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PETITIONER: DEPUTY COLLECTOR NORTHERNSUB DIVISION, PANAJI

       Vs.

RESPONDENT: COMUNIDADE OF BAMBOLIM

DATE OF JUDGMENT26/07/1995

BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. PARIPOORNAN, K.S.(J)

CITATION:  1996 AIR  148            1995 SCC  (5) 333  1995 SCALE  (4)721

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R       This  appeal by special leave arises from the order of the judicial Commissioner Goa, Daman and Diu dated April 28, 1978. The  judicial Commissioner by the said order dismissed the appeal  on two  grounds namely  the appeal was barred by limitation and the Vakalatnama had not been filed by counsel for the  State. The  admitted facts  are that a Notification was issued  under s.4  of Land  Acquisition Act,  1894  (for short ’the  Act’) dated  january 21, 1965 acquiring the land situated at Bambolim for public purpose, namely,construction of Medical  College. The  Land Acquisition  Officer made his award on March 30, 1966. The Code of Civil procedure and the Arbitration Act  were extended  to Goa, Dam Diu on September 15,  1965  and  were  applied  and  came  into  force  by  a Notification dated  24th May,  1966. The  Award of the Civil Court was  made on  reference under  s. 18  on June  1,1967. Dissatisfied with  enhanced compenstion awarded by the Civil Court the  appellant filed  the appeal  on August 25,1967 in the Comarca  Court which  is a  civil court  under the  Act. Thereafter it  would appear  that  there  was  a  procedural difficulty, in  which the  Govt. Pleader  appearing for  the State was  unable to decide under what code he was to pursue the remedy  whether it  would be under "Recurso de Apelacao" under the  portuguese  Code  or  under  the  Code  of  Civil Procedure. To  that effect  a memo  was filed  by the  Govt. Pleader on  June 22,  1966 that  he was  pursuing the appeal under  the  Code  of  Civil  procedure  without  giving  up, pursuing the remedy under "Recurso de Apelacao". Ultimately, the judicial  Commissioner came to the conclusion that since the Code  of Civil procedure was extended and acqisition was initiated under  the Act  and the  appeal came  to be  filed under s.54  of the  Act, it  was not  within the  prescribed period. Hence  the appeal had to be barred by limitation. It also found  that since  the counsel  appearing for the State had not  filed the  Vakalatmama the  appeal was not properly

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presented.      The  crucial   question  is   whether  the  appeal  was presented bona  fide within  limitation. It  is true that if the appeal  is filed  under Recurso  de Apelacao" it is well within time. If appeal is entertained under s.96 of CPC read with s.54  of the Act, it is beyond limitation. The question is whether  the appellant was pursuing the remedy bona fide. It is  contended for  the respondent  that there are no bona fides on  the part  of the State and, therefore, s.14 of the Limitation Act  cannot be  applied  to  the  facts  in  this appeal. We  are unable  to agree with the counsel. The State is acting  through its  authorised  representative  and  the counsal was in two minds, as to whether the appeal should be pursued under  the portuguese  Code or  under  C.P.C.  Since C.P.C. stood  exetended to  G.D.D. on  September 15, 1966 by which date there was a decree passed by the Reference Court, obviously the  proceedings should be pursued under C.P.C. as per s.53 of the Act. Therefore, the counsel was pursuing the remedy wrongly  under the  Portuguese Code.  In consequence, the appeal  came to be filed beyond limitation. Accordingly, there are  bona fides  in pursuing the remedy. The State was represented by  the counsel and the counsel was in two minds as to  whether  the  appeal  should  be  pursued  under  the portuguese Code  or under the Code of Civil procedure, There is a  bona fide  mistake on  the  part  of  the  counsel  in pursuing the  remedy.  Since  the  State  acts  through  the counsel for  the State  and he  is entitled to represent the State in  all the  proceedings initiated in the Court, there was no need to file Vakalatnama but memo of appearance would be  sufficient.   Accordingly  the  order  of  the  Judicial Commissioner is set aside.      Since the matter is being remanded to the High Court at Goa, the  High Court  is requested  to dispose of the appeal expeditiously preferably  within a period of six months from the date  of the receipt of the order. The appeal is allowed accordingly. No costs.