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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 ..... this appeal filed against order dated 17.5.2007 passed by the Tribunal in I.A. No.4 of 2007 in Appeal No.21 of 2006. 2. Appellant, Chhattisgarh State Electricity Board was established under Section 58 of the M.P. Reorganization Act, 2000. In a sense, it is a successor of Madhya Pradesh Electricity Board insofar as the State of Chhattisgarh is concerned. 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 d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellant and the respondents before the Tribunal were informed by the said letter that the matter was disposed of on 14.5.2007 and the parties may request for a copy of the order in PDF format through e-mail at [email protected] or apply for a certified copy and further that the order would also be available in the Tribunal's website (www.aptel.gov.in). 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 enterta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ower to extend the period for filing an appeal beyond 120 days and the provisions of the Limitation Act cannot be invoked for negating the legislative intendment to prescribe special limitation for filing an appeal against any decision or order of the Tribunal. Learned senior counsel further argued that letter dated 7.6.2007 sent by Deputy Registrar of the Tribunal informing 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 su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order with the case file to the Deputy Registrar. (2) On receipt of the order from the Court Master, the Deputy Registrar shall after due scrutiny, satisfy himself that the provisions of these rules have been duly compiled with and in token thereof affix his initials with date on the outer cover of the order. The Deputy Registrar shall thereafter cause to transmit the case file and the order 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 sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s segments of the consumers, many of which were not deserving. Cross-subsidies had reached unsustainable level. To address this issue and to provide for independent determination of tariffs, the Electricity Regulatory Commissions Act, 1998 was enacted. Under that Act, the Central Government created the Central Electricity Regulatory Commission and most of the state governments created the State Electricity Regulatory 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 pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me within 60 days from the date of communication of the decision or order appealed against. Part XII contains provisions relating to investigation leading to assessment of electricity charges payable by the consumer and enforcement of the orders of assessment. It also contains provisions for appeal against the final order passed under Section 126. Part XIV contains provisions to deal with theft of electricity, 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 partic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rovisions of the Electricity Act are expeditiously decided by an expert body and no court, except this Court, may entertain challenge to the decision or order of the Tribunal. The exclusion of the jurisdiction of the civil courts (Section 145) qua an order made by an adjudicating officer is also a pointer in that direction. It is thus evident that the Electricity Act is a special legislation within the meaning 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not need to go further. To hold that the court could entertain an application to set aside the award beyond the extended period under the proviso, would render the phrase but not thereafter wholly otiose. No principle of interpretation 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 30 days after the expiry of 60 days which is the normal period for preferring appeal. Therefore, there is complete exclusion of Section 5 of the Limitation Act. The Commissioner and the High Court were 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 which reliance has been placed by Shri Ravi Shankar Prasad has no bearing on thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 considered from another angle. As mentioned above, Rule 94(2) requires that when the order is reserved, the date of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al 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 essential requirement of fairplay and natural justice the expression the date of the award used in the proviso must mean the date when the award is either ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (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 earlier decisions in Secretary of State v. Gopisetti Narayanasami 34 Madras 151 and Swaminatha v. Lakshmanan AIR 1930 Madras 490 and observed: ...........The only question that we have to decide is as to whether there is anything in the reasoning of the learned Judges in Secretary of State v. Gopisetti Narayanasami, 34 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 provisions had come up for consideration in a number of cases. We may state that the ratio of the decisions uniformly is that in the case of a person aggrieved filing the appeal or revision, it shall mean the date of communication of the decision or order appealed against. However, we may note a few leading cases on this aspect. 10. Under Section 25 of the Madra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 such assessment or reassessment order made under Section 34(2) was served on the assessee. 13. So far as the party who is affected by the order or decision for seeking his remedies against the same, he should be made aware of passing of such order. Therefore courts have uniformly laid down as a rule of law that for seeking the remedy the limitation s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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