Case: V.M. Salgaocar &amp; Bros Vs. Board Of Trustees Of Port Of Mormugao

Section 34 prescribes time limit within which an application for setting aside of an award must be made and although the Court is given the power to extend the time on sufficient cause being shown, the said power to extend the time is restricted but a period of 30 days only and not thereafter. 37. It was then submitted by learned senior counsel for the appellant that whereas Section 120 of the Major Port Trusts Act prescribes a limitation for six months plus one month of statutory notice for suits filed against the Port Trust and its employees for anything done or purporting to have been done in pursuance of the Act, no limitation is prescribed for suits which are filed by the Port Trust under Section 131 of the same Act without without a rational basis. We do not find any merit in this submission. It is well settled that although limitation being intended for quieting title and in the sense looks at the problems from the point of view of the defendant with a view to provide him security against the stale claims, addresses itself at the same time also to the position of the plaintiff. The legislature in its wisdom can make separate provision within which a suit must be filed by the individual from that within which a suit can be filed by a statutory body. In Nav Ratanmal vs. State of Rajasthan (AIR 1961 Supreme Court 1704 a similar argument was raised and negatived by this Court. In that case the Court was examining as to whether there was a rational basis for treating the Government differently as regards period within which the suit could be filed by the Government on the one hand and the private individual on the other. It was held that there were sufficient grounds for differentiating between the claims of an individual and the claims of the Government and the actual period of limitation which should be allowed for filing the suit by any party was a matter of legislative policy and cannot be brought within the scope or purview under Article 14 or any other Article of the Constitution. It was observed:- "xxxx. It is with this background that the question of the special provision contained in Article 149 of the Act has to be viewed. First, we have the fact that in the case of the Government if a claim becomes barred by limitation, the loss falls on the public, i.e., on the community in general and to the benefit of the private individual who derives advantage by the lapse of time. This itself would appear to indicate a sufficient ground for differentiating between the claims of an individual and the claims of the community at large. Next, it may be mentioned that in the case of governmental machinery, it is a known fact that it does not move as quickly as in the case of individuals. Apart from the delay occurring in the proper officers ascertaining that a cause of action has accrued, Government being an impersonal body, before a claim is launched there has to be inter-departmental correspondence, consultations, sanctions obtained according to the rules. These necessarily take time and it is because of these features which are sometimes characterised as red-tape that there is delay in the functioning of Government offices." 38. With reference to the contention of Shri R.F. Nariman, learned senior counsel appearing for the appellant that there is no reasons for prescribing a shorter period of limitation for action against the Board while suits against the Government can be filed within normal period of limitation, it may be stated that the Government cannot be equated with statutory body like the Major Port Trust. The Government is a vast organisation having comparatively larger manpower and in the litigation against the Government subject matter of disputes is under several different acts, such as Excise Act, Customs Act, Income Tax Act, Railways Act, Land Acquisition Act etc. Many of these Acts also contain provisions similar to, if not identical with the provisions of Section 120 of the Major Port Trusts Act, 1963. Therefore, the contention between a major port and Government as a whole is totally fallacious. 39. A provision of the Act providing for a shorter period of limitation cannot be declared to be unconstitutional simply because in some of the Statutes a longer period of limitation has been prescribed for the redressal of the litigants grievances. The legislation enacted for the achievement of a particular object or purpose need not be all embracing. It is for the legislature of determine what categories it would embrace within the scope of legislation and merely because certain categories which would stand on the same footing as those covered by the legislature and left out would not render the legislation of any law being discriminatory and violative of the fundamental rights guaranteed under Article 14 and 19(1)(g) of the Constitution. 40. In the end Mr. Nariman submitted that the Indian Ports Act, 1908 was still applicable to various ports including Panjim Port in Goa. In the case of exporters like the appellant using the port of Panjim, if the same controversy was to arise there being no provision such as Section 120 of the Major Port Trusts Act, 1963 in the Indian Ports Act, 1908 the period of limitation available to such exporters would be three years, that there was no intelligible differentia with the objects sought and achieved in proceeding such as the provision as Section 120. It may be stated that nowhere in the pleadings, is there an averment regarding the port of Panjim and in any case the very fact that the port of Panjim is not a major port and is not governed by the Major Port Trusts Act, 1963 and is not enjoined to perform duties which a major port is enjoined to perform is enough of an intelligible differentia which has a rational nexus with the objects sought to be achieved.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]We do not think this view taken by the High Court can be sustained. In the first place, it is elementary that waiver is a question of fact and it must be properly pleaded and proved. No plea of waiver can be allowed to be raised unless it is pleaded and the factual foundation for it is laid in the pleadings. Here it was common ground that the plea of waiver was not taken by the State Government in the affidavit filed on its behalf in reply to the writ petition, nor was it indicated even vaguely in such affidavit. It was raised for the first time at the hearing of the writ petition. That was clearly impermissible without an amendment of the affidavit in reply or a supplementary affidavit raising such plea. If waiver were properly pleaded in the affidavit in reply, the appellant would have had an opportunity of placing on record facts showing why and in what circumstances the appellant came to address the letter dated June 25, 1970 and establishing that on these facts there was no waiver by the appellant of its right to exemption under the assurance given by respondent 4. But in the absence of such pleading in the affidavit in reply, this opportunity was denied to the appellant. It was, therefore, not right for the High Court to have allowed the plea of waiver to be raised against the appellant and that plea should have been rejected in limine.In the present case, plea of waiver had neither been taken in the original plaint nor in the amended plaint which was amended subsequent to the passing of the decree on admission for the sum of Rs. 7,09,835/- nor even in the grounds of appeal before the High Court. Question of waiver is not a pure question of law which could be permitted to be raised by the appellant at any stage of the proceedings. The High Court was right in observing that the plea of limitation put up by the Board has to be examined on its own merit. We do not find any merit in the submission of the learned senior counsel appearing for the appellant that the suit having been partly decreed on admission, could not subsequently be dismissed on the ground of limitation for the remainingagree with the observations made by the Division Bench in the said case that merely because a statute not dealing with the limitation in general prescribed period of limitation different from the one in the Indian Limitation Act, 1963 it does not follow that the provisions prescribing the said period of limitation violates Article 14 or 19(1)(f) of the Constitution ofdo not find any merit in this submission. It is well settled that although limitation being intended for quieting title and in the sense looks at the problems from the point of view of the defendant with a view to provide him security against the stale claims, addresses itself at the same time also to the position of the plaintiff. The legislature in its wisdom can make separate provision within which a suit must be filed by the individual from that within which a suit can be filed by a statutory body.