Collector Northern Sub Division, Panaji Vs. Comunidade of Bambolim  INSC 336
(26 July 1995)
K. Ramaswamy, K. Paripoornan, K.S.(J)
1996 AIR 148 1995 SCC (5) 333 1995 SCALE (4)721
O R D
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
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
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 presented.
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.
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.
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.