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CASE NO.: Appeal (civil)  4688 of 1998

PETITIONER: Gopal Sardar                                             

RESPONDENT: Karuna Sardar                                            

DATE OF JUDGMENT: 09/03/2004

BENCH: Shivaraj V. Patil & D.M. Dharmadhikari   

JUDGMENT: J U D G M E N T WITH CIVIL APPEAL NO. 444 OF 2000

SHIVARAJ V. PATIL J.

CIVIL APPEAL NO. 4688 OF 1998

The respondent made an application under Section 8  of the West Bengal Land Reforms Act, 1955 (for brevity  ’the Act’) in the Munsif Court claiming right of pre- emption on the basis of vicinage being the owner of  adjoining plots of land purchased on 20.7.1966 and  1.6.1981.  According to her, the appellant tried to  take forcible possession of the plot no. 1368 adjoining  to the east of his land.  It is her case that she came  to know on 18.9.1985 that the appellant had purchased  the said plot no. 1368 on 17.8.1979, which is adjoining  the respondent’s plot no. 1366.  The appellant  contested the case denying the material incidents and  inter alia contending that the application made under  Section 8 of the Act was barred by limitation.  The  Munsif Court condoned the delay on the ground that the  respondent had no knowledge of the sale till the date  of application and that there was sufficient cause for  not making the application within time but dismissed  the application on merits finding that on the date of  transfer, the respondent was not possessing the longest  common boundary.  The appeal filed by the respondent  against the said order of the Munsif Court was  dismissed by the learned Addl. District Judge both on  the ground of limitation as well as on merits.  In  other words, on merits, the learned Addl. District  Judge concurred with the finding recorded by the Munsif  Court and reversed its finding on the limitation  holding that the application filed by the respondent  was barred by time.  The respondent approached the High  Court by filing a revision petition under Section 115  of the Code of Civil Procedure.  The High Court held  that the period under Article 137 in the Schedule of  the Limitation Act, 1963 (for short ‘Limitation Act’)  was applicable to the case.  In that view, the High  Court upheld the order passed by the Munsif Court  condoning the delay for making the application.  The  High Court also held that the respondent was entitled  to get the order of pre-emption on the basis of  purchase in 1966 in view of the amendment of 1981.  In

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the result, the High Court set aside the order of the  Addl. District Judge and remitted the case to the first  appellate court (District Judge) to decide on merits.   Hence, this appeal.

CIVIL APPEAL NO. 444  OF 2000

       The appellant made an application to enforce right  of pre-emption under Section 8 of the Act as a  contiguous land owner in the Munsif Court stating that  he came to know about the sale deed of the land in  question on 18.2.1989.  She immediately rushed to the  office of the sub-Registrar and on search came to know  of the existence of the sale deed dated 27.5.1983.  The  application under Section 8 was filed within time from  the date of knowledge; an application under Section 5  of the Limitation Act also was filed for condonation of  delay in filing the application under Section 8 of the  Act; the Munsif Court dismissed the application filed  under Section 5 of the Limitation Act; consequently  rejected the application filed under Section 8 of the  Act.  Aggrieved by the said order of the Munsif Court,  the appellant filed Civil Revision No. 56 of 1991 in  the District Court under Section 115-A of the Code of  Civil Procedure; the learned District Judge condoned  the delay in making application under Section 8 of the  Act applying Article 137 of the Limitation Act, set  aside the order of the Munsif Court and remitted the  case to the Munsif Court to decide the application made  under Section 8 of the Act on merits.  The respondent  moved the High Court under Article 227 of the  Constitution of India challenging the aforementioned  order of the District Judge.  The High Court by the  impugned order, set aside the order of the learned  Addl. District Judge holding that the claim made by the  appellant was barred by limitation following the  Division Bench decision of the High Court reported in  Serish Maji vs.  Nishit Kumar Dolui [1999 (1) C.H.N.  365].  Consequently, the High Court dismissed the  application filed by the appellant under Section 8 of  the Act.  Hence, this appeal.

Mr. Ranjit Kumar, learned senior counsel for the  respondent in C.A. No. 444 of 2000 and Shri Shibshankar  Sarkar, learned senior counsel for the appellant in  C.A. No. 4688 of 1998 contended that an application  made under Section 8 of the Act is a suit; hence  Section 5 of the Limitation Act does not apply in  making an application under Section 8 of the Act;  Schedule to the Limitation Act contains three  divisions, relating to suits, appeals and applications  respectively; Article 97 of the Limitation Act relates  to enforcement of right of pre-emption and there is no  reference to pre-emption suit anywhere else in the  Schedule;  Under Article 97, the period of limitation  prescribed is one year.  As per Section 29(2) of the  Limitation Act, the period of limitation prescribed  under any special or local law for any suit, appeal or  application is different from the period prescribed in  the Schedule of the Limitation Act. Section 3 of the  Limitation Act shall apply as if such period is the  period prescribed by the Schedule of the Limitation Act  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

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contained in Sections 4 to 24 shall apply in so far as  and to the extent to which they are not expressly  excluded by such special or local law. The learned  senior counsel submitted that under Section 14H of the  Act, a period of limitation is prescribed for filing an  appeal or revision; in the second proviso thereto, it  is expressly provided that Section 5 of the Limitation  Act shall apply to an appeal under the said Section.  Under Section 14(O) for filing an appeal, 30 days is  the period of limitation prescribed. Expressly,  provision is also made in the same Section enabling the  appellate authority to permit further time for filing  an appeal on sufficient cause being shown.  Again under  Section 19(2), a period of limitation of 30 days is  prescribed for filing an appeal and in the proviso  attached to the said sub-section, it is clearly and  expressly stated that the provisions of Section 5 of  the Limitation Act shall apply to an appeal under the  said Section.  Under Section 8 of the Act, for filing  an application for pre-emption, various periods of  limitation are prescribed but unlike under other  provisions aforementioned, no provision is made for  applying Section 5 of the Limitation Act.   Hence, by  necessary implication the application of Section 5 of  the Limitation Act is excluded to such proceedings.  It  was also urged that the Act is a complete Code relating  to pre-emption proceedings.  Even after amendment of  certain provisions of the Act, no such provision was  made under Section 8 to apply Section 5 of the  Limitation Act.  The learned senior counsel cited few  decisions in support of their submissions.  They urged  that the impugned order in C.A. No. 4688 of 1998 cannot  be sustained and the impugned order made in C.A. No.  444 of 2000 is to be upheld.

Mr. M.N. Krishnamani, learned senior counsel for  the appellant in C.A. No. 444/2000 and the learned  counsel for the respondent in C.A. No. 4688/1998  contended that Sections 8 and 9 of the Act speak of  ‘application’ and not of ‘suit’; hence, Section 5 of  the Limitation Act applies; exclusion of application of  provisions of Limitation Act is to be made in special  Act and such exclusion must be made expressly as  required under Section 29(2) of the Limitation Act;  there is no scope for implied exclusion contrary to the  statutory requirement.  They also cited some decisions  in support of their case.  In reply, Shri Ranjit Kumar,  the learned senior counsel, drew our attention to  section 8 of the Limitation Act.

In the light of the submissions made by the  learned counsel for the parties in both these appeals,   basically the only short question that arises for  consideration is whether Section 5 of the Limitation  Act is applicable to an application made under Section  8 of the Act having regard to Section 29(2) of the  Limitation Act.  Ultimate result in these appeals  depends on the answer to this question.

Before finding an answer to the question, it is  both useful and necessary to reproduce relevant  portions of the provisions of the Act and Limitation  Act: -

West Bengal Land Reforms Act, 1955

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"8.     Right of purchase by co-sharer or  contiguous tenant \026 (1)      If a portion or  share of a plot of land of a raiyat is  transferred to any person other than a co- sharer of a raiyat in the plot of land, the  bargadar in the plot of land may, within  three months of the date of such transfer, or  any co-sharer of a raiyat in the plot of land  may, within three months of the service of  the notice given under sub-section (5) of  Section 5, or any raiyat possession land  adjoining such plot of land, may, within four  months of the date of such transfer, apply to  the Munsif having territorial jurisdiction  for transfer of the said portion or share of  the plot of land to him, subject to the limit  mentioned in section 14M on deposit of the  consideration money together with a further  sum of ten per cent of that amount."

"14H.   Appeal and revision \026 An appeal, if  presented within thirty days from the date of  the order appealed against, shall lie to the  Munsif having jurisdiction from any order  made under sub-section (4) of section 14C or  Section 14E or Section 14G and his order  shall be final:

Provided that an application for  revision or modification of the order passed  by Munsif on appeal shall lie to the District  Judge if made within sixty days from the date  of the order:          Provided further that the provisions of  Section 5 of the Limitation Act, 1963 (Act 36  of 1963) shall apply to an appeal under this  Section."

"14-O.  Appeal \026     Any person who is  aggrieved by any determination made by the  prescribed authority under Section 14N may,  within thirty days from the date of such  determination or within such further time as  the appellate authority may, on sufficient  cause being shown, allow, prefer an appeal to  such authority as the State Government may,  by notification in the Official Gazette,  specify in this behalf, against such  determination."

"19.    Appeal \026 (1) An appeal shall lie  to the Collector, having jurisdiction over  the area in which the land is situated,  against any order made under Section 17 or  Section 18 or sub-section (3) of Section 21.   The Collector shall, on an appeal being  disposed of, send a copy of his order to the  officer or authority whose decision is  appealed against.

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(1A)    ...................

(2)     The period within which the appeal  mentioned in sub-section (1) must be filed  shall be thirty days from the date of the  order appealed against:

Provided that an appeal against any  order referred to in sub-section (2) of  section 18A made before the commencement of  the West Bengal Land Reforms (Amendment) Act,  1960 may be filed within ninety days of such  commencement:

Provided further that the provisions of  Section 5 of the Indian Limitation Act, 1908  shall apply to an appeal under this  Section."

(Emphasis supplied)

Provisions of Limitation Act:-

"2.  Definitions \026  In this Act, unless the  context otherwise requires, -

(a)     ...............................  

(b)     "application" includes a petition.

(c) to (k) ..............

(l)     "suit" does not include an appeal or an  application;"

"3.     Bar of limitation \026 (1)      Subject to the  provisions contained in Sections 4 to 24  (inclusive), every suit instituted, appeal  preferred, and application made after the  prescribed period shall be dismissed although  limitation has not been set up as a  defence."

"5. Extension of prescribed period in  certain cases - Any appeal or any  application, other than an application under  any of the provisions of Order XXI of the  Code of Civil Procedure, 1908 may be admitted  after the prescribed period, if the appellant  or the applicant satisfies the court that he  had sufficient cause for not preferring the  appeal or making the application within such  period.

Explanation \026 The fact that the appellant or  the applicant was misled by any order,  practice or judgment of the High Court in  ascertaining or computing the prescribed  period may be sufficient cause within the  meaning of this Section."

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"8. Special exceptions \026 Nothing in Section  6 or in Section 7 applies to suits to enforce  rights of pre-emption, or shall be deemed to  extend, for more than three years from the  cessation of the disability or the death of  the person affected thereby, the period of  limitation for any suit or application."

"29.    Savings \026  

(1)     ..................

(2)     Where any special or local law  prescribes for any suit, appeal or  application a period of limitation different  from the period prescribed by the Schedule,  the provisions of Section 3 shall apply as if  such period were the period prescribed by the  Schedule 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  Sections 4 to 24 (inclusive) shall apply only  in so far as, and to the extent to which,  they are not expressly excluded by such  special or local law."

"The Schedule

Description of suit period of   limitation Time from which period  begins to run FIRST DIVISION \026 SUITS Part IX \026 Suits relating to Miscellaneous Matters Article 97:- To enforce a right of pre- emption whether the       right is founded on law or  general usage or on  special contract One year When the purchaser takes under  the sale sought to be impeached,  physical possession of the whole  or part of the property sold, or,  where the subject matter of the  sale does not admit of physical  possession of the whole or part  of the property, when the  instrument of sale is registered. SECOND DIVISION \026 APPLICATIONS

Description of application  period of   limitation Time from which period  begins to run Part II \026 Other Applications Article 137 For any other application   for which no period of   

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limitation is provided               elsewhere in this division 3 years   When the right to apply accrues."

       In Section 8 of the Limitation Act there is  reference to suits to enforce rights of pre-emption  stating therein that nothing in Section 6 or Section 7  applies to suits to enforce rights of pre-emption, or  shall be deemed to extend, for more than three years  from the cessation of the disability or the death of  the person affected thereby, the period of limitation  for any suit or application.  In Article 97 of the  Schedule appended to the Limitation Act under the  heading suits relating to miscellaneous matters there  is reference to enforcement of rights of pre-emption.   Thus, there is reference to suits in Section 8 and  Article 97 of the Limitation Act, but there is no  reference to an application for enforcement of right of  pre-emption.  Having regard to the fact that the Act is  a self-contained Code in relation to the enforcement of  rights of pre-emption and looking to the provisions of  the Limitation Act, as stated above, it appears to us  that when one applies for enforcement of rights of pre- emption under Section 8 of the Act, the proceedings  initiated are in the nature of a suit.  The words  "application" and "suit" have been defined in  Section 2(b) and 2(l) of the Limitation Act.   "Application" includes a petition but "suit" does  not include an appeal or an application.  The Division  Bench of the Calcutta in Serish Maji (supra), after  elaborate consideration, referring to various decisions  and on analysis of different provisions, in paras 25 to  50 of the judgment has concluded that a proceeding  initiated by an application of Section 8 is to be  construed as a "suit" for the purpose of the  Limitation Act.  We have good reason to approve the  said view.  This being the position, Section 5 of the  Limitation Act is not attracted to the proceedings  initiated under Section 8 of the Act.  The right  conferred under Section 8 is a statutory right.  Even  otherwise, in our view, the position as regards to  applicability of Section 5 of the Limitation Act to an  application under Section 8 of the Act does not get  altered.  As already stated above, the Act is a self- contained Code inasmuch as the Act provides to enforce  the rights of pre-emption, forum is provided, procedure  is prescribed, remedies including the appeals and  revisions are provided, penalties are indicated for  non-compliance of the orders and powers are given for  restoration of land.  Further period of limitation is  also specifically prescribed to make an application  under Section 8 of the Act and for preferring appeals  or revisions under the provisions of the Act.  All  these and few other provisions are clear enough to  indicate that the Act is a complete Code in itself  dealing with the rights of pre-emption.  Second proviso  to Section 14H specifically provides for the  application of Section 5 of the Limitation Act in the  matter of preferring an appeal or revision.  Section  14-O(1) specifically enables the appellate authority to  allow to prefer an appeal even after the expiry of the  period of limitation prescribed on showing sufficient  cause.  Similarly second proviso to Section 19(2) of

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the Act expressly provides for application of Section 5  of the Limitation Act to an appeal to be preferred  under the said Section. Section 51A of the Act deals  with preparation and revision of record-of-rights. Rule  26 of the Rules framed under the Act provides that  every appeal under Section 51A of the Act is to be  filed within one month from the date of passing of the  order appealed against.  The proviso to the said Rule  states that an appeal may be admitted after the said  period if the appellant satisfies that he had  sufficient reasons for not preferring the appeal within  the said period.  Thus either Section 5 of the  Limitation Act or its principles have been expressly  and specifically incorporated in the various Sections  afore-mentioned. In contrast although Section 8 of the  Act prescribes period of limitation for applying to  enforce pre-emption rights, it does not speak of  application of Section 5 of the Limitation Act or its  principles.  If in the same Act, consciously and  expressly, the Legislature has made provision for  application of Section 5 of the Limitation Act or its  principles expressly and specifically to other  proceedings such as appeal or revision etc. and such a  provision is not made for initiation of the proceedings  under Section 8 of the Act, it necessarily follows that  the Legislature did not intend to give benefit of  Section 5 to the Limitation Act having regard to the  nature of rights of pre-emption which is considered a  weak right.  In a recent decision of this Court in  Mattoo Devi (Smt.) vs. Damodar Lal (deceased) by Lrs. &  Ors. [(2001) 6 SCC 330] in para 8 it is stated thus:- "8.     On the basis of the aforesaid, Subba  Rao, J. with his usual felicity of expression  observed that the general law of pre-emption  does not recognise any right to claim a share  in the property sold when there are rival  claimants and pre-emption is a right to  acquire the whole of the property sold in  preference to other persons. The learned  Judge further relied upon the decision in the  case of Gobind Dayal v. Inayatullah (ILR  (1885) 7 All 775 : (1885) 5 AWN 228 (FB)) as  also the decision of the Lahore High Court in  the case of Mool Chand v. Ganga Jal (ILR  (1930) 11 Lah 258 (FB) : AIR 1930 Lah 356)  and summarised the law pertaining to the  right of pre-emption in the manner as below :  "(1) The right of pre-emption is not a  right to the thing sold but a right to  the offer of a thing about to be sold.  This right is called the primary or  inherent right. (2) The pre-emptor has a  secondary right or a remedial right to  follow the thing sold. (3) It is a right  of substitution but not of repurchase  i.e. the pre-emptor takes the entire  bargain and steps into the shoes of the  original vendee. (4) It is a right to  acquire the whole of the property sold  and not a share of the property sold.  (5) Preference being the essence of the  right, the plaintiff must have a  superior right to that of the vendee or  the person substituted in his place. (6)  The right being a very weak right, it

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can be defeated by all legitimate  methods, such as the vendee allowing the  claimant of a superior or equal right  being substituted in his place."  

       There is yet another good reason for insisting  that right of pre-emption must be exercised within the  period specified under Section 8 of the Act so that the  rights of purchasers of a land cannot be eclipsed for a  long time.  Right of pre-emption was sought to be  exercised after six years and four years from the dates  of transfer respectively as against the period of four  months prescribed under Section 8 of the Act without  any scope for extension of that period.         Sub-section (3)  was added to Section 8 of the Act by the West Bengal  Land Reforms (Amendment) Act, 1972 w.e.f. 15.2.1971.   Prior to 15.2.1971, an application under Section 8 was  required to be made to the "Revenue Officer  specifically empowered by the State Government in this  behalf".  This phrase was substituted by the phrase  "Munsif having territorial jurisdiction" by the  aforementioned amendment.  Even after this amendment  when an application is required to be made before the  Munsif Court, no amendment was made to Section 8 of the  Act either to apply Section 5 of the Limitation Act or  its principles so as to enable a party to make an  application after the expiry of the period of  limitation prescribed on showing sufficient cause for  not making an application within time.  The Act is of  1955 and for all these years, no provision is made  under Section 8 of the Act providing for condonation of  delay.  Thus, when Section 5 of the Limitation Act is  not made applicable to the proceedings under Section 8  of the Act unlike to the other proceedings under the  Act, as already stated above, it is appropriate to  construe that the period of limitation prescribed under  Section 8 of the Act specifically and expressly governs  an application to be made under the said Section and  not the period prescribed under Article 137 of the  Limitation Act.   

       An important departure is made in Section 29, sub- section (2) of Limitation Act of 1963.  Under the  Indian Limitation Act, 1908 Section 29(2)(b) provided  that for the purpose of determining any period of  limitation prescribed for any suit, appeal or  application by any special or local law the application  of Section 5 of the Limitation Act was specifically and  in clear terms excluded, but under Section 29(2) of the  present Limitation Act Section 5 shall apply in case of  special or local law to the extent to which they are  not expressly excluded by such special or local law.   In other words, application of Section 5 of the  Limitation Act stands excluded only when it is  expressly excluded by the special or local law.  The  emphasis of the argument by the learned counsel, who  argued for the proposition that Section 5 of the  Limitation Act is applicable to an application made for  enforcement of rights of pre-emption under Section 8 of  the Act was on the ground that the Act has not  expressly excluded the application of Section 5 of the  Limitation Act.           In Hukumdev Narain Yadav vs. Lalit Narain Mishra  [(1974) 2 SCC 133], a bench of three  learned Judges of  this Court, dealing with election petition under the

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Representation of People Act on the point of limitation  for filing an election petition, after examining the  provisions of the Representation of the People Act and  Section 29(2) of the Limitation Act, has held thus:- "17.  ..... Even assuming that where a  period of limitation has not been fixed for  election petitions in the Schedule to the  Limitation Act which is different from that  fixed under Section 81 of the Act, Section  29(2) would be attracted, and what we have to  determine is whether the provisions of this  Section are expressly excluded in the case of  an election petition.  It is contended before  us that the words "expressly excluded"  would mean that there must be an express  reference made in the special or local law to  the specific provisions of the Limitation Act  of which the operation is to be excluded.  As  usual the meaning given in the Dictionary has  been relied upon, but what we have to see is  whether the scheme of the special law, that  is in this case the Act, and the nature of  the remedy provided therein are such that the  Legislature intended it to be a complete code  by itself which alone should govern the  several matters provided by it.  If on an  examination of the relevant provisions, it is  clear that the provisions of the Limitation  Act are necessarily excluded, then the  benefits conferred therein cannot be called  in aid to supplement the provisions of the  Act.  In our view, even in a case where the  special law does not exclude the provisions  of Sections 4 to 24 of the Limitation Act by  an express reference, it would nonetheless be  open to the court to examine whether and to  what extent the nature of those provisions or  the nature of the subject-matter and scheme  of the special law exclude their operation.   The provisions of Section 3 of the Limitation  Act that a suit instituted, appeal preferred  and application made after the prescribed  period shall be dismissed are provided for in  Section 86 of the Act which gives a peremtory  command that the High Court shall dismiss an  election petition which does not comply with  the provisions of Sections 81, 82 or 117."

(emphasis supplied)

       This Court in Anwari Basavaraj Patil & Ors. vs.  Siddaramaiah & Ors. [(1993) 1 SCC 636], again dealing  with the election petition under Representation of  People Act, after considering the relevant provisions  of the Representation of People Act and Section 29(2)  of the Limitation Act, took a view that the controversy  was practically concluded on the question of  applicability of Section 5 of the Limitation Act by the  decision of this Court in the case of Hukumdev Narain  Yadav (supra).  Para 8 of the said judgment reads  thus:- "8.     In H.N.Yadav vs. L.N. Mishra, this Court   held that the words "expressly excluded"  occurring in Section 29(2) of the Limitation  Act do not mean that there must necessarily

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be express reference in the special or local  law to the specific provisions of the  Limitation Act, the operation of which is  sought to be excluded.  It was held that if  on an examination of the relevant provisions  of the Special Act, it is clear that the  provisions of the Limitation Act are  necessarily excluded, then the benefits  conferred by the Limitation Act cannot be  called in aid to supplement the provisions of  the Special Act.  That too was a case arising  under the Representation of People Act and  the question was whether Section 5 of the  Limitation Act is applicable to the filing of  the election petition.  The test to determine  whether the provisions of the Limitation Act  applied to proceedings under Representation  of People Act by virtue of Section 29(2) was  stated in the following words: (SCC  p.147.para 18)

"The applicability of these provisions  has, therefore, to be judged not from  the terms of the Limitation Act but by  the provisions of the Act relating to  the filing of election petitions and  their trial to ascertain whether it is a  complete code in itself which does not  admit of the application of any of the  provisions of the Limitation Act  mentioned in Section 29(2) of that  Act."

(emphasis supplied)

       A Bench of three learned Judges of this Court in  The Commissioner of Sales Tax, Uttar Pradesh, Lucknow  vs. M/s. Parson Tools and Plants, Kanpur [AIR 1975 SC  1039], dealing with the question of limitation in  relation to revision filed beyond time prescribed by  Section 10 of U.P. Sales Tax Act, 1948, in para 17, has  observed thus: - "17.    Thus the principle that emerges is that  if the legislature in a special statute  prescribes a certain period of limitation for  filing a particular application thereunder  and provides in clear terms that such period  on sufficient cause being shown, may be  extended, in the maximum, only upto a  specified time-limit and no further, then the  tribunal concerned has no jurisdiction to  treat within limitation, an application filed  before it beyond such maximum time-limit  specified in the statute, by excluding the  time spent in prosecuting in good faith and  due diligence any prior proceeding on the  analogy of Section 14(2) of the Limitation  Act."

In the same judgment it is expressed that "where the  legislature clearly declares its intent in the scheme  and language of a statute, it is the duty of the court  to give full effect to the same without scanning its  wisdom or policy, and without engrafting, adding or  implying anything which is not congenial to or

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consistent with such expressed intent of the law- giver".  The conclusion reached by the Division Bench  of the High Court in Serish Maji case (supra) that  Section 5 of the Limitation Act is not applicable to  proceedings under Section 8 of the Act is correct and  acceptable.         Section 8 of the Act prescribes definite period of  limitation of three months or four months, as the case  may be, for initiating proceedings for enforcement of  right of pre-emption by different categories of people  with no provision made for extension or application of  Section 5 of the Limitation Act. When in the same  statute in respect of various other provisions relating  to filing of appeals and revisions, specific provisions  are made so as to give benefit of Section 5 of the  Limitation Act and such provision is not made to an  application to be made under Section 8 of the Act, it  obviously and necessarily follows that the legislature  consciously excluded the application of Section 5 of  the Limitation Act.  Considering the scheme of the Act  being self-contained code in dealing with the matters  arising under Section 8 of the Act and in the light of  the aforementioned decisions of this Court in the case  of Hukumdev Narain Yadav, Anwari Basavaraj Patil and  M/s. Parson Tools (supra), it should be construed that  there has been exclusion of application of Section 5 of  the Limitation Act to an application under Section 8 of  the Act.  In view of what is stated above, the non- applicability of Section 5 of the Limitation Act to the  proceedings under Section 8 of the Act is certain and  sufficiently clear.  Section 29(2) of the Limitation  Act as to the express exclusion of Section 5 of the  Limitation Act and the specific period of limitation  prescribed under Section 8 of the Act without providing  for either extension of time or application of Section  5 of the Limitation Act or its principles can be read  together harmoniously.  Such reading does not lead to  any absurdity or unworkability or frustrating the  object of the Act.  At any rate in the light of the  Three-Judge Bench decision of this Court in Hukumdev  Narain Yadav case (supra) and subsequently followed in  Anwari Basavaraj Patil case (supra), even though  special or local law does not state in so many words  expressly that Section 5 of the Limitation Act is not  applicable to the proceedings under those Acts, from  the scheme of the Act and having regard to various  provisions such express exclusion could be gathered.   Thus, a conscious and intentional omission by the  Legislature to exclude application of Section 5 of the  Limitation Act to the proceedings under Section 8 of  the Act, looking to the scheme of the Act, nature of  right of pre-emption and express application of Section  5 of the Limitation Act to the other provisions under  the Act, itself means and amounts to "express  exclusion" of it satisfying the requirement of Section  29(2) of the Limitation Act.

       The decision in Mangu Ram vs. Municipal  Corporation of Delhi [(1976) 1 SCC 392] is cited in  support of the submission that in the absence of  express exclusion of application of Section 5 of the  Limitation Act in the special law, benefit of Section 5  of Limitation Act could be availed.  In that case,  special leave petitions were filed in this Court  against the condonation of delay to the application for

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the grant of special leave under Section 417 of Cr.P.C.  against acquittal of the petitioners by the trial court  in spite of the mandatory period of limitation provided  in sub-section (4) of Section 417.  The question that  arose in that case was whether the decision of this  Court in Kaushalya Rani vs. Gopal Singh [1964 (4) SCR  982], in which it was held that Section 417 Cr.P.C.  excluded application of Section 5 of the Limitation Act  on a construction of Section 29(2)(b) of the old  Limitation Act of 1908 could be applied under the  corresponding provisions of the Limitation Act, 1963.   The decision of that case turned upon the facts of that  case in criminal appeals by comparison of the provision  of the old Limitation Act to the provision of the new  Limitation Act. The Division Bench of the Calcutta High  Court in Serish Maji (supra), referring to the  observation made in Mangu Ram (supra) that "mere  provision of a period of limitation in howsoever pre- emptory or imperative language is not sufficient to  displace the applicability of Section 5", in para 11  of the judgment, has stated thus:-    

"11.     The observation does not help the  applicant.  It assumes that an imperative  provision coupled with other factors might be  sufficient to exclude the applicability of  the Limitation Act.  Ultimately it would be a  question of interpretation of the special or  local law in question."

Further the decision in Hukumdev Narain Yadav (supra)  was not brought to the notice of this Court when Mangu  Ram case (supra) was decided.  In the light of the  three-Judge Bench decision of this Court in Hukumdev  Narain Yadav we do not find any good reason to take a  different view.

       The case of Mukri Gopalan vs. Cheppilat  Puthanpurayil Aboobacker [(1995) 5 SCC 5] cited in  support of the submission that Section 5 of the  Limitation Act can be applied to a proceeding under  Section 8 of the Act also does not support the  submission for the reasons more than one.  The short  question that arose for consideration in that decision  was "whether the appellate authority constituted under  Section 18 of the Kerala Buildings (Lease and Rent  Control) Act, 1965 has power to condone the delay in  the filing of appeal before it under the said  Section".  On the facts of that case, it is clear that  the question that has arisen for consideration in these  appeals did not directly arise.  In that case, the view  taken by Kerala High Court was that the appellate  authority has no power to condone the delay being a  persona designata.  On examination of the provisions of  the Kerala Act, this Court held that appellate  authority was not a persona designata but it was  functioning as a court.  Further, this Court taking  note of Section 29(2) as it stood in the Limitation  Act, 1908 and Section 29(2) of the Limitation Act,  1963, expressed the view that by virtue of Section  29(2) of the Limitation Act, 1963, the provisions of  Section 5 of the Limitation Act were automatically  applicable.  A Division Bench of the Calcutta High  Court in Serish Maji (supra) has rightly distinguished

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the said case in para 12 thus:-

"12.    Thus in Mukri Gopalan vs. C.P.  Aboobacker (AIR 1995 SC 2272) the Supreme  Court considered the legislative history of  Section 18 of the Kerala Building (Leasing  and Rent Control) Act, 1965 to construe  whether the appellate authority constituted  thereunder has the power to condone the delay  in filing of the appeal before it under that  section.  The Supreme Court noted that the  Rent Act of 1965 was preceded by the Rent Act  of 1959.  The 1959 Act contained a provision  expressly stating that the provisions of  section 5 of the Indian Limitation Act, 1908  would apply to all proceedings under the Act.   According to the Supreme Court, this was  necessary because section 29(2) of the Indian  Limitation Act, 1908 did not include section  5 as one of the provisions to be applied to  special or local laws.  In the Limitation  act, 1963, section 5 has been included in  section 29(2) as one of the provisions which  would apply to special and local laws.   Therefore, when the Rent Act of 1965 was  enacted it was not necessary to include an  express provision incorporating the  provisions of section 5 of the Limitation  Act, because by virtue of section 29(2) the  provisions of section 5 would get  automatically attracted."

       Incidentally it may also be mentioned that this  decision also was rendered by two learned Judges of  this Court.  Thus, in our view, this case of Mukri  Gopalan (supra) does not help to say that Section 5 of  the Limitation Act is applicable to proceedings under  Section 8 of the Act.         Having regard to all aspects we answer the  question set out above in the negative.         Once it is held that the benefit of Section 5 of  the Limitation Act is not available to the proceedings  under Section 8 of the Act and the applications filed  under Section 8 of the Act are to be dismissed on that  ground, it is unnecessary to go into the merits of  these appeals on other issues.         We conclude that Section 5 of the Limitation Act  cannot be pressed into service in aid of a belated  application made under Section 8 of the Act seeking  condonation of delay.  The right of pre-emption  conferred under Section 8 is a statutory right besides  being weak, it has to be exercised strictly in terms of  the said Section and consideration of equity has no  place.  On the facts found in these appeals,  applications under Section 8 were not made within four  months from the date of transfer but they were made  four years and six years after the date of transfer  respectively which were hopelessly barred by time.   Benefit of Section 5 of the Limitation Act not being  available to the applications made under Section 8,  Section 3 of the Limitation Act essentially entails  their dismissal.         Thus, in the light of what is stated above, the  impugned order in civil appeal No. 4688 of 1998 is set  aside, the appeal is allowed and the application made

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by the respondent under Section 8 of the Act is  dismissed with no order as to costs.         Civil Appeal No. 444 of 2000 stands dismissed.  No  costs.