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TMI Blog2016 (11) TMI 1259X X X X Extracts X X X X X X X X Extracts X X X X ..... ondoned delay in filing of appeal, for which source of power can be traced to the principles contained under Section 14 of the Act of 1963. Although provisions of Section 14 ipso facto do not apply but its principles are clearly attracted. The Commissioner was thus right in condoning delay. No interference is thus warranted in exercise of writ jurisdiction of this Court under Article 226 of the Constitution of India with the order of Commissioner dated 13.6.2016. Writ petition fails and is dismissed. - WRIT C No. 30501 of 2016 - - - Dated:- 23-8-2016 - Ashwani Kumar Mishra, J. Ashish Kumar Srivastava for the Petitioner. Somesh Khare for the Respondent. ORDER 1. This writ petition is directed against an order passed by the appellate authority i.e. Commissioner, Varanasi Division, Varanasi, condoning delay in filing of appeal under Section 12-D(2) of the Societies Registration Act, 1860. The order is challenged essentially on the ground that the Divisional Commissioner exercising his jurisdiction under the Societies Registration Act, 1860 (hereinafter referred to as the 'Act of 1860') has no authority to condone delay under the Act, and since authority d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... condonation of delay. An affidavit in opposition to the delay condonation application was also filed. The appellate authority accordingly proceeded to pass an order on 21st September, 2015 observing that since the appeal has already been admitted, it would be appropriate that all issues be examined together on merits. This order then came to be challenged by filing a Writ Petition No.56016 of 2015, which was entertained, and following interim protection was granted on 1.10.2015:- Sri Somesh Khare and Smt. Komal Khare have put in appearance on behalf of second respondent. Sri Khare prays for and is granted three days time to file a counter affidavit. Rejoinder affidavit, if any, may be filed within two days thereafter. Put up on 14 October 2015 in the additional cause list. The submission of the learned counsel for the petitioner is that an appeal was preferred by the private respondent before the Commissioner, under Section 12-D of the Societies Registration Act assailing the order of Registrar(Societies) which admittedly being time barred could not have been entertained by the Commissioner as the provision provides for filing of appeal within 30 days, there being no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o condone the delay. In support of his submission he has placed reliance upon the judgment the Apex Court in Mukri Gopalan vs. Cheppilat Pathanpurayil Aboobacher (AIR 1995 SC 2272). Without addressing myself on the points and the cases cited by the learned counsel for the parties, considering the fact that the appeal has been filed along with an application for condonation of delay and without condoning the delay the appeal has been admitted, in view of the settled legal position that without condoning the delay appeal could not be admitted, reference may be had in the case of Shambhu Sharan Chaubey and others vs. State of U.P. and others (2012 (10)ADJ 742, the Commissioner has erred in admitting the appeal. However taking note of the concept of speedy justice without disturbing the order of admission, it is provided that before deciding the appeal on merit the question of limitation shall be decided first by the Commissioner after hearing both the sides, if possible within a period of three months from the date of production of a certified copy of the order of this Court. Further fate of the appeal would depend upon the fate of the order passed on the point of limitation. Wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , decided on 3.9.2009, Commissioner of Central Excise, Meerut Vs. M/s. Salora International Limited in Central Excise Reference Application No.(4) of 2001, decided on 13.9.2005, Mantri Khadi Gram Udyog Samiti, Harijan Gurukul Heera Patti, Sadar, District Azamgarh Vs. The Prescribed Authority, Azamgarh and others in Writ Petition No.45385 of 2012, decided on 25.9.2012, as well as judgment of the Madhya Pradesh High Court in Seth Banshidhar Kedia Rice Mills Pvt. Ltd. Vs. State Bank of India in Writ Petition No.2393 of 2011, decided on 5.9.2011. 7. Sri Somesh Khare, learned counsel for the respondents, per contra, submits that the provisions of Limitation Act, 1963 are attracted to proceedings undertaken before the Commissioner, by virtue of Section 29(2) of the Act of 1963. Learned counsel submits that there is no express or implied exclusion of the provisions of Limitation Act. Learned counsel further submits that the Commissioner while hearing the appeal under Section 12-D(2) discharges quasi-judicial functions, akin to a 'court', under the special law, even if not under the provisions of Code of Civil Procedure, and the time spent in pursuing a wrong remedy since was bo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... delay is available to the appellate authority by virtue of Section 29(2) of the Limitation Act, 1963, which reads as under:- 29(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. 11. Submission is that Act of 1860 is a special law relating to societies, which prescribes a period of limitation in filing of appeal. Since no corresponding provision exists in the schedule to Limitation Act, 1963, as such a different period exists providing for Limitation Act and Act of 1860, and accordingly necessary ingredients exist for Section 29 to operate in the field. Reliance is placed upon following observation of the Supreme Court in para-20 in Mukri Gopalan (supra):- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ocal law if the conditions laid down in the said provision are satisfied and once they get satisfied the provisions contained in Sections 4 to 24 shall apply to such proceedings meaning thereby the procedural scheme contemplated by these Sections of the Limitation Act would get telescoped into such provisions of special or local law. It amounts to a legislative shorthand. Consequently, even this contention of Shri Nariman cannot be countenanced. 12. Learned counsel for the petitioner, however, submits that Commissioner while deciding the appeal under Section 12-D does not act as a 'court', and therefore, provisions of Sections 5 14 of the Limitation Act cannot be exercised by him. Judgments relied upon by the counsel for the parties in support of their submissions have already been noticed above. 13. This Court, however, is not required to examine all cited decisions, inasmuch as rival contentions have been answered by the Apex Court in M.P. Steel Corporation Vs. Commissioner of Central Excise, reported in 2015(7) SCC 58. Question as to whether provisions of the Limitation Act would be applicable in proceedings before quasi-judicial tribunal/forum or would be appli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rala State Electricity Board v. T.P. Kunhaliumma, (1976) 4 SCC 634, a 3-Judge Bench of this Court followed the aforesaid two judgments and stated:- 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 two-judge bench of this Court in Athani Municipal Council case [(1969) 1 SCC 873 : (1970) 1 SCR 51] and hold that Article 137 of the 1963 Limitation Act is 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. This judgment is an authoritative pronouncement by a 3-Judge Bench that the Limitation Act applies only to courts and not to quasi- judicial Tribunals. Athani's case was dissented from on a different proposition - that Article 137 is not confined to applications under the Code of Civil Procedure alone. So long as an application is made under any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y, (1976) 4 SCC 464 which, as has been pointed out earlier, is not an authority for the proposition that the Limitation Act would apply to Tribunals. In fact, Mukri Gopalan's case was distinguished in Om Prakash v. Ashwani Kumar Bassi, (2010) 9 SCC 183 at paragraph 22 as follows: 22. The decision in Mukri Gopalan case [(1995) 5 SCC 5] relied upon by Mr Ujjal Singh is distinguishable from the facts of this case. In the facts of the said case, it was the District Judges who were discharging the functions of the appellate authority and being a court, it was held that the District Judge, functioning as the appellate authority, was a court and not persona designata and was, therefore, entitled to resort to Section 5 of the Limitation Act. That is not so in the instant case where the Rent Controller appointed by the State Government is a member of the Punjab Civil Services and, therefore, a persona designata who would not be entitled to apply the provisions of Section 5 of the Limitation Act, 1963, as in the other case. The fact that the District Judge himself also happened to be the appellate authority under the Rent Act would have been sufficient on the facts of the case fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... articularly where no provision is to be found in the Act of 1996, which excludes the applicability of Section 14 of the Limitation Act, to an application made under Section 34 of the Act. It is to be noticed that the powers under Section 34 of the Act can be exercised by the court only if the aggrieved party makes an application. The jurisdiction under Section 34 of the Act, cannot be exercised suo motu. The total period of four months within which an application, for setting aside an arbitral award, has to be made is not unusually long. Section 34 of the Act of 1996 would be unduly oppressive, if it is held that the provisions of Section 14 of the Limitation Act are not applicable to it, because cases are no doubt conceivable where an aggrieved party, despite exercise of due diligence and good faith, is unable to make an application within a period of four months. From the scheme and language of Section 34 of the Act of 1996, the intention of the legislature to exclude the applicability of Section 14 of the Limitation Act is not manifest. It is well to remember that Section 14 of the Limitation Act does not provide for a fresh period of limitation but only provides for the exclusi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y held: 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 quasi-judicial 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. While dealing with Parson Tools, the learned Judge held: 56. In Parson Tools [(1975) 4 SCC 22] this Court did not hold that Section 14(2) was excluded by reason of the wording of Section 10(3-B) of the Sales Tax Act. This Court was considering an appeal against the Full Bench decision of the Allahabad High Court. Two Judges of the High Court had held that the time spent in prosecuting the application for setting aside the order of dismissal of appeals in default, could be excluded when computing the period of limitation for filing a revision under Section 10 of the said Act, by application of the principle underlying Section 14(2) of the Limitation Act. The minority view of the third Judge was that the revisional author ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which Section 14(2) of the Limitation Act did not apply, has no application. 32. Obviously, the ratio of Mukri Gopalan does not square with the observations of the 3-Judge Bench in Consolidated Engineering 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 quasi-judicial bodies or Tribunals. To the extent that Mukri Gopalan is in conflict with the judgment in the Consolidated Engineering Enterprises case, it is no longer good law. 33. The sheet anchor in Mukri Gopalan was Section 29(2) of the Limitation Act. 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, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orders after affording reasonable opportunity of showing cause and opportunity of hearing, and the decision taken in appeal becomes final and is not open to be questioned in any court. Jurisdiction of civil court in the matter is excluded. 15. After holding that provisions of Limitation Act, 1963 would not apply to proceedings before the quasi-judicial authorities, Hon'ble Supreme Court proceeded further in the matter and observed as under in para-38 of the judgment in M.P. Steel Corporation (supra):- 38. We have already held that the Limitation Act including Section 14 would not apply to appeals filed before a quasi-judicial Tribunal such as the Collector (Appeals) mentioned in Section 128 of the Customs Act. However, this does not conclude the issue. There is authority for the proposition that even where Section 14 may not apply, the principles on which Section 14 is based, being principles which advance the cause of justice, would nevertheless apply. We must never forget, as stated in Bhudan Singh Anr. v. Nabi Bux Anr., (1970) 2 SCR 10, that justice and reason is at the heart of all legislation by Parliament. This was put in very felicitous terms by Hegde,J. as f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly to exclude time taken in prosecuting proceedings which are bona fide and with due diligence pursued, which ultimately end without a decision on the merits of the case. 16. Following the judgments aforesaid, this Court finds that in the facts of the present case, principles of Section 14 of the Limitation Act, 1963 would be attracted. Section 14 of the Act reads as under:- 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 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 a court of first instance or of appeal or revision, against the same party for the same relief sha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be pressed into service: (1) Both the prior and subsequent proceedings are civil proceedings prosecuted by the same party; (2) The prior proceeding had been prosecuted with due diligence and in good faith; (3) The failure of the prior proceeding was due to defect of jurisdiction or other cause of like nature; (4) The earlier proceeding and the latter proceeding must relate to the same matter in issue and; (5) Both the proceedings are in a court. Except for the exclusion of last condition that appellate authority is not a 'court', all other conditions of Section 14 are met. However, if the principles of Section 14 are made applicable upon quasi-judicial bodies, then power to condone delay on account of pursuing a wrong remedy would be available to Commissioner. Such construction would subserve the larger cause and save the provision itself from the vice of unreasonableness. 19. In M.P. Steel Corporation (supra), Apex Court has also examined as to what periods are to be excluded under Section 14 of the Act. The issue has been answered in para-52 of the judgment, which is conveniently reproduced:- 52. As has been already noticed, Sarathy's case i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rior to institution of the initiation of any abortive proceeding cannot be excluded for the simple reason that Section 14 does not enable a litigant to get a benefit beyond what is contemplated by the Section - that is to put the litigant in the same position as if the abortive proceeding had never taken place. 20. The judgment in M.P. Steel Corporation (supra) has been followed in a subsequent decision of Apex Court in Andhra Pradesh Power Corporation Committee and others Vs. Lanco Kondapalli Power Limited and others, reported in 2016 (3) SCC 468. Paras- 24 32 to 35 of the judgment are reproduced:- 24. Mr. Sundaram placed reliance upon judgment in the case of M.P. Steel Corporation (supra) to support his submission that Limitation Act applies only to courts stricto-sensu and not to quasijudicial tribunals. It may be noted here that the matter in M.P. Steel Corporation (supra) had arisen from proceedings under the Customs Act and hence in that case there was no occasion to consider the issue whether the Limitation Act is applicable to an action initiated before the Commission by virtue of provisions of the Electricity Act, 2003. However, this judgment does help the respon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re Article 14 of the PPA as well as the notice dated 8.9.2003 and we find no difficulty in holding it as the notice for arbitration which amounted to initiation of arbitral proceedings as contemplated by Section 21 of the Arbitration Act. 35. A spirited argument was advanced on behalf of appellant that after the judgment of this Court in Gujarat Urja (supra) on 13.3.2008, the continuance of the arbitral proceedings before the High Court at the instance of M/s. LANCO should not be accepted as bona fide and that the commission was justified in not excluding this period of about one year on the ground that it was not bona fide and in such facts APTEL should not have taken a contrary view. Having considered submissions of the parties we find no merit in the aforesaid contention advanced on behalf of appellant. The view which we are going to take has been indicated by this Court in several judgments including M.P. Steel Corporation (supra). But the point requires no debate in view of clear stipulation in explanation (a) to sub-section (3) of Section 14 of the Limitation Act. This explanation reads as follows:- Explanation - For the purposes of this section, - (a) in excluding ..... 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