9911796707
TMI Blog1982 (3) TMI 273X X X X Extracts X X X X X X X X Extracts X X X X ..... stered under Section 9 of the Act and which is having its office in the city. Up to April, 1980 the wholesale business in the vegetables was carried on at Bhagubhai's Vanda situated in Dhalgarvad, in the city. The said wholesale market has been shifted to the new market situated outside Jamalpur gate known as Sardar Patel Market . The petitioner had a licence of General Commission Agent at the time when the wholesale business was carried on at Bhagubhai's Vanda. As stated above, the petitioner had applied for grant of a fresh licence as General Commission Agent for the year 1980-81 to the respondent No. 2 Market Committee. Under Section 27, sub-section (1) of the, Act the concerned Market Committee subject to the rules made in that behalf can grant or renew a general licence or a special licence for the purpose of any specific transaction or transactions to a trader, general commission agent, broker, weigh man , surveyor, warehouseman or any person to operate in the market area or part thereof, or after recording its reasons therefor, refuse to grant or renew any such licence. The petitioner had accordingly given his application to the 2nd respondent invoking its power und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble the petitioner to approach the appellate authority. The aforesaid order of this Court is placed at Annexure 'A' to the petition. This order clearly postulates that the petitioner's aforesaid writ petition was not entertained by this Court as the petitioner was relegated to the alternative remedy of appeal to the first respondent Director and two weeks, time was given to the petitioner to approach the appellate authority, during which time ad interim relief was extended. Thereafter the petitioner preferred the statutory appeal provided under Section 27(5) of the Market Act before the first respondent on 21st July, 1'981 i.e. within 8 days of the withdrawal of his petition before this Court. 3. When this appeal came up for hearing before the first respondent, an objection was raised on behalf of the Market Committee that the appeal was barred by limitation. On behalf of the petitioner it was contended before 'he first respondent Director that he was all throughout agitating the same question about the legality of the order of the Market Committee refusing to grant the requisite licence to him for the year 1980-81 by preferring writ petition in the High Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fore to consider the main and the only relevant question which is posed for my consideration in the present proceeding as to whether the appeal preferred before the first respondent by the petitioner could have been dismissed as time barred or was required to be decided on merits. 4. The aforesaid re'sume' of facts and events leaves no room for doubt that the petitioner was all throughout actively prosecuting his grievance against the order of the Market Committee by which it refused to grant him licence as General Commission Agent for the year 1980-81. Even by a remotest chance he cannot -be alleged to have indulged in inaction or indolence. It is true that within 30 days instead of going to the first respondent in appeal he straightway came to this Court for getting the very relief for quashing and setting aside the decision of the second respondent Market Committee refusing to grant him the requisite licence and this Court ultimately found that the petitioner was required to be relegated to the alternative remedy of appeal. 5. Under these circumstances, two questions would squarely arise for consideration viz., (1) whether the first respondent could invoke the powe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inly a period different from the one prescribed in the Schedule of the Limitation Act, 1963 which does not provide any period for preferring any such appeal. Therefore, it must be held that special law namely the Gujarat Agricultural Produce Market Act, 1963 does provide a different period of limitation. Once that conclusion is reached, the consequences laid down by Section 29(2) must follow. Accordingly Section 3 of the Limitation Act would automatically apply as if such period was prescribed by the Schedule of the Limitation Act. Now it is necessary to note that Section 3(1) of the Limitation Act states that subject to the provisions contained in Sections 4 to 24 (inclusive), every suit instituted, appeal preferred, and application made after the prescribed period shall be dismissed, although limitation has not been set up as a defence. Thus the appeal preferred by the petitioner beyond 30 days would be liable to be dismissed on the ground of limitation even though such a defence may not have been urged, as laid down by Section 3(1) of the Act. It is obvious that when special law provides for the period of limitation different from that provided by the Limitation Act and once Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the entire machinery of Sections 3 to 24 of the Limitation Act that would apply by virtue of Section 29(2) of the Limitation Act to such proceedings before the concerned authorities acting under the special or local law. This is the logical effect of the applicability of Section 29(2) of the Limitation Act and hence the question whether the concerned authority is a Court within the strict meaning of the term as envisaged by the Limitation Act itself, would necessarily pale into insignificance. 6. Mr. K, G. Vakharia, the learned Advocate appearing for the respondent No. 2 Market Committee heavily relied upon the decision of the Supreme Court in the cage of Kerala Electricity Board, Trivandrum v. T.P. Kunhaliumma,: AIR 1977 SC 282, to support his contention that Section 5 of the Limitation Act would apply only to proceedings before a Court as such and not before any other statutory authority exercising statutory powers. In order to appreciate the nature of the controversy before the Supreme Court in the aforesaid case and the ratio of the said decision, it is necessary to note at the outset the relevant facts which came up for consideration before the Supreme Court in the aforesa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Article 137 of the 1963 Limitation Act would not apply to proceedings before the District Judge under Section 16(3) of the Telegraph Act. They relied upon the earlier decision of the Supreme Court in the case of Town Municipal Council, Athani v. Presiding Officer, Labour Court, Hubli : AIR 1969 SC 1335, which had taken the view that Art. 137 of the Limitation Act 1963 would be confined to applications contemplated in Civil Procedure Code only. The said earlier view of the Supreme Court was in terms dissented from by a larger Bench of the Supreme Court In Kerala State Electricity Board (supra). It was held in the aforesaid decision that Article 137 of the Limitation Act 1963 would apply to any petition or application filed under any Act to a Civil Court. The petition in that case before the Supreme Court was to the District Judge as a Court, The petition was one contemplated by the Telegraph Act for Judicial decision. Therefore, that petition squarely fell within the scope of Article 137 of the 1963 Limitation Act and consequently three years, period of limitation was applicable, and hence the respondent's application for enhanced compensation was barred by limitation. While ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at under Article 137 of the Limitation Act no question of applicability, of Section. 29(2) would ever arise for consideration. The case before the Supreme Court was one in which the period of limitation was directly provided by the Limitation Act itself as found in Article 137 of its schedule. In such a case, Section 5 or for that matter any other sections of the Limitation Act would get attracted by the mere applicability of the Limitation Act itself and not via S. 29(2) through which any special or local law can get equipped with the machinery provided by Sections 4 to 24 read with Section 3 of the Limitation Act. It is therefore not possible to accept the contention of Mr. Vakharia that the Supreme Court has held that even in a case in which a statutory authority under when period exercises quasi judicial function Special Law or local law and such an authority enforces the of limitation for filing appeals or applications under such authority unless such, cannot invoke section 5 of the Limitation Act. Such question not having been posed for the consideration of the Supreme Court, the ratio of the Supreme Court decision in Kerala Electricity Board's case (supra) cannot by i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or their consideration. The Special Land Acquisition Officer exercising power under Section 18 of the Land Acquisition Act had refused to make a reference for enhanced compensation on the ground that the application for reference was received beyond time prescribed by Section 18 of the Land Acquisition Act. The question that arose in the aforesaid context was as to whether the Land Acquisition Officer being the statutory authority exercising his powers under S. 18 of the Land Acquisition Act has powers to condone the delay on the part of the claimant in making the reference application before it. The Special Land Acquisition Officer rejected the application on the ground that he had no authority to condone the delay and once the time prescribed by clause (1) of the proviso to Section 18 of the Land Acquisition Act expired nothing further could be done in the matter. The aforesaid view of the Special Land Acquisition Officer was up-turned by the High Court in the aforesaid decision. Vakil, J., speaking for the Division Bench held that Section 18 of the Land Acquisition Act is a special or local law prescribing a period of limitation different from the period prescribed by the Schedu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court. That really makes no difference, so far as the applicability of the ratio of the aforesaid Division Bench Judgment is concerned. It may be noted at this stage that the aforesaid Division Bench judgment has been followed consistently by this Court in a series of later judgments of different Division Benches and as I have already shown above, while applying the provisions of Section 29(2) to the proceedings of a given statutory authority functioning under the Special Law, provisions of Section 29(2) would apply via See. 29(2) and hence the question whether that statutory authority acts as a Court in its strict sense or not, does not remain a german consideration at all. It must therefore be held that first respondent Director was right when he took the view that Section 29(2) of the Limitation Act would apply to the facts of the present case by virtue of Section 29(2) of the Limitation Act. 8. Then remains the further question as to whether the respondent No. I was justified in throwing out the appeal of the petitioner as time barred and in refusing to condone the delay. Mr. Vakharia submitted that the first respondent on the facts of this case had exercised its discretion ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case the said circumstance indicated a strong ground in favour of the petitioner for condoning delay in preferring appeal before the first respondent. This relevant consideration has been by-passed by the first respondent when he arbitrarily and even almost mechanically refused to condone the delay by not giving due consideration to the telltale facts on the record and thus failed to exercise his jurisdiction vested in him under Section 29(2) of the Limitation Act as well as under Section 27 of the Gujarat Agricultural Produce Market Act. It must therefore be held that the first respondent had committed a patent error of law in not condoning the delay in exercise of his judicial discretion in the light of the aforesaid telltale circumstances and in throwing out the appeal of the petitioner as barred by limitation. It must be held that the petitioner had made out sufficient ground for condoning the delay. As the first respondent failed to decide the matter on merits, the order at Annexure 'B' is required to be quashed and set aside. The first respondent is directed to restore to his file the said appeal of the petitioner and to decide the same on merits on accordance with l ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
