9911796707
TMI Blog2004 (6) TMI 335X X X X Extracts X X X X X X X X Extracts X X X X ..... ansferred to the Tribunal and this appeal has been preferred to this Court after the expiry of 120 days from the communication of the order passed by the learned Tribunal. Accordingly, an application under section 5 of the Limitation Act has been made. Objection to the applicability of section 5, Limitation Act : 2. Mr. Anjan Mukherjee, learned Senior Counsel, has raised a point that section 5 of the Limitation Act is not applicable in the present case since by reason of section 29(2) of the Limitation Act, its application has been excluded by express provision provided in section 35 of the 1999 Act. Since the 1999 Act has clearly expressed its intention contrary to the provisions contained in section 54 of the 1973 Act, therefore, section 6 of the General Clauses Act would not come in aid of Mr. Banerjee s client, the appellant and sub-section (6) of section 49 shall have no manner of application in the present case. He relied on a decision of the Division Bench of this Court in Union of India v. SMP Exports P. Ltd. [FEA No. 7 of 2003, disposed of on 31-3-2004] by Their Lordships the Hon ble Mr. Justice M.H.S. Ansari and the Hon ble Mr. Justice Soumitra Pal, wherein a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 29(2) of the Limitation Act can be excluded by express and clear intention used in the legislation. In the present case, in section 35 of the 1999 Act, (according to him he has some reservation), has intended to exclude the application of Limitation Act in terms of section 29(2) of the Limitation Act. However, this question need not be dealt with in this case. On the basis of the question the Court is called upon to decide, it is not necessary to be gone into. The position is made clear by reason of the expression used in sub-sections (3) and (4) read with sub-section (5), clauses ( b ) and ( c ) and the proviso and sub-section (6) of section 49 of the 1999 Act. The Legislature had never intended to deny the right, which accrued to the appellant under the 1973 Act. Even sub-section (5) clause ( c ) of section 49 of the 1999 Act while permitting appeal within 60 days from commencement against an order passed by the Tribunal in an appeal under section 52, sub-section (3) or (4) of the 1973 Act, the application of section 5 of the Limitation Act has not been done away with nor the principles of section 29(2) of the Limitation Act has been incorporated. If it is so, in that event, sim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case the special or local law may well be said to be silent or as prescribing the same period of limitation by implication. We may find support for such a view in Harendra v. State of West Bengal 1963 (67) CWN 953 by this Court. The Apex Court in Vidyacharan v. Khub Chand AIR 1964 SC 1099 while interpreting sub-section (2) of section 29 of the Limitation Act had held that sub-section (2) is to be read as a whole and it would mean if special period of limitation is prescribed to exclude the application of the Limitation Act to the extent to which they are expressly excluded or in other words it would apply insofar as and to the extent to which they are not expressly excluded by such special or local law. Appeals to High Court under 1973 Act : Section 5, Limitation Act : Applicability : 6. The 1973 Act prescribed such a period of limitation for an appeal under section 54 of the 1973 Act being 60 days from the date of communication of the decision or the order passed by the Appellate Board. The proviso prescribing such provision for limitation for an appeal to the High Court under section 54 had by necessary implication in clear and express terms included the applicat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there is no indication that the period of limitation as provided in the proviso to section 35 of the 1999 Act was intended to be given restrictive operation. Section 1 sub-section (4) clearly indicates that the Act shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint. By a notification No. GSR 371(E) dated 1st May, 2000, the Central Government had appointed 1st of June, 2000 as the date when the 1999 Act came into force. Proviso to sub-section (4) of section 1 of the 1999 Act prescribes for different appointed date for different provisions to be construed as reference to the coming into force of that provision. Thus the Legislature had clearly intended that the application of the 1999 Act would be prospective and not retrospective. 7.3 The 1999 Act has replaced the 1973 Act altogether. We may refer to section 49 sub-section (1) of the 1999 Act whereby the 1973 Act was repealed. The said provision while repealing the Act had also the effect of dissolving the Appellate Board constituted under section 52(1) of the 1973 Act. We may now examine the effect of the repeal from the clear and express provision contained in sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l after the expiry of the said period of sixty days if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal within the said period. (6) Save as otherwise provided in sub-section (3), the mention of particular matters in sub-sections (2), (4) and (5) shall not be held to prejudice or affect the general application of section 6 of the General Clauses Act, 1897 (10 of 1897), with regard to the effect of repeal." 7.6 Sub-section (5) in clause ( b ) provides that an appeal pending before the Board under the 1973 Act but not disposed of before the commencement of the 1999 Act shall stand transferred to and shall be disposed of by the Appellate Tribunal constituted under the 1999 Act; and clause ( c ) every appeal from any decision or order of the Appellate Board under sub-section (3) or sub-section (4) of section 52 of the repealed Act shall, if not filed before the commencement of this Act be filed before the High Court within the period of 60 days of such commencement provided that the High Court may entertain such appeal after the expiry of the said period of 60 days if it is satisfied that the appellant was prevented by sufficient cause fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .. legal proceeding or remedy may be instituted, continued or enforced, ...... as if the Repealing Act ...... had not been passed". The right of appeal is a substantive right accrued under the 1973 Act as soon as the initial proceeding was initiated. Therefore, in the absence of any express intention available in the Repealing Act, the right of appeal accrued on the date of initiation of a proceeding shall remain unaffected. Section 35 of the Repealing Act would not eclipse the right of appeal, which would be governed under the repealed Act as if the 1999 Act has not been enacted. The second reason is that the Repealing Act itself had expressed its clear intention in section 49(6) that notwithstanding the repeal, section 6 of the General Clauses Act will apply in full force. Inasmuch as under sub-section (6), unless otherwise provided the repealing provision would not prejudice or affect the general application of section 6 of the General Clauses Act, 1897, with regard to the effect of repeal. Thus by express provision contained in sub-section (6) of section 49 of the 1999 Act, the effect of section 6( c ) of the General Clauses Act remains unaffected and applicable in full force. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9. Admittedly, an appeal is a continuation of the proceeding. The right to appeal is determined on the date when the initial proceeding is initiated. In the present case, the initial proceeding was initiated under the provision of the 1973 Act. The appeal was preferred under section 52 of the 1973 Act. The appeal was pending at the commencement of the 1999 Act. Therefore, by reason of the repeal and saving, the appeal stood transferred to the Tribunal. The appeal being a statutory right and a substantive one, the right is determined as soon the proceeding is instituted. The right cannot be impaired by imposing onerous condition by subsequent amendment, though such condition imposed through law, which may be procedural in nature. A substantive right cannot be affected by procedural amendment. If such right is impaired and if any onerous condition is imposed making the right of appeal onerous than that which was available under the law as on the date of institution of the suit or proceeding, then it will affect the substantive right of the party. Such right cannot be taken away by way of repeal of the Act under which the right had accrued unless express intention to the contrar ..... X X X X Extracts X X X X X X X X Extracts X X X X
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