GANESAN REP BY ITS POWER AGENT G. RUKMANI GANESAN versus THE COMMISSIONER, THE TAMIL NADU HINDU RELIGIOUS AND CHARITABLE ENDOWMENTS BOARD & ORS.
[2019] 7 S.C.R. 102, Supreme Court of India, 2019
Outcome: Appeal(s) allowed (Granted)
Segment: Ratio
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GANESAN REP BY ITS POWER AGENT G. RUKMANI
GANESAN
v.
THE COMMISSIONER, THE TAMIL NADU HINDU
RELIGIOUS AND CHARITABLE ENDOWMENTS BOARD &
ORS.
(Civil Appeal No. 4582 of 2019)
MAY 03, 2019
[ASHOK BHUSHAN AND K.M. JOSEPH, JJ.]
Hindu Religious Endowment Charitable Act, 1959 – ss.6(6),
6(7), 63, 69, 70, 110 and 115 – Limitation Act, 1963 – s.5 –
Applicability of – Joint Commissioner of the Hindu Religious and
Charitable Endowment Board passed an order holding that appellant
was entitled for Ambalam right in his village – Third respondent
filed an appeal u/s. 69 of the Act – A delay condonation application
was also filed by the third respondent praying for condonation of
delay of 266 days – Delay was condoned by the Commissioner –
Writ petition was filed by the appellant against the order condoning
delay – Single Judge of the High Court held that in appeal
proceedings before the Commissioner s.5 of the Limitation Act was
fully applicable – Division Bench of the High Court held that Act,
1959 does not exclude the applicability of the Limitation Act, 1963
– On appeal, held: The provisions of Limitation Act including s.5
can be applied in deciding an appeal by statutory authority which
is not a Court by the statutory scheme of special or local law –
Commissioner is not a Court within the meaning of the Act, 1959 –
There is nothing u/s.110 of the Act, 1959 which indicates that
Limitation Act is also made applicable in hearing of
appeal – The
provision of s.69 of Act, 1959 also indicates that Legislature never
contemplated applicability of s.5 of the Limitation Act in proceedings
before Commissioner – Further, s.115 of the Act, 1959 indicates
that provision for only computation of limitation has been made
applicable the proceedings under Act, 1959 – s.115 of the Act, 1959
cannot be read in a manner as to providing applicability of s.5 of
the Limitation Act – There is no other provision in the scheme from
which it can be inferred that Act, 1959 intended applicability of s.5
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of the Limitation Act to the proceedings of appeal before the
Commission – Thus, s.5 of the Limitation Act is not applicable as
per the scheme of the Act, 1959.
Hindu Religious Endowment Charitable Act, 1959 – s.69 –
Appellant contended that the Commissioner who is empowered to
decide the appeal u/s. 69 of Act, 1959 is not a Court – Held: The
definition of Court as contained in s.6(7) indicates that what Act,
1959 refers to a court is a civil court created in the State – The
scheme of the Act clearly indicates that Commissioner is an authority
under the Act who is to be appointed by the Government – The
Commissioner is entrusted with various functions under the Act and
one of the functions entrusted to the Commissioner is hearing of
the appeal u/s. 69 of the Act, 1959 – Further, any party aggrieved
by the order of the Commissioner u/s. 69(1) and 69(2) can file a
suit in the Court u/s.70 against such order – When an appeal is
provided against the order of the Commissioner u/s. 69 to the Court
which is defined u/s.6(7), there is no question of treating the
Commissioner as a Court under the statutory scheme of Act, 1959 –
Thus, Commissioner is not a Court within the meaning of Act, 1959.
Allowing the appeal, the Court
HELD: Whether the Commissioner while hearing the
appeal under Section 69 of Hindu Religious Endowment
Charitable Act, 1959 , is a Court ?
1. The definition of Court as contained in Section 6(7)
clearly indicates that what Act, 1959 refers to a
Court is a civil
court created in the State. The scheme of the Act clearly indicates
that Commissioner is an authority under the Act who is to be
appointed by the Government. The Commissioner is entrusted
with various functions under the Act and one of the functions
entrusted to the Commissioner is hearing of the appeal under
Section 69 of the Act, 1959. [Para 15] [113-E]
2. Section 70 of the Act further provides that any party
aggrieved by an order of the Commissioner under sub-section
(1) or sub-section (2) of Section 69 can file a suit in the Court
against such order. When an appeal is provided against the order
of the Commissioner under Section 69 to the Court which is
defined under Section 6(7), there is no question of treating the
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ENDOWMENTS BOARD
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Commissioner as a Court under the statutory scheme of Act,
1959. Thus, Commissioner is not a Court within the meaning of
Act, 1959. [Paras 16, 17] [114-D-E; 115-A]
Whether applicability of Section 29(2) of Limitation Act is
with regard to different limitation prescribed for any suit, appeal
or application to be filed only in a Court or Section 29(2) can be
pressed in service with regard to filing of a suit, appeal or
application before statutory authorities and tribunals provided in
Special or Local Laws?
Whether the Commissioner while hearing the appeal under
Section 69 of Act 1959 is entitled to condone a delay in filing an
appeal applying the provisions of Section 5 of the Limitation Act,
1963?
3. Both the questions being inter-connected are taken
together. The ratio which can be culled from the various Supreme
Court judgments, especially judgment of three-Judge Benches,
is as follows:
(1) The suits, appeals and applications referred to in the
Limitation Act, 1963 are suits, appeals and applications which
are to be filed in a Court.
(2) The suits, appeals and applications referred to in the
Limitation Act are not the suits, appeals and applications which
are to be filed before a statutory authority like Commissioner
under Act, 1959.
(3) Operation of Section 29(2) of the Limitation Act is
confined to the suits, appeals and applications referred to in a
special or local law to be filed in Court and not before
statutory
authorities like Commissioner under Act, 1959.
(4) However, special or local law vide statutory scheme can
make applicable any provision of the Limitation Act or exclude
applicability of any provision of Limitation Act which can be decided
only after looking into the scheme of particular, special or local
law. [Para 54] [139-A-E]
3.1 Thus, questions are answered in the following manner:
(i) The applicability of Section 29(2) of the Limitation Act is
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with regard to different limitations prescribed for any suit, appeal
or application when to be filed in a Court.
(ii) Section 29(2) cannot be pressed in service with regard
to filing of suits, appeals and applications before the statutory
authorities and tribunals provided in a special or local law. The
Commissioner while hearing of the appeal under Section 69 of
the Act, 1959 is not entitled to condone the delay in filing appeal,
since, provision of Section 5 shall not be attracted by strength of
Section 29(2) of the Act. [Para 55] [139-E-G]
Whether the statutory scheme of Act 1959 indicate that
Section 5 of Limitation Act is applicable to proceedings before
its authorities?
4. A special or local law can very well provide for
applicability of any provision of Limitation Act or exclude
applicability of any provision of Limitation Act. The provisions of
Limitation Act including Section 5 can very well be applied in
deciding an appeal by statutory authority which is not a Court by
the statutory scheme of special or local law. This Court, thus,
need to notice the provisions of Act, 1959 as to whether the
scheme under Act, 1959 shows that enactment intended to apply
Section 5 of the Limitation Act. [Para 56] [139-H; 140-A-B]
5. The mere fact that a statutory authority is empowered to
follow the procedure as nearly may be in accordance with
procedure under C.P.C. to the trial of suits or hearing of appeals,
the statutory authority shall not become a Court.
There is nothing
under Section 110 which indicates that Limitation Act is also made
applicable in hearing of the appeal. [Para 58] [140-F-G]
6. Section 115 deals with limitation. It only provides that in
computing the period of limitation prescribed under Act, 1959
for any proceeding, suit, appeal or application for revision against
any order or decree passed under this Act, the time requisite for
obtaining a certified copy of such order or decree shall be
excluded. [Para 59] [140-G-H]
7. The provision of Section 69 of Act, 1959 also indicates
that Legislature never contemplated applicability of Section 5 of
the Limitation Act in proceedings before Commissioner. Section
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69(2) noted above provides that any order passed by the Joint
Commissioner or the Deputy Commissioner, as the case may, in
respect of which no appeal has been preferred within the period
specified in sub-section (1) may be revised by the Commissioner
suo motu and the Commissioner may call for and examine the
records of the proceedings to satisfy himself as to the regularity
of such proceedings or the correctness, legality or propriety of
any decision or order passed by the Joint Commissioner or the
Deputy Commissioner, as the case may be. [Para 60] [141-A-C]
8. Thus, Section 69(2) gives suo motu power to the
Commissioner to call for and examine the records of the
proceedings of Joint Commissioner or the Deputy Commissioner
in respect of which no appeal has been preferred within the period
specified in sub-section (1). Thus, in a case appeal is not filed
within 60 days against the order of Joint Commissioner or the
Deputy Commissioner, the Commissioner is vested with suo motu
power to call for and examine the records. The suo motu power
has been given to the Commissioner to correct the orders of
Joint Commissioner or the Deputy Commissioner even if no
appeal has been filed within 60 days. Giving of suo motu power to
the Commissioner is with object to ensure that an order passed
by the Joint Commissioner or the Deputy Commissioner may be
corrected when appeal is not filed within time under Section 69(1).
The scheme of
Section 69 especially sub-section (2) also re-
enforces our conclusion that Legislature never contemplated
applicability of Section 5 in Section 69(1) for condoning the delay
in filing an appeal by applying Section 5 of the Limitation Act.
[Para 61] [141-C-F]
9. The above provision clearly indicates that provision for
only computation of limitation has been made applicable to the
proceedings under Act, 1959. Section 115 cannot be read in a
manner as to providing applicability of Section 5. There is no
other provision in the scheme from which it can be inferred that
Act, 1959 intended applicability of Section 5 of the Limitation
Act to proceedings of appeal before the Commission. Thus,
Section 5 of the Limitation Act is not applicable as per the scheme
of Act, 1959. [Para 63] [142-A-B]
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P. Sarathy v. State of Bank of India (2000) 5 SCC
355:[2000] 1 Suppl. SCR 402 – distinguished.
The Commissioner of Sales Tax, U.P. Lucknow v. M/s.
Parson Tools and Plants, Kanpur (1975) 4 SCC 22 ;
Town Municipal Council, Athani v. The Presiding
Officer, Labour Courts, Hubli (1969) 1 SCC 873 : [1970]
1 SCR 51 ; Nityananda, M. Joshi and others. v. Life
Insurance Corporation of India and others (1965) 2
SCC 199 ; Sakuru v. Tanaji, 1985 (3) SCC 590 : [1985]
2 Suppl. SCR 109 ; Officer on Special Duty (Land
Acquisition) and another v. Shah Manilal Chandulal
and others (1996) 9 SCC 414 ; Consolidated
Engineering Enterprises v. Principal Secretary,
Irrigation Department and others (2008) 7 SCC 169 ;
M.P. Steel Corporation v. Commissioner of Central
Excise 2015 (7) SCC 58 – relied on.
The Kerala State Electricity Board, Trivandrum v. T.P.
Kunhaliumma (1976) 4 SCC 634 : [1977] 1 SCR 996 ;
The Commissioner of Sales Tax, U.P. v. M/s. Madan Lal
Das & Sons, Bareilly (1976) 4 SCC 464 ; State of
Madhya Pradesh and another v. Anshuman Shukla
(2014) 10 SCC 814 : [2014] 11 SCR 361 ; Syed Zalil
Akhtar v. Zila Sahkari Krishi Avam Gramn Vikas Bank,
Mydt., (2016) 12 SCC 365 ; Mukri Gopalan v. Cheppilat
Puthanpurayil Aboobacker (1995) 5 SCC 5 : [1995] 2
Suppl. SCR 1 – referred to.
Case Law Reference
[2000] 1 Suppl. SCR 402
distinguished
Para 18
(1975) 4 SCC 22
relied on
Para 20
[1970] 1 SCR 51
relied on
Para 25
(1965) 2 SCC 199
relied on
Para 26
[1977] 1 SCR  996
referred to
Para 29
[1985] 2 Suppl. SCR  109
relied on
Para 31
(1996) 9 SCC 414
referred to
Para 33
GANESAN v. COMMNR., T.N. HINDU RELIGIOUS & CHARITABLE
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(2008) 7 SCC 169
relied on
Para 34
2015 (7) SCC 58
relied on
Para 39
(1976) 4 SCC 464
referred to
Para 41
[1995] 2 Suppl. SCR 1
referred to
Para 45
[2014] 11 SCR 361
referred to
Para 50
(2016) 12 SCC 365
referred to
Para 52
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 4582
of 2019.
From the Judgment and Order  dated  04.12.2017 of the  Madurai
Bench of Madras High Court  in W.A. (MD) No. 1094 of 2014.
M. Ajmal Khan, Sr. Adv., A. Lakshminarayanan, Karri Venkata
Reddy, Advs. for the Appellant.
S. Nagamuthu, Sr. Adv., M. P. Parthiban, R. S. Vairakkin, R.
Sudhatiavan, Vinodh Kanna B., Advs. for the Respondents.
The Judgment of the Court was delivered by
ASHOK BHUSHAN, J.
1. This appeal has been filed against the judgment dated 04.12.2017
of Madurai Bench of Madras High Court dismissing the writ appeal
filed by the Appellant. The appellant had filed the writ appeal against the
judgment of learned single Judge dated 22.08.2014 by which judgment
writ petition filed by the appellant challenging the judgment and order
dated 31.07.2013 of the Commissioner Tamil Nadu Hindu Religious
Endowment Board has been dismissed.
2. Brief facts of the case necessary to be noticed for deciding the
appeal are: -
2.1
The appellant filed an application under Section 63 of Hindu
Religious endowment charitable Act, 1959 (hereinafter
referred to as Act 1959) claiming his Ambalam right. The
Joint Commissioner of Hindu Religious & charitable
endowment Board after holding an inquiry passed an order
dated 21.12.2010 holding that appellant to be entitled for
Ambalam Right and to receive first respect as an Ambalam
in the village, Tirupathartalu, Shiv Gangi District, Tamil Nadu.
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2.2
Two writ petitions were filed in the High Court challenging
the order dated 31.12.2010 being W.P.M.D. No. 14382 of
2011 filed by Radha Krishnan and W.P. No.185 of 2012 filed
by Madhavan. Both the writ petitions were dismissed by the
High Court vide its judgment dated 10.01.2012. A W.P.M.D.
No. 379 of 2012 was filed by one Laxmanan in which initially
an interim order dated 12.01.2012 was passed. The third
respondent P.R. Ramanathan filed an appeal No.2007 OF
2012 against the order dated 31.12.2010 passed by Joint
Commissioner. The appeal filed by third respondent was
under Section 69 of Act, 1959. W.P.M.D. No.3379 of 2013
was filed by P.R. Ramanathan, third respondent, seeking a
direction to decide his statutory appeal filed under Section
69 of Act 1959. The High Court vide its judgment and order
dated 07.03.2013 directed the commissioner to dispose of
the appeal expeditiously and in any case within a period of
four months to the date of the copy of the order.
2.3
A delay condonation application dated 30.04.2013 was filed
by third respondent in his appeal no. 2007 of 2012 praying
for condonation of delay of 266 days. The cause for delay
shown was that third respondent was ill for 7-8 months and
was unable to travel to Chennai to instruct his counsel. A
counter affidavit was filed by the appellant objecting the
application filed by the third respondent for condonation of
delay. In his counter affidavit appellant took a plea that Section
5 of the
Limitation Act is not applicable.
2.4
Learned commissioner passed an order dated 31.07.2013
condoning the delay of 266 days in filing the appeal. Against
the order dated 31.07.2013, writ petition was filed by the
appellant being W.P.M.D. No. 13804 of 2013. Learned single
Judge referring to certain provision of the Act 1959 as well
as few decisions of this Court and Madras High Court held
that in appeal proceedings before the Commissioner Section
5 of the Limitation Act is fully applicable and there is sufficient
cause and the delay has rightly been condoned by the
Commissioner. Aggrieved against the judgment of learned
single Judge, writ appeal has been filed by the appellant which
has been dismissed by the impugned judgment.
GANESAN v. COMMNR., T.N. HINDU RELIGIOUS & CHARITABLE
ENDOWMENTS BOARD [ASHOK BHUSHAN, J.]
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2.5
The Division Bench of the Madras High Court placed
reliance on several judgments of this Court and after referring
to various provisions of the Act, 1959, held that Act 1959
does not exclude the applicability of the Limitation Act, 1963.
The appellant aggrieved by the Division Bench judgment
dated 04.12.2017 has come up in this appeal.
3. We have heard Shri M. Ajmal Khan, senior Advocate for the
appellant and Shri S.Nagvathu, senior Advocate appearing for the third
respondent, as well as learned counsel appearing for the State.
4. Learned counsel for the appellant submits that the commissioner
has no jurisdiction to consider application filed under Section 5 of Limitation
Act. It is submitted that the commissioner who is empowered to decide
the appeal under Section 69 of Act 1959 is not a court. He submits that
Section 6(6) defines the commissioner whereas Section 6(7) defines the
Court, which clearly indicate that commissioner is not the court. It is
submitted that Section 5 of the Limitation Act is applicable only in
application filed before a Court. The commissioner being not a Court,
there was no applicability of Section 5 of the Limitation Act.
5. He further submits that by virtue of Section 115 of Act 1959,
the only provision of the Limitation Act which has been made applicable
is that the time requisite for obtaining certified copy of order or decree
shall be excluded. He submits that specifically applying
provisions of
Section 12(2) of Limitation Act, indicates that other provisions have not
been made applicable to the Act 1959. He submits that in event the
limitation Act was to be applicable to the proceeding of appeal under
1959 Act, there was no occasion of Section 115 of Act 1959. Limitation
Act has been applied only to the extent as mentioned in Section 115,
other provisions are not applicable.
6. Learned counsel for the respondent refuting the submissions of
learned counsel for the appellant submits that although Commissioner is
not a Court as defined in Act 1959, but it is a court for the purposes of
Section 5 of the Limitation Act. Relying on Section 110, he submits that
procedure provided for hearing of appeal is as nearly as may be in
accordance with the procedure under the Code of Civil Procedure, 1908
to the trial of suits or the hearing of the appeals as the case may be. The
Commissioner has thus all powers of the Court for hearing the appeal.
The authorities under Act 1959 had trappings of the court. Commissioner
decide the appeal in a judicial manner. The scheme of Act 1959 does not
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indicate that it never intended to exclude Section 5 of the Limitation Act.
Reliance has been placed on Section 29(2) of the Limitation Act and it is
submitted that there being no express exclusion of Section 5 of the
Limitation Act, Section 5 of the Limitation Act is fully attracted in hearing
of an appeal by the commissioner.
7. Learned counsel for both the parties have placed reliance on
various judgments of this court which shall be referred to while
considering their submissions in detail.
8. After hearing learned counsel for both the parties and perusal
of the record, following are the questions which arises for consideration
in this appeal:-
1)
Whether the Commissioner while hearing the appeal under
Section 69 of Act, 1959, is a Court?
2)
Whether applicability of Section 29(2) of Limitation Act is
with regard to different limitation prescribed for any suit,
appeal or application to be filed only in a Court or Section
29(2) can be pressed in service with regard to filing of a suit,
appeal or application before statutory authorities and tribunals
provided in Special or Local Laws?
3)
Whether the Commissioner while hearing the appeal under
Section 69 of Act 1959 is entitled to condone a delay in filing
an appeal applying the provisions of Section 5 of the Limitation
Act, 1963?
4)
Whether the statutory scheme of Act 1959 indicate that
Section 5 of Limitation Act is applicable to proceedings before
its authorities?
Question No.1
9. The above question
has to be answered in reference to the
Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959.
Both the “Commissioner” and “Court” has been defined under the Act,
1959. The Commissioner is defined under Section 6(6) which is to the
following effect:
“Section 6(6) “Commissioner” means the Commissioner appointed
under section 9;”
10. The Court is defined in Section 6(7) in the following manner:
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“Section 6(7) “Court” means- (i) in relation to a math or temple
situated in the Presidency town, the Chennai City Civil Court;
(ii) in relation to a math or temple situated elsewhere, the
Subordinate Judge’s Court having jurisdiction over the area in
which the math or temple is situated, or if there is no such Court,
the District Court having such jurisdiction;
(iii) in relation to a specific endowment attached to a math or
temple, the Court which would have jurisdiction as aforesaid in
relation to the math or temple;
(iv) in relation to a specific endowment attached to two or more
maths or temples, any Court which would have jurisdiction as
aforesaid in relation to either or any of such maths or temples;”
11. Section 8 of the Act, 1959 enumerates the authorities under
the Act. Section 8 is as follows:-
“Section 8.Authorities under the Act.- There shall be the
following classes of authorities under this Act, namely.-
(a) The Commissioner;
(aa) Additional Commissioner;
(b) Joint Commissioner;
(c) Deputy Commissioners; and
(d) Assistant Commissioners.”
12. Section 9(1) provides that the Government shall appoint the
Commissioner as it may think fit. Section 9(2) provides various modes
of appointment to the post of Commissioner.
13. The definition of the Court refers to the Civil Court constituted
by Legislature in the State for administration of justice. The conventional
definition of the Court as mentioned in Advanced
Law Lexicon by P.
Ramanatha Aiyer, Third Edition is:
“A Court is defined in Coke on Littleton as a place wherein justice
is judicially administered.  “In every Court, there must be at least
three constituent parts- the actor, reus and judex: the actor, or
plaintiff, who complains or an injury done; the reus, or defendant,
who is called upon to make satisfaction for it; and the judex, or
judicial power, which is to examine the truth of the fact, and to
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determine the law arising upon that fact, and if any injury appears
to have been done, to ascertain, and b its officers to apply, the
remedy,” (3 Steph. Comm. 6th Ed., pp.383, 385). See also 30 M.
326: 2 MLT 267, Court is a body in the government to which the
public administration of justice is delegated; an organised body,
with defined powers, meeting at certain times, and places, for the
hearing and decision of causes and other matters brought before
it, and aided in this, its proper business, by its proper officers, viz.,
attorneys and counsels, to present and manage the business, clerks
to record and attest its acts and decisions, and ministerial officers
to execute its commands and secure order in its proceedings.”
14. The constitution of Court in this country has been by legislative
enactments. For constituting Civil Courts, the Bengal, Agra and Assam
Civil Courts Act, 1887 was enacted which provided classes of civil courts
and provided for constitution of courts of District Judges, Sub-ordinate
Judges and Munsifs. Similarly for civil courts in the town of Bombay,
Calcutta and Madras, the Presidency Small Causes Act, 1882 was
enacted.
15. The definition of Court as contained in Section 6(7) as noted
above, thus, clearly indicates that what Act, 1959 refers to a Court is a
civil court created in the State. The scheme of the Act clearly indicates
that Commissioner is an authority under the Act who is to be appointed
by the Government. The Commissioner
is entrusted with various functions
under the Act and one of the functions entrusted to the Commissioner is
hearing of the appeal under Section 69 of the Act, 1959. In the present
case we are concerned with Section 69 which is to the following effect:
“Section 69.Appeal to the Commissioner.-
(1) Any person aggrieved by any order passed by 1[the Joint
Commissioner or the Deputy Commissioner, as the case may be],
under any of the foregoing sections of this chapter, may within
sixty days from the date of the publication of the order or of the
receipt thereof by him as the case may be, appeal to the
Commissioner and the Commissioner may pass such order thereon
as he thinks fit.
(2) Any order passed by 1[the Joint Commissioner or the Deputy
Commissioner, as the case may be], in respect of which no appeal
has been preferred within the period specified in sub-section (1)
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may be revised by the Commissioner suo motu and the
Commissioner may call for and examine the records of the
proceedings as to satisfy himself as to the regularity of such
proceedings or the correctness, legality or propriety of any decision
or order passed by 1[the Joint Commissioner or the Deputy
Commissioner, as the case may be]. Any such order passed by
the Commissioner in respect of an order passed by 1[the Joint
Commissioner or the Deputy Commissioner, as the case may be],
shall be deemed to have been passed by the Commissioner on an
appeal preferred to him under sub-section (1).
(3) Any order passed by the Commissioner on such appeal against
which no suit lies to the Court under the next succeeding section
or in which no suit has been instituted in the Court within the time
specified in sub-section (1) of section 70 may be modified or
cancelled by the Commissioner if the order has settled or modified
a scheme for the administration of a religious institution or relates
to any of the matters specified in section 66.”
16. Section 70 of the Act further provides that any party aggrieved
by an order of the Commissioner under sub-section (1) or sub-section
(2) of Section 69 can file a suit in the Court against such order. Section
70 is as follows:
“Section 70. Suits and appeals.- (1) Any party aggrieved by
an order passed by the Commissioner”-
(i) under sub-section (1) or sub-section (2) of section 69 and relating
to
any of the matters specified in section 63, section 64 or section
67; or
(ii) under section 63, section 64 or section 67 read with sub-section
(1)(a), 2 or (4)(a) of section 22 or under section 65 may, within
ninety days from the date of the receipt of such order by him,
institute a suit in the Court against such order, and the Court may
modify or cancel such order, but it shall have no power to stay of
order of the Commissioner pending the disposal of the suit.
(2) Any party aggrieved by a decree of the Court under sub-
section (1), may, within ninety days from the date of the decree,
appeal to the High Court.”
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17. When an appeal is provided against the order of the
Commissioner under Section 69 to the Court which is defined under
Section 6(7), there is no question of treating the Commissioner as a
Court under the statutory scheme of Act, 1959. We, thus, conclude that
Commissioner is not a Court within the meaning of Act, 1959.
18. We may, however, notice a judgment of this Court in P. Sarathy
vs. State of Bank of India, (2000) 5 SCC 355. In the above case
Deputy Commissioner of Labour(Appeals) was an authority constituted
under Section 41(2) of Tamil Nadu Shops and Establishments Act, 1947
to hear and decide appeal. The appellant, an official of the State Bank of
India was removed by an order dated 11.01.1983 after holding regular
departmental proceedings. The appellant had filed an appeal under Section
41(2) of the Tamil Nadu Shops and Establishments Act, 1947 which
appeal was dismissed holding that provisions of Tamil Nadu Shops and
Establishments Act, 1947 are not applicable to nationalized Banks. After
the dismissal of the said appeal the orders of Deputy Commissioner of
Labour(Appeals) dated 01.09.1987 was challenged in this Court which
too are rejected. It was thereafter appellant instituted a regular suit in
the City Civil Court where the question came for consideration regarding
applicability of Section 14 of Limitation Act. In the above case in
paragraph 3 the issue was noted to the following effect:
“3. In order to bring a suit within the period of
limitation, the
appellant claimed benefit of Section 14 of the Limitation Act on
the ground that he had represented to the Local Board and,
thereafter, filed an appeal under Section 41(2) of the Tamil Nadu
Shops and Establishments Act, 1947 and was, therefore,
prosecuting “civil proceedings” in a court with due diligence. It is
claimed that the entire period during which those proceedings were
pending has to be excluded and if this is done, the suit will be well
within limitation.”
19. In the above context, this Court in paragraphs 12 to 15 laid
down following:
“12. It will be noticed that Section 14 of the Limitation Act does
not speak of a “civil court” but speaks only of a “court”. It is not
necessary that the court spoken of in Section 14 should be a “civil
court”. Any authority or tribunal having the trappings of a court
would be a “court” within the meaning of this section.
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15. Applying the above principles in the instant case, we are of
the opinion that the Deputy Commissioner of Labour (Appeals),
which was an authority constituted under Section 41(2) of the
Tamil Nadu Shops and Establishments Act, 1947 to hear and decide
appeals, was a “court” within the meaning of Section 14 of the
Limitation Act and the proceedings pending before him were civil
proceedings. It is not disputed that the appellant could file an appeal
before the Local Board of the Bank, which was purely a
departmental appeal. In this view of the matter, the entire period
of time from the date of institution of the departmental appeal as
also the period from the date of institution of the appeal under
Section 41(2) before the Deputy Commissioner of Labour
(Appeals) till it was dismissed will, therefore, have to be excluded
for computing the period of limitation for filing the suit in question.
If the entire period is excluded, the suit, it is not disputed, would
be within time.”
20. There are two reasons due to which the above case is not
applicable in the present case. Firstly, in the above case this Court was
considering applicability of Section 14 of Limitation Act for excluding
time (civil proceeding). The present is a case where applicability of
Section 5 of the Limitation Act has to be examined. Thus, the above
judgment is distinguished. The second reason for not relying the above
judgment is three-Judge Bench
judgment of this Court in The
Commissioner of Sales Tax, U.P. Lucknow vs. M/s. Parson Tools
and Plants, Kanpur, (1975) 4 SCC 22. In the above case under the
U.P. Sales Tax Act, 1948 the appellate authority has been constituted.
The question arose as to whether the period taken in pursuing the appellate
proceedings can be excluded by applying Section 14 of the Limitation
Act for purposes of filing revision before the Revisional Authority under
Section 10(3-B) of the U.P. Sales Tax Act, 1948. In the above context,
this Court held that appellate authority and the Judge(Revisions) are not
courts, hence, Section 14 of the Limitation Act shall not be applicable. In
paragraph 9 following has been laid down:
“9. The above observations were quoted with approval by this
Court in Jagannath Prasad case1 and it was held that a Sales
Tax Officer under U.P. Sales Tax Act, 1948 was not a court
within the meaning of Section 195 of the Code of Criminal
Procedure although he is required to perform certain quasi-judicial
functions. The decision in Jagannath Prasad case it seems, was
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not brought to the notice of the High Court. In view of these
pronouncements of this Court, there is no room for argument that
the Appellate Authority and the Judge (Revisions) Sales tax
exercising jurisdiction under the Sales Tax Act, are “courts”. They
are merely Administrative Tribunals and “not courts”. Section 14,
Limitation Act, therefore, does not, in terms apply to proceedings
before such tribunals.”
21. There being three-Judge Bench judgment having held that
appellate authority under U.P. Sales Tax Act is not a Court, we are not
persuaded to follow the judgment of two-Judge Bench in P Sarthy
(supra).
Question Nos.2 and 3
22. Both the above questions being inter-connected are taken
together. The main question to be answered in this appeal is as to; whether
the Commissioner while hearing appeal under Section 69 of the Act,
1959 is entitled to condone the delay in filing an appeal by applying the
provision of Section 5 of the Limitation Act, 1963?  Whether on the
strength of Section 29(2) of the Limitation Act, 1963 provisions of Sections
4 to 24 (inclusive of the Limitation Act) shall apply in the proceedings of
appeal before Commissioner under Section 69 of the Act, 1959? When
by special or local law a different period of limitation is prescribed for
any suit, appeal or application, the suit, appeal or application contemplated
under Section 29(2) are suit, appeal or application in a Court or Section
29(2) shall also cover suit, appeal or
application which are to be filed
before the statutory authorities or quasi-judicial authorities and tribunals
also?
23. The Limitation Act, 1963 is an Act to consolidate and amend
the law for the limitation of suits and other proceedings and for purposes
connected therewith. The law of Limitation before enactment of Act,
1963 was governing by the law of limitation under Indian Limitation Act,
1908. The different provisions of Limitation Act, 1963 refers to ‘Court’.
Section 4 provides where the prescribed period for any suit, appeal or
application expires on a day when the court is closed, the suit, appeal or
application may be instituted, preferred or made on the day when the
court reopens. Similarly, Section 5 provides that 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
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he has sufficient cause for not preferring the appeal or making the
application within such period. Section 6 refers to institution of a suit or
making of application for the execution of a decree by a minor or insane,
or an idiot who may institute the suit or make the application within the
same period after the disability has ceased.
24. Sections 9,10 and 11 refer to suit. Section 12 deals with
computation of period of limitation. The section refers to computation of
period of limitation for an appeal or an application for leave to appeal or
for revision or for review of a judgment, obviously was meant for judgment
of a court. Section 13 again refers to Court. Section 14 specifically refers
to the Court. Section 14 of the Act is as follows:
“Section 14. Exclusion of time of proceeding bona fide in
court without jurisdiction. –(1) In computing the period of
limitation for any suit the time during which the plaintiff has been
prosecuting with due diligence another civil proceeding, whether
in a court of first instance or of the appeal or revision, against the
defendant shall be excluded, where the proceeding relates to the
same matter in issue and is prosecuted in good faith in a court
which, from defect of jurisdiction or other cause of a like nature,
is unable to entertain it.
(2) In computing the period of limitation for any application, the
time during which the applicant has been prosecuting with due
diligence
another civil proceeding, whether in a court of first
instance or of appeal or revision, against the same party for the
same relief shall be excluded, where such proceeding is prosecuted
in good faith in a count of first instance or of appeal or revision,
against the same party for the same relief shall be excluded, where
such proceeding is prosecuted in good faith in a court which, from
defect of jurisdiction or other cause of a like nature, is unable to
entertain it.
(3) Notwithstanding anything contained in rule 2 of Order XXIII
of the Code of Civil Procedure, 1908 (5 of 1908), the provisions
of sub-section (1) shall apply in relation to a fresh suit instituted
on permission granted by the court under rule of that Order, where
such permission is granted on the ground that the first suit must
fail by reason of a defect in the jurisdiction of the court of other
cause of a like nature.
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Explanation - For the purpose of this section, -
(a) in excluding the time during which a former civil proceeding
was pending, the day on which that proceeding was instituted
and the day on which it ended shall both be counted;
(b) a plaintiff or an applicant resisting an appeal shall be deemed
to be prosecuting a proceeding;
(c) misjoinder of parties or of causes of action shall be deemed
to be a cause of a like nature with defect of jurisdiction.”
21. Subsequent Sections 16 and 17 refer to suits. Sections 18 to
21 again contain different provisions pertaining to computation of limitation.
Thereafter comes Section 29, which is a saving provision. Section 29 is
as follows:
“Section 29. Savings. – (1) Nothing in this Act, shall affect
section 25 of the Indian Contract Act,1872.
(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 sit, appeal or application by any special or local law, the
provisions contained in section 5 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.
(3) Save as otherwise provided in any law for the time being in
force with respect to marriage and divorce, nothing in
this Act
shall apply to any suit or other proceeding under any such law.
(4) Sections 25 and 26 and the definition of “easement” in
section 2 shall not apply to cases arising in the territories to which
the Indian Easements Act,1882 may for the time being extend.
22. The Schedule of the Act provides for “Periods of Limitation”.
First Division deals with different kinds of suits. Second Division deals
with appeals and Third Division deals with applications. The suits, appeals
and applications which have been referred to in the Schedule obviously
mean suits, appeals and applications to be filed in Court as per the
provisions referred to in the Act noted above.
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23. Section 29(2) provides that 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 and the
provisions contained in Sections 4 to 21 (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. Whether prescription of appeal of limitation of
any suit or application in any special or local law relates to suit, application
or appeal to be filed in Court or it may refer to statutory authorities and
tribunals also, is the question to be answered. Different special or local
laws have been enacted by Legislature covering different subjects,
different rights and liabilities, methodology of establishing, determining
rights and liabilities and remedies provided therein. Special or local law
may also provide remedy by institution of suits, appeals and applications
in the Courts, i.e., civil court and to its normal hierarchy and also create
special forum for determining rights and liabilities and provide remedies.
Most common example of creating statutory authorities for determining
rights, liabilities and remedies are taxing statutes where assessing
authorities have been provided for with hierarchy
of authorities. The
remedy of appeal and revision is also provided in the taxing statutes
which authorities are different from normal civil courts. Section 29(2) in
reference to different special or local laws came for consideration before
this Court in large number of cases. This Court had occasion to consider
the provisions of the Limitation Act, 1963, in reference to different statutes
which contain provisions of suits, appeals or applications to the courts/
authorities/tribunals. There are series of judgments of this Court holding
that provisions of the Limitation Act are directed only when suit, appeal
or application are to be filed in a Court unless there are express provisions
in a special or local law.
24. Section 29(2) also came for consideration before this Court in
several cases. There is another set of cases where it was held that the
provisions of the Limitation Act, 1963 is to be applied even for suit,
appeal or application under special/local law is to be filed before statutory
authorities and the tribunal. We shall notice both sets of cases to find out
the ratio which need to be applied in the present case.
25. The first case to be noticed is Town Municipal Council,
Athani vs. The Presiding Officer, Labour Courts, Hubli,(1969) 1
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SCC 873. In the above case applications under Section 33(c)(2) of the
Industrial Disputes Act, 1947 were filed by various workmen of the
appellant. The question which was considered by this Court in the above
was as to whether Article 137 of the Schedule of the Limitation Act,
1963 governs applications under Section 33(c)(2) of the Industrial
Disputes Act, 1947.  Referring to various articles of Limitation Act, 1963,
this Court laid down following:
“12…………The scope of the various articles in this division
cannot be held to have been so enlarged as to include within them
applications to bodies other than courts, such as a quasi judicial
tribunal, or even an executive authority. An Industrial Tribunal or
a Labour Court dealing with applications or references under the
Act are not courts and they are in no way governed either by the
Code of Civil Procedure or the Code of Criminal Procedure. We
cannot, therefore, accept the submission made that this article
will apply even to applications made to an Industrial Tribunal or a
Labour Court…………”
26. A three-Judge Bench of this Court in Nityananda, M. Joshi
and others. vs. Life Insurance Corporation of India and others,
(1965) 2 SCC 199, had occasion to consider the applicability of Article
137 of the Limitation Act to an application filed under Section 33(c)(1)
and (2) of the Industrial Disputes Act, 1947 before the Labour Court.
Three Judge bench categorically held that the scheme of the Limitation
Act is that
it only deals with application to Courts, and the Labour Court
is not a Court within Limitation Act, 1963. Following was laid down in
paragraph 3:
“3. In our view Article 137 only contemplates applications to
Courts. In the Third Division of the Schedule to the Limitation
Act, 1963 all the other applications mentioned in the various articles
are applications filed in a court. Further Section 4 of the Limitation
Act, 1963, provides for the contingency when the prescribed period
for any application expires on a holiday and the only contingency
contemplated is “when the court is closed.” Again under Section
5 it is only a court which is enabled to admit an application after
the prescribed period has expired if the court is satisfied that the
applicant had sufficient cause for not preferring the application. It
seems to us that the scheme of the Indian Limitation Act is that it
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only deals with applications to courts, and that the Labour Court
is not a court within the Indian Limitation Act, 1963.”
27. Another three-Judge Bench of this Court had occasion to
consider the provisions of U.P. Sales Tax Act, 1948 and the Limitation
Act, 1963, in The Commissioner of Sales Tax Act, 1948, U.P.
Lucknow vs. M/s. Parson Tools and Plants, Kanpur, (1975) 4
SCC 22. The question which came for consideration in the above case
has been noted in paragraph 1 which is to the following effect:
“1. The common question of law for determination in these appeals
by special leave is: Whether Section 14(2) of the Limitation Act,
in terms, or, in principle, can be invoked for excluding the time
spent in prosecuting an application under Rule 68(6) of the U.P.
Sales Tax Rules for setting aside the order of dismissal of appeal
in default, under the U.P. Sales Tax Act, 1948 (for short, “the
Sales Tax Act”) from computation of the period of limitation for
filing a revision under that Act?”
28. The assessee’s appeals against assessment order were
dismissed in default on 10.05.1963. The assessee made applications for
setting aside the dismissal order. Revision Petitions under Section 10 of
the Sales Tax Act were filed more than 18 months after the dismissal of
the appeal. Assessee prayed for exclusion of time spent by him in
prosecuting proceedings for setting aside the dismissal of appeals in
default. The revisional authority
excluded the time spent by applying
Section 14 of the Limitation Act. The Commissioner made a reference
to the High Court as to “Whether under the circumstances of the case,
Section 14 of the Limitation Act extended the period for filing of the
revisions by the time during which the restoration applications remained
pending as being prosecuted bona fide”. The High Court answered the
reference in affirmative which judgment was questioned before this Court.
Three-Judge Bench held that the appellate authority and the Judge
(Revisions) Sales-tax exercising jurisdiction under the Sales-tax Act are
not courts and hence, Section 14 of the Limitation Act does not apply.
Following was laid down by this Court in paragraphs 9 and 24:
“9……………In view of these pronouncements of this Court,
there is no room for argument that the Appellate Authority and
the Judge (Revisions) Sales tax exercising jurisdiction under the
Sales Tax Act, are “courts”. They are merely Administrative
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Tribunals and “not courts”. Section 14, Limitation Act, therefore,
does not, in terms apply to proceedings before such
tribunals………”
24. For all the reasons aforesaid, we are of the opinion that the
object, the scheme and language of Section 10 of the Sales Tax
Act do not permit the invocation of Section 14(2) of the Limitation
Act, either in terms, or in principle, for excluding the time spent in
prosecuting proceedings for setting aside the dismissal of appeals
in default, from computation of the period of limitation prescribed
for filing a revision under the Sales Tax Act. Accordingly, we
answer the question referred, in the negative.”
29. In The Kerala State Electricity Board, Trivandrum vs.
T.P. Kunhaliumma, (1976) 4 SCC 634, this Court had occasion to
consider applicability of Article 137 of Limitation Act, application filed
under Section 16 of the Telegraphs Act, 1885. This Court in the above
case differing with the view taken by the two-Judge Bench in Athani’s
case held that application under Article 137 of Limitation Act is not
confined to application contemplated by or under the C.P.C. However,
the application contemplated under Telegraphs Act has to be an application
to a Court. In paragraphs 18 and 22 following has been laid held:
“18. The alteration of the division as well as the change in the
collocation of words in Article 137 of the Limitation Act, 1963
compared with Article 181 of the 1908 Limitation Act shows that
applications
contemplated under Article 137 are not applications
confined to the Code of Civil Procedure. In the 1908 Limitation
Act there was no division between applications in specified cases
and other applications as in the 1963 Limitation Act. The words
“any other application” under Article 137 cannot be said on the
principle of ejusdem generis to be applications under the Civil
Procedure Code other than those mentioned in Part I of the third
division. Any other application under Article 137 would be petition
or any application under any Act. But it has to be an application to
a court for the reason that Sections 4 and 5 of the 1963 Limitation
Act speak of expiry of prescribed period when court is closed
and extension of prescribed period if applicant or the appellant
satisfies the court that he had sufficient cause for not preferring
the appeal or making the application during such period.
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22. The conclusion we reach is that Article 137 of the 1963
Limitation Act will apply to any petition or application filed under
any Act to a civil court. With respect we differ from the view
taken by the two-judge bench of this Court in Athani Municipal
Council case and hold that Article 137 of the 1963 Limitation Act
is not confined to applications contemplated by or under the Code
of Civil Procedure. The petition in the present case was to the
District Judge as a court. The petition was one contemplated by
the Telegraph Act for judicial decision. The petition is an application
falling within the scope of Article 137 of the 1963 Limitation Act.”
30. In the above case since the application under the Telegraphs
Act was filed before the Court, this Court held that Article 137 of the
Limitation Act was applicable. It is to be noticed that in the above
mentioned cases this Court held that applications contemplated under
Limitation Act are applications to a Court but in the above cases the
Court did not refer to Section 29(2) of the Limitation Act.
31. A two-Judge Bench judgment of this Court in Sakuru vs.
Tanaji, 1985(3) SCC 590, needs to be noticed. In the above case the
question was as to whether delay in filing appeal before Court under
Section 19 is condonable under Section 5 of Limitation Act, 1963. This
Court held that the provisions of Limitation Act, 1963 apply only to
proceedings in ‘courts’ and not to appeals
or applications before bodies
other than courts such as quasi-judicial tribunals or executive authorities,
notwithstanding the fact that such bodies or authorities may be vested
with certain specified powers conferred on courts under the Codes of
Civil or Criminal Procedure. In paragraph 3 following has been laid down:
“3. After hearing both sides we have unhesitatingly come to the
conclusion that there is no substance in this appeal and that the
view taken by the Division Bench in Venkaiah case1 is perfectly
correct and sound. It is well settled by the decisions of this Court
in town Municipal Council v. Presiding Officer, Labour Court,
Nityananda M. Joshi v. Life Insurance Corporation of India
and Sushila Devi v. Ramanandan Prasad that the provisions of
the Limitation Act, 1963 apply only to proceedings in “courts” and
not to appeals or applications before bodies other than courts such
as quasi-judicial tribunals or executive authorities, notwithstanding
the fact that such bodies or authorities may be vested with certain
specified powers conferred on courts under the Codes of Civil or
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Criminal Procedure. The Collector before whom the appeal was
preferred by the appellant herein under Section 90 of the Act not
being a court, the Limitation Act, as such, had no applicability to
the proceedings before him…………”.
32. This Court, however, further held that relevant special statute
may contain an express provision conferring on the appellate authority,
such as the Collector, to extend the prescribed period of limitation which
needs to be examined looking to the scheme of the special statute. Section
93 of the Act was a provision pertaining to the applicability of the
Limitation Act. Referring to the said provision this Court held that 1958
Act does not indicate that Section 5 of the Limitation Act is applicable.
Following was further laid down in paragraph 3:
“3…………But even in such a situation the relevant special
statute may contain an express provision conferring on the
Appellate Authority, such as the Collector, the power to extend
the prescribed period of limitation on sufficient cause being shown
by laying down that the provisions of Section 5 of the Limitation
Act shall be applicable to such proceedings. Hence it becomes
necessary to examine whether the Act contains any such provision
entitling the Collector to invoke the provisions of Section 5 of the
Limitation Act for condonation of the delay in the filing of the
appeal. The only provision relied on by the appellant in this
connection is Section 93 of the Act which, as it stood at
the relevant
time, was in the following terms:
93. Limitations.—Every appeal and every application for
revision under this Act shall be filed within sixty days from the
date of the order against which the appeal or application is
filed and the provisions of the Indian Limitation Act, 1908 shall
apply for the purpose of the computation of the said period.
On a plain reading of the section it is absolutely clear that its
effect is only to render applicable to the proceedings before the
Collector, the provisions of the Limitation Act relating to
“computation of the period of limitation”. The provisions relating
to computation of the period of limitation are contained in Sections
12 to 24 included in Part III of the Limitation Act, 1963. Section 5
is not a provision dealing with “computation of the period of
limitation”. It is only after the process of computation is completed
and it is found that an appeal or application has been filed after
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the expiry of the prescribed period that the question of extension
of the period under Section 5 can arise. We are, therefore, in
complete agreement with the view expressed by the Division
Bench of the High Court in Venkaiah case1 that Section 93 of
the Act did not have the effect of rendering the provisions of
Section 5 of the Limitation Act, 1963 applicable to the proceedings
before the Collector.”
33. This Court in Officer on Special Duty (Land Acquisition)
and another vs. Shah Manilal Chandulal and others, (1996) 9 SCC
414, the Land Acquisition Officer has rejected the application for
reference under Section 18 on the ground that it was barred by limitation.
A writ petition was filed contending that provision of Section 5 of the
Limitation Act applies to the proceedings before the Collector. The High
Court accepted the argument and condoned the delay against which
judgment appeal was filed before this Court. This Court held that Section
5 of the Limitation Act cannot be applied for extension of the period of
limitation prescribed under proviso to sub-section (2) of Section 18.
Following was held in paragraph 18:
“18. Though hard it may be, in view of the specific limitation
provided under proviso to Section 18(2) of the Act, we are of the
considered view that sub-section (2) of Section 29 cannot be
applied to the proviso to sub-section (2) of Section 18. The
Collector/LAO, therefore, is not a court when he acts as
a statutory
authority under Section 18(1). Therefore, Section 5 of the Limitation
Act cannot be applied for extension of the period of limitation
prescribed under proviso to sub-section (2) of Section 18. The
High Court, therefore, was not right in its finding that the Collector
is a court under Section 5 of the Limitation Act.”
34. Another judgment which needs to be noticed is Consolidated
Engineering Enterprises vs. Principal Secretary, Irrigation
Department and others, (2008) 7 SCC 169. The question which
was posed, in the above case, for consideration before this Court has
been mentioned in paragraph 18 which is to the following effect:
“18. The question posed for consideration before the Court is
whether the provision of Section 14 of the Limitation Act would
be applicable to an application submitted under Section 34 of the
Act of 1996 for setting aside the award made by the
arbitrator………”
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35. The provision of sub-section (3) of Section 34 has been noticed
in paragraph 19 which is to the following effect:
“19. A bare reading of sub-section (3) of Section 34 read with
the proviso makes it abundantly clear that the application for setting
aside the award on the grounds mentioned in sub-section (2) of
Section 34 will have to be made within three months. The period
can further be extended, on sufficient cause being shown, by
another period of 30 days but not thereafter. It means that as far
as application for setting aside the award is concerned, the period
of limitation prescribed is three months which can be extended by
another period of 30 days, on sufficient cause being shown to the
satisfaction of the court.”
36. Section 29(2) of the Limitation Act as well as Section 34 of
the Arbitration Act was referred to. This Court after noticing the
provisions of Section 34 opined that Section 5 of the Limitation Act is
excluded. In paragraph 20 following has been laid down:
“20. Section 29(2) of the Limitation Act inter alia provides that
where any special or local law prescribes for any suit, appeal or
application a period of limitation different from the period of
limitation prescribed by the Schedule, the provisions of Section 3
shall apply as if such period was 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 shall apply
only insofar as, and to the extent, they are not expressly excluded
by such special or local law. When any special statute prescribes
certain period of limitation as well as provision for extension up to
specified time-limit, on sufficient cause being shown, then the
period of limitation prescribed under the special law shall prevail
and to that extent the provisions of the Limitation Act shall stand
excluded. As the intention of the legislature in enacting sub-section
(3) of Section 34 of the Act is that the application for setting aside
the award should be made within three months and the period can
be further extended on sufficient cause being shown by another
period of 30 days but not thereafter, this Court is of the opinion
that the provisions of Section 5 of the Limitation Act would not be
applicable because the applicability of Section 5 of the Limitation
Act stands excluded because of the provisions of Section 29(2)
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of the Limitation Act. However, merely because it is held that
Section 5 of the Limitation Act is not applicable to an application
filed under Section 34 of the Act for setting aside an award, one
need not conclude that provisions of Section 14 of the Limitation
Act would also not be applicable to an application submitted under
Section 34 of the Act of 1996.”
37. The three-Judge Bench noticed earlier judgment of this Court
in CST v. Parson Tools and Plants. The three-Judge Bench held that
proceedings initiated for setting aside the arbitral award are not “courts”
and three-Judge Bench held that in CST v. Parson Tools and Plants
the appellate authority and the revisional court were not the courts hence
this case was distinguished. Following was laid down in paragraph 26:
“26. From the judgment of the Supreme Court in CST, (1975)
2 SCC 22, it is evident that essentially what weighed with the
Court in holding that Section 14 of the Limitation Act was not
applicable, was that the appellate authority and the revisional
authority were not “courts”. The stark features of the revisional
powers pointed out by the Court, showed that the legislature had
deliberately excluded the application of the principles underlying
Sections 5 and 14 of the Limitation Act. Here in this case, the
Court is not called upon to examine scope of revisional powers.
The Court in this case is dealing with Section 34 of the Act which
confers powers on
the court of the first instance to set aside an
award rendered by an arbitrator on specified grounds. It is not the
case of the contractor that the forums before which the
Government of India undertaking had initiated proceedings for
setting aside the arbitral award are not “courts”. In view of these
glaring distinguishing features, this Court is of the opinion that the
decision rendered in CST did not decide the issue which falls for
consideration of this Court and, therefore, the said decision cannot
be construed to mean that the provisions of Section 14 of the
Limitation Act are not applicable to an application submitted under
Section 34 of the Act of 1996.”
38. Three-Judge Bench held that Section 14 of the Limitation Act
was applicable to application filed under Section 34 of the Arbitration
Act, 1996. R.V. Raveendran, J. in his concurring opinion has held that
Sections 3 and 29(2) of the Limitation Act will not apply to proceedings
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before the tribunal, to appeals or applications before the tribunals, unless
expressly provided. In paragraph 44 following was laid down:
“44. It may be noticed at this juncture that the Schedule to the
Limitation Act prescribes the period of limitation only to proceedings
in courts and not to any proceeding before a tribunal or quasi-
judicial authority. Consequently Sections 3 and 29(2) of the
Limitation Act will not apply to proceedings before the tribunal.
This means that the Limitation Act will not apply to appeals or
applications before the tribunals, unless expressly provided.”
39. The most elaborate judgment holding that the Limitation Act
applies only to courts and not to the tribunals is the judgment of this
Court in M.P. Steel Corporation vs. Commissioner of Central
Excise, 2015(7) SCC 58, Rohinton Fali Nariman, J. speaking for the
Court reviewed all earlier judgments of two-Judge and three-Judge
Benches of this Court. In paragraphs 11 to 35 all earlier judgments have
been considered. In the above case Commissioner of Customs(Appeals)
dismissed the appeal filed by the appellant on the ground that appeal is
barred by time and the Commissioner(Appeals) had no power to condone
delay beyond the period specified in Section 128 of the Customs Act. In
the above case, benefit of Section 14 of the Limitation Act was sought.
It was contended before this Court that while Section 2 of the Limitation
Act, Section 14 of the Limitation Act was also applied to
criminal, special
or local law. This Court noticed the ingredients of applicability of Section
14. Two-Judge Bench has held that relying on earlier judgments of this
Court that provisions of the Limitation Act are applicable only to suits,
appeals and applications filed in Courts. Section 29(2) was also considered
by this Court and following was laid down in paragraph 33:
“33……Section 29(2) states:
“29. Savings.—(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
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24 (inclusive) shall apply only insofar as, and to the extent to
which, they are not expressly excluded by such special or local
law.”
A bare reading of this section would show that the special or local
law described therein should prescribe for any suit, appeal or
application a period of limitation different from the period prescribed
by the Schedule. This would necessarily mean that such special
or local law would have to lay down that the suit, appeal or
application to be instituted under it should be a suit, appeal or
application of the nature described in the Schedule. We have
already held that such suits, appeals or applications as are
referred to in the Schedule are only to courts and not to quasi-
judicial bodies or tribunals. It is clear, therefore, that only when a
suit, appeal or application of the description in the Schedule is to
be filed in a court under a special or local law that the provision
gets attracted. This is made even clearer by a reading of Section
29(3). Section 29(3) states:
“29. Savings.—(1)-(2)
*
*
*
(3) Save as otherwise provided in any law for the time being in
force with respect to marriage and divorce, nothing in this Act
shall apply to any suit or other proceeding under any such law.”
When it comes to the law of marriage and divorce, the section
speaks not only of suits but other proceedings as well. Such
proceedings may be proceedings which are neither appeals nor
applications thus
making it clear that the laws relating to marriage
and divorce, unlike the law of limitation, may contain proceedings
other than suits, appeals or applications filed in courts. This again
is an important pointer to the fact that the entirety of the Limitation
Act including Section 29(2) would apply only to the three kinds of
proceedings mentioned all of which are to be filed in courts.”
40. Two-Judge Bench, however, held that provisions of Section
14 would certainly apply. We in the present case are concerned only
with applicability of Section 5 of the Limitation Act.
41. Now, we come to the second set of cases which cases have
applied provisions of Limitation Act on special and local law. A three-
Judge Bench judgment in The Commissioner of Sales Tax, U.P. vs.
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M/s. Madan Lal Das & Sons, Bareilly, (1976) 4 SCC 464, has
been relied by the counsel for the respondents. In the above case an
appeal relating to assessment year 1960-61 was decided by the appellate
authority. The copy of the appellate order was served on the dealer on
02.08.1965. The dealer lost the copy of the appellate order and on
15.06.1966 made an application for obtaining another copy of the order
which was ready on 17.08.1967. Revision under Section 10 of the U.P.
Sales Tax Act, 1948 was filed by the dealer before the Judge(Revision)
Sales Tax on 09.09.1967. The dealer claimed that the time taken in
obtaining certified copy needs to be excluded under Section 12(2) of the
Limitation Act, 1963. The Judge(Revision) accepted the contention and
decided revision on merits. At the instance of the Commissioner of Sales
Tax a question was referred to the High Court as to whether the time
taken by the dealer in obtaining another copy of the appellate order
could be excluded for the purpose of limitation for filing revision under
Section 10(1) of the Act, 1948. The High Court answered the question
in favour of the dealer and against the Revenue.
42. The Commissioner of Sales Tax filed an appeal in this Court
questioning the judgment of the High Court. It was contended before
this Court that U.P. Sales Tax Act constitutes a complete court in itself
and the High Court committed an error in relying on Section 12(2) of the
Limitation Act, 1963. In paragraph 4
of the judgment following was laid
down:
“4. There can be no manner of doubt that the U.P. Sales Tax
Act answers to the description of a special or local law. According
to sub-section (2) of Section 29 of the Limitation Act, reproduced
above, for the purpose of determining any period of limitation
prescribed for any application by any special or local law, the
provisions contained in Section 12(2), inter alia, shall apply insofar
as and to the extent to which they are not expressly excluded by
such special or local law. There is nothing in the U.P. Sales Tax
Act expressly excluding the application of Section 12(2) of the
Limitation Act for determining the period of limitation prescribed
for revision application. The conclusion would, therefore, follow
that the provisions of Section 12(2) of the Limitation Act of 1963
can be relied upon in computing the period of limitation prescribed
for filing a revision petition under Section 10 of the U.P. Sales Tax
Act.”
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43. This Court held that Section 12(2) of the Limitation Act can
be relied upon in computing the period of limitation prescribed for filing
the revision. The Judge(Revision) before whom revision is filed is not a
Court, it is clear from the scheme of the U.P. Sales Tax Act, 1948.
Section 10 under which revision is filed provides for Revising Authority.
Section 10(1) provides for appointment of Revising Authority which is
as follows:
“Section 10. Power of revision.-(1) The State Government shall
appoint as Revising Authority a person qualified under clause (2)
of Article 217 of the Constitution for appointment as Judge of a
High Court.”
44. The above provision makes it clear that revision is to be filed
before a Revising Authority created under Act, 1948 and is not a Court.
We have already noticed above that a three-Judge Bench of this Court
in The Commissioner of Sales Tax, U.P. Lucknow vs. M/s. Parson
Tools and Plants, Kanpur (supra) had considered the question of
applicability of Limitation Act, 1963 before Revision Authority under
U.P. Sales Tax Act, 1948. This Court in paragraph 9 of the judgment has
categorically held that Judge(Revisions) Sales Tax exercising jurisdiction
under Section 10 are not courts but mere administrative tribunals. In
CST, U.P. vs. M/s. Parson Tools and Plants, the question was with
regard to applicability of Section 14 of the Limitation Act. The three-
Judge Bench categorically held that
the Judge(Revision) being not a
Court, Section 14 of the Limitation Act does not apply to the proceedings
before such tribunal. Before three-Judge Bench which heard CST, U.P.
vs. M/s. Madan Lal Das & Sons(supra) unfortunately the earlier
judgment of equal strength i.e. three-Judge Bench in CST, U.P. vs. M/
s. Parson Tools and Plants was not cited.  CST, U.P. vs. M/s. Parson
Tools and Plants was judgment was on the same issue i.e. applicability
of the Limitation Act in reference to Judge(Revision) exercising the
jurisdiction under the U.P. Sales Tax Act, CST, U.P. vs. M/s. Parson
Tools and Plants(supra) has held that Limitation Act is not applicable
to such authority. Thus, three-Judge judgment was neither noticed and a
contrary view was expressed in CST, U.P. vs. M/s. Madan Lal Das
& Sons. We have also noticed that there has also been earlier three-
Judge Bench judgment in Nityananda, M. Joshi and others. vs. Life
Insurance Corporation of India and others(supra) where it was
held that Limitation Act applies only to suits, applications and appeals
filed in Courts. The judgment of this Court in CST, U.P. vs. M/s. Madan
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Lal Das & Sons having not referred to earlier judgments of equal
strength, we are persuaded to follow the earlier three-Judge Bench
judgment of this Court in CST, U.P. vs. M/s. Parson Tools and Plants.
45. The judgment on which reliance has been placed by the learned
counsel for the respondent is Mukri Gopalan vs. Cheppilat
Puthanpurayil Aboobacker, (1995) 5 SCC 5. In the above case,
question for consideration was as to whether the appellate authority
under Section 18 of Kerala Buildings (Lease and Rent Control) Act,
1965 has power to condone the delay in filing appeal. The issue which
has been noticed in paragraph 1 is to the following effect:
“1.  In this appeal by special leave a short but an interesting question
falls for determination. It is to the effect “whether the appellate
authority constituted under Section 18 of the Kerala Buildings
(Lease and Rent Control) Act, 1965 (hereinafter referred to as
the ‘Rent Act’) has power to condone the delay in the filing of
appeal before it under the said section”. Majority of the Kerala
High Court in the case of Jokkim Fernandez v. Amina Kunhi
Umma, AIR 1974 Ker 162, has taken the view that the appellate
authority has no such power. Following the said decision a Division
Bench of the Kerala High Court by its judgment and order under
appeal has dismissed the revision application moved by the appellant
herein whose appeal before the appellate authority was dismissed
as time barred and the application for
condonation of delay was
treated to be not maintainable before the appellate authority.”
46. One fact which is to be noticed is that appellate authority
under the above Act was District Judge. The notification issued by the
State Government conferring on the District Judge power of the appellate
authority has been noticed and extracted in paragraph 5 of the judgment.
Relevant part of paragraph No.5 is as follows:
“5. …………………………At this stage it will be useful to
note that the Government of Kerala in exercise of its power under
Section 18(1) has issued a notification conferring on District Judges
the powers of appellate authority for the purpose of Kerala Rent
Act. The said notification reads as under:
“Buildings (Lease & Rent Control) Act, 1965-Noti. under
Section 18(1) conferring on District Judges powers of
appellate authorities
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(Published in Kerala Gazette No. 38 dated 26th September,
1989 : SRO :1631 of 1989)
NOTIFICATION
S.R.O. No. 1631 of 1989 In exercise of the powers conferred
by clause (a) of sub-section (1) of Section 18 of the Kerala
Buildings (Lease and Rent Control) Act, 1965 (2 of 1965) and in
supersession of all previous notifications on the subject, the
Government of Kerala hereby confers on the District Judges having
jurisdiction over the areas within which the provisions of the said
Act have been extended, the powers of the appellate authorities
for the purposes of the said Act, in the said areas.”
47. This Court in the above case held that appellate authority was
not “persona designata”. This Court in paragraph 8 held that the appellate
authority who was District Judge would be court and not persona
designata. Following was observed in paragraph 8:
“8…………When the aforesaid well settled tests for deciding
whether an authority is a court or not are applied to the powers
and functions of the appellate authority constituted under Section
18 of the Rent Act, it becomes obvious that all the aforesaid
essential trappings to constitute such an authority as a court are
found to be present. In fact, Mr Nariman, learned counsel for
respondent also fairly stated that these appellate authorities would
be courts and would not be persona designata…………”
48. Section 29(2) was also considered. This Court further held
that Section 29(2) will
get attracted to appeals filed before appellate
authority under Section 18 of the Rent Act. In paragraphs 11 and 15
following has been laid down:
“11. It is also obvious that once the aforesaid two conditions are
satisfied Section 29(2) on its own force will get attracted to appeals
filed before appellate authority under Section 18 of the Rent Act.
When Section 29(2) applies to appeals under Section 18 of the
Rent Act, for computing the period of limitation prescribed for
appeals under that Section, all the provisions of Sections 4 to 24
of the Limitation Act would apply. Section 5 being one of them
would therefore get attracted. It is also obvious that there is no
express exclusion anywhere in the Rent Act taking out the
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applicability of Section 5 of the Limitation Act to appeals filed
before appellate authority under Section 18 of the Act.
Consequently, all the legal requirements for applicability of Section
5 of the Limitation Act to such appeals in the light of Section
29(2) of Limitation Act can be said to have been satisfied. That
was the view taken by the minority decision of the learned Single
Judge of Kerala High Court in Jokkim Fernandez v. Amina Kunhi
Umma. The majority did not agree on account of its wrong
supposition that appellate authority functioning under Section 18
of the Rent Act is a persona designata. Once that presumption is
found to be erroneous as discussed by us earlier, it becomes at
once clear that minority view in the said decision was the correct
view and the majority view was an erroneous view.”
15. After repealing of Indian Limitation Act, 1908 and its
replacement by the present Limitation Act of 1963 a fundamental
change was made in Section 29(2). The present Section 29(2) as
already extracted earlier clearly indicates that once the requisite
conditions for its applicability to given proceedings under special
or local law are attracted, the provisions contained in Sections 4
to 24 both inclusive would get attracted which obviously would
bring in Section 5 which also shall apply to such proceedings unless
applicability of any of the aforesaid sections of the Limitation Act
is expressly excluded by such special or local law. By this change
it
is not necessary to expressly state in a special law that the
provisions contained in Section 5 of the Limitation Act shall apply
to the determination of the periods under it. By the general provision
contained in Section 29(2) this provision is made applicable to the
periods prescribed under the special laws. An express mention in
the special law is necessary only for any exclusion. It is on this
basis that when the new Rent Act was passed in 1965 the provision
contained in old Section 31 was omitted. It becomes therefore
apparent that on a conjoint reading of Section 29(2) of Limitation
Act of 1963 and Section 18 of the Rent Act of 1965, provisions of
Section 5 would automatically get attracted to those proceedings,
as there is nothing in the Rent Act of 1965 expressly excluding
the applicability of Section 5 of the Limitation Act to appeals under
Section 18 of the Rent Act.”
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49. This Court in the above case held that Section 5 was attracted
in appeal which was to be heard by the appellate authority.  It is, further,
relevant to notice that in M.P. Steel Corporation (supra), Mukri
Gopalan has been referred to and has been held to be no longer good
law in view of the earlier three-Judge judgments of this Court. Dealing
with Mukri Gopalan’s case two-Judge Bench in M.P. Steel
Corporation had held following in paragraph 29 :
“29. Quite apart from Mukri Gopalan case being out of
step with at least five earlier binding judgments of this Court, it
does not square also with the subsequent judgment in Consolidated
Engg. Enterprises v. Irrigation Deptt. A three-Judge Bench of
this Court was asked to decide whether Section 14 of the Limitation
Act would apply to Section 34(3) of the Arbitration and Conciliation
Act, 1996. After discussing the various provisions of the Arbitration
Act and the Limitation Act, this Court held:…………”
32. Obviously, the ratio of Mukri Gopalan does not square
with the observations of the three-Judge Bench in Consolidated
Engg. Enterprises. In the latter case, this Court has unequivocally
held that Parson Tools is an authority for the proposition that the
Limitation Act will not apply to quasi-judicial bodies or tribunals.
To the extent that Mukri Gopalan is in conflict with the judgment
in Consolidated Engg. Enterprises case, it is no longer good
law.”
50. Learned counsel
for the respondent relied on three-Judge Bench
judgment of this Court in State of Madhya Pradesh and another vs.
Anshuman Shukla, (2014) 10 SCC 814. In the above case this Court
was examining as to whether delay in filing revision before the High
Court under M.P. Madhyastham Adhikaran Adhiniyam, 1983 was
condonable applying Section 5 of the Limitation Act, Section 29(2) as
well as Mukri Gopalan case was referred to by three-Judge Bench.
In paragraph 20 following was laid down:
“20. Section 19 of the Act confers the power of revision on the
High Court. It provides that the aggrieved party may make an
application for revision before the High Court within three months
of the date of the award. This section was amended in 2005, to
confer the power on the High Court to condone the delay. Since
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this dispute pertains prior to 2005, thus, the provision of the
unamended Act shall apply in the present case.”
51. After considering the legislative scheme of Act, 1983 following
was laid down in paragraph 32 and 33:
“32. Section 19 of the 1983 Act does not contain any express
rider on the power of the High Court to entertain an application
for revision after the expiry of the prescribed period of three
months. On the contrary, the High Court is conferred with suo
motu power, to call for the record of an award at any time. It
cannot, therefore, be said that the legislative intent was to exclude
the applicability of Section 5 of the Limitation Act to Section 19 of
the 1983 Act.
33. In our opinion, it is unnecessary to delve into the question
whether the Arbitral Tribunal constituted under the Act is a court
or not for answering the issue in the present case as the delay in
filing the revision has occurred before the High Court, and not the
Arbitral Tribunal.”
52. It is relevant to notice that this Court from the scheme of Act,
1983, itself found that legislative intent was not to exclude the applicability
of Section 5 of the Limitation Act. There cannot be any dispute to the
proposition that if the legislative scheme of special or local law indicate
that enactment intended applicability of Section 5. Section 5 shall be
applicable independent with operation of Section 29(2). However, in
paragraph 33, the Court did not delve into the question as to whether
Arbitral Tribunal is a court or not. Due to a reason that revision was filed
before the High Court and there cannot be any issue as to the High
Court is not a Court, thus, when revision application was filed before a
Court Section 29(2) was clearly attracted applying Section 5 of the
Limitation Act. The said judgment cannot be said to be authority for the
proposition that in appeals filed before statutory authorities which are
not Court, Section 5 of the Limitation act shall be attracted. Another
judgement relied by the respondent is Syed Zalil Akhtar vs. Zila Sahkari
Krishi Avam Gramn Vikas Bank, Mydt., (2016) 12 SCC 365. This
Court in the above case was considering the power of condonation of
delay in filing appeal under Section 55(2) of M.P. Cooperative Societies
Act, 1960. The High Court has upheld the decision of the M.P. State
Cooperative Tribunal, appellant’s application filed under Section 55(2)
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was belated and since there being no provision for condoning the delay
in filing of the appeal and Section 5 of the Limitation Act was also not
applicable. Two-Judge Bench has referred to Mukri Gopalan (supra).
Relying on Mukri Gopalan and Anshuman Shukla, two-Judge Bench
held that Section 5 of the Limitation Act would be applicable. In
paragraphs 11 and 12 following has been held:
“11. Having noted the said view expressed in para 34, as
compared to a detailed analysis made in the earlier decision of
this Court made in Mukri Gopalan case we are of the considered
view that in the light of the subsequent larger Bench decision of
this Court in Anshuman Shukla case which has given its seal of
approval to the decision in Mukri Gopalan case, the latter decision
can be followed in all respects and the one held in Noharlal Verma
case cannot be said to be good law.
12. Therefore, applying the law thus laid down by this Court
in Mukri Gopalan case and Anshuman Shukla case we are
convinced that Section 5 of the Limitation Act would apply in all
force to the case on hand and consequently when we consider
the extent of delay involved, we find that the last date for filing
the application was 8-9-1995, application was presented on 11-9-
1995, in between two days, namely, 9-9-1995 and 10-9-1995 were
second Saturday and Sunday. Therefore, it must be held that there
was every justification and sufficient cause for the appellant in
his
claim for condoning the said two days in filing the application
before the original authority. Consequently, we ourselves hereby
condone the said delay of two days and since the Tribunal by its
order dated 18-3-2009 merely dismissed the appeals of the
appellant as well as that of the respondent on the sole ground of
delay caused by the appellant in preferring the original application,
the said order cannot be sustained.”
53. We have already noticed that Mukri Gopalan was held to be
not a good law by this Court in M.P. Steel on the ground that it has not
noticed earlier three-Judge Bench judgments and also in view of the
subsequent three-Judge Bench judgment, the said case is not a good
law. As far as Anshuman Shukla’s case is concerned we have already
noticed the issue, in the said case, of applicability of Section 5 of Limitation
Act in the revision filed in the High Court, High Court being a Court,
Limitation Act was fully applicable and the said judgment does not support
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the proposition that in application before not a Court, Section 5 shall
automatically be applicable.
54. The ratio which can be culled from above noted judgments,
especially judgment of three-Judge Benches, as noted above, is as follows:
(1)
The suits, appeals and applications referred to in the Limitation
Act, 1963 are suits, appeals and applications which are to be
filed in a Court.
(2)
The suits, appeals and applications referred to in the Limitation
Act are not the suits, appeals and applications which are to
be filed before a statutory authority like Commissioner under
Act, 1959.
(3)
Operation of Section 29(2) of the Limitation Act is confined
to the suits, appeals and applications referred to in a special
or local law to be filed in Court and not before statutory
authorities like Commissioner under Act, 1959.
(4)
However, special or local law vide statutory scheme can
make applicable any provision of the Limitation Act or
exclude applicability of any provision of Limitation Act which
can be decided only after looking into the scheme of particular,
special or local law.
55. We, thus, answer question Nos.2 and 3 in the following manner:
(i)
The applicability of Section 29(2) of the Limitation Act is
with regard to different limitations prescribed for any suit,
appeal or application when to be filed in a Court.
(ii)
Section 29(2) cannot be pressed in service with regard to
filing of suits, appeals and applications before the statutory
authorities and
tribunals provided in a special or local law.
The Commissioner while hearing of the appeal under Section
69 of the Act, 1959 is not entitled to condone the delay in
filing appeal, since, provision of Section 5 shall not be
attracted by strength of Section 29(2) of the Act.
Question No.4
56. A special or local law can very well provide for applicability of
any provision of Limitation Act or exclude applicability of any provision
of Limitation Act. The provisions of Limitation Act including Section 5
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can very well be applied in deciding an appeal by statutory authority
which is not a Court by the statutory scheme of special or local law. We,
thus, need to notice the provisions of Act, 1959 as to whether the scheme
under Act, 1959 shows that enactment intended to apply Section 5 of the
Limitation Act.
57. Section 110 provides for procedure and powers at inquiries
under Chapters V and VI. The Commissioner hears appeals under Section
69 which is under Chapter V of the Act. Section 110 of the Act is as
follows:
“Section 110. Procedure and powers at inquiries under
Chapters V and VI.- (1) Where a Commissioner or a Joint
Commissioner or a Deputy Commissioner makes an inquiry or
hears an appeal under Chapter V or Chapter VI, the inquiry shall
be made and the appeal shall be heard, as nearly as may be, in
accordance with the procedure applicable under the Code of Civil
Procedure, 1908 (Central Act V of 1908) to the trial of suits or
the hearing of appeals, as the case may be.
(2) The provisions of the Indian Evidence Act, 1872(Central
Act I of 1872) and the Indian Oaths Act, 1873 (Central Act X of
1873), shall apply to such inquiries and appeals.
(3) The Commissioner 1[or a Joint Commissioner or a
Deputy Commissioner] holding such inquiry or hearing such an
appeal shall be deemed to be a person acting judicially within the
meaning of the Judicial Officers Protection Act, 1850 (Central
Act XVIII of 1850).”
58. The mere
fact that a statutory authority is empowered to
follow the procedure as nearly may be in accordance with procedure
under C.P.C. to the trial of suits or hearing of appeals, the statutory
authority shall not become a Court. There is nothing under Section 110
which indicates that Limitation Act is also made applicable in hearing of
the appeal.
59. Section 115 deals with limitation. It only provides that in
computing the period of limitation prescribed under Act, 1959 for any
proceeding, suit, appeal or application for revision against any order or
decree passed under this Act, the time requisite for obtaining a certified
copy of such order or decree shall be excluded.
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60. The provision of Section 69 of Act, 1959 also indicates that
Legislature never contemplated applicability of Section 5 of the Limitation
Act in proceedings before Commissioner. Section 69(2) noted above
provides that any order passed by the Joint Commissioner or the Deputy
Commissioner, as the case may, in respect of which no appeal has been
preferred within the period specified in sub-section (1) may be revised
by the Commissioner suo motu and the Commissioner may call for and
examine the records of the proceedings to satisfy himself as to the
regularity of such proceedings or the correctness, legality or propriety of
any decision or order passed by the Joint Commissioner or the Deputy
Commissioner, as the case may be.
61. Thus, Section 69(2) gives suo motu power to the Commissioner
to call for and examine the records of the proceedings of Joint
Commissioner or the Deputy Commissioner in respect of which no appeal
has been preferred within the period specified in sub-section (1). Thus,
in a case appeal is not filed within 60 days against the order of Joint
Commissioner or the Deputy Commissioner, the Commissioner is vested
with suo motu power to call for and examine the records. The suo motu
power has been given to the Commissioner to correct the orders of Joint
Commissioner or the Deputy Commissioner even if no appeal has been
filed within 60 days. Giving of suo motu power to the Commissioner is
with object to ensure that an order passed by the
Joint Commissioner or
the Deputy Commissioner may be corrected when appeal is not filed
within time under Section 69(1). The scheme of Section 69 especially
sub-section (2) also re-enforces our conclusion that Legislature never
contemplated applicability of Section 5 in Section 69(1) for condoning
the delay in filing an appeal by applying Section 5 of the Limitation Act.
62. Learned counsel for the respondent has referred to two Rules
framed under Section 116 of 1959, Act, namely, the Application and
Appeal Rules dated 30.08.1961 and the Holding of Inquiries Rules dated
30.08.1961. The Application and Appeal Rules provide for procedures
and details of filing application, affidavits, memorandum of appeal,
application for revision, etc. The said Rules, in no manner, support the
contention of the learned counsel for the respondent that Section 5 of
the Limitation Act is applicable. Similarly, Holding of Inquiries Rules
provide for procedure of holding of inquiries, issue of notice, etc. The
above Rules also do not throw any light on the applicability of Section 5
of the Limitation Act.
GANESAN v. COMMNR., T.N. HINDU RELIGIOUS & CHARITABLE
ENDOWMENTS BOARD [ASHOK BHUSHAN, J.]
A
B
C
D
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SUPREME COURT REPORTS
[2019] 7 S.C.R.
63. The above provision clearly indicates that provision for only
computation of limitation has been made applicable to the proceedings
under Act, 1959. Section 115 cannot be read in a manner as to providing
applicability of Section 5. There is no other provision in the scheme from
which it can be inferred that Act, 1959 intended applicability of Section
5 of the Limitation Act to proceedings of appeal before the Commission.
We, thus, conclude that Section 5 of the Limitation Act is not applicable
as per the scheme of Act, 1959.
64. In view of the foregoing discussions, we allow the appeal, set
aside the impugned judgment of the High Court. The order of the
Commissioner dated 31.07.2013 is set aside and the appeal filed by
respondent No.3 stands dismissed.
65. We may, however, observe that dismissal of the appeal filed
by respondent No.3 as above shall not preclude the Commissioner in
exercising his suo motu power under Section 69(2) of the Act, 1959.
We, however, are not expressing any opinion with regard to exercise of
suo motu by the Commissioner under Section 69(2) in the present case
and it is for the Commissioner to invoke his power under Section 69(2) if
he is so satisfied. Further, this will be without prejudice to any other
remedy open to the respondent No.3 in law.
66. The parties shall bear their own costs.
Ankit Gyan
Appeal allowed.