and the reasons for the award, respectively within the meaning of S. 2(2) and 2 sub-clause (9) of the Civil P.C.
5. In the background of this scheme of things we have to examine the question raised.
It is undisputed that by virtue of S. 53 of the Act Civil P.C. applies to 'all proceedings' before the Court save to the extent of any inconsistency with this Act. 'Court' as defined in S. 3(d) means a "Principal Civil Court of original jurisdiction" unless" appropriate Govt. appoints a Special Officer to perform the functions of the Court. The 'principal Civil Court of original civil jurisdiction is that of the District Judge as defined in Sec. 53(5) of the General Clauses Act (Act No. X of 1897) and read with Bengal, Agra and Assam. Civil Courts Act, 1887 the District Judge will also include the Additional District Judge.
6. Thus, so far as proceedings initiated in the court on a reference under S. 18 of the Land Acquisition Act, 1894 are concerned these are to be governed by the Code. The proceedings under S. 18 are to be taken in the Court and the nature of these proceedings is that of a suit to which the code has been specifically, applied. There is ample case law which lays down that the court can exercise power to amend in appropriate cases, AIR 1981 Allahabad, 92 : (1981 All LJ 93) Zameer Ahmad v. State of U. P., it can review its order under 0.47, 1966 (1) MLJ 302, K. Dhanapalan v. Asstt. Collector, and can set aside dismissal in default, ILR 41 Madras 943 Manavi Kraman v. Collector of Nilgris. In this connection it may be pointed out that the effect of S. 53 of the Act in reality is to put a person applying for reference under S. 18 in the same position as that of a plaintiff in a suit. AIR 1967 Gujrat 154, Mohan Mulji v. Special Land Acquisition Officer and AIR 1982 Allahabad 394, Smt. Katori Devi v. Collector. It appears that S. 53 deals with provisions as to procedure to be followed in deciding reference under S. 18 but prescribed nothing regarding appeal against the award of the Court. Provision for an appeal is to be found in S. 5 of the Land Acquisition Act. According to S. 54 an appeal against an award shall lie only to the High Court. The relevant portion of S. 54 reads as under:
"Subject to the provisions of the Code of Civil Procedure, 1908 (V of 1908), applicable to appeals from original decrees, and notwithstanding anything to the contrary in any enactment for the time being in force, an appeal shall only lie in any proceedings under this Act to the High Court from the award, or from any part of the award of the court....."
This section relating to appeal is in two parts. The earlier part prescribes that provisions of the Code as applicable to appeals from original decree shall apply to an appeal under this section. The second part limits the forum of appeal only to the High Court.
7. The submission was that S. 54 merely provides for an appeal against the award and that it shall lie only to the High Court but it, does not prescribe any time limit for filing the appeal. In this connection we have been taken through the various provisions of the Limitation Act, 1963 to show that there was nothing therein which may prescribe any limitation for an appeal under S. 54. Parts I and III of the schedule in the Limitation Act, 1963 deals with suits and applications respectively and only part II thereof relates to appeals. None of the articles in that part specifically apply to an appeal under S. 54, L. A. Act.
8. This however is not the end of the matter because the Amending Act XIX of 1921 introduced certain changes in Ss. 26 and 54 of the L. A. Act of a far reaching importance. Sub-clause (2) was added in S. 26 which is very material for our purpose. It has the effect of according the status of decree and judgment to the award and the grounds contained therein. A legal fiction is thus created. The reference proceeding, though not termed as a suit within the meaning of CPC, has been made amenable to the code by Sec. 53. Although proceedings under S. 18 of the Act are not initiated by filing a plaint as in the case of a suit but it takes root only when the reference application made by the claimants is forwarded by the Collector to the Court, yet for all practical purposes it is proceeded as a suit and culminates in an award. Under S. 26(1) the award has to be made in writing and signed by the Judge. In the award the amount awarded as provided by S. 23(1) of the Act is also to be specifically mentioned. This final award is deemed to be a decree within the meaning of Sec. 2(2) CPC and the grounds for granting compensation is to be deemed as "Judgment" under Sec. 2(9) CPC. As a result, the reference proceedings before the Court partakes the nature of a suit though initiated by a reference application and not by filing of the plaint. The final result of adjudication by the court though called an award, by legal fiction created by Sec, 26(2), is given the status of a decree under S. 2(2) of the Code.
9. The legal position as to any legal fiction created by a statute is that having regard to the purpose sought to be achieved, the court should assume all the facts to be true and give effect to all the consequences incidental to it and to all inevitable corollaries, AIR 1988 SC 191. (J. K. Cotton Spinning & Weaving Mills Ltd. v. Union of India). The only care which must however be taken is that in applying legal fiction one should not travel beyond the limits for which it has been created.
10. The very purpose of the fiction created by Sec. 26(2) is to put the award at par with the decree of the Civil Court. Once the award is deemed to be a decree against which an appeal lies to the High Court in view of Sec. 54 the natural consequence must follow and such an appeal must be deemed to be one governed by S. 96 CPC in so far as it relates to appeal from original decree.
11. The same conclusion will also be realised by analysing the provisions of Sec. 54 the first part whereof bestows primacy to the C.P.C. as the expression "subject to the provisions of C.P.C." occurring in that part would indicate. The next part of the section begins with a nonobstante clause and Us supervening effect is as to limit the forum of appeal exclusively to the High Court, despite there being a contrary provision in some other enactment. The cummulative legal effect of these two provisions is that although appeal will be governed by provisions of the code including the manner and other formalities of filing an appeal against an original decree (Sec. 96 C.P.C.), yet the forum of appeal in all cases shall invariably will be confined to the High Court. AIR 1989 SC 117 (Sic).
12. A question akin to this came up before a Full Bench of this Court long back in the year 1912 in the case of Dropadi v. Hira Lal, ILR 34 All 496 : (10 All LJ 3). The question arising for considertion in that case was in respect of an appeal under S. 46 of the Provincial Insolvency Act for which no period of limitation is prescribed under that Act, although provisions of the Civil P.C. are applicable to those proceedings. The question raised was whether on general principles, the Limitation Act would be applicable in such an appeal. After reviewing a large number of cases on the subject the Court observed as under :
"In many, if not most, cases the Civil P.C. is made applicable, with the result that an appellant must produce a copy of the order against which he is appealing. It is reasonable to suppose that the Legislature intended to give him time to procure a copy of the order. The general provisions of the Limitation Act are founded mainly upon equitable considerations which apply as much to periods of limitation prescribed by the Limitation Act itself."
13. Proceeding further the Court considered whether provision of Insolvency Act was a complete code in itself so that the provisions of the Limitation Act could not be applied to it. On this question also after alluding to various decisions the Court had this to observe :--
"There remains the question whether the Provincial Insolvency Act is a complete Code in itself. In our opinion it is not. In order to ascertain the procedure to be followed in original, appellate or revisional proceedings, one has to refer to the Code of Civil Procedure. It appears to us that the object of Section 47 of the Act was to attract the provisions of the code of Civil Procedure, There are several Acts, for example, the Succession Act, the Probate and Administration Act, and the Land Acquisition Act, which make the Code of Civil Procedure applicable to proceedings under the Act and give a right of appeal to the High Court, but do not prescribe any period of limitation for the appeal. It has always been assumed, probably rightly, that such appeals are appeals under the Code of Civil Procedure, governed by what is now Article 156 of Schedule I to the Limitation Act and by the General Provisions of the Act also. Subsection (4) of Section 46 of the Provincial Insolvency Act does not seem to a have been required, but whether it was required or not, we do not think that it can have been inserted for the purpose of rendering the general provisions of the Limitation Act inapplicable."
The above observations of the Full Bench clearly indicates that when aspecial Act is not a complete Code in itself and seeks support for its procedure from the Civil P. C. then, whether or not any special period of limitation is prescribed on general principles the provisions of the Limitation Act would be applicable to such appeal. The Full Bench in the above case specifically referred to the provisions of the Land Acquisition Act also where under Section 53 makes the Civil P. C. applicable to all proceedings before the Court. Even the appeal under S. 54 is governed by the Civil P. C.
14. We will be failing in our duty if we do not refer to another important decision reported in Ramasami Pillai v. The Deputy Collector of Madurai, ILR 3 Madras 51. The Division Bench of that Court was called upon to decide the question whether Article 156 of the Limitation Act (equivalent to Art. 115 of the Limitation Act 1963) applies to appeals filed under S. 54 of the Land Acquisition Act. The relevant portion needs to be quoted here as under :--
"There is no special period of limitation provided for in the Land Acquisition Act, nor is there any allusion, unless it be by implication of this very section, to the Limitation Act. Article 156 of the Limitation Act provides a period of 90 days for "appeal under the Civil P. C. 1908, to a High Court, except in the cases provided for by Art. 151 and Art. 153', the time to the argument on behalf of the appellant is that you must read the first column of the article as meaning that the appeals provided for here are those the right to which is conferred by the Civil P. C., and it is contended that this interpretation is strengthened by the language of column 3."
15. The above contention raised in the appeal was met by the Bench by relying upon a decision of the Calcutta High Court which also interpreted the term appeals under the Civil P. C. used in Article 156 of the Limitation Act as meaning appeals, procedure in respect of which is governed by the Civil P. C.
16. The Bench then quoted the following para of the Calcutta case :--
"The Limitation Act, Schedule II, Art. 156, when it speaks of the Civil P. C., is on the face of it, speaking of a Code which relates to procedure, and does not ordinarily deal with substantive rights and the natural meaning of an appeal under the Civil P. C. appears to us to be an appeal governed by the Civil P. C. so far as procedure is concerned."
17. After the above question the Court proceeded to observe as under :--
"It seems to us that this is the correct interpretation of Art. 156. There seems to be no good reason for saying that an appeal under the Civil P. C. means only an appeal the right to prefer which is conferred by the Code itself. On the other hand it would not be straining the language of the article too much to hold that an appeal, the procedure with respect to which, from its inception to its disposal, is governed by the Civil P. C., may rightly be spoken of as an appeal under the Code; this interpretation seems to us to be strengthened by the reference in Art. 156 itself to Art. 151 of the same schedule. Art. 151 provides for appeals from a decree or order of the High Court in the exercise of its original jurisdiction. Now though the right to appeal from such decrees or orders is not given by the Civil P. C. but by the letters Patent Appeal yet Art. 156 speaks of such appeals as appeals under the Civil P. C. That also tends to show that what is meant by the legislature is appeals, the hearing and disposal of which is governed by the rules of procedure laid down in the Civil P. C."
18. In that case the Bench was faced with another difficulty as to whether award on reference u/S. 18 was decreed or not. This does not present any difficulty now since an amendment has been made in S. 26 of the Act and as we have seen earlier the award and the reasons are now to be treated as a decree and judgment within the meaning of S. 2 of the Civil P. C.
19. Thus, it is easy to conclude from the above discussion that nature and form of an appeal against the award of the Court by virtue of S. 26(2) shall be that of a first appeal from an original decree as if the award of the court was a decree otherwise.
20. If the appeal under S. 54 is against decree (award) and the Civil P. C. governs it, it must have all the trappings of an ordinary civil appeal against original decree. That being so, provision of Limitation Act, 1963 in so far as these relate to an appeal against the decree to the High Court is concerned must also apply to it. This wilt also make S. 5 equally relevant.
21. Our considered view therefore, is that an appeal under S. 54, L. A. Act is, in substance, an appeal against the original decree governed by the Code and is equally amenable to the provisions of Limitation Act.
22. Having disposed of the preliminary point against the appellant, we may now proceed to consider whether the appeal can be entertained in the absence of any application under S. 5 of the Limitation Act. Section 5 of the Limitation Act casts a duty on the Courts to dismiss any application, suit or appeal where the same appears to have been filed beyond the prescribed period of Limitation except to the extent it may be saved by S. 5 of the Act. O. 41, R. 3-A of the Code ordains that an appeal which is presented after the expiry of the period specified therefor must invariably be accompanied by an application supported by affidavit setting forth the facts on which the appellant relies to satisfy the court that he had sufficient cause for not preferring the appeal within such period. In the face of this clear provision is required is that the memo of appeal must be accompanied by an application duly supported by affidavit explaining cause for delay. In this case this mandatory provision has not been complied with even uptil now. The Court, therefore, has no other option but to reject the memo of appeal is being barred by time.
23. Memo of appeal is accordingly rejected.
24. Order accordingly.