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TMI Blog2019 (5) TMI 1752X X X X Extracts X X X X X X X X Extracts X X X X ..... ing an appeal applying the provisions of Section 5 of the Limitation Act, 1963? - HELD THAT:- The applicability of Section 29(2) of the Limitation Act is with regard to different limitations prescribed for any suit, appeal or application when to be filed in a Court - Section 29(2) cannot be pressed in service with regard to filing of suits, appeals and applications before the statutory authorities and tribunals provided in a special or local law. The Commissioner while hearing of the appeal under Section 69 of the Act, 1959 is not entitled to condone the delay in filing appeal, since, provision of Section 5 shall not be attracted by strength of Section 29(2) of the Act. Whether the statutory scheme of Act 1959 indicate that Section 5 of Limitation Act is applicable to proceedings before its authorities? - HELD THAT:- A special or local law can very well provide for applicability of any provision of Limitation Act or exclude applicability of any provision of Limitation Act. The provisions of Limitation Act including Section 5 can very well be applied in deciding an appeal by statutory authority which is not a Court by the statutory scheme of special or local law - We, thus, need ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filed the writ appeal against the judgment of learned single Judge dated 22.08.2014 by which judgment writ petition filed by the appellant challenging the Signature Not Verified judgment and order dated 31.07.2013 of the Digitally signed by ARJUN BISHT Commissioner Tamil Nadu Hindu Religious Endowment Board Date: 2019.05.03 17:59:19 IST Reason: has been dismissed. 2. Brief facts of the case necessary to be noticed for deciding the appeal are: - 2.1 The appellant filed an application under Section 63 of Hindu Religious endowment charitable Act, 1959 (hereinafter referred to as Act 1959) claiming his Ambalam right. The Joint Commissioner of Hindu Religious charitable endowment Board after holding an inquiry passed an order dated 21.12.2010 holding that appellant to be entitled for Ambalam Right and to receive first respect as an Ambalam in the village, Tirupathartalu, Shiv Gangi District, Tamil Nadu. 2.2 Two writ petitions were filed in the High Court challenging the order dated 31.12.2010 being W.P.M.D. No. 14382 of 2011 filed by Radha Krishnan and W.P. No.185 of 2012 filed by Madhavan. Both the writ petitions were dismissed by the High Court vide its judgment dated 10 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... third respondent, as well as learned counsel appearing for the State. 4. Learned counsel for the appellant submits that the commissioner has no jurisdiction to consider application filed under Section 5 of Limitation Act. It is submitted that the commissioner who is empowered to decide the appeal under Section 69 of Act 1959 is not a court. He submits that Section 6(6) defines the commissioner whereas Section 6(7) defines the Court, which clearly indicate that commissioner is not the court. It is submitted that Section 5 of the Limitation Act is applicable only in application filed before a Court. The commissioner being not a Court, there was no applicability of Section 5 of the Limitation Act. 5. He further submits that by virtue of Section 115 of Act 1959, the only provision of the Limitation Act which has been made applicable is that the time requisite for obtaining certified copy of order or decree shall be excluded. He submits that specifically applying provisions of Section 12(2) of Limitation Act, indicates that other provisions have not been made applicable to the Act 1959. He submits that in event the limitation Act was to be applicable to the proceeding of appeal un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be answered in reference to the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959. Both the Commissioner and Court has been defined under the Act, 1959. The Commissioner is defined under Section 6(6) which is to the following effect: Section 6(6) Commissioner means the Commissioner appointed under section 9; 10. The Court is defined in Section 6(7) in the following manner: Section 6(7) Court means- (i) in relation to a math or temple situated in the Presidency town, the Chennai City Civil Court; (ii) in relation to a math or temple situated elsewhere, the Subordinate Judge's Court having jurisdiction over the area in which the math or temple is situated, or if there is no such Court, the District Court having such jurisdiction; (iii) in relation to a specific endowment attached to a math or temple, the Court which would have jurisdiction as aforesaid in relation to the math or temple; (iv) in relation to a specific endowment attached to two or more maths or temples, any Court which would have jurisdiction as aforesaid in relation to either or any of such maths or temples; 11. Section 8 of the Act, 1959 enumerates the authorities ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... indicates that what Act, 1959 refers to a Court is a civil court created in the State. The scheme of the Act clearly indicates that Commissioner is an authority under the Act who is to be appointed by the Government. The Commissioner is entrusted with various functions under the Act and one of the functions entrusted to the Commissioner is hearing of the appeal under Section 69 of the Act, 1959. In the present case we are concerned with Section 69 which is to the following effect: Section 69.Appeal to the Commissioner.-(1) Any person aggrieved by any order passed by [the Joint Commissioner or the Deputy Commissioner, as the case may be], under any of the foregoing sections of this chapter, may within sixty days from the date of the publication of the order or of the receipt thereof by him as the case may be, appeal to the Commissioner and the Commissioner may pass such order thereon as he thinks fit. (2) Any order passed by [the Joint Commissioner or the Deputy Commissioner, as the case may be], in respect of which no appeal has been preferred within the period specified in sub-section (1) may be revised by the Commissioner suo motu and the Commissioner may call for and exam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bank of India, (2000) 5 SCC 355. In the above case Deputy Commissioner of Labour(Appeals) was an authority constituted under Section 41(2) of Tamil Nadu Shops and Establishments Act, 1947 to hear and decide appeal. The appellant, an official of the State Bank of India was removed by an order dated 11.01.1983 after holding regular departmental proceedings. The appellant had filed an appeal under Section 41(2) of the Tamil Nadu Shops and Establishments Act, 1947 which appeal was dismissed holding that provisions of Tamil Nadu Shops and Establishments Act, 1947 are not applicable to nationalized Banks. After the dismissal of the said appeal the orders of Deputy Commissioner of Labour(Appeals) dated 01.09.1987 was challenged in this Court which too are rejected. It was thereafter appellant instituted a regular suit in the City Civil Court where the question came for consideration regarding applicability of Section 14 of Limitation Act. In the above case in paragraph 3 the issue was noted to the following effect: 3. In order to bring a suit within the period of limitation, the appellant claimed benefit of Section 14 of the Limitation Act on the ground that he had represented to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellate authority has been constituted. The question arose as to whether the period taken in pursuing the appellate proceedings can be excluded by applying Section 14 of the Limitation Act for purposes of filing revision before the Revisional Authority under Section 10(3-B) of the U.P. Sales Tax Act, 1948. In the above context, this Court held that appellate authority and the Judge(Revisions) are not courts, hence, Section 14 of the Limitation Act shall not be applicable. In paragraph 9 following has been laid down: 9. The above observations were quoted with approval by this Court in Jagannath Prasad case1 and it was held that a Sales Tax Officer under U.P. Sales Tax Act, 1948 was not a court within the meaning of Section 195 of the Code of Criminal Procedure although he is required to perform certain quasi-judicial functions. The decision in Jagannath Prasad case it seems, was not brought to the notice of the High Court. In view of these pronouncements of this Court, there is no room for argument that the Appellate Authority and the Judge (Revisions) Sales tax exercising jurisdiction under the Sales Tax Act, are courts . They are merely Administrative Tribunals and no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the application within the same period after the disability has ceased. 24. Sections 9,10 and 11 refer to suit. Section 12 deals with computation of period of limitation. The section refers to computation of period of limitation for an appeal or an application for leave to appeal or for revision or for review of a judgment, obviously was meant for judgment of a court. Section 13 again refers to Court. Section 14 specifically refers to the Court. Section 14 of the Act is as follows: Section 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 the 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 proc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... apply to any suit or other proceeding under any such law. (4) Sections 25 and 26 and the definition of easement in section 2 shall not apply to cases arising in the territories to which the Indian Easements Act,1882 may for the time being extend. 22. The Schedule of the Act provides for Periods of Limitation . First Division deals with different kinds of suits. Second Division deals with appeals and Third Division deals with applications. The suits, appeals and applications which have been referred to in the Schedule obviously mean suits, appeals and applications to be filed in Court as per the provisions referred to in the Act noted above. 23. Section 29(2) provides that 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 and the provisions contained in Sections 4 to 21 (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. Whether p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Article 137 of the Schedule of the Limitation Act, 1963 governs applications under Section 33(c)(2) of the Industrial Disputes Act, 1947. Referring to various articles of Limitation Act, 1963, this Court laid down following: 12 The scope of the various articles in this division cannot be held to have been so enlarged as to include within them applications to bodies other than courts, such as a quasi judicial tribunal, or even an executive authority. An Industrial Tribunal or a Labour Court dealing with applications or references under the Act are not courts and they are in no way governed either by the Code of Civil Procedure or the Code of Criminal Procedure. We cannot, therefore, accept the submission made that this article will apply even to applications made to an Industrial Tribunal or a Labour Court 26. A three-Judge Bench of this Court in Nityananda, M. Joshi and others. vs. Life Insurance Corporation of India and others, (1965) 2 SCC 199, had occasion to consider the applicability of Article 137 of the Limitation Act to an application filed under Section 33(c)(1) and (2) of the Industrial Disputes Act, 1947 before the Labour Court. Three-Jude bench categorica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uded the time spent by applying Section 14 of the Limitation Act. The Commissioner made a reference to the High Court as to Whether under the circumstances of the case, Section 14 of the Limitation Act extended the period for filing of the revisions by the time during which the restoration applications remained pending as being prosecuted bona fide . The High Court answered the reference in affirmative which judgment was questioned before this Court. Three-Judge Bench held that the appellate authority and the Judge (Revisions) Sales-tax exercising jurisdiction under the Sales-tax Act are not courts and hence, Section 14 of the Limitation Act does not apply. Following was laid down by this Court in paragraphs 9 and 24: 9 In view of these pronouncements of this Court, there is no room for argument that the Appellate Authority and the Judge (Revisions) Sales tax exercising jurisdiction under the Sales Tax Act, are courts . They are merely Administrative Tribunals and not courts . Section 14, Limitation Act, therefore, does not, in terms apply to proceedings before such tribunals 24. For all the reasons aforesaid, we are of the opinion that the object, the scheme and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icipal Council case 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. 30. In the above case since the application under the Telegraphs Act was filed before the Court, this Court held that Article 137 of the Limitation Act was applicable. It is to be noticed that in the above mentioned cases this Court held that applications contemplated under Limitation Act are applications to a Court but in the above cases the Court did not refer to Section 29(2) of the Limitation Act. 31. A two-Judge Bench judgment of this Court in Sakuru vs. Tanaji, 1985(3) SCC 590, needs to be noticed. In the above case the question was as to whether delay in filing appeal before Court under Section 19 is condonable under Section 5 of Limitation Act, 1963. This Court held that the provisions of Limitation Act, 1963 apply only to proceedings in courts and not to appeals or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Limitation Act for condonation of the delay in the filing of the appeal. The only provision relied on by the appellant in this connection is Section 93 of the Act which, as it stood at the relevant time, was in the following terms: 93. Limitations.-Every appeal and every application for revision under this Act shall be filed within sixty days from the date of the order against which the appeal or application is filed and the provisions of the Indian Limitation Act, 1908 shall apply for the purpose of the computation of the said period. On a plain reading of the section it is absolutely clear that its effect is only to render applicable to the proceedings before the Collector, the provisions of the Limitation Act relating to computation of the period of limitation . The provisions relating to computation of the period of limitation are contained in Sections 12 to 24 included in Part III of the Limitation Act, 1963. Section 5 is not a provision dealing with computation of the period of limitation . It is only after the process of computation is completed and it is found that an appeal or application has been filed after the expiry of the prescribed period that the question ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich is to the following effect: 19. A bare reading of sub-section (3) of Section 34 read with the proviso makes it abundantly clear that the application for setting aside the award on the grounds mentioned in sub-section (2) of Section 34 will have to be made within three months. The period can further be extended, on sufficient cause being shown, by another period of 30 days but not thereafter. It means that as far as application for setting aside the award is concerned, the period of limitation prescribed is three months which can be extended by another period of 30 days, on sufficient cause being shown to the satisfaction of the court. 36. Section 29(2) of the Limitation Act as well as Section 34 of the Arbitration Act was referred to. This Court after noticing the provisions of Section 34 opined that Section 5 of the Limitation Act is excluded. In paragraph 20 following has been laid down: 20. Section 29(2) of the Limitation Act inter alia provides that where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period of limitation prescribed by the Schedule, the provisions of Section 3 shall apply as if ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rinciples 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 the court of the first instance to set aside an award rendered by an arbitrator on specified grounds. It is not the case of the contractor that the forums before which the Government of India undertaking had initiated proceedings for setting aside the arbitral award are not courts . In view of these glaring distinguishing features, this Court is of the opinion that the decision rendered in CST did not decide the issue which falls for consideration of this Court and, therefore, the said decision cannot be construed to mean that the provisions of Section 14 of the Limitation Act are not applicable to an application submitted under Section 34 of the Act of 1996. 38. Three-Judge Bench held that Section 14 of the Limitation Act was applicable to application filed under Section 34 of the Arbitration Act, 1996. R.V. Raveendran, J. in his concurring opinion has held that Sections 3 and 29(2) of the Limitation Act will not apply to proceedings before the t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... only insofar as, and to the extent to which, they are not expressly excluded by such special or local law. A bare reading of this section would show that the special or local law described therein should prescribe for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule. This would necessarily mean that such special or local law would have to lay down that the suit, appeal or application to be instituted 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or in relying on Section 12(2) of the Limitation Act, 1963. In paragraph 4 of the judgment following was laid down: 4. There can be no manner of doubt that the U.P. Sales Tax Act answers to the description of a special or local law. According to sub- section (2) of Section 29 of the Limitation Act, reproduced above, for the purpose of determining any period of limitation prescribed for any application by any special or local law, the provisions contained in Section 12(2), inter alia, shall apply insofar as and to the extent to which they are not expressly excluded by such special or local law. There is nothing in the U.P. Sales Tax Act expressly excluding the application of Section 12(2) of the Limitation Act for determining the period of limitation prescribed for revision application. The conclusion would, therefore, follow that the provisions of Section 12(2) of the Limitation Act of 1963 can be relied upon in computing the period of limitation prescribed for filing a revision petition under Section 10 of the U.P. Sales Tax Act. 43. This Court held that Section 12(2) of the Limitation Act can be relied upon in computing the period of limitation prescribed for filing the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt in CST, U.P. vs. M/s. Madan Lal Das Sons having not referred to earlier judgments of equal strength, we are persuaded to follow the earlier three-Judge Bench judgment of this Court in CST, U.P. vs. M/s. Parson Tools and Plants. 45. The judgment on which reliance has been placed by the learned counsel for the respondent is Mukri Gopalan vs. Cheppilat Puthanpurayil Aboobacker, (1995) 5 SCC 5. In the above case, question for consideration was as to whether the appellate authority under Section 18 of Kerala Buildings (Lease and Rent Control) Act, 1965 has power to condone the delay in filing appeal. The issue which has been noticed in paragraph 1 is to the following effect: 1. In this appeal by special leave a short but an interesting question falls for determination. It is to the effect whether the appellate authority constituted under Section 18 of the Kerala Buildings (Lease and Rent Control) Act, 1965 (hereinafter referred to as the Rent Act ) has power to condone the delay in the filing of appeal before it under the said section . Majority of the Kerala High Court in the case of Jokkim Fernandez v. Amina Kunhi Umma, AIR 1974 Ker 162, has taken the view that the app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r respondent also fairly stated that these appellate authorities would be courts and would not be persona designata 48. Section 29(2) was also considered. This Court further held that Section 29(2) will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. In paragraphs 11 and 15 following has been laid down: 11. It is also obvious that once the aforesaid two conditions are satisfied Section 29(2) on its own force will get attracted to appeals filed before appellate authority under Section 18 of the Rent Act. When Section 29(2) applies to appeals under Section 18 of the Rent Act, for computing the period of limitation prescribed for appeals under that Section, all the provisions of Sections 4 to 24 of the Limitation Act would apply. Section 5 being one of them would therefore get attracted. It is also obvious that there is no express exclusion anywhere in the Rent Act taking out the applicability of Section 5 of the Limitation Act to appeals filed before appellate authority under Section 18 of the Act. Consequently, all the legal requirements for applicability of Section 5 of the Limitation Act to such appeals in the light of Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w in view of the earlier three-Judge judgments of this Court. Dealing with Mukri Gopalan s case two-Judge Bench in M.P. Steel Corporation had held following in paragraph 29 : 29. Quite apart from Mukri Gopalan case being out of step with at least five earlier binding judgments of this Court, it does not square also with the subsequent judgment in Consolidated Engg. Enterprises v. Irrigation Deptt. A three-Judge Bench 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: 32. Obviously, the ratio of Mukri Gopalan does not square with the observations of the three-Judge Bench in Consolidated Engg. 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 Consolidated Engg. Enterprises case, it is no longer good law. 50. Learned counsel for the respondent relied on t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the High Court is not a Court, thus, when revision application was filed before a Court Section 29(2) was clearly attracted applying Section 5 of the Limitation Act. The said judgment cannot be said to be authority for the proposition that in appeals filed before statutory authorities which are not Court, Section 5 of the Limitation act shall be attracted. Another judgement relied by the respondent is Syed Zalil Akhtar vs. Zila Sahkari Krishi Avam Gramn Vikas Bank, Mydt., (2016) 12 SCC 365. This Court in the above case was considering the power of condonation of delay in filing appeal under Section 55(2) of M.P. Cooperative Societies Act, 1960. The High Court has upheld the decision of the M.P. State Cooperative Tribunal, appellant s application filed under Section 55(2) was belated and since there being no provision for condoning the delay in filing of the appeal and Section 5 of the Limitation Act was also not applicable. Two-Judge Bench has referred to Mukri Gopalan (supra). Relying on Mukri Gopalan and Anshuman Shukla, two-Judge Bench held that Section 5 of the Limitation Act would be applicable. In paragraphs 11 and 12 following has been held: 11. Having noted the said vie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in a Court. (2) The suits, appeals and applications referred to in the Limitation Act are not the suits, appeals and applications which are to be filed before a statutory authority like Commissioner under Act, 1959. (3) Operation of Section 29(2) of the Limitation Act is confined to the suits, appeals and applications referred to in a special or local law to be filed in Court and not before statutory authorities like Commissioner under Act, 1959. (4) However, special or local law vide statutory scheme can make applicable any provision of the Limitation Act or exclude applicability of any provision of Limitation Act which can be decided only after looking into the scheme of particular, special or local law. 55. We, thus, answer question Nos.2 and 3 in the following manner: (i) The applicability of Section 29(2) of the Limitation Act is with regard to different limitations prescribed for any suit, appeal or application when to be filed in a Court. (ii) Section 29(2) cannot be pressed in service with regard to filing of suits, appeals and applications before the statutory authorities and tribunals provided in a special or local law. The Commissioner while hearing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation for revision against any order or decree passed under this Act, the time requisite for obtaining a certified copy of such order or decree shall be excluded. 60. The provision of Section 69 of Act, 1959 also indicates that Legislature never contemplated applicability of Section 5 of the Limitation Act in proceedings before Commissioner. Section 69(2) noted above provides that any order passed by the Joint Commissioner or the Deputy Commissioner, as the case may, in respect of which no appeal has been preferred within the period specified in sub-section (1) may be revised by the Commissioner suo motu and the Commissioner may call for and examine the records of the proceedings to satisfy himself as to the regularity of such proceedings or the correctness, legality or propriety of any decision or order passed by the Joint Commissioner or the Deputy Commissioner, as the case may be. 61. Thus, Section 69(2) gives suo motu power to the Commissioner to call for and examine the records of the proceedings of Joint Commissioner or the Deputy Commissioner in respect of which no appeal has been preferred within the period specified in sub-section (1). Thus, in a case appeal is not f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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