Full Judgment Text
1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.4582 OF 2019
(ARISING OUT OF SLP(CIVIL) NO. 30365 OF 2018)
GANESAN REP BY ITS POWER
AGENT G. RUKMANI GANESAN … APPELLANT(S)
VERSUS
THE COMMISSIONER, THE TAMIL NADU
HINDU RELIGIOUS AND CHARITABLE
ENDOWMENTS BOARD & ORS. … RESPONDENT(S)
J U D G M E N T
ASHOK BHUSHAN,J.
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
Signature Not Verified
Digitally signed by
ARJUN BISHT
Date: 2019.10.26
12:23:04 IST
Reason:
Commissioner Tamil Nadu Hindu Religious Endowment Board
has been dismissed.
2
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.
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
3
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 78 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
4
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.
2.5 The Division Bench of the Madras High Court
5
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
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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
7
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 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
8
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?
9
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:
“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
10
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 ,
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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 determine the law arising upon
that fact, and if any injury appears to have
been done, to ascertain, and b its officers to
th
apply, the remedy,” (3 Steph. Comm. 6 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,
Subordinate 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,
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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.
1
(2) Any order passed by [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
subsection (1) 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
1
decision or order passed by [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
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deemed to have been passed by the Commissioner
on an appeal preferred to him under subsection
(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 subsection (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
subsection (1) or subsection (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 subsection (1) or subsection (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 subsection (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.
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(2) Any party aggrieved by a decree of the
Court under subsection (1), may, within ninety
days from the date of the decree, appeal to the
High Court.”
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
15
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
16
be a “court” within the meaning of this
section.
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 threeJudge Bench
17
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(3B) 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
1
case 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 quasijudicial functions.
The decision in Jagannath Prasad case it seems,
was 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
18
not, in terms apply to proceedings before such
tribunals.”
21. There being threeJudge 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
twoJudge Bench in P Sarthy (supra).
Question Nos.2 and 3
22. Both the above questions being interconnected 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,
19
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 quasijudicial
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 he has sufficient
cause for not preferring the appeal or making the
application within such period. Section 6 refers to
20
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
21
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
subsection (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.
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
22
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
23
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.
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
24
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
25
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 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:
26
“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 threeJudge 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. ThreeJudge 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
27
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 only deals with
applications to courts, and that the Labour
Court is not a court within the Indian
Limitation Act, 1963.”
27. Another threeJudge 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
28
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. ThreeJudge Bench held
that the appellate authority and the Judge (Revisions)
Salestax exercising jurisdiction under the Salestax
Act are not courts and hence, Section 14 of the
29
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 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 twoJudge Bench in
Athani’s case held that application under Article 137 of
Limitation Act is not confined to application
30
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.
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 twojudge bench of this
Court in Athani Municipal Council case and hold
that Article 137 of the 1963 Limitation Act is
31
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 twoJudge 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 quasijudicial
tribunals or executive authorities, notwithstanding the
32
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
1
Venkaiah case 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 quasijudicial 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. 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
33
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
34
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 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
1
Venkaiah case 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
35
prescribed under proviso to subsection (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 subsection (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
The question which was posed, in the above
SCC 169.
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………”
36
35. The provision of subsection (3) of Section 34 has
been noticed in paragraph 19 which is to the following
effect:
“ 19. A bare reading of subsection (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 subsection (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:
“ Section 29(2) of the Limitation Act
20.
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
37
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 subsection (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) 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 threeJudge 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
38
not the courts hence this case was distinguished.
Following was laid down in paragraph 26:
“ 26. From the judgment of the Supreme Court
, (1975) 2 SCC 22,
in CST 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. ThreeJudge 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
39
Sections 3 and 29(2) of the Limitation Act will not
apply to proceedings 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 quasijudicial 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 twoJudge 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
40
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. TwoJudge 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 24 (inclusive) shall apply only
insofar as, and to the extent to which, they
are not expressly excluded by such special or
local law.”
41
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 quasijudicial 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.”
42
40. TwoJudge 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 threeJudge Bench judgment in
The
Commissioner of Sales Tax, U.P. vs. 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 196061 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.
43
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.
44
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.”
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 threeJudge 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
45
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
threeJudge 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 threeJudge Bench which heard CST,
U.P. vs. M/s. Madan Lal Das & Sons(supra) unfortunately
the earlier judgment of equal strength i.e. threeJudge
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, threeJudge judgment was neither
46
noticed and a contrary view was expressed in CST, U.P.
We have also noticed that
vs. M/s. Madan Lal Das & Sons.
there has also been earlier threeJudge Bench judgment
in Nityananda, M. Joshi and others. vs. Life Insurance
where it was held
Corporation of India and others(supra)
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 Lal Das & Sons having not
referred to earlier judgments of equal strength, we are
persuaded to follow the earlier threeJudge 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:
47
“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
, AIR 1974 Ker 162,
Kunhi Umma 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
48
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
(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 subsection
(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
49
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
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
50
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.”
51
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 threeJudge judgments of
this Court. Dealing with Mukri Gopalan’s case twoJudge
Bench in M.P. Steel Corporation had held following in
paragraph 29 :
Quite apart from Mukri Gopalan case
“29.
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 threeJudge 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
threeJudge 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 quasijudicial
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.”
52
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 threeJudge 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 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
53
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
54
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) 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. TwoJudge Bench has referred to
Mukri
Gopalan (supra). Relying on Mukri Gopalan and Anshuman
Shukla, twoJudge 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
55
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 891995, application was
presented on 1191995, in between two days,
namely, 991995 and 1091995 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 1832009 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 threeJudge Bench
judgments and also in view of the subsequent threeJudge
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
56
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
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 threeJudge 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
57
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
58
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 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
59
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.
1
(3) The Commissioner [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
60
passed under this Act, the time requisite for obtaining
a certified copy of such order or decree shall be
excluded.
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 subsection (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 subsection
61
(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 subsection (2) also reenforces
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
62
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.
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
63
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.
......................J.
( ASHOK BHUSHAN )
......................J.
( K.M. JOSEPH )
New Delhi,
May 03, 2019