MFA 62/2010 BEFORE HON’BLE MR. JUSTICE H. N. SARMA The common question that arises for adjudication in these batch of cases is that whether the provision of Section 5 of the Limitation Act is app licable to condone the delay in filing an appeal under Section 23 of the Railway Claims Tribunal Act, 1987. As agreed to by the learned counsels, the common an d identical question having arisen for decision, all the cases are heard analogo usly and is being disposed of by this common judgment. 2) I have heard Mr. UK Nair, and Mr. SS Sarma, learned counsels app earing for the appellant/petitioners and Mr. H.P. Barman and Mr. A. Goyal, learn ed counsel appearing for some of the respondents. 3) As a lead case, the facts as available in Misc. Case No. 1238/09 which is filed for condoning the delay of 472 days in filing the connected MFA No. 62/10 are being taken note of. In the connected appeal, the applicant /petit ioner has challenged the legality and validity of the judgment and order dated 2 1/7/07 passed in Original Application No. 136/05 as well as the order dated 25/7 /08 dismissing the Review Application No.4/07 (OA No.136/05) by the learned Rail way Claims Tribunal, Guwahati. All the appeals are filed by the Union of India u/s 23 of the Railway Claims Tribunal Act, 1983, challenging the respective awar ds passed by the tribunal against the appellant. 3) Since there has been delay of 422 days in filing the appeal, an application for condoning the delay u/s 5 of the Limitation Act has been filed b y the applicant/petitioner, which is separately registered as Misc. Case No.1238 /09. 4) The respondents objected the prayer for condonation of delay su bmitting interalia that such a power to condone the delay is not available to th e appellate court more particularly the provision of Section 5 of the Limitation Act not having been made applicable, the misc. cases as well as the connected a ppeal are liable to be dismissed as barred by limitation. 5) Learned counsel for the petitioner submits that under Sub-Sectio n 1 of the Section 23 of the Act, the High Court is prescribed as the appellate forum to file an appeal against the judgment of the claims tribunal, and as such provision contained under Order 41 C.P.C. and the relevant High Court Rules reg ulating an appeal filed in the High Court would be applicable. Since the appeal s are not filed within the prescribed period of limitation as contained in Secti on 23(3) of the Act, the provisions of Order 41 of CPC would come into force an d accordingly in terms of Order 41 Rule 3A of CPC, the applicant /petitioner is entitled to file application for condonation of delay in filing the connected ap peals. It is further contended that since the Claims Tribunal is not a court wi thin the provisions of Limitation Act, a specific provision under Section 17(2) of the Act has made for condonation of delay on showing sufficient cause filing the application. Although there is no such specific provision empowering the ap pellate court to condone the delay, such power is available under provision of O rder 41 of the CPC. The further contention of the learned counsel is that the p rovisions of Section 29(2) of the Limitation Act would be applicable and accordi ngly the benefit of Section 5 would also be applicable to the petitioner. 6) In support of his submissions, following decisions are relied up on by the learned counsel for the applicant/ petitioners- i) AIR 1953 SC 357 ( National Sewing Thread Co. Ltd.,Chidambaram -vs- James Chandwick and Bros. Ltd. ) ii) AIR 1960 SC 384 (All India Station Masters’ and Assistant Station Master s’ Association, Delhi and others -vs- General Manager, Central Railway and other s ) iii) (1995) 2 SCC 493 (Birla Cement Works -vs- G.M. Western Railways and anot her) iv) AIR 1995 SC 2272 (Mukri Gopalan vs. Cheppilat Puthanpurayil Aboobacker) v) (2009) 5 SCC 791 (Commissioner of Excise & Central Excise .vs. Hongo Ind ia Pvt. Ltd. and another) vi) (2004) 4 SCC 252 (Gopal Sardar -vs. Karuna Sardar) 7) The submissions made by the learned counsel for the applicant /p etitioner have been stiffly resisted by the respondents counsels. The contentio ns of the learned counsel are that the Railway Claims Tribunal Act, 1987 not hav ing provided any power to the court to condone the delay in filing an appeal aga inst an award passed by the Claims Tribunal, the application seeking condonation of delay in filing the appeal needs to be rejected. It is further contended th at merely prescribing the High Court as the appellate forum to file appeal, the provisions of the Limitation Act would not confer such power to condone the dela y unless such power is specifically provided under Railway Claims Tribunal Act u nder which right to file an appeal is provided. The provisions of Order 41 Rule 3A is only a procedural one without providing such substantive power to condone the delay in respect of an appeal filed under a statute other then covered by C ode of Civil Procedure. Learned counsels further contend that the legislature in its wis dom has though it fit not to provide any power to condone the delay in filing an appeal against a decision of the claims tribunal taking note of the fact that t here is the necessity of speedy and early adjudication of the railway claims the re could not be any manner doubt of inapplicability of the provisions of Section 5 of the Limitation Act, particularly looking into the object of the Act. That apart, under the provisions of Section 29(2) of the Limitation Act, there being different period of limitation prescribed the Special Act viz. the Railway Clai ms Tribunal Act, necessity to dispose the claims as expeditiously as possible, t he legislature consciously avoided to provide any power to condone the delay. C onsequently, the petitions are liable to be rejected. 8) Mr. A. Goyal, learned counsel for the respondents has referred t he following decisions of the Apex Court in support of his contention:- a) (1995) 2 SCC 493 (Birla Cement Works -vs- G.M. Western Railways and ano ther) b) (2001) 8 SCC 470 (Union of India -vs- Popular Construction Company) c) (2004) 11 SCC 472 (Fairgrowth Investment Ltd. vs. Custodian) d) (1974) 2 SCC 133 (Hukumdev Narain Yadav -vs- Lalit Narayan Misra) 9) I have given my anxious consideration to the submissions made by the learned counsel for the parties. In order to answer the submissions made b y the learned counsel for the parties, let us discuss the relevant provisions of Railway Claims Tribunal Act, 1987 including its object and scope. 10) The Railway Claims Tribunal Act, 1987 (for short, ’the Act’) was enacted by the Parliament for the purpose of dealing with claims for damage, co mpensations or loss suffered by the claimant on account of the accident involvin g a passenger train as well as for loss of the goods booked with the railways an d are not satisfied with the decisions of the railway administration. As the lit igation in the courts of law and before the Claims Commissioners is very protrac ted, it has been decided to set up a specialized Tribunal for speedy adjudicatio n of such claims. The setting up of such a Claims Tribunal with Benches in diff erent part of the country with judicial and technical members, would produce muc h relief to the rail-users by way of expeditious payment of compensation to the victims of rail accidents and to those whose goods are lost or damaged in rail t ransit. The Claims Tribunal would also expedite settlement of disputes regardin g refund of fares and freight charges and reduce the burden on the various civil courts in the country, thereby giving them more time to decide other cases spee dily. With the aforesaid objectives, the act was legislated. 11) Section 3 of the Act provides for establishment of Railway Claim s Tribunal. Jurisdiction, powers and authority of the Claims Tribunal are provi ded under Chapter-III in Section 13,14 & 15. Section 16 provides that a person seeking any relief in respect of any claim, can make an application to the Claim s Tribunal in prescribed form and be accompanied by necessary documents or othe r evidence and such fee etc. as may be provided. Section 17 provides for the p eriod of limitation prescribed for filing such claims; unless such application i s made within three years from the date on the intimation of claim has been pref erred u/s 78-B of the Act, the petition would not be entertained. Section 17(2) provides that such claim application may be entertained after the period specif ied in sub-section (1), if the applicant satisfies the Claims Tribunal that he h ad sufficient cause for not making the application within the period prescribed. Section 19 recognizes the right of legal representation and presenting officer s before the Tribunal by the contesting parties. Section 21 provides for making of the decisions. Chapter-V provides for appeals u/s 23 of the Act. 12) For our ready reference, the provision of Section 23 is quoted h ereinbelow: 23. Appeals- (1) Save as provide in sub-section (2) and notwithstanding anythi ng contained in the Code of Civil Procedure, 1908 (5 of 1908), or in any other l aw, an appeal shall lie from every order, not being an interlocutory order, of t he Claims Tribunal, to the High Court having jurisdiction over the place where t he Bench is located. (2) No appeal shall lie from an order passed by the Claims Tribunal with the consent of the parties. (3) Every appeal under this section shall be preferred within a period of nin ety days from the date of order appealed against. 13) Survey of the different provisions of the Act, shows that the le gislature has provided the power to condone the delay in filing the application before the Tribunal under Section 17 of the Act, if sufficient cause is shown by the applicant for not preferring the claim within the period of limitation. Bu t no such power is provided in respect of preferring an appeal and the legislati ve mandate as contained in Section 23(3) of the Act is that the appeal preferred against the decisions rendered by the Claims Tribunal is to be filed within 90 days from the date of order. The purpose of establishment of the claims tribuna l is for speedy and early disposal of the claim cases. 14) On the face of the aforesaid legal provisions, it is to be seen whether there is any power provided to this Court to condone the delay in filing the appeal under the provision of the relevant laws as prayed for by the appell ant /petitioner. 15) In terms of the provision contained u/s 23(1) of the Act, there is no dispute relating to the jurisdictional authority of the High Court to deci de such an appeal against the order of the tribunal. Neither the Act nor the Ru les framed thereunder has prescribed any procedure for filing the appeal the met hod of dealing with the appeal after it is filed. In such a situation the proced ure would be guided by Order 41 of the CPC. 16) Order 41 Rule 3A of the CPC provides that if an appeal is presen ted after the expiry of the period of limitation specified therefor, it should b e accompanied by an application supported by affidavit setting forth the facts o n which the appellant relies on to satisfy the Court that he had sufficient caus e for not preferring the appeal within such period. The substantive right to fi le the appeal against an order of the tribunal is provided u/s 23 of the Act whi ch also prescribes the period of limitation for filing appeal as 90 days. It is true that procedural provisions for dealing with an appeal are not prescribed u nder the Act or Rules and as such the procedure prescribed under Order 41 in dea ling such appeal would be followed but that does not mean that if substantive Ac t conferring right of appeal does not provide any power to condone the delay in filing the appeal, it is difficult to contend that the same can be done taking a id of the provisions of Order 41 Rule 3A of CPC. 17) The object of Order 41 Rule 3A is considered by the Apex Court i n the case of State of M.P. and another v. Pradeep Kumar and another reported in (2000) 7 SCC 372, wherein the Apex Court held interalia that the object of enac ting Rule 3-A in Order 41 of the Code seems to be twofold. First is, to inform the appellant himself who filed a time-barred appeal that it would not be entert ained unless it is accompanied by an application explaining the delay. Second i s, to communicate to the respondent a message that it may not be necessary for h im to get ready to meet the grounds taken up in the memorandum of appeal because the court has to deal with application for condonation of delay as a condition precedent. The Apex Court also found that barring the above objects, the Rule i s not found to be intended to operate as unremediably or irredeemably fatal agai nst the appellant if the memorandum is not accompanied by any such application a t the first instance. In the event of filing any appeal which is filed beyond li mitation period, the appellant is to file application for condonation of delay. But such right to file an application for condonation of delay must be emanated from the Substantive Act. 18) Referring to the decision rendered by the Apex Court in the case of National Sewing Thread Co. Ltd. Chidambaram vs.- James Chadwick and Bros. Lt d. reported in AIR 1953 SC 357, Mr. Nair contends that while the appeal is requi red to be filed as pr procedure prescribed by the High Court under Rule 3A of Or der 41 , the petitioner is entitled to file an application for condonation of de lay and in the event of filing such application it should adjudicated on merit. I find that the ratio of the aforesaid decision is not extended to such an ext ent. In the aforesaid case, the Apex Court held that ordinarily after an appeal reaches the High Court, it has to be determined according to the rule s of practice and procedure of that Court and in accordance with the provisions of the Charter under which that Court is constituted and which confers on it pow er in respect of the method and manner of exercising that jurisdiction. 19) The object of Order 41 Rule 3-A has been clearly stated by the A pex Court in Padeep Kumar (supra) as indicated above. In fact, such a argument made before a Division Bench of this Court in the case of Commissioner of Income -Tax vs. Williamson Tea(Assam) Ltd. reported in (2010) 1 GLR 57 has been rejecte d after consideration; the Division Bench held as follows: 16. On a plain reading of the said Rule it is obvious that the Rule does not provide for any legal authority to condone the delay in preferring the delay but prescribes the procedure where an appeal is presented beyond the period of limi tation. The underlying presumption under rule 3A is that the High Court enterta ining the appeal under section 100 or 96 or other court entertaining appeals und er section 96 has the requisite legal authority of condoning the delay in presen ting the appeal, a presumption based on the express language of section 5 read w ith Part II of the First Schedule to the Limitation Act. Therefore, the submiss ion of the learned counsel for the applicant that sub-section (7) of section 260 A of the Income-tax Act read with rule 3A, order 41 of the CPC authorizes this c ourt to condone the delay in presentation of an appeal under section 260 A of th e Income-tax Act in an appropriate case, cannot be accepted. That was a case where an appeal u/s 260A of the Income Tax was f iled by the revenue which was also required to be decided as per Rules prescribe d by the High Court. 20) On the same ground the decision referred by Mr. Nair as reported in AIR 1960 SC 384 (paragraph-4) do not come in aid of the applicant /petitione r. 21) The learned counsel for the applicant/petitioner strenuously ur ged that these batch of petitions would be covered under the provisions of Secti on 29(2) of the Limitation Act. For the purpose of applicability of Section 29( 2) of the Limitation Act, 1963, the following two requirements are required to b e satisfied by the applicant:- i) there must be a provision of prescribing a period of limitation under a speci al or local law in connection with such order for appeal, ii) the said prescription of period of limitation should be different from the p eriod prescribed by the Schedule of Limitation Act. In the event the aforesaid two requirements are satisfied the co nsequence as contemplated in Section 29(2) are as under: i) In such a case Section there has different period of limitation prescrib ed under special or local law, ii) For determining any period of limitation prescribed by such special or l ocal law for such appeal or application, the provisions contained in Section 4 t o 24 of the Act would apply insofar as and to the extent to which they are not e xpressly excluded by such special or local law. 22) Considering the submissions of the learned counsel for the appli cant/petitioner, it is to be found that even under Article 116 of the Limitation Act, the period of limitation in filing an appeal to the High Court is from any decree or order is 90 days. The period of limitation under the Limitation Act and as prescribed under Section 23 of the Railway Claims Tribunal Act are the sa me and not different. That apart, the Railway Claims Tribunal Act is a special law made for specific purposes and objects. 23) The Railway Claims Tribunal is a special tribunal constituted un der a special statute. In the event of exercising any power to condone the del ay and for that purpose to entertain any application for condonation, the proced ure provided under the special statute is ot be followed and such power must be required to be specifically conferred by the statute itself. 24) The Apex Court while dealing with such a case under Central Exci se Act, 1944 in the case of Singh Enterprises -vs- Comissioner of Central Excise , Jamshedpur and others reported in (2008) 3 SCC 70 has negated the contention of the appellant praying for condonation of the delay in filing the appeal u/s 3 5 of the Central Excise Act, 1944, holding as follows:- 6. At this juncture, it is relevant to take note of Section 35 of the Act whic h reads as follows: 35. Appeals to Commissioner(Appeals)- (1) Any person aggrieved by any decision or order passed under this Act by a Central Excise Officer, lower in rank than a Commissioner of Central Excise, may appeal to the Commissioner of Central Excis e (Appeals) [hereafter in this Chapter referred to as the Commissioner (Appeals) ] within sixty days from the date of the communication to him of such decision o r order. Provided that the Commissioner (Appeals) may, if he is satisfied that the appell ant was prevented by sufficient cause from presenting the appeal within the afor esaid period of sixty days, allow it to be presented within a further period of thirty days. (2) Every appeal under this section shall be in the prescribed form and shall be verified in the prescribed manner. 7. It is to be noted that the periods sixty days and thirty days have een substituted for within three months by Act 14 of 2001, with effect from 11 -5-2001. 8. The Commissioner of Central Excise(Appeals) as also the Tribunal being c reatures of statute are vested with jurisdiction to condone the delay beyond the permissible period provided under the statute. The period up to which the pray er for condonation can be accepted is statutorily provided. It was submitted th at the logic of Section 5 of the Limitation Act, 1963 (in short the Limitation Act ) can be availed for condonation of delay. The first proviso to Section 35 makes the position clear that the appeal has to be preferred within three months from the date of communication to him of the decision or order. However, if th e Commissioner is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of 60 days, he can allow it to be presented within a further period of 30 days. In other words, this cl early shows that the appeal has to be filed within 60 days but in terms of the p roviso further 30 days’ time can be granted by the appellate authority to entert ain the appeal. The proviso to sub-section (1) of Section 35 makes the position crystal clear that the appellate authority has no power to allow the appeal to be presented beyond the period of 30 days. The language used makes the position clear that the legislature intended the appellate authority to entertain the ap peal by condoning delay only up to 30 days after the expiry of 60 days which is the normal period for preferring appeal. Therefore, there is complete exclusion of Section 5 of the Limitation Act. The Commissioner and the High Court were t herefore justified in holding that there was no power to condone the delay after the expiry of 30 days’ period. 25) Similar view has been taken by the Apex Court in the case of Com missioner of Customs, Central Excise vs. Hongo India Private Limited and anot her reported in (2009) 5 SCC 791 wherein the Apex Court held that in order to co nsider the applicability of the provision contained in Section 29(2) of the Limi tation Act, what is to be determined is whether the provisions of the Limitation Act are expressly excluded. The scheme of the special law and the nature of the remedy provided therein is such that the legislature intended it to be a comple te code by itself which alone should govern the several matters provided for by it. Even in a case where the special law does not exclude the provisions of Sec tion 4 to 24 of the Limitation Act by an express reference, it would noneth eless 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 l aw exclude their operation. In other words, the applicability of the provisions of the Limitation Act, therefore, is to be judged not from the terms of the Lim itation Act but by the provisions of the Central Excise Act relating to filing o f reference application to the High Court. The scheme of the Central Excise Act , 1944 supports the conclusion that the time-limit prescribed under Section 35- H(1)to make a reference to the High Court absolute and unextendable by a court under Section 5 of the Limitation Act. It is well settled law that it is the d uty of the court to respect the legislative intent and by giving liberal interpr etation, limitation cannot be extended by invoking the provisions of