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TMI Blog1981 (4) TMI 78X X X X Extracts X X X X X X X X Extracts X X X X ..... r. Rajgarhia filed an application under s. 5 of the Limitation Act praying to condone the delay of one day in filing the appeal on the grounds mentioned in that application. Mr. Shreenath Singh opposed this application also. In these circumstances, it is, necessary to consider as to whether the appeal was filed within the period of limitation or not and in case it was filed beyond the period of limitation then as to whether the delay of one day in filing the appeal can be condoned. As I have said above, the appeal is directed against an order dated August 18, 1980. Section 269H(1) of the Act, inter alia, provides that an appeal may be preferred to the High Court within 60 days of the date on which the appellant is served with a notice of the order under s. 269G of the Act. Admittedly, the Appellate Tribunal sent a copy of the order passed by it to the appellant on September 6, 1980. In case 60 days are added to 6th September, 1980, then we get November 5, 1980. The stamp reporter on the basis of this calculation has said that the last date of limitation was November 5, 1980 and, as such, the appeal which was filed on November 6, 1980, is barred by limitation. It, however, appears ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... law (the Representation of the People Act, 1951) and the nature of the remedy provided therein were such which led to the inference that the Legislature intended it to be a complete code by itself which alone should govern the several matters provided by it. They also held that even in cases where the special law did not exclude the provision of ss. 4 to 24 of the Limitation Act by an express reference, it would none the less be open to the court to examine whether and to what extent the nature of those provisions or the nature of the subject-matter and the scheme of special law exclude their operation. Thereafter, on examination of the different provisions of the Representation of the People Act, 1951, it was found that it was a code in itself and its scheme excluded the operation of the Limitation Act. This case, therefore, does not help Mr. Rajgarhia. Mr. Rajgarhia next strongly relied on the decision of the Supreme Court in the case of Commr. of Sales Tax v. Madan Lal Das & Sons [1976] 38 STC 543 ; AIR 1977 SC 523. In this case, it appears that the copy of the order served on the assessee was lost. He, therefore, obtained certified copy and then filed a revision application u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e provisions of the Limitation Act have been excluded under its scheme. Chapter XX-A of the Act was introduced with effect from 15th November, 1972, with the object of acquiring immovable properties in certain cases of transfer to counteract evasion of tax. This chapter, inter alia, provides that if the authorities have reason to believe that any immovable property of a fair market value exceeding twenty-five thousand rupees has been transferred by a person for an apparent consideration which is less than the fair market value of the property and that the consideration for such transfer as agreed to between the parties has not been truly stated in the instrument of transfer with the object, inter alia, of, facilitating the concealment of any income or any moneys or other assets which have not been or which ought to be disclosed by the transferee for the purpose of the Indian I.T. Act, 1922, or the W.T. Act, 1957, then the competent authority may initiate proceedings for the acquisition of such properties under this chapter. Where the proceedings are so initiated, notice has to be given under s. 269D of the Act. In case an objection is raised, then after hearing the parties, the com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the State. The next section in the Chapter is s. 269H which empowers the Commissioner or any person aggrieved by an order of the Appellate Tribunal under s. 269G to file an appeal to the High Court within 60 days of the date on which he is served with the notice of the order under that section on any question of law. Proviso to this section is an indicator of the scheme of things. I, therefore, quote it, which is as follows : " Provided that the High Court may, on an application made in this behalf before the expiry of the said period of sixty days, permit, by order, the appeal to be presented within such further period as may be specified therein, if the applicant satisfies the High Court that he has sufficient cause for not being able to present the appeal within the said period of sixty days." A perusal of the proviso shows that the appeal must be filed within period of 60 days of the date on which the copy of the order is served under sub-s. (6) of s. 269G of the Act. In case, however, the person aggrieved thinks that he will not be able to present the appeal to the High Court within 60 days then he must before the expiry of that period file an application before the High ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , Mr. Rajgarhia urged that since the filing of a certified copy of the order was imperative the time taken in obtaining the same must be excluded. I am not inclined to accept this contention also. There is no provision in the Act which even impliedly suggests that the provision of 0. 41 of the CPC will apply to appeals under s. 269H of the Act. In my view, unless a provision making the CPC applicable either expressly or impliedly is made, it cannot be said that the appeal under s. 269H of the Act is civil in character and, as such, 0. 4.1 of the CPC applies to it. In this connection, I may refer to the case of Bokaro and Ramgur Ltd. v. Kathara Coal Co. Ltd., AIR 1969 Patna 235. That was a case, where an appeal was filed under s. 20 of the Coal Bearing Areas (Acquisition and Development) Act, 1957. The respondent in that case filed a cross-objection. The cross-objection was not maintainable because there was no provision in the Coal Bearing Areas (Acquisition and Development) Act, 1957, analogous to those of 0. 41, r. 22 of the CPC. It was said in that case that the determination of compensation has been expressly made appealable under s. 20 of the Act aforesaid but short of an appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reasons, I hold that the appeal is barred by limitation. An application has been filed under s. 5 of the Limitation Act praying to condone the delay in filing the appeal, The grounds for condoning the delay as mentioned in the application, inter alia, are that in the opinion of Sri S.K. Saran, junior standing counsel of the department, a certified copy of the impugned order had to be filed. In his opinion, therefore, a certified copy was to be obtained and the file was sent to the office of the senior standing counsel after 30th October, 1980, along with the certified copy. It is further said that the junior standing counsel examined the case and, according to his calculation, the last day for filing the appeal was November 7, 1980. The memorandum of appeal was accordingly drafted and the appeal was presented before the stamp reporter on November 4, 1980, at 2.30 p.m. but the advocate's clerk, Sri Surendra Pd. Sinha, felt unwell and left the High Court at 3.30 p.m, on November 4, 1980. It is further said that he got himself examined on 5th November, 1980, by Dr. S. K. Didwania, who prescribed him some medicines also. Further, according to this application Sri Surendra Pd. Sinha c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5, 1981, produced before us the relevant file relating to the present appeal maintained by the I.T. Dept. and has asked us to take a note of the fact that on 22nd October, 1980, he had made a note in the said file that the appeal has to be accompanied by a certified copy of the order of the Tribunal which should be obtained and sent to him. The note of the learned junior counsel is at page 13/n of the file. We in the presence of counsel for the respondent perused the file which fully corroborates the statement made by Mr. Saran. After having considered the matter from all possible points of view, I am of the view that Mr. Saran genuinely thought that a certified copy of the impugned order had to be filed along with the memorandum of appeal and that the last date for filing the appeal, according to his calculation, was November 7, 1980. The appeal was, accordingly, filed on November 6, 1980. Notwithstanding the false plea regarding the illness, etc., of the clerk, I would have condoned one day's delay in filing the appeal on the ground that it was occasioned on account of lapses in the office of Mr. Rajgarhia but as I have held earlier, Chap. XX-A of the Act is a complete code in it ..... X X X X Extracts X X X X X X X X Extracts X X X X
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