9911796707
TMI Blog2016 (11) TMI 1259X X X X Extracts X X X X X X X X Extracts X X X X ..... bearing Registration No.2838 of 1973-74. The society was lastly renewed on 10.10.2010, vide certificate of registration dated 19.10.2010. An application was filed by respondent no.2 before the Registrar, stating that renewal of the society had been obtained by playing fraud, and therefore, it be cancelled. An affidavit was also filed stating facts in support of such application. The Assistant Registrar, Firms, Societies and Chits rejected the application of respondent no.2, vide his order dated 12th March, 2012. This order of Assistant Registrar was challenged before this Court in a Writ Petition No.23181 of 2012, which came to be dismissed, in view of the availability of alternative remedy of filing an appeal, vide order dated 11th May, 2012, which reads as under:- "1. Learned counsel for the petitioner could not dispute that in the present case the registration of society and its renewal was already over and in effect the petitioner wanted its cancellation, therefore, the application of petitioner was referable to Section 12-D of Societies Registration Act, 1860 and the order passed by Registrar under Section 12-D is appealable under sub-section (2) thereof. 2. Learned couns ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... writ petition got disposed of on 24.11.2015, vide following order:- "Heard Sri Ashish Kumar Srivastava, learned counsel for the petitioner, learned Standing Counsel appearing for the State-respondents and Sri Somesh Khare along with Ms.Komal Khare, learned counsel for respondent no. 2. Through this writ petition the petitioner has prayed for issuing a writ of certiorari quashing the orders dated 13.4.2015 and 21.9.2015 passed in Appeal No. 191 of 2012 (Pilgrim's Mission Inc. California vs. Assistant Registrar and others). Vide order dated 13.4.2015 the Divisional Commissioner, Varanasi Division, Varanasi (in short the Commissioner) has admitted the appeal and fixed 11.5.2015 for hearing after issuing notice to the other side whereas vide order dated 21.9.2015 the Commissioner, on the application of the petitioner to decide the question of limitation first, has directed to consider the question of limitation at the time of deciding the appeal on merits. While assailing these orders Sri Srivastava, learned counsel for the petitioner submits that the respondent-appellant has filed an application for condonation of delay in filing the appeal before the Commissioner, therefor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of alternative remedy of filing appeal, on 11th May, 2012, and immediately thereafter, an appeal was preferred on 18th May, 2012. Accordingly, delay has been condoned by allowing the application under Section 5/14 of the Limitation Act with the observation that there was no intentional delay in filing of the appeal, and sufficient grounds for its condonation was disclosed. It is this order of Commissioner dated 13th June, 2016, which is put to challenge in the present writ petition. 6. Learned counsel for the petitioner submits that the Divisional Commissioner while exercising his powers under Section 12-D(2) of the Act does not act as a court, and consequently, the provisions of Limitation Act are not attracted. It is also contended that Societies Registration Act is a special law, which specifically provides for a period of 30 days limitation for filing of appeal, and does not confer jurisdiction upon the appellate authority to condone delay, and consequently, in absence of applicability of Section 14(2) of the Limitation Act 1963 (hereinafter referred to as the 'Act of 1963'), the delay on account of pursuing a wrong remedy could not be condoned. Learned counsel in supp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shish Kumar Srivastava, learned counsel for the petitioner, Learned Standing Counsel and Sri Somesh Khare for the respondents, and have perused the records as well as the judgments relied upon. 9. Before adverting to the submissions made, it would be appropriate to take note of relevant statutory provisions. Section 12-D has been inserted in the Act of 1860, by way of a State amendment in 1975, which reads as under:- "12D. Registrar's power to cancel registration in certain circumstance.- (1) Notwithstanding anything contained in this Act, the Registrar may, by order in writing, cancel the registration of any society on any of the following grounds:-- (a) that the registration of the society or of its name or change of name is contrary to the provisions of this Act or of any other law for the time being in force; (b) that its activities or proposed activities have been or are or will be subversive of the objects of the society or opposed to public policy; [(c) that the registration or the certificate of renewal has been obtained by misrepresentation or fraud]: Provided that no order of cancellation of registration of any society shall be passed until the society ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act, 1953 acted as a revenue court or whether he was a persona designata. It was held that the Divisional Commissioner had been constituted as appellate authority under the Act. That showed that the Divisional Commissioner was made an appellate court not as persona designata but as a revenue court. That being so it was obvious that Section 5 of the Act applied to appeals before Divisional Commissioner and he could condone the delay in filing appeals. It becomes obvious that this court in the aforesaid decision was dealing with revenue court constituted under U.P. Sugarcane (Regulation of Supply and Purchase) Act which was a special law. It was in terms held that Section 5 of the Limitation Act was applicable to revisional proceedings before such Revenue Courts. It is of course true as pointed out by Mr. Nariman that in the said decision no other decision of this court was cited and Section 29(2) was not expressly referred to but the ratio of the decision is necessarily and implicitly based on the applicability of Section 29(2) but for which Section 5 of the Limitation Act would not have been made applicable to such revision proceedings before revenue court functioning under the sp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een pleased to hold that provisions of Limitation Act apply only to suits, appeals and applications filed in 'courts' and not to quasi-judicial bodies. The distinction between 'court' and 'quasi-judicial proceedings' have also been examined, with reference to the judgments delivered previously on the issue. After noticing the scheme of Limitation Act, 1963 in paras-11 onwards their Lordships observed as under in para-19 of the report:- "19. When it comes to applications, again Articles 124, 130 and 131 throw a great deal of light. Only review of judgments by a "court" is contemplated in the Third Division in the Schedule. Further, leave to appeal as a pauper again can be made either to the High Court or only to any other court vide Article 130. And by Article 131, a revision petition filed only before Courts under the Code of Civil Procedure Code or the Code of Criminal Procedure are referred to. On a plain reading of the provisions of the Limitation Act, it becomes clear that suits, appeals and applications are only to be considered (from the limitation point of view) if they are filed in courts and not in quasi- judicial bodies." Issue for consideration ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be dealt with at this stage. In Mukri Gopalan v. Cheppilat Puthanpurayil Aboobacker, (1995) 5 SCC 5, a 2-Judge Bench of this Court held that the Limitation Act would apply to the appellate authority constituted under Section 13 of the Kerala Buildings (Lease and Rent Control) Act , 1965. This was done by applying the provision of Section 29(2) of the Limitation Act. Despite referring to various earlier judgments of this Court which held that the Limitation Act applies only to courts and not to Tribunals, this Court in this case held to the contrary. In distinguishing the Parson Tools' case, which is a 3-Judge Bench binding on the Court that decided Mukri Gopalan's case, the Court held:- "18. ... If the Limitation Act does not apply then neither Section 29(2) nor Section 14(2) of the Limitation Act would apply to proceedings before him. But so far as this Court is concerned it did not go into the question whether Section 29(2) would not get attracted because the U.P. Sales Tax Act Judge (Revisions) was not a court but it took the view that because of the express provision in Section 10(3)(B) applicability of Section 14(2) of the Sales Tax Act was ruled out. Implicit in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch of this Court was asked to decide whether Section 14 of the Limitation Act would apply to Section 34(3) of the Arbitration and Conciliation Act, 1996. After discussing the various provisions of the Arbitration Act and the Limitation Act, this Court held: "23. At this stage it would be relevant to ascertain whether there is any express provision in the Act of 1996, which excludes the applicability of Section 14 of the Limitation Act. On review of the provisions of the Act of 1996 this Court finds that there is no provision in the said Act which excludes the applicability of the provisions of Section 14 of the Limitation Act to an application submitted under Section 34 of the said Act. On the contrary, this Court finds that Section 43 makes the provisions of the Limitation Act, 1963 applicable to arbitration proceedings. The proceedings under Section 34 are for the purpose of challenging the award whereas the proceeding referred to under Section 43 are the original proceedings which can be equated with a suit in a court. Hence, Section 43 incorporating the Limitation Act will apply to the proceedings in the arbitration as it applies to the proceedings of a suit in the court. Sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cial statute prescribes a certain period of limitation, then the Tribunal concerned has no jurisdiction to treat within limitation, an application, by excluding the time spent in prosecuting in good faith, on the analogy of Section 14(2) of the Limitation Act, and (2) the appellate authority and the revisional authority were not "courts" but were merely administrative tribunals and, therefore, Section 14 of the Limitation Act did not, in terms, apply to the proceedings before such tribunals. 26. From the judgment of the Supreme Court in CST [(1975) 4 SCC 22 : 1975 SCC (Tax) 185 : (1975) 3 SCR 743] it is evident that essentially what weighed with the Court in holding that Section 14 of the Limitation Act was not applicable, was that the appellate authority and the revisional authority were not "courts". The stark features of the revisional powers pointed out by the Court, showed that the legislature had deliberately excluded the application of the principles underlying Sections 5 and 14 of the Limitation Act. Here in this case, the Court is not called upon to examine scope of revisional powers. The Court in this case is dealing with Section 34 of the Act which confers powers on th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... did not apply to tribunals, and Section 14(2) of the Limitation Act was excluded in principle or by analogy. This Court upheld the view that the Limitation Act did not apply to tribunals, and that as the revisional authority under Section 10 of the U.P. Sales Tax Act was a tribunal and not a court, the Limitation Act was inapplicable. This Court further held that the period of pendency of proceedings before the wrong forum could not be excluded while computing the period of limitation by applying Section 14(2) of the Limitation Act. This Court, however, held that by applying the principle underlying Section 14(2), the period of pendency before the wrong forum may be considered as a "sufficient cause" for condoning the delay, but then having regard to Section 10(3-B), the extension on that ground could not extend beyond six months. The observation that pendency of proceedings of the nature contemplated by Section 14(2) of the Limitation Act, may amount to a sufficient cause for condoning the delay and extending the limitation and such extension cannot be for a period in excess of the ceiling period prescribed, is in the light of its finding that Section 14(2) of the Limitation Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uted under it should be a suit, appeal or application of the nature described in the schedule. We have already held that such suits, appeals or applications as are referred to in the schedule are only to courts and not to quasi-judicial bodies or Tribunals. It is clear, therefore, that only when a suit, appeal or application of the description in the schedule is to be filed in a court under a special or local law that the provision gets attracted. This is made even clearer by a reading of Section 29(3). Section 29(3) states:- "29. Savings.-- (1)-(2) * * * (3) Save as otherwise provided in any law for the time being in force with respect to marriage and divorce, nothing in this Act shall apply to any suit or other proceeding under any such law." When it comes to the law of marriage and divorce, the Section speaks not only of suits but other proceedings as well. Such proceedings may be proceedings which are neither appeals nor applications thus making it clear that the laws relating to marriage and divorce, unlike the law of limitation, may contain proceedings other than suits, appeals or applications filed in courts. This again is an important pointer to the fact that the enti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... process is influenced by considerations of justice and reason. Justice and reason constitute the great general legislative intent in every piece of legislation. Consequently where the suggested construction operates harshly, ridiculously or in any other manner contrary to prevailing conceptions of justice and reason, in most instances, it would seem that the apparent or suggested meaning of the statute, was not the one intended by the law- makers. In the absence of some other indication that the harsh or ridiculous effect was actually intended by the legislature, there is little reason to believe that it represents the legislative intent." After noticing various judgments on the issue, their Lordships have been pleased to hold that principle of Section 14 nevertheless apply to proceedings before the quasi-judicial authorities/tribunal. Para-43 of the judgment in M.P. Steel Corporation (supra) is reproduced:- "43. Merely because Parson Tools also dealt with a provision in a tax statute does not make the ratio of the said decision apply to a completely differently worded tax statute with a much shorter period of limitation - Section 128 of the Customs Act. Also, the principle of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er where such permission is granted on the ground that the first suit must fail by reason of a defect in the jurisdiction of the court or other cause of a like nature. Explanation.-- For the purposes of this section,-- (a) in excluding the time during which a former civil proceeding was pending, the day on which that proceeding was instituted and the day on which it ended shall both be counted; (b) a plaintiff or an applicant resisting an appeal shall be deemed to be prosecuting a proceeding; (c) misjoinder of parties or of causes of action shall be deemed to be a cause of a like nature with defect of jurisdiction." 17. In the facts of the present case, immediately after the order had been passed by the Registrar, the respondent preferred a Writ Petition No. 23181 of 2012, which was dismissed on the ground of alternative remedy of preferring an appeal under Section 12-D(2) of the Act of 1860. After passing of such order, petitioner has immediately preferred an appeal, and delay has been condoned. Since the principles underlying Section 14 of the Limitation Act are attracted, as such, the period spent in pursuing a wrong remedy is liable to be condoned. 18. In the present ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion (a) to Section 14 was only meant to clarify that the day on which a proceeding is instituted and the day on which it ends are also to be counted for the purposes of Section 14. This does not lead to the conclusion that the period from the cause of action to the institution of such proceeding should be left out. In fact, as has been noticed above, the explanation expands the scope of Section 14 by liberalizing it. Thus, under explanation (b) a person resisting an appeal is also deemed to be prosecuting a proceeding. But for explanation (b), on a literal reading of Section 14, if a person has won in the first round of litigation and an appeal is filed by his opponent, the period of such appeal would not be liable to be excluded under the Section, leading to an absurd result. That is why a plaintiff or an applicant resisting an appeal filed by a defendant shall also be deemed to prosecute a proceeding so that the time taken in the appeal can also be the subject matter of exclusion under Section 14. Equally, explanation (c) which deems misjoinder of parties or a cause of action to be a cause of a like nature with defect of jurisdiction, expands the scope of the section. We have alr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to claim even such reliefs which stand barred by limitation before the Civil Court or even for arbitral proceedings. The other ancillary issue required to be answered is - whether by virtue of provisions of the Electricity Act 2003 the Limitation Act has been made applicable to an action before the Commission by express provision or even by necessary intendment? * * * 32. In the light of above there can be no difficulty in appreciating that M/s. LANCO rightly appreciated the hurdle of limitation in its way when such an objection was taken by the appellant and it rightly chose to seek exclusion of the period it was pursuing arbitration proceeding before the High Court, on the basis of principles underlying Section 14 of the Limitation Act. 33. The issue as to whether the impugned order by APTEL permitting application of principles on Section 14 of the Limitation Act is in accordance with law or warrants interference now requires to be answered on the basis of law as well as facts. In law, the APTEL could grant exclusion of certain period on the basis of principles under Section 14 in view of law laid down or clarified in M.P. Steel Corporation (supra). On facts, although the ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
