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TMI Blog2015 (6) TMI 498X X X X Extracts X X X X X X X X Extracts X X X X ..... , the nature of those provisions or the nature of the subject-matter and scheme of the special law exclude their operation. The power conferred under Articles 226/227 is designated to effectuate the law, to ensure that rule of law is enforced and the statutory authorities and other organs of the State act in accordance with law. It is not to be invoked whereby authorities are directed to act contrary to law. Wherever, the extent of condonable period is specifically prescribed by a statute, it would not be appropriate even under Articles 226/227 of the Constitution to entertain the writ petition so as to breach the express provision in the statute and act contrary to the mandate of the legislature. It is for the legislature to prescribe the limits or not to do so for condoning the delay. Exercise of extraordinary writ jurisdiction under Articles 226/227 of the Constitution of India would amount to doing violence to the statutory provision and rendering the same otiose. Same views expressed in M/s Nitco Tiles Limited vs. Gujarat Ceramic Floor Tiles Mfg. Assn. And others [2005 (2) TMI 159 - SUPREME COURT OF INDIA] , Union of India and another vs. Kirloskar Pneumatic Company Limited ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... udgment of the Supreme court in Union of India v. Popular Construction Company, (2001) 8 SCC 470. The Special Leave Petition against this judgment bearing No.18296 of 2012 was dismissed on 30.11.2012. Reference has also been made to the judgments of the Supreme Court in Chhattisgarh State Electricity Board v. Central Electricity Regulatory Commission and others decided on 15.4.2010, 2010(5) SCC 23 where in the context of delay under section 125 of the Electricity Act, 2003, it has been observed that the delay cannot be condoned and Section 5 of the Limitation Act, 1963 cannot be invoked. The relevant provision is stated to be similar to the one in question in the present case. Reference has also been made to the views expressed by the Supreme Court in Singh Enterprises v. Commissioner of Central Excise, Jamshedpur and others, (2008) 3 SCC 70 in the context of Section 35 of the Central Excise Act, 1954 as the specific provision providing for limitation would be rendered otiose. This principle has been followed by the Madras High Court in the Commissioner Udumalaipet Municipality v. Rajammal and others, decided on 8.6.2010 (MANU/TN/0615/2010), M.Unnikrishnan vs. Deputy Commissioner o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ank as an operating agency to prepare rehabilitation Scheme for the company. The cut off date was fixed as 31.3.2007. Thereafter, a joint meeting of all the parties was convened. However, no notice was issued to the appellant State. Subsequently on 17.3.2008, a revival scheme was submitted by the UCO Bank operating agency. The BIFR formulated the draft rehabilitation scheme for revival of the company and invited objections/suggestions within 60 days of the date of the order. The BIFR after hearing the affected parties passed the order dated 12.6.2008. On 17.7.2009, a decision was taken by the appellant department to express its inability to implement the order dated 12.6.2008 and accordingly decided to file an appeal before the appellate authority constituted under the SICA. The said appeal was preferred under section 25 of the SICA alongwith the affidavit accompanied by an application under section 5 of the Limitation Act, 1963 (in short, the 1963 Act ) for condonation of delay of 354 days in filing the appeal. Respondent No.3 while dealing with the appeal alongwith the application for condonation of delay dismissed the appeal being time barred vide order dated 28.4.2010. The app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 shall affect section 25 of the Indian Contract Act, 1872 (9 of 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 suit, appeal or application by any special or local law, the provisions contained in sections 4 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. 6. Section 5 of 1963 Act enables the Court to admit an appeal or an application ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ture of the subject-matter and scheme of the special law excluded their operation. 8. The SICA is a special statute. Under Section 25(1) of SICA, remedy of appeal has been provided as under:- 25. (1) Any person aggrieved by an order of the Board made under this Act may, within forty-five days from the date on which a copy of the order is issued to him, prefer an appeal to the Appellate Authority : Provided that the Appellate Authority may entertain any appeal after the said period of forty-five days but not after sixty days from the date aforesaid if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal in time. 9. Section 25 of the SICA relates to filing of appeal against the order of the BIFR. A plain reading of Section 25(1) of SICA makes it abundantly clear that any person aggrieved by an order of the BIFR is entitled to file the appeal to the appellate authority within forty five days from the date on which the copy of the order is issued to him. However, under the proviso thereto, the appellate authority may entertain an appeal after the said period of forty five days but not after sixty days from the date aforesaid where t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lar period cannot be invoked. 11. The stage is now set for adverting to precedent and, there appears to be no dearth thereof. The Supreme Court in Popular Construction Company's case (supra) was adjudicating the issue regarding applicability of Section 5 of 1963 Act for condonation of delay in filing an application under Section 34(3) of the Arbitration and Conciliation Act, 1996. After referring to its earlier decision in Vidyacharan Shukla v. Khubchand Baghel, AIR 1964 SC 1099, Hukumdev Narain Yadav's case (supra), Mangu Ram v. MCD (1976) 1 SCC 392, Patel Naranbhai Marghabhai v. Dhulabhai Galbabhai, (1992) 4 SCC 264, it was held: As far as the language of Section 34 of the 1996 Act is concerned, the crucial words are `but not thereafter' used in the proviso to sub-section (3). In our opinion, this phrase would amount to an express exclusion within the meaning of Section 29 (2) of the Limitation Act, and would therefore bar the application of Section 5 of that Act. Parliament did 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 there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 13. The Apex Court considering analogous provisions under Section 35 of Central Excise Act, 1944 in Singh Enterprises v. CCE, (2008) 3 SCC 70, had held that there was complete exclusion of Section 5 of 1963 Act in the following terms:- The Commissioner of Central Excise (Appeals) as also the tribunal being creatures of statute are not vested with jurisdiction to condone the delay beyond the permissible period provided under the statute. The period up to which the prayer for condonation can be accepted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the absence of any clause condoning the delay by showing sufficient cause after the prescribed period, there is complete exclusion of Section 5 of the Limitation Act. The High Court was, therefore, justified in holding that there was no power to condone the delay after expiry of the prescribed period of 180 days. 15. In Chhattisgarh State Electricity Board v. Central Electricity Regulatory Commission,(2010) 5 SCC 23, a two-Judge Bench interpreting Section 125 of the Electricity Act, 2003, which is substantially similar to Section 25(1) of the SICA had noticed as under:- Section 125 lays down that any person aggrieved by any decision or order of the Tribunal can file an appeal to this Court within 60 days from the date of communication of the decision or order of the Tribunal. Proviso to Section 125 empowers this Court to entertain an appeal filed within a further period of 60 days if it is satisfied that there was sufficient cause for not filing appeal within the initial period of 60 days. This shows that the period of limitation prescribed for filing appeals under Sections 111(2) and 125 is substantially different from the period prescribed under the Limitation Act for fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion or order of the Tribunal and proviso to Section 125 will become nugatory. Supreme Court has expressed similar view in relation to provisions of Section 35 of the Foreign Exchange Management Act, 1999 in Ketan vs. Parekh in Civil Appeal No.10301 of 2011, decided on 29.11.2011. 16. A Division Bench of Delhi High Court in M/s Agarpara Jute Mills Limited vs. Board for Industrial and Financial Reconstruction and others, WP(C) No.2728 of 2012, decided on 8.5.2012 in relation to Section 25 of SICA itself, had pronounced as under:- 4. We are in agreement with the view taken by the AAIFR in view of the statutory provision. We may refer to the said provision which reads as under: 25. Appeal.- (1) Any person aggrieved by an order of the Board made under this Act may, within forty-five days from the date on which a copy of the order is issued to him, prefer an appeal to the appellate authority: PROVIDED that the appellate authority may entertain any appeal after the said period of forty-five days but not after sixty days from the date aforesaid if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal in time. 5. It is, thus, clear t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uch a result. 13. Apart from the language, 'express exclusion' may follow from the scheme and object of the special or local law. Even in a case, where the special law does not exclude the provisions of Sections 4 to 24 of the Limitation Act by an express reference, it would nonetheless be open to the Court to examine whether and to what extend the nature of those provisions or the nature of the subject-matter and scheme of the special law exclude their operation . The Special Leave Petition filed against the above said judgment was dismissed on 30.11.2012. 17. In view of the above, we, thus, conclude that Section 5 of the 1963 Act cannot be pressed into service in aid of a belated application under Section 25(1) of the SICA seeking condonation of delay beyond 15 days prescribed thereunder. Accordingly, Issue No.(i) is answered in the negative and it is held that the appellate authority lacks jurisdiction to condone the delay in filing the appeal under Section 25(1) of the SICA beyond the period prescribed thereunder and the provisions of Section 5 of 1963 Act are excluded from its applicability beyond 60 days enumerated in the provision. 18. The answer to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e arising under the Central Excise Act. The statute prescribed the period of limitation and also restricted the power of the appellate authority to condone the delay. As in this case, an appeal was filed belatedly and since the delay sought to be condoned was beyond the permissible period, delay was declined to be condoned and consequently the appeal was rejected. The order was challenged before this court and WP(c).No.244656/2008 7this court entertained the writ petition on merits and examined the validity of the order passed by the departmental authorities and granted relief to the petitioner. 9. Against the judgment of the learned single Judge appeal filed by the Department and in paras 7 and 8 of the judgment, it has been held as follows. 7. At the outset we may state that in so far as the respondents have not taken up the original orders imposing penalty in appeals before the appellate authority within the maximum period prescribed under S.85(3) of the Finance Act, 1994, they cannot get the appeals revived and heard on merits by resorting to the discretionary remedy before this Court under Article 226 of the Constitution of India. Once the period of limitation has run i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent, the appellants have not pleaded any extraordinary circumstances warranting interference, even if we had the jurisdiction to do so. 10. This judgment of the Division Bench has been followed by the Division Bench in the case of Krishnan .T and another V. State of Kerala and Ors. (ILR 2007(1) Kerala 233), wherein para 7, it has been held as follows. Counsel for the appellant however, submitted that though the Government have rejected the appeal on the ground of delay this court under Article 226 of the Constitution of India can entertain the writ petition in the interests of justice. We have already held in Abel's case that a party cannot invoke the provisions of Article 226 so as to bypass a statutory remedy, especially when no power is conferred on the statutory authority to condone the delay. This legal position has been approved by WP(c).No.244656/2008 10 this court in Assistant Commissioner of Central Excise V. Krishna Poduval where this court held that once the period of limitation has run itself out and the appellate authority does not have the power to condone the delay in filing the appeals beyond the maximum period prescribed under the Act, the remedies come ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 24. Division Bench of Bombay High Court in M/s Raj Chemicals vs. Union of India, 2013(287) ELT 145 has expressed as under:- The Central Excise Act, 1944 is a special Act governing the levy, collection and recovery of Central Excise duty on goods manufactured or produced in India. In sub section (1) of section 35, the Legislature has mandated that an appeal before the Commissioner of Appeals has to be filed within sixty days from the date of the communication of the order. Under the proviso, the Commissioner (Appeals) is permitted to allow the appeal to be filed within a further period of thirty days on sufficient cause being shown to his satisfaction. In other words, the clear intent of Parliament was that the power to condone the delay can be exercised only subject to sufficient cause being shown and to an extent of an outer limit of thirty days beyond the period of sixty days prescribed for filing of an appeal. Now it is well settled that while construing whether the special law, within the meaning of Section 29(2) of the Limitation Act, 1963 expressly excludes the provisions of Sections 4 to 24 of the Limitation Act, 1963, regard must be had to the overall scheme of the Act. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the decision shows that the Apex Court therein was considering the constitutional validity of sub clause (d) of clause (2) of Article 323A and sub clause (d) of clause (3) of Article 323B of the Constitution whereby power of judicial review conferred on the High Courts under Articles 226/227 and on the Supreme Court under Article 32 of the Constitution was deliberated. It was concluded that excluding the jurisdiction of the High Courts and the Supreme Court under Articles 226/227 and 32 of the Constitution is unconstitutional. In the present case, the legality and validity of the provision is not under challenge and moreover, the question of exercise of extraordinary jurisdiction under Articles 226/227 of the Constitution against the legislative mandate enshrined in a Statute was not under consideration in that case. The aforesaid pronouncement would not, thus, advance the case of the appellant State. 28. Further, with regard to the judgments in Kailash vs. Nankhu and others, 2005(4) SCC 480, Salem Advocates Bar Association Tamil Nadu vs. Union of India, AIR 2005 SC 3353, Esha Bhattacharjee v. Raghunathpur Nafar Academy, 2013(4) RCR (Civil) 785, Amalendu Kumar Bera and others ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thority against order dated October 26, 2006. However, order of the appellate authority dated 18.9.2006 (wherein order dated 5.7.2001 was impugned) dismissing the appeal of the State as time barred and for non prosecution was never assailed in the writ petition. In the peculiar facts of that case and taking note of conduct of respondent No.3 therein, the Division bench had exercised jurisdiction under Articles 226/227 of the Constitution of India and quashed the order of the BIFR dated 5.7.2001 and of the appellate authority dated 12.2.2008. Learned State counsel to buttress her submissions had relied upon the following observations of the Division Bench recorded therein:- We find that the State filed an appeal which was barred by limitation but the State was taking other steps and proceedings before the BIFR for implementation of the scheme continued. The observations of the AAIFR that in no situation, there could be condonation of delay beyond 60 days under Section 25 of the SICA, is not a correct interpretation of law. The said provision cannot be read as mandatory, as has been held in several decisions (see Kailash vs. Nannku AIR 2005 SC 2441). In any case, even if the said ..... X X X X Extracts X X X X X X X X Extracts X X X X
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