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TMI Blog2010 (4) TMI 1031X X X X Extracts X X X X X X X X Extracts X X X X ..... ncerned. A dispute arose between the appellant and respondent No.3 - Madhya Pradesh State Electricity Board in the matter of payment of FLEE charges to the beneficiaries in the Western Region under the "Frequency Linked Energy Exchange" scheme, which was introduced with effect from 1.6.1992. The FLEE charges were payable to the beneficiaries on the basis of monthly advises issued by Western Regional Electricity Board (renamed as Western Regional Board Committee) (respondent No.5 herein). The matter was considered by respondent No.1 - Central Electricity Regulatory Commission, which passed an order dated 8.12.2005 fixing the liability of the appellant and respondent No.3 in the matter of payment of FLEE charges. 3. The appellant challenged the aforementioned order in Appeal No.21/2006, which was allowed by the Tribunal vide its order dated 14.11.2006. Soon thereafter, respondent No.3 filed IA No.4/2007 for issue of a direction to respondent No.5 to recalculate FLEE charges in accordance with the Tribunal's order in relation to post-reorganization period. By order dated 17.5.2007, the Tribunal allowed that application and directed respondent No.5 to recalculate FLEE charges in a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It has been further averred that letter sent by the Deputy Registrar of the Tribunal was received by the appellant on 21.6.2007 which was entered in its receipt register at serial No. 2082 and subsequently, the same was received by the office of the Chief Engineer (Commercial) on 29.6.2007. Respondent No.3 has supported this assertion by placing on record photostat copies of the inward register maintained in the office of Secretary of the appellant, which were made available pursuant to an application filed under the Right to Information Act. Respondent No.3 has then relied upon the appellant's assertion that it came to know about order dated 17.5.2007 in July, 2007 and prayed that in the absence of any explanation by the appellant for remaining silent from July, 2007 to December, 2007, the appeal cannot be entertained. As regards the review application, respondent No.3 has averred that the same has no bearing on the appellant's grievance against order dated 17.5.2007 and in the absence of any explanation for the delay after 21.6.2007, the appeal should be dismissed as barred by time. 6. In the rejoinder affidavit filed on behalf of the appellant, it has been pleaded that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the parties that the IA was disposed of on 17.5.2007 and they may request for a copy of the order in PDF format through e-mail or apply for a certified copy amounts to communication of the order within the meaning of Section 125 of the Electricity Act read with Rule 98 of the Rules and the appeal filed after more than 120 days from the date of receipt of letter dated 7.6.2007 is liable to be dismissed as barred by time. Learned senior counsel submitted that even if intimation given by the Deputy Registrar of the Tribunal vide letter dated 7.6.2007 is ignored, the appeal is liable to be dismissed because the appellant had become aware of the Tribunal's order on 17.7.2007 i.e., the day on which letter dated 6.7.2007 sent by respondent No.5 was received in the office of its Secretary. Learned senior counsel submitted that if the period of limitation is counted from 17.7.2007, the appeal could be filed by 15.9.2007 whereas the same was actually filed on 24.12.2007. Learned senior counsel then invited the Court's attention to the memo of appeal and application filed for condonation of delay to show that the same had been prepared on 7.9.2007 but were filed on 24.12.2007 i.e., ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der to the Registry for taking steps to prepare copies and their communication to the parties. 106. Filing through electronic media. - The Tribunal may allow filing of appeal or petition or application through electronic media such as online filing and provide for rectification of defects by e-mail or net and in such filing, these rules shall be adopted as nearly as possible on and from a date to be notified separately and the Chairperson may issue instructions in this behalf from time to time. Limitation Act 5. Extension of prescribed period in certain cases.- Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908) , may be admitted after the prescribed period, if the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period. Explanation.-- The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section. 29. Savings.- (1) Nothing in this Act s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egulatory Commissions either under the Central Act or under their respective state legislations with a view to implement the policy of encouraging private sector participation in generation, transmission and distribution of electricity and to harmonize and rationalize the provisions of the three Acts, the Electricity Act was enacted. Part II thereof contains provisions under which the Central Government is entitled to prepare the National Electricity Policy and tariff policy, in consultation with the state governments and the Central Electricity Authority for development of the power system based on optimal utilisation of resources such as coal, natural gas, nuclear substances or materials, hydro and renewable sources of energy. Under the same part, the Central Government can prepare and notify national policies, permitting stand alone systems for rural areas, for rural electrification and for bulk purchase of power and management of local distribution in rural areas through panchayat institutions, users' associations, co-operative societies, non-governmental organisations or franchisees. Part III contains provision relating to generation of electricity. Part IV regulates grant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y, electric lines and materials, interference with meters and work of licensees and also provides for fiscal penalties and substantive punishments. Section 145 declares that no civil court shall have jurisdiction to entertain any suit or proceeding in respect of any matter which an assessing officer referred to in Section 126 or an appellate authority referred to in Section 127 or the adjudicating officer appointed under the Act is empowered by or under the Act to determine and no injunction shall be granted in such matters. 11. The brief analysis of the scheme of the Electricity Act shows that it is a self-contained comprehensive legislation, which not only regulates generation, transmission and distribution of electricity by public bodies and encourages public sector participation in the process but also ensures creation of special adjudicatory mechanism to deal with the grievance of any person aggrieved by an order made by an adjudicating officer under the Act except under Section 127 or an order made by the appropriate commission. Section 110 provides for establishment of a Tribunal to hear such appeals. Section 111(1) and (2) lays down that any person aggrieved by an order ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Section 29(2) of the Limitation Act, which lays down that where any special or local law prescribes for any suit, appeal or application a period of limitation different from the one prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the Schedule and provisions contained in Sections 4 to 24 (inclusive) shall apply for the purpose of determining any period of limitation prescribed for any suit, appeal or application unless they are not expressly excluded by the special or local law. 12. In Hukumdev Narain Yadav v. L.N. Mishra (1974) 2 SCC 133, this Court interpreted Section 29(2) of the Limitation Act in the backdrop of the plea that the provisions of that Act are not applicable to the proceedings under the Representation of the People Act, 1951. It was argued that the words "expressly excluded" appearing in Section 29(2) would mean that there must be an express reference made in the special or local law to the specific provisions of the Limitation Act of which the operation is to be excluded. While rejecting the argument, the three-Judge Bench observed: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rpretation would justify such a result. 16. Furthermore, Section 34(1) itself provides that recourse to a court against an arbitral award may be made only by an application for setting aside such award "in accordance with" sub-section (2) and sub-section (3). Sub-section (2) relates to grounds for setting aside an award and is not relevant for our purposes. But an application filed beyond the period mentioned in Section 34, sub-section (3) would not be an application "in accordance with" that sub-section. Consequently by virtue of Section 34(1), recourse to the court against an arbitral award cannot be made beyond the period prescribed. The importance of the period fixed under Section 34 is emphasised by the provisions of Section 36 which provide that "where the time for making an application to set aside the arbitral award under Section 34 has expired ... the award shall be enforced under the Code of Civil Procedure, 1908 in the same manner as if it were a decree of the court". This is a significant departure from the provisions of the Arbitration Act, 1940. Under the 1940 Act, after the time to set aside the award expired, the court was req ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Limitation Act. The Commissioner and the High Court were therefore justified in holding that there was no power to condone the delay after the expiry of 30 days' period." (emphasis supplied) The same view was reiterated in Commissioner of Customs, Central Excise v. Punjab Fibres Ltd. (2008) 3 SCC 73. 15. In Commissioner of Customs and Central Excise v. Hongo India Private Limited and another (2009) 5 SCC 791, a three-Judge Bench considered the scheme of the Central Excise Act, 1944 and held that High Court has no power to condone delay beyond the period specified in Section 35-H thereof. The argument that Section 5 of the Limitation Act can be invoked for condonation of delay was rejected by the Court and observed: "30. In the earlier part of our order, we have adverted to Chapter VI-A of the Act which provides for appeals and revisions to various authorities. Though Parliament has specifically provided an additional period of 30 days in the case of appeal to the Commissioner, it is silent about the number of days if there is sufficient cause in the case of an appeal to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns or the nature of the subject-matter and scheme of the special law exclude their operation. In other words, the applicability of the provisions of the Limitation Act, therefore, is to be judged not from the terms of the Limitation Act but by the provisions of the Central Excise Act relating to filing of reference application to the High Court." (emphasis supplied) 16. In view of the above discussion, we hold that Section 5 of the Limitation Act cannot be invoked by this Court for entertaining an appeal filed against the decision or order of the Tribunal beyond the period of 120 days specified in Section 125 of the Electricity Act and its proviso. Any interpretation of Section 125 of the Electricity Act which may attract applicability of Section 5 of the Limitation Act read with Section 29(2) thereof will defeat the object of the legislation, namely, to provide special limitation for filing an appeal against the decision or order of the Tribunal and proviso to Section 125 will become nugatory. 17. The judgment in Mukri Gopalan v. Cheppilat Puthanpurayil Aboobacker (supra) on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e order and their communication to the parties. If Rule 98(2) is read in isolation, one may get an impression that the registry of the Tribunal is duty bound to send copies of the order to the parties and the order will be deemed to have been communicated on the date of receipt thereof, but if the same is read in conjunction with Section 125 of the Electricity Act, which enables any aggrieved party to file an appeal within 60 days from the date of communication of the decision or order of the Tribunal, Rule 94(2) which postulates notification of the date of pronouncement of the order in the cause list and Rule 106 under which the Tribunal can allow filing of an appeal or petition or application through electronic media and provide for rectification of the defects by e-mail or net, it becomes clear that once the factum of pronouncement of order by the Tribunal is made known to the parties and they are given opportunity to obtain a copy thereof through e-mail etc., the order will be deemed to have been communicated to the parties and the period of 60 days specified in the main part of Section 125 will commence from that date. 19. The issue deserves to be considere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d decision should be communicated to the said party. The knowledge of the party affected by such a decision, either actual or constructive, is an essential element which must be satisfied before the decision can be brought into force. Thus considered the making of the award cannot consist merely in the physical act of writing the award or signing it or even filing it in the office of the Collector; it must involve the communication of the said award to the party concerned either actually or constructively. If the award is pronounced in the presence of the party whose rights are affected by it can be said to be made when pronounced. If the date for the pronouncement of the award is communicated to the party and it is accordingly pronounced on the date previously announced the award is said to be communicated to the said party even if the said party is not actually present on the date of its pronouncement. Similarly if without notice of the date of its pronouncement, an award is pronounced and a party is not present the award can be said to be made when it is communicated to the party later. The knowledge of the party affected by the award, either actual or constructive, being an ess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Officer rejecting his prayer until and unless he received his letter on October 29, 1964. Within the meaning of Section 15 of the U.P. Motor Vehicle Taxation Act that was the date of the order which gave the starting point for preferring an appeal within 30 days of that date." (emphasis supplied) 22. In Muthiaha Chettiar v. I.T. Commissioner, Madras AIR 1951 Madras 2004, a two-Judge Bench of Madras High Court considered the question whether the limitation of one year prescribed for filing revision under Section 33-A (2) of the Income Tax Act, 1922 is to be computed from the date when the order was signed by the Income-tax Commissioner or the date on which the petitioner had an opportunity of coming to know of the order. It was argued on behalf of the department that other provisions of the Act have been amended to provide for appeal within specified time to be counted from the date of the receipt of the order sought to be appealed against, but no such amendment was made in Section 33-A and therefore, the period of limitation will start from the date of order. While rejecting the argument, Rajamannar, C.J., referred to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 35-B provides for a right of appeal to any person aggrieved by, among other orders, (1) an order passed by the Collector (Appeals) under Section 35-A and (2) a decision or order passed by the Collector of Central Excise as an adjudicating authority. Such an appeal will have to be filed "within three months from the date on which the order sought to be appealed against is communicated to the Collector of Central Excise or as the case may be the other party preferring the appeal". The Appellate Tribunal also is required to send a copy of the order passed in the appeal to the Collector of Central Excise and the other party to the appeal.................. ..... 8. At this stage itself we may state that sub-section (4) of the Act provides that the adjudicating authority shall file the application before the Tribunal in pursuance of the order made under sub-section (1) or sub-section (2) "within a period of three months from the date of communication of the order under sub-section (1) or sub-section (2) to the adjudicating authority". 9. The words "from the date of decision or order" used with reference to the limitation for filing an appeal or revision under certain statutory provisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under the Act in which an order has been passed by any authority subordinate to him and pass such order thereon as he thinks fit. The proviso, however, stated that the Commissioner shall not revise any order under that sub- section "if the order (sought to be revised) has been made more than one year previously". Construing this provision the High Court in Muthia Chettiar case held that the power to call for the records and pass the order will cease with the lapse of one year from the date of the order by the subordinate authority and the ratio of date of the knowledge of the order applicable to an aggrieved party is not applicable for the purpose of exercising suo moto power. Similarly in another decision reported in Viswanathan Chettiar v. CIT construing the time-limit for completion of an assessment under Section 34(2) of the Income Tax Act, 1922, which provided that it shall be made "within four years from the end of the year in which the income, profit and gains were first assessable," it was held that the time-limit of four years for exercise of the power should be calculated with reference to the date on which the assessment or reassessment was made and not the date on which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ertified copy or obtained the one through e-mail, but this much is evident that the appellant did obtain/receive a copy of order dated 17.5.2007. If that was not so, the appellant could not have filed appeal under Section 125 of the Electricity Act. The preparation of appeal, which bears the date 7.9.2007 is a clinching evidence of the fact that the appellant had not only become aware of the order of the Tribunal, but had obtained copy thereof. However, instead of filing appeal within 60 days from the date of receipt of letter dated 7.6.2007 sent by the registry of the Tribunal or the communication sent by respondent No.5, the appellant chose to file appeal only on 24.12.2007 and that too despite the fact that the same was prepared on 7.9.2007. The appellant has not offered any tangible explanation as to why the appeal could not be filed for more than three and half months after its preparation. Thus, there is no escape from the conclusion that the appeal has been filed after more than 120 days from the date of communication of the Tribunal's order and, as such, the same cannot be entertained. 25. In the result, the appeal is dismissed. However, the parties are left to bear th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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