Limitation; Union of India Vs. Gujarat State Electricity Corporation Ltd. [Gujarat High Court, 21-10-2016]

Contents

Railway Claims Tribunal Act, 1987 – Section 23 – Existing power to condone delay in a statute cannot be treated to have excluded the provision of the Limitation Act expressly or impliedly.

# Limitation

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

CORAM: HONOURABLE MR.JUSTICE S.R.BRAHMBHATT and HONOURABLE MR.JUSTICE A.G.URAIZEE

Date : 21/10/2016

CIVIL APPLICATION (FOR CONDONATION OF DELAY) NO. 12844 of 2015 In FIRST APPEAL (STAMP NUMBER) NO. 2264 of 2015 TO CIVIL APPLICATION NO. 12864 of 2015 In FIRST APPEAL (STAMP NUMBER) NO. 2284 of 2015

UNION OF INDIA….Applicant Versus GUJARAT STATE ELECTRICITY CORPORATION LIMITED & 1….Respondents Appearance: MR ANAL S SHAH, ADVOCATE for the Applicant MR DIPAK R DAVE, ADVOCATE for the Respondent No. 1

PER : HONOURABLE MR.JUSTICE S.R.BRAHMBHATT

1. Heard learned counsel appearing for the parties and perused the documents produced on record. All the applications are heard together and are being decided by this Common CAV Judgment, as the issues are similar.

2. As the facts are similar, facts of one case is set out herein below for appreciating the real controversy. The respondent no.1 herein – original applicant before the Tribunal, had preferred application being M.A./ADI/2014/0019 for condonation of delay of about 13 years 6 months in filing the claim petition. The said application was allowed vide order dated 24.06.2014 by condoning the delay with condition that the original applicant would not be entitled to claim interest prior to registration of claim compensation application by this Tribunal and directed the registry to register the claim petition in accordance with law. Being aggrieved by the same, the present applicant – Union of India, preferred Review Application being MA/ADI/2014/0054, which came to be dismissed vide common judgment dated 17.06.2015. Being aggrieved by the same, the captioned First Appeals have been filed with delay of 410 days. Hence, the present applications for condoning the delay of 410 days.

3. Learned counsel for the parties have exchanged and placed on record their written submissions, which are reproduced verbatim for the sake of convenience.

# Submissions on behalf of Applicant Union of India

(1) The captioned Appeals have been filed under

# Section 23 of the Railway Claims Tribunal Act, 1987

challenging the order dated 24.06.2014 passed by Railway Claims Tribunal (RCT) allowing Application No. MA/ADI/2014/0019, condoning delay of about 13 years and 6 months. The Appellant has also challenged in the appeal the order dated 17.06.2015 passed by RCT in Review Application No. MA/ADI/2014/0054 dismissing the application.

(2) Since there is delay in filing the Appeals, Civil Application No.12844 of 2015 to Civil Application No.12864 of 2015 have been filed in First Appeals No. 2263 of 2015 to First Appeal No.2284 of 2015 for condonation of delay of 410 days.

# EXPLANATION FOR DELAY

(3) It is the case of the Applicant that certified copy of the order dated 24.06.2014 passed by RCT was received by the Advocate for the Applicant on 26.06.2014 and the same was forwarded to the concerned office of the Applicant. The papers of the matter were forwarded to the Head Office of Western Railway at Mumbai and thereafter, the competent authority decided to file an application for review of the order dated 24.06.2014 of RCT. Accordingly, a review application was preferred by the applicant with an application for condonation of delay of 114 days. The delay in preferring the review application came to be condoned by RCT and review application was heard. However, the said review application was rejected by RCT vide order dated 17.06.2015. The certified copy of the said order was received on 22.06.2015. Since, there was a typographical error in the order an application was made for rectification and thereafter, the certified copy of the rectified order was received on 13.08.2015. After receipt of the rectified order on 13.08.2015, instructions were given to the panel Advocate to file necessary proceedings to challenge the orders passed by RCT. Pursuant to discussions, it was decided to file captioned First Appeals. Accordingly, after approval of the memo of the appeal, the captioned appeals have been filed before this Court on 05.11.2015. The delay caused in preferring the appeals is due to the procedure undertaken by the applicant for perusing the legal remedies. There is no intentional or deliberate delay on the part of the applicant.

# CONTENTION OF OPPONENT NO.1

(4) Pursuant to the order dated 09.12.2015 issuing Rule, Opponent no.1 has appeared and filed its Affidavit-in-Reply dated 29.01.2016 opposing the delay application. In the said reply, Opponent No.1 has raised a contention that application for condonation of delay is not maintainable as Railway Claims Tribunal Act, 1987 (hereinafter referred to as RCT Act, 1987) is a special statue and a self contained code which prescribes special period of limitation and that power to condone delay has been given by the statue to RCT u/s. 17, but no such power has been given to the High Court u/s.23 of the RCT Act, 1987. Therefore, it has been contended that by not giving power to condone delay to the Hon’ble Court u/s. 23, the legislature intended to exclude operation of sections 4 to 24 of the Limitation Act, 1963.

# SUBMISSIONS OF THE APPLICANT

(5) This Court has the power u/s. 5 of the

# Limitation Act, 1963

to condone delay in filing the appeal on sufficient cause being made out. Section 23 of the RCT Act, 1987 does not in any manner exclude operation of Limitation Act, 1963.

(6) The contention of Opponent No.1 that power of condonation provided to RCT u/s. 17 is not provided to the High Court u/s. 23 and that therefore this Court has no power to condone delay is not tenable for the following reasons:-

(i) The method of reading and interpreting section 23 in context of Section 17 of RCT Act, 1987 is a wrong reading of the scheme of the Act.

(ii) The nature of remedy viz. filing of application u/s. 17 is before a Tribunal whereas the remedy u/s. 23 of filing an appeal is before this Court which is an established Court and a Court of record.

(iii) The legislature u/s. 17 has given a specific power of condonation of delay to the Tribunal because the Limitation Act, 1963 would not be applicable a Tribunal and hence, power to condone delay u/s. 5 of the Limitation Act, 1963 cannot be invoked by the Tribunal. Hence, the legislature has to provide for a specific power to condone delay in case of Tribunals and other quasi-judicial bodies. However, in case of appeal u/s. 23 of the RCT Act, 1987 the legislature is not required to provide a specific power of condonation of delay to this Court because the provisions of Limitation Act, 1963 would apply by virtue of Section 29(2) to all proceedings before this Court.

Refer:-(1)

# M. P. Steel Corporation v. Commissioner of Central Excise, (2015) 7 SCC 58

(2)  (Para 3 & 4)

# Birla Cement Works v. G.M. Western Railways And Another, (1995) 2 SCC 493

RCT is held to be not a court and Limitation Act, 1963 does not apply to RCT.

Note: Hon’ble Supreme Court in Birla Cement Works (supra) has held that Limitation Act does not apply to RCT not on the ground that RCT Act, 1987 is a special statue and a complete code in itself but because of the fact that RCT is a Tribunal and not a Court.

(iv) The contention that because the legislature has not given any power to Hon’ble High Court to condone delay in filing the appeal under Section 23 of RCT Act, 1987 does not mean that the provisions of Limitation Act, 1963 are excluded. On the contrary, if the legislature has prescribed certain period of limitation in the special law and made provision for extension on sufficient cause being shown then only the provisions of Limitation Act would stand excluded. In other words, if the power to condone delay on sufficient cause is provided under a special law, the Court would condone delay under that provision of the special law and the general provisions of Section 5 of the Limitation Act would stand excluded to that extent. Therefore, if for example, power of condonation of delay was provided u/s. 23 RCT Act, 1987, the power of condonation of delay u/s. 5 of Limitation Act would stand excluded and the Hon’ble Court would exercise power for condonation u/s.23. But if no power of condonation is given u/s. 23 RCT Act, 1987 it does not mean that provisions of Limitation Act, 1963 stand excluded. (refer Paragraph no.20 placetum f & g of (2008) 7 SCC 169).

(7) The contention of Opponent No.1 that by providing special period of limitation in Section 23 of RCT Act, 1987 and not providing power to Hon’ble High Court to condone delay, the legislature intended to exclude operation of Sections 4 to 24 of the Limitation Act, 1963 is not tenable because:-

(i) The language of Section 23 of RCT Act, 1987 neither expressly nor by necessary implication excludes operation of provisions of Limitation Act, 1963.

Section 23 of Railway Claims Tribunal Act, 1987 is reproduced hereunder for ready reference:-

# 23. Appeals

(1) Save as provided in sub- section (2) and notwithstanding anything contained in the Code of Civil Procedure, 1908 (5 of 1908) or any other law, an appeal shall lie from every order, not being an interlocutory order, of the Claims Tribunal, to the High Court having jurisdiction over the place where the Bench is located.

(2) No appeal shall lie from an order passed by Claims Tribunal with the consent of the parties.

(3) Every appeal under this Section shall be preferred within a period of ninety days from the date of the order appealed against.”

Thus, from the bare reading of the Section itself it is clear that there is no express exclusion of the provisions of Limitation Act, 1963.

(ii) Since u/s. 23 of RCT Act, 1987 the appeal lies before Hon’ble High Court, the legislature need not provide for power to condone delay separately in the Special Act because High Court is a Court established under the Constitution of India and therefore, the provisions of Limitation Act, 1963 would apply.

(iii) As held by the Hon’ble Supreme Court in case of

# Mukri Goplanan v. Cheppilat Puthanpurayil Aboobacker, reported in (1995) 5 SCC 5

in paragraph no.15 (placetum d& e)

“.. it is not necessary to expressly state in a special law that the provisions contained in Section 5 of the Limitation Act shall apply to the determination of periods under it.” “An express mention in the special law is necessary only for an exclusion”.

(iv) The legislature while enacting the Limitation Act, 1963 made several changes to the provisions of the old Limitation Act, 1908 (as amended in 1922). One of the change being that the scope of Section 5 was made wider. The statement of objects and reasons of the Limitation Act, 1963 state:

“Instead of leaving it to the different States or High Courts to extend the application of Section 5 to the applications other than those enumerated in that section as now in force, this clause provides for the automatic application of this Section to all applications, other than those arising under Order 21 of the Code of Civil Procedure, 1908, relating to execution of decrees. In case of special or local laws, it will be open to such laws to provide that Section 5 will not apply.”

(Refer Para. 10 of

# Humkumdev Narain Yadav v. Lalit Narain Mishra, (1974) 2 SCC 133

Thus, Limitation Act, 1963 by virtue of Section 29(2) seeks to automatically apply provisions of Limitation Act to special or local law and it is open for such laws to provide that Section 5 will not apply. Hence, it is submitted that exclusion of provisions of Section 5 must be expressly provided by the special or local law.

(v) Considering from another angle, it is submitted that one cannot lose sight of the fact the legislature while enacting the Railway Claims Tribunal Act, 1987 was obviously conscious of the provisions of Section 29(2) of the Limitation Act, 1963 and therefore, it was not necessary for legislature to expressly mention in the RCT Act, 1987 that provisions of Limitation Act, 1963 would be applicable to appeals u/s. 23 before Hon’ble High Court.

(vi) If legislature wanted to exclude applicability of Limitation Act, 1963 nothing prevented it from putting an express provisions to that effect.

SEC. 29(2) OF LIMITATION ACT, 1963 APPLIES TO SEC. 23 APPEAL:-

(8) The general provisions of Section 29(2) of Limitation Act, 1963 would get attracted to the appeal provided under Section 23 of the RCT Act, 1987 for the following reasons:

(i) The provision of section 29(2) of the Limitation Act, 1963 is reproduced hereunder for ready reference:-

“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 limitaton 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.”

An analysis of Section 29(2) of Limitation Act, 1963 reveals that following ingredients are required to be satisfied for

applicability of the said Section viz.:

(a) Special or local law must prescribe a period of limitation for any suit, appeal or application;

(b) The period of limitation under special or local law must be different for the period prescribed in the Schedule to the Limitation Act for that suit, appeal or application provided in the special or local law; and

(c) provisions of Section 4 to 24 must not be expressly excluded by special or local law.

In the present case, Section 23 of RCT Act, 1987 (a special law) prescribes a period of limitation of 90 days for preferring an appeal before this Court. The period of 90 days is different from period prescribed in the Schedule as there is no period prescribed for Section 23 appeal in the Schedule to the Limitation Act, 1963. None of the provisions of Section 4 to 24 (inclusive) are expressly excluded by Section 23 of RCT Act, 1987.

(ii) The provisions of Section 29(2) of Limitation Act, 1908 came to be interpreted by the Constitutional Bench of the Hon’ble Supreme Court in the matter of

# Vidyacharan Shula v. Khubchand Baghel, reported in (1964) 6 SCR 129 : AIR 1964 SC 1009

In the case of Vidyacharan (supra) the Constitutional Bench by majority held that even absence of a provision prescribing time limit in the First Schedule of Limitation Act would be prescribing a different time limit. It was held that once the special or local law has provided a period different from that prescribed in the Schedule to the Limitation Act, sub-section (2) of Section 29 stands directly attracted and Section 3 and other Sections shall apply in so far as and to the extent to which they are not expressly excluded.

Therefore, what follows from the Constitutional Bench judgment is that once the Hon’ble Court comes to the conclusion that the time limit prescribed in the special law is different from that provided in the Schedule to the Limitation Act, the provisions of Section 29(2) stand attracted and thereafter, all the Hon’ble Court is required to examine is whether any of the provisions of Section 4 to 24 (inclusive) of the Limitation Act are expressly excluded by special law or not.

(iii) The Hon’ble Supreme Court of India in the matter of

# Mukri Gopalan v. Cheppilat Puthanpurayil Aboobacker, reported in (1995) 5 SCC 5

while following the majority judgment of the Constitutional Bench in the matter of Vidyacharan Shukla (supra) has interpreted the provisions of Section 29(2) of the Limitation Act, 1963 and has explained that the requirements to be satisfied by an authority to invoke provisions of Section 29(2) of the Limitation Act, 1963 are only two viz.

(a) There must be a provision for the period of limitation under any special or local law in connection with any suit, appeal or application; and

(b) The said prescription of period of limitation under such special or local law should be different from the period prescribed by the Schedule to the Limitation Act.

(Refer Paragraph 8 placetum f & g) The Hon’ble Court observes that once the aforesaid two conditions are fulfilled the consequences contemplated by Section 29(2) would automatically follow. The consequences are as under:-

(a) In such as case Section 3 of the Limitation Act would apply as if the period prescribed by the special or local law was the period prescribed by the Schedule.

(b) For determining any period of limitation prescribed by such special or local law for any suit, appeal or application all provisions containing Section 4 to 24 (inclusive) would apply in so far as and to the extent to which they are not expressly excluded by such special or local law.

(Refer paragraph 9 placetum h & a on Pg. 16)

Therefore, it is submitted that the later part of Section 29(2) of the Limitation Act, 1963 regarding applicability of Section 3 of the Limitation as if period prescribed by special law was period prescribed by the Schedule and regarding applicability of Sections 4 to 24 (inclusive) is considered by the Hon’ble Supreme Court as a consequence and not requirement for attracting or invoking Section 29(2) of the Limitation Act.

The Hon’ble Supreme Court in the said judgment, following judgment in the matter of Vidyacharan Shukla (supra), has also held that if the special law prescribes the period of limitation for a particular suit, appeal or application, the Schedule to Limitation Act must also prescribe for limitation for that suit, appeal or application under such special law.

(Refer Paragraph No.10 & 11 Pg. 16-17)

In the present case, Railway Claims Tribunal Act, 1987 (a special law) prescribes for a period of limitation of 90 days for filing an appeal u/s.23. However, no period is prescribed under Schedule to the Limitation Act, 1963 for filing an appeal under Section 23 of the RCT Act, 1987. therefore the two requirements for attracting Section 29(2) get satisfied. Hence, on a conjoint reading of Section 23 of RCT Act, 1987 with Section 29(2) of the Limitation Act, 1963 the provisions of Section 5 of the Limitation Act would get attracted and this Court would have the power to condone the delay.

Note: The Judgment of Mukri Gopalan has been held to be not a good law by the later judgment of the Hon’ble Supreme Court in the matter of M.P. Steel Corporation (supra) only to the extent that it holds that Limitation Act applies to authorities which may not be strictly civil courts.

(iv) The Hon’ble Supreme Court in the matter of Mukri Gopalan (supra) has described provision of Section 29(2) of the Limitation Act, 1963 as a legislative short hand. In other words the procedural scheme contemplated by Sections 4 to 24 (inclusive) would get telescoped into provisions of special or local law once the conditions laid down in Section 29(2) are satisfied.

(Refer Paragraph no.20 placetum d & e)

(v) The three judges bench of the Hon’ble Supreme Court of India in the matter of

# Hukumdev Narain Yadav v. Lalit Narain Mishra reported in (1974) 2 SCC 133

had to the occasion to interpret provisions of Section 29(2) of the Limitation Act, 1963 in context of its applicability to Petitioner u/s. 81 of Representation of the People Act, 1951. The Hon’ble Supreme Court relied upon the Constitutional Bench judgment in the matter of Vidyacharan Shukla (supra) but while interpreting the provision of Section 29(2) of the Limitation Act introduced the concept of necessary exclusion of provisions of Limitation Act. The Hon’ble Court held if on an examination of the relevant provisions it is clear that the provisions of the Limitation Act are necessarily excluded, then the benefits conferred by Section 29(2) of the Limitation Act cannot be called in aid to supplement the provisions of the special law. It was held that

“…even in a case where the special law does not exclude the provisions of Sections 4 to 24 of the Limitation Act by an express reference, it would nonetheless 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 excludes their operation”.

(Refer Paragraph no. 17)

It is submitted that all that the three judges bench of Hon’ble Supreme Court has observed in the case of Hukumdev (supra) is that even if the provisions of Limitation Act, 1963 are not expressly excluded by special law, the Court will have to consider the provisions of such special law to ascertain whether the provisions of Sections 4 to 24 of the Limitation Act are necessarily excluded and to what extent. In other words, the phrase “necessarily excluded” would mean that if the Court would were not to exclude operation of provisions of Limitation Act then either the provision or part thereof of special law would become otiose/redundant or it would frustrate the basic object of the special law. Only if the inclusion of provisions of Sections 4 to 24 of the Limitation Act would result in violence to the plain language of the provision of the special law or the object of the Act, the Court would infer the provisions of Limitation Act to be necessarily excluded. As per the said judgment, even if the Court comes to the conclusion provisions of Limitation Act are necessarily excluded, the Court will have to ascertain which of the provisions of Section 4 to 24 (inclusive) of Limitation Act stand excluded and to what extent and for that purpose the Court has to give due regard to scheme of the special law and the nature of remedy provided by such special law. Instances of the cases of necessary exclusion can be seen in the matter of:-

(A)

# Chhattisgarh State Electricity Board v. Central Electricity Regulatory Commission & Ors. Reported in (2010) 5 SCC 23

In the said matter the Hon’ble Supreme Court while considering applicability of Section 5 by virtue of Section 29(2) of Limitation Act, 1963 to Section 125 of the Electricity Act, 2003. The Hon’ble Supreme Court after considering the provision of Section 125 held that

“Any interpretation of Section 125 of the Electricity Act which may attract the applicability of Section 5 of Limitation Act read with Section 29(2) thereof will defeat the object of the legislation, namely, to provide special limitation for filing an appeal against the decision or order of the Tribunal and proviso to Section 125 will become nugatory.”

(Refer Paragraph no.32 placetum e & f)

(B)

# Consolidated Engineering Enterprises v. Principal Secretary, Irrigation Department & Ors. Reported in (2008) 7 SCC 169

where the Hon’ble Supreme Court while interpreting applicability of Section 5 of Limitation Act, 1963 to Section 34 of Arbitration and Conciliation Act, 1996 has held that sub-section (3) of Section 34 extends the period of limitation for another period of 30 days but not thereafter. On interpretation of the words “not thereafter” appearing in Section 34(3) of the Arbitration and Conciliation Act, 1996 the Hon’ble Supreme Court observed that the provisions of Section 5 of Limitation Act, 1963 would stand excluded.

(Refer Paragraph no. 19, 20 and 53)

In the present case, neither the scheme of RCT thereof, warrant an inference that the provisions of Limitation Act are necessarily excluded. By invoking the provision of Section 29(2) of the Limitation Act, 1963 and applying the provisions of Sections 4 to 24 no part of Section 23 of RCT Act, 1987 stands frustrated or becomes nugatory.

(vi) The provision of Section 29(2) was also interpreted by three judges bench of the Hon’ble Supreme Court in the matter of

# State of Madhya Pradesh & Anr. v. Anshuman Shukla reported in (2014) 10 SCC 814.

In the said case, the Hon’ble Supreme Court was concerned with High Court’s power of revision as provided in Section 19 of M.P. Madhyastham of the Act, 1983 the time limit for making an application for revision was provided as three months. Although the said Act, 1983 was amended subsequently to provide High Court with power to condone delay in filing revision application, the Hon’ble Supreme Court was concerned with the unamended section 19. The Hon’ble Court after referring to Section 19 in paragraph no.10 of the judgment, concluded at paragraph no.32 that the said section 19 of the Act, 1983 did not contain an express rider on the power of the High Court to entertain any application for revision after the expiry of the prescribed period of three months. By virtue of Section 29(2) of the Limitation Act, the Hon’ble Court held that provision of Section 5 of Limitation Act was applicable to the proceedings u/s. 19 of the Act, 1983. (Refer Para 10 and 32) Note:- Section 19 of M.P. Madhyastham Adhikaran Adhiniyam, 1983 is similar to Section 23 of RCT Act, 1987 in the sense that both sections of special law do not provide power to the High Court to condone delay. Even then, the Hon’ble Supreme Court applied provisions of Section 5 by virtue of 29(2) of Limitation Act. The fact that Section 19(3) of M.P. Madhyastham Adhikaran Adhiniyam, 1983 provides High Court with the same powers and to follow the same procedure as it does in deciding revision u/s. 115 of the Code of Civil Procedure, 1908 is not material because the power to condone delay is not referable to Section 115 of the Code of Civil Procedure. The said Section only regulates the power and procedure of the High Court for entertaining a revision application. Further suo-moto power of High Court was not the basis for applying Section 5 of Limitation Act. Suo-moto power of High Court was only referred to in aid to ascertain if the provisions of Limitation Act can be interpreted to have been excluded or not.

# RULE OF INTERPRETATION OF STATUTE

(9) The Hon’ble Supreme Court of India in the matter of

# State of Goa V. Western Builders, reported in (2006) 6 SCC 239

while deciding the issue as to whether provisions of Limitation Act, 1963 are applicable in respect of proceedings u/s. 34 of the Arbitration and Conciliation Act, 1996 has held that

“if the statue is silent and there is no specific prohibition then the statue should be interpreted which advances the cause of justice.”

(Refer Paragraph 19 placetum c & d)

In the present case, applying provisions of Section 5 by virtue of Section 29(2) of Limitation Act, 1963 would advance cause of justice as it would enable the litigants to purse the remedy of appeal. Therefore, rather than foreclosing remedy of appeal on the ground of limitation, the statue should be interpreted in the manner which would permit the appeal to be heard on merits.

(10) Even of this Hon’ble Court were to peruse the statement of object and reasons of the Railway Claims Tribunal Act, 1987 and also the scheme of the Act, there is no justification for reading a prohibition on the power of High Court to apply provisions of Section 5 of the Limitation Act, 1963 by virtue of Section 29(2) thereof.

(11) A bare perusal of section 13 of the RCT Act, 1987 would reveal that by the special law, RCT has been given with the jurisdiction which was otherwise exercisable by civil courts in relations to claims against Railway Administration in respect of loss of goods/animals, refund of excess freight and compensation for injury to passenger. During the time when the jurisdiction was exercised in respect of aforesaid claims by civil courts, a regular First Appeal was maintainable under the Code of Civil Procedure, 1908 to Hon’ble High Court. By enacting Railway Claims Tribunal Act, 1987 the legislature has only transferred the jurisdiction of civil court to Railway Claims Tribunal. However, the remedy of appeal still lies before this Hon’ble Court and the scope of the appeal is in no manner curtailed by the special law. Therefore, it would be incongruous to interpret Section 23 of RCT Act, 1987 in a manner so as to curtail power of High Court to condone delay by applying provisions of Section 5 of Limitation Act, 1963.

# POWER TO CONDONE DELAY UNDER HIGH COURT RULES

(As alternative submission)

12. Rule No.146 of Gujarat High Court Rules provide power to the High Court to condone delay. By virtye of Rule No.148 the said power is extended to all cases. Rule 217 provide for procedure for hearing an appeal under special act. Rules 265 and 266 prescribe procedure for conducting an appeal before the High Court. A conjoint reading of the aforesaid rules indicates that the High Court under its Rules is also empowered to condone delay in filing of appeal. The said power is abridged by any of the provisions of Railway Claims Tribunal Act, 1987.

13. The Hon’ble Supreme Court in the matter of

# Fuerst Day Lawson V. Jindal Exports Ltd. reported in (2011) 8 SCC 333

in paragraph no.29, has laid down board principles that

“(1) Normally, once an appeal reaches the High Court it has to be determined according to the rules of practice and procedure of the High Court and in accordance with the provisions of the charter under which the High Court is constituted and which confers on it power in respect to the method and manner of exercising that power.

(2) When a statute merely directs that an appeal shall lie to a court already established then that appeal must be regulated by the practice and procedure of that court.”

(Refer Paragraph No.29)

Since, Section 23 of RCT Act, 1983 does not prescribe a procedure for hearing of the appeal before the High Court but merely provides remedy of appeal, the Gujarat High Court Rules would govern hearing of the appeal and hence, power to condone delay under the Rules would be available to this Court.

# AUTHORITIES RELIED UPON BY OPPONENT NO.1

14. The judgment of Gauhati High Court in the matter of

# Union of India V. Md. Jasiruddin reported in 2011 (2) TAC 813 : Gau LJ 322

cited by opponent No.1, does not lay down a correct law. The said judgment incorrectly rules out applicability of Section 29(2) of Limitation Act, 1963 to the provisions of Section 23 of the RCT Act, 1987. The Gauhati High Court in paragraph no.27 of the judgment has proceeded on a wrong premise that the period of limitation prescribed under the Railway Claims Tribunal Act and under the Limitation Act for filing an appeal before the High Court and before the appellate authority is same i.e. 90 days. The said observation is directly contrary to the ratio of Constitutional Bench judgment of Hon’ble Supreme Court in the matter of Vidacharan Shukla (supra) as well as three judges bench judgment in the matter of Hukumdev (supra) and Mukri Goplan (supra). In the said judgments, the Hon’ble Supreme Court has held that period prescribed in the special law for a suit, appeal or application must be the same provided in the Schedule to the Limitation Act, 1963 for that suit, appeal or application. Therefore, the period for filing an appeal u/s. 23 of RCT Act, 1987 cannot be compared with the period prescribed in the Schedule of Limitation Act, 1963 to appeals to High Court under Code of Civil Procedure, 1908.

(Refer Paragraph no.27 and 30)

# RAILWAY CLAIMS TRIBUNAL NOT A COMPLETE CODE BUT A SUPPLEMENTAL ACT

15. The judgment of Madhya Pradesh High Court in Misc. Appeal No.3108 of 2009 in the matter of Smt. Kujmati V. Union of India proceeds on the footing that the Railway Claims Tribunal Act, 1987 is a self contained and that Railway Claims Tribunal was set up as a specialized Tribunal with the vowed object of speedy adjudication of railway claims. On that ground alone the Madhya Pradesh High Court has rejected the contention regarding applicability of Limitation Act, 1963. It is submitted that the Hon’ble Supreme Court of India in the matter of

# State of Punjab v. Labour Court, Jullundur reported in AIR 1979 SC 1981

has occasion to consider the provisions of Payment of Gratuity Act, 1972. The Hon’ble Supreme Court in paragraph no.7 holds that;

“…Payment of Gratuity Act enacts complete Code containing detailed provisions covering all the essential features of a scheme for payment of gratuity. It creates the right to payment of gratuity, indicates when the right will accrue, and lays down the principles for quantification of the gratuity. It provides further for recovery of the amount, and contains and especial provision that compound interest at nine per cent per annum will be payable on delayed payment. For the enforcement of its provisions, the Act provides for the appointment of a controlling authority, who is entrusted with the task of administering the Act. The fulfillment of the rights and obligation of the parties are made his responsibility, and he has been invested with an amplitude of power for the full discharge of that responsibility. Any error committed by him can be corrected in appeal by the appropriate Government or an appellate authority particularly constituted under the Act.”

In the present case, RCT Act, 1987 only establishes the Tribunal and provides legal remedy to apply to the Tribunal for compensation and jurisdiction to Tribunal adjudicate the application but the right to claim compensation arises under the Railways Act, 1989 as can be seen in Section 13(1)(a) (ii) and 13(1) of the RCT Act, 1987. The right to claim compensation on account of untoward incidents also arises under Section 124-A of the Railways Act, 1989 and quantum of compensation is prescribed under the Railways Accidents and Untoward Incidents Rules, 1990. Similarly the right to compensation and refund of overcharge and accrual of the said right in respect of transport of goods by Railways arise under Sections 99 to 106 of the Railways Act, 1989.

16. The judgment of the Hon’ble Supreme Court of India in the matter of

# Commissioner of Customs and Central Excise v. Hongo India Pvt. Ltd. & Anr. Reported in (2009) 5 SCC 791

would not squarely apply to the facts of this case, as in that case, the Hon’ble Supreme Court excluded applicability of Section 29(2) of Limitation Act on the ground that (i) Central Excise Act, 1944 was a complete code by itself which alone would govern the several matters provided by the Act and (ii) the Court was of the view that legislature had provided sufficient time i.e. 180 days for filing reference to the High Court which was more than the period prescribed for an appeal and revision.

(Refer Para 33 placetum h and 34)

In the present case, it is not as if legislature has provided large time for filing an appeal u/s.23 before this Hon’ble Court. As held in judgment of Hukumdev (supra) the scheme of the Act and nature of remedy should be seen to ascertain as to whether the provisions of Limitation Act are necessarily excluded. In the case of Hongo India (supra) the nature of remedy was in form of a reference to the High Court and the same was permissible only a question law. Thus, the remedy of reference to High Court under Customs Act was akin to a Second Appeal. However, remedy u/s. 23 of RCT Act, 1987 is in nature of First Appeal where all questions of law and facts are open. Further, Railway Claims Tribunal Act, 1987 can at best be said to be a Supplemental Act.

# APPROBATE AND REPROBATE

17. Opponent No.1 in its reply opposing delay application has raised a contention that Union of India for similar matters against Opponent No.1 has filed Special Civil Application challenging orders of RCT. Therefore, it has been contended that Union of India cannot approbate and reprobate at the same time. The said contention is not tenable for the following reasons:-

(i) The principle of approbate and reprobate is based on the English doctrine of election. The underlying principle is that nobody can accept and reject the same thing. The Hon’ble Supreme Court in the matter of

# Bhau Ram v. Baij Nath Singh reported in AIR 1961 SC 1327

held in Paragraph no.12 that choice between two rights is a condition essential for applicability of doctrine of approbate and reprobate. In the present case it is not a matter of choice between two remedies. Since the appeal filed u/s. 23 RCT Act, 1987 is in nature of statutory remedies whereas power to entertain writ petition is an extra ordinary powers of the High Court. The statutory appeal cannot be equated with writ petition invoking extra ordinary power of the High Court. (Refer Para 12)

(ii) The doctrine of approbate and reprobate would come in play when a party elects one remedy out of two available remedies and after receiving benefit under one remedy elects to proceed to the other remedy on the ground that the first remedy was not proper. In this case, the facts are otherwise. No benefit has been obtained by Union of India under any remedy and neither is the remedy elected been subsequently rejected by Union of India.

(iii) Even otherwise, there cannot be any estoppel against statutory appeal. (Refer Paragraph No.7) (Also refer (2008) 12 SCC 675 – No estoppel against statute).

# Written Submissions on behalf of Respondent No.1

1. The applicant has prayed to condone the delay of 410 days caused in preferring First Appeals against orders passed by learned Railways Claims Tribunal, Ahmedabad Bench. Apart from the fact that Section 5 of the Limitation Act is not applicable to the present Appeals preferred by the applicant, also on the ground that there is no proper explanation for delay of 410 days in preferring Appeals as also the fact that the impugned orders are interlocutory orders and cannot be challenged by way of Appeals under

# Section 23 of the Railway Claims Tribunal Act, 1987

(hereinafter referred to as ‘the Act, 1987’), these Civil Applications are required to be rejected.

2. The submission on behalf of opponent no.1 is to the effect that by virtue of provisions of the Act, 1987, application of Section 5 of the Limitation Act has been specifically excluded and therefore, this Court has no power to condone the delay under Section 5 of the Limitation Act.

3. The Act, 1987 is a complete code in itself. Initially Railways Act was enacted by the legislature, which contains several provisions with regard to claims to be made before the Tribunal, constitution of the Tribunal, procedure of filing claims before the Tribunal, period within which claims can be made, appeal to be preferred against orders, time for preferring appeal, etc., has been provided. Thus the complete code in itself.

4. It is submitted that the Act, 1987 has been enacted with specific purpose and object. It has been recorded in the Act, 1987 itself that following are the statement of objects and reasons for enacting the Act, 1987.

# STATEMENT OF OBJECT AND REASONS

The substantive liability of the railway administration for loss, destruction, damage, non-delivery or deterioration of goods entrusted to them for carriage, and for death or injury, or loss, etc., to a passenger in a railway accident involving a passenger train is laid down in the Indian Railways Act, 1890. The consignors/consignees and passengers or their repre-sentatives prefer claims for compensation against the railway administration. Those who claim compensation for loss of and damage to book goods and are not satisfied with the decisions of the railway administration, file suits in the Courts of Law. Claims for compensation for death of, or injury, or loss, etc., to passengers in train accidents are at present settled by Claims Commissioners.

2. As the litigation in the Courts of Law and before the Claims Commissioners is very protracted, it has been decided to set up a specialised Tribunal for speedy adjudication of such claims. The setting up of such a Claims Tribunal with Benches in different parts of the country, and with judicial and technical members will provide much relief to the rail – users by way of expenditious payment of compensation to the victims of rail-accidents and to those whose goods are lost or damaged in rail transit. The Claims Tribunal will also expedite settlement of disputes regarding refund of fares and freight charges. It will reduce the burden on the various civil courts in the country, thereby giving them more time to decide other cases speedily.

3. The Bill seeks to give effect to the above objectives. The Bill also inter alia provides for –

(a) the jurisdiction, powers and authority which may be exercised by the Claims Tribunal:

(b) the procedure (including provisions as to limitation) to be followed by the Claims Tribunal;

(c) the exclusion of jurisdiction of all courts exercising ordinary original civil jurisdiction relating to specified claims for compensation and refund against the railway administration;

(d) the transfer to the Claims Tribunal of any suit or other proceeding, other than an appeal pending before any court or other authority immediately before the establishment of such Claims Tribunal as would have been within the jurisdiction of such Claims Tribunal if the cause of action on which such suits or proceedings are based had arisen after such establishment. – Gaz. of Ind., 23.11.87, Pt. U.S. 2, Ext., p. 13 (No.55).

5. Section 17 of the Act provides for the period of limitation. Thus there is a specific provision with regard to the limitation under the Act, 1987. This Section provides limitation for making claim applications under the Act, 1987. In this provision, it is specifically provided that an application may be entertained after a period specified in sub-section (1) if the applicant satisfies the Claims Tribunal that he had sufficient cause for not making application within such period. Section 23 of the Act, 1987 provides for appeal. Sub-section (3) specifically provides that every appeal under this Section shall be preferred within a period of 90 days from the date of order appealed against. Section 23(1) specifically provides that appeal provision is notwithstanding anything contained in the Code of Civil Procedure, 1908. Thus, it is very clear that there is in-built provision with regard to constitution of Claims Tribunal, the nature of claims to be made before the Tribunal, the nature of application which can be made to the Tribunal, time limit within which Tribunal can be approached, delay condonation provision upon showing sufficient cause in not making application within three years as provided under Section 17, provision with regard to appeal to be made to the High Court, special provision relating to limitation of 90 days for preferring appeal to the High Court. It is submitted that the Act, 1987 is thus self-contained code in itself and no other Act much less Limitation Act has any application while considering appeal filed under the Act. Appeal has to be preferred under Section 23 of the Act, 1987 and there is specific limitation of 90 days prescribed under the Section. There is no provision for condonation of delay. While Legislature think it fit to provide further period of limitation under Section 17 and giving discretion to the Tribunal to extend such period of limitation in case of sufficient cause, Legislature specifically deemed it fit not to provide any further period of limitation on whatsoever cause beyond 90 days as provided under Section 23. Thus the intention of the Legislature is very clear that no appeal beyond the period of 90 days can be entertained by High Court under Section 23 of the Act.

6. As held by the Hon’ble Supreme Court in several cases, Courts have to respect intention of the legislature. It has been held time and again by the Hon’ble Supreme Court that if from the Scheme of the Act it is very clear that Legislature intended to make the Act complete code by itself which would govern several matters provided by it, then provision of Sections 4 to 24 of the Limitation Act would be excluded even though there is no specific exclusion on this behalf. Reliance is placed on the following decision of Hon’ble Madhya Pradesh High Court and Hon’ble Gauwahati High Court, which specifically deals with situation on hand and held that there is no provision to condone delay under Section 23 of the Act, 1987-(i) Kujmati Vs. Union of India decided on 06.11.2015 rendered in Case No.3108 of 2009 and (ii) Union of India Vs. Jasiruddin Talukdar decided on 03.06.2010 in Case No. 1238 of 2009.

7. It is pertinent to note that in case of Kujmati before the Hon’ble Madhya Pradesh High Court, Union of India, which is the present applicant, took up this very contention. Union of India, i.e. the present applicant, contended that Section 5 of the Limitation Act has no application to the appeal under Section 23 of the Act, 1987 and the said contention has been accepted by the Hon’ble Madhya Pradesh High Court. After having contended this aspect before the Hon’ble Madhya Pradesh High Court, the very applicant and that too Union of India, cannot take up a different contention before a different Hon’ble High Court. Union of India being a State cannot approbate and reprobate so as to suit their need. Only on this count, this application is required to be rejected. It is pertinent to note that the Act is a Central Act. Union of India cannot make interpretation of the Act before different High Courts in different manner. After having taken contention of non-applicability of Section 5 of the Limitation Act to appeal under Section 23 of the Act, 1987, now before this Hon’ble Court different contention cannot be taken by the Union of India. Thus this application is required to be rejected on the said ground.

8. The opponent No.1 also relies upon following decisions of the Hon’ble Supreme Court to buttress its contention that Section 5 of the Limitation Act has no application to the appeal under Section 23 of the Act, 1987-(i) (1974) 2 SCC 133 [paragraphs 10, 14 and 20] and (iii) (2010) 5 SCC 23.

9. It is pertinent to note that provision of Section 23 is more or less similar to Section 35H of the Central Excise Act wherein there is no negative couching with regard to express exclusion of the Limitation Act, even then Hon’ble Supreme Court relying upon Hukumdev’s Judgment interpreted the said Section as exclusion by necessary implication by the Legislature and the intention of the Legislature to exclude provision of Section 5 of the Limitation Act. It is pertinent to note that in the Payment of Gratuity Act also there is no specific exclusion of Limitation Act, even then Courts have held that delay beyond 60+60 days cannot be condoned.

In view of these facts, these Applications may kindly be rejected along with Appeals.

4. The peculiar facts, so far as the applications are concerned, would indicate that the respondent appears to have approached the Tribunal after delay of about 13 years and 6 months for filing the claim petition. The delay occurred in filing the claim petition is condoned vide order dated 24.06.2014. However, a condition was attached that the applicant would not allow to claim interest prior to the date of registration of his claim in the Tribunal. The Union of India preferred review, which came to be dismissed vide order dated 17.06.2015. In preferring the present appeals, the delay of 410 days have occurred, the condonation whereof, has been resisted by the respondents in these proceedings on the grounds narrated hereinabove. On the substantive ground that the Railway Claims Tribunal Act, 1978 (hereinafter referred to as the ‘Tribunal Act’ for the sake of brevity) being a special Act, would not permit the appellate court i.e. High Court to invoke provisions of the Limitation Act, 1963 for condoning delay, as Section 23 of the Railway Claim Tribunal Act excludes invoking of the provision of Limitation Act, 1963.

5. Before adverting to this contentions and answering the same, it would be most appropriate to set out the provision of law and the pronouncement of authoritative judgments in this behalf so that they could be appreciated in light thereof. The provision of Sections 17 and 23 of the Tribunal Act needs to be set out as under:

17. Limitation.-(1) The Claims Tribunal shall not admit an application for any claim-

(a) under sub-clause (i) of clause

(a) of sub-section (1) of section 13 unless the application is made within three years from the date on which the goods in question were entrusted to the railway administration for carriage by railway;

(b) under sub-clause (ii) of clause

(a) of sub-section (1) [or, as the case may be, sub-section(1A)] of section 13 unless the application is made within one year of occurrence of the accident;

(c) under clause (b) of sub-section (1) of section 13 unless the application is made within three years from the date on which the fare or freight is paid to the railway administration:

Provided that no application for any claim referred to in sub-clause (i) of clause (a) of sub-section (1) of section 13 shall be preferred to the Claims Tribunal until the expiration of three months next after the date on which the intimation of the claim has been preferred under section 78B of the Railways Act.

(2) Notwithstanding anything contained in sub-section (1), an application may be entertained after the period specified in sub-section (1) if the applicant satisfies the Claims Tribunal that he had sufficient cause for not making the application within such period.

23. Appeals.-(1) Save as provided in sub-section (2) and notwithstanding anything contained in the Code of Civil Procedure, 1908 (5 of 1908) or in any other law, an appeal shall lie from every order, not being an interlocutory order, of the Claims Tribunal, to the High Court having jurisdiction over the place where the Bench is located.

(2) No appeal shall lie from an order passed by the Claims Tribunal with the consent of the parties.

(3) Every appeal under this section shall be preferred within a period of ninety days from the date of the order appealed against.”

Section 17 of the Tribunal Act empowers the Tribunal to condone delay on being satisfied about existence of sufficient cause preventing claimant to lodge claim. However, Section 23, whereunder the appeal would lie to the High Court, does not provide any provision for delay condonation and this absence in Section 23 is heavily relied upon by the respondents to support their contentions that the provision of Limitation Act, 1963 have been excluded and therefore, once the appeal is filed beyond the period of time prescribed in the provision of Section 23 of the Tribunal Act, the Court has no power to condone delay by invoking provision of Limitation Act, 1963.

6. As it is mentioned hereinabove, the peculiar facts of this case indicate that the claimants lodged the claim after delay of about 13 years and 6 months, which came to be condoned and the delay of 410 days, which is occurred in filing the appeal is being resisted on the ground that the same is not permissible.

7. The learned counsel for the respondent has cited two decisions directly on Section 23 rendered by two different High Courts namely High Court of Gauhati and High Court of Madhya Pradesh. The High Court of Gauhati has rendered its decision in case of

# Union of India v. Fasiruddin Talukdar, reported in 2010 Law Suit (Gau) 677

on 03.06.2010, wherein the Gauhati High Court held that Railway Tribunal Act and particularly Section 23 do not confer any power upon the High Court to condone delay under Section 23 of the Tribunal Act. The Gauhati High Court relying upon decision of the Supreme Court in case of

# Hukumdev Narain Yadav v. Lalit Narayan Misra, reported in (1974) 2 SCC 133

held that the power is to be exercised in the way it is prescribed in the statute. The Act being complete code it excludes the provisions of Limitation act. The another judgment on the same line is rendered by the High Court of Madhya Pradesh in case of Smt. Kujmati Vs. Union of India, decided on 06.11.2015 in M.A. No.3108 of 2009, in which the M.P. High Court has after referring to the various decisions rendered, arising from Excise Act and making reference to Section 17 of the Tribunal Act held that Section 23 of the Tribunal Act does not confer any power upon the High Court to condone delay, as the Railway Tribunal Act being a complete Code in itself.

8. The 3rd Judgment on Section 23 that of Orissa High Court in case of

# Union of India v. Ashok Kumar Sahoo, decided on 25th September, 2013, reported in 2013 Law Suit (Ori) 370

in which the Orissa High Court held that Section 35H of the Central Excise Act is not in pari materia with Section 23 of the Tribunal Act. The citation based thereupon would be of no avail and when there is no specific provision excluding the provision of Limitation Act, the Court held that the provision of Limitation Act were not excluded and thus this was the decision in which the Orissa High Court held that there was no specific exclusion of the provision of Limitation Act and hence, the power under Section 23 was held to be available to the Court for condoning the delay. Learned counsel for the respondent has also relied upon the judgment in case of

# Union of India v. Mysore Paper Mills Limited, reported in 2003 Law Suit (Kar) 885

9. Section 29 of the Limitation Act, 1963 clearly provides that where any special or local law prescribes for any suit, appeal or application for the 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 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.

10. The counsels of both sides invited attention of this court on observations made by the Supreme Court rendered in case of Hukumdev Narain Yadav (supra) to support their rival contentions. The counsel for the respondent heavily relied upon the observations made by the Court in paragraph no.17 and submitted that the close examination of the scheme of the Act i.e. Railway Tribunal Act and the observations of the Gauhati High Court as well as Madhya Pradesh High Court, would indicate clearly that the Railway claims Tribunal Act, Section 23 specially, contains exclusion of applicability of provision of Limitation Act and, therefore, the applicants have no right to seek condonation of delay. As against this, the counsel for the applicant invited Court’s attention to the observations made by the Supreme Court in case of Hukumdev Narain Yadav (supra) in paragraph nos.13 and 14 and submitted that there is no express bar to applicability of provision of Limitation Act on plain reading of the judgment of the Supreme Court, so far as special Acts are concerned, as Supreme court has clearly said that it is for the Court concerned to decide in respect of the particular Act and its scheme as to whether the condonation provision prescribed under the Limitation Act are excluded or not?

11. This Court is of the considered view that in fact the Hukumdev Narain Yadav (supra) deserves to be considered in light of the facts mentioned thereunder, which would indicate that the observations of the Supreme Court made in paragraph no.20 would be, in fact clinching the entire controversy.

12. Learned counsel for the applicant has relied upon the decision of the Supreme Court in case of

# M.P. Steel Corporation v. Commissioner of Central Excise, reported in (2015) 7 SCC 58

in support his contention that the legislature has not provided delay condonation expressly under Section 23, as Section 23 confers power upon High Court where the applicability of the Limitation Act would not be expressly required to be provided. As against this, Section 17 of the Railway Claims Tribunal Act confers power upon Tribunal and, therefore, Tribunal not being cover under the provisions Limitation Act. The legislature was required to provide specific power for condoning delay. The relevant paragraphs thereof deserve to be set out as under;

“20. Now to the case law. A number of decisions have established that the Limitation Act applies only to courts and not to Tribunals. The distinction between courts and quasi-judicial decisions is succinctly brought out in

# Bharat Bank Ltd. v. Employees of Bharat Bank Ltd., 1950 SCR 459

This root authority has been followed in a catena of judgments. This judgment refers to a decision of the King’s Bench in Cooper v. Wilson. The relevant quotation from the said judgment is as follows:-

“‘A true judicial decision presupposes an existing dispute between two or more parties, and then involves four requisites:

(1) The presentation (not 18 Page 19 necessarily orally) of their case by the parties to the dispute;

(2) if the dispute between them is a question of fact, the ascertainment of the fact by means of evidence adduced by the parties to the dispute and often with the assistance of argument by or on behalf of the parties on the evidence;

(3) if the dispute between them is a question of law, the submission of legal argument by the parties, and

(4) a decision which disposes of the whole matter by a finding upon the facts in dispute and application of the law of the land to the facts so found, including where required a ruling upon any disputed question of law. A quasi-judicial decision equally presupposes an existing dispute between two or more parties and involves (1) and (2), but does not necessarily involve (3) and never involves (4). The place of (4) is in fact taken by administrative action, the character of which is determined by the Minister’s free choice.”

21. Under our constitutional scheme of things, the judiciary is dealt with in Chapter IV of Part V and Chapter V of Part VI. Chapter IV of Part V deals with the Supreme Court and Chapter V of Part VI deals with the High Courts and courts subordinate thereto. When the Constitution uses the expression “court”, it refers to this Court system.

As opposed to this court system is a system of quasi-judicial bodies called Tribunals. Thus, Articles 136 and 227 refer to “courts” as distinct from “tribunals”. The question in this case is whether the Limitation Act extends beyond the court system mentioned above and embraces within its scope quasi- judicial bodies as well?

22. A series of decisions of this Court have clearly held that the Limitation Act applies only to courts and does not apply to quasi-judicial bodies. Thus, in

# Town Municipal Council, Athani v. Presiding Officer, Labour Court, (1969) 1 SCC 873

a question arose as to what applications are covered under Article 137 of the Schedule to the Limitation Act. It was argued that an application made under the Industrial Disputes Act to a Labour Court was covered by the said Article. This Court negatived the said plea in the following terms:-

“12. This point, in our opinion, may be looked at from another angle also. When this Court earlier held that all the articles in the third division to the schedule, including Article 181 of the Limitation Act of 1908, governed applications under the Code of Civil Procedure only, it clearly implied that the applications must be presented to a court governed by the Code of Civil Procedure. Even the applications under the Arbitration Act that were included within the third division by amendment of Articles 158 and 178 were to be presented to courts whose proceedings were governed by the Code of Civil Procedure. As best, the further amendment now made enlarges the scope of the third division of the schedule so as also to include some applications presented to courts governed by the Code of Criminal Procedure. One factor at least remains constant and that is that the applications must be to courts to be governed by the articles in this division. 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. The alterations made in the article and in the new Act cannot, in our opinion, justify the interpretation that even applications presented to bodies, other than courts, are now to be governed for purposes of limitation by Article 137.”

Similarly, in

# Nityananda, M. Joshi & Ors. v. Life Insurance Corporation & Ors., (1969) 2 SCC 199

this Court followed the judgment in Athani’s case and turned down a plea that an application made to a Labour Court would be covered under Article 137 of the Limitation Act. This Court emphatically stated that Article 137 only contemplates applications to courts in the following terms: (Nityananda, M. Joshi case, SCC P.200, para 3)

“3. In our view Article 137 only contemplates applications to Courts. In the Third Division of the Schedule to the Limitation Act, 1963 all the other applications mentioned in the various articles are applications filed in a court. Further Section 4 of the Limitation Act, 1963, provides for the contingency when the prescribed period for any application expires on a holiday and the only contingency contemplated is “when the court is closed.” Again under Section 5 it is only a court which is enabled to admit an application after the prescribed period has expired if the court is satisfied that the applicant had sufficient cause for not preferring the application. It seems to us that the scheme of the Indian Limitation Act is that it only deals with applications to courts, and that the Labour Court is not a court within the Indian Limitation Act, 1963.”

23. In

# Kerala 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 statute to a Civil Court, such application will be covered by Article 137 of the Limitation Act.”

25. It is clear that this judgment clearly laid down two things – one that authorities under the Sales Tax Act are not “courts” and thus, the Limitation Act will not apply to them. It also laid down that the language of Section 10 (3- B) of the U.P. Sales Tax Act made it clear that an unusually long period of limitation had been given for filing a revision application and therefore said that the said Section as construed by the Court would not be unduly oppressive. Most cases would, according to the Court, be filed within a maximum period of 18 months but even in cases, rare as they are, filed beyond such period, the revising authority may on its own motion entertain the revision and grant relief. Given the three features of the U.P. Sales Tax Act scheme, the Court held that the legislature deliberately excluded the application of the principle underlying Section 14 except to the limited extent that it may amount to sufficient cause for condoning delay within the period of 18 months.

28.Two other judgments of this Court need 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:- (Mukrri Gopalan case, SCC p.23, para18)

“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 this reasoning is the assumption that but for such an express conflict or contrary intention emanating from Section 10(3)(B) of the U.P. Sales Tax Act which was a special law, Section 29(2) would have brought in Section 14(2) of the Limitation Act even for governing period of limitation for such revision applications. In any case, the scope of Section 29(2) was not considered by the aforesaid decision of the three learned Judges and consequently it cannot be held to be an authority for the proposition that in revisional proceedings before the Sales Tax authorities functioning under the U.P. Sales Tax Act Section 29(2) cannot apply as Mr. Nariman would like to have it.”

It then went on to follow the judgment reported in

# The Commissioner of Sales Tax, U.P. v. M/s. Madan Lal Das & Sons, Bareilly, (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: (Om Prakash case, SCC p.188)

“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 for the Limitation Act to apply without going into the proposition that the Limitation Act would apply to tribunals.

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, 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 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 entirety of the Limitation Act including Section 29(2) would apply only to the three kinds of proceedings mentioned all of which are to be filed in courts.

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 follows: (SCC p. 485, para 9)

“9. Before considering the meaning of the word “held” in Section 9, it is necessary to mention that it is proper to assume that the lawmakers who are the representatives of the people enact laws which the society considers as honest, fair and equitable. The object of every legislation is to advance public welfare. In other words as observed by Crawford in his book on Statutory Constructions the entire legislative 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.”

(emphasis supplied)

being a Section providing an appeal to the High Court. There is no specific requirement on the part of the legislature to specifically mention the delay condonation power, as the Limitation Act would have applicability in view of provision of Section 29(2) of the Limitation Act.

13. On the same line one more judgment is cited on behalf of the applicant in case of

# Birla Cement Works v. G.M., Western Railways And Another, reported in (1995) 2 SCC 493

Paragraph no.3 thereof needs to be set out as under;

“3. Section 17(1)(c) of the Limitation Act, 1963, would apply only to a suit instituted or an application made in that behalf in the civil suit. The Tribunal is the creature of the statute. Therefore, it is not a civil court nor the Limitation Act has application, even though it may be held that the petitioner discovered the mistake committed in paying ‘over charges’ and the limitation is not saved by operation of s. 17(1)(c) of the Limitation Act.”

(emphasis supplied)

Another two judgments are cited on behalf of the applicant in case of

# Mukri Gopalan v. Cheppilat Puthanpurayil Abooacker, reported in (1995) 5 SCC 5

and in case of

# Chhatisgarh State Electricity Board v. Central Electricity Regulatory Commission And Others, reported in (2010) 5 SCC 23

14. Against this backdrop of the provision of law, it seems that learned counsel for the applicant is justified in contending that non mentioning of the delay condonation power under Section 23 and mentioning of the same under Section 17, would not be construed as express exclusion of the said power so as to exclude the provision of the Limitation Act from its applicability to the case, as the observations of the Supreme Court in case of Hukumdev Narain Yadav (supra) of course cannot be said to be laying down so absolute a proposition of law. On the contrary, even in Hukumdev Narain Yadav (supra) also the Supreme Court did say that the Court has to examine the scheme of the Act for coming to the conclusion as to whether the provisions of Limitation Act are excluded or not?

15. It is all the more required to be noticed that in case of Hukumdev Narain Yadav (supra), the Supreme Court has observed in Paragraph no.20 as under;

“20. It is also significant that delay in the presentation of the election petition under the repealed Section 81 could be condoned by the Election Commission in its discretion under the proviso to the repealed Section 85 of the Act. But there was nothing in Section 85 which permitted the Election Commission to condone the non- compliance with the provisions of Section 117 of the Act. When the Act was amended and the jurisdiction was given to the High Court to entertain and try election petitions, a provision similar to the proviso for condoning delay was not enacted. This omission definitely expresses Parliament’s intention not to confer the power to condone any delay in the presentation of the petition. The whole object of the amendment in 1966 was to provide a procedure for a more expeditious method of disposal of election disputes, which experience had shown had become dilatory under the former procedure where election trials were not concluded even after five years when the next elections were held, notwithstanding the fact that every petition was enjoined to be tried as expeditiously as possible and every petition was enjoined to be tried as expeditiously as possible and endeavour was required to be made to conclude the trial within six months from the date on which the election petition was presented to the High Court for trial.”

(emphasis supplied)

Thus, in case of Hukumdev Narain Yadav (supra), the Supreme Court recorded that Peoples Representative Act, as it stood prior to amendment, the Election Commission did have a power to condone delay. Subsequently, that delay condonation power was omitted after the amendment. This omission was treated by the Supreme Court as intentional omission by the legislature and therefore, the Court read into that there was clear exclusion of condonation of delay power.

As against this, in the instant case, learned counsel for the applicant appears to be justified in contending that the power of condonation of delay as embedded in Section 17, would indicate that the scheme of the Act is also not the one which is sought to be canvassed by the learned counsel for the respondent.

16. In the instant case, the very provision for condonation of delay, as provided under Section 17, would militate against the Act and the scheme of the Act being construed as excluding the limitation provision, as the legislature has in fact provided delay condonation power in Section 17 itself. The same power need not be provided so far as Section 23 is concerned as it pertains the appeal to be led before High Court and High Court being Court, the provision of Section 29(2) would get attracted. Therefore, there was no requirement of providing specific power for condoning delay. The legislature, if at all, wanted to exclude the power in the High Court for condoning delay in filing of appeal, then legislature would have by way of express provision excluded the same. With profound respect to the High Court of Gauhati and High Court of Madhya Pradesh, this Court is unable to accept the proposition that the provision of the Act and the scheme based upon its object and reason, could be said to be one in which the provisions of Limitation Act appears to have been excluded. On the contrary, the provision of Section 17 expressly contains delay condonation power without there being any outer limit in the Tribunal and hence Tribunal, in the instant case, has even condoned delay on the part of the claimant of 13 years and 6 months. If this power is there under Section 17 to condone delay of any number of years, then absence of condonation power under Section 23 cannot be read as express exclusion by the legislature.

17. The contention canvassed on behalf of the respondent claimants that the Union of India cannot approbate and reprobate, as before other High Courts the appeal was not filed and S.C.A. was filed on the ground that the appeal would not be available on account of lack of power in condoning delay, therefore, the same litigant cannot change its stand before this High Court and submit that under Section 23 there is a power to condone delay, in our view the learned counsel for the respondent is not correct in contending thus.

18. It may be required to be noted that the stand taken in the present delay condonation application on behalf of the Union of India is a stand taken on the basis of the provision of law and when provision of law is sought to be relied upon the strength of the judgment of the Supreme Court and in view of the provision of the Act itself, then learned counsel for the applicant appears to be justified in contending that the Union of India cannot be said to be bound by its stand in a litigation, as there cannot be any such binding. In light thereof, the contention appears to be not just and proper so as to require acceptance by the Court. We are, to say the least, not impressed by the submission on behalf of the learned counsel for the respondent in these applications.

19. The counsel for the applicant has also relied upon the High Court Rules and the Rules of interpretation of statute. The High Court Rules, in our view, need not be pressed into service for justifying the power to condone delay, as in case if the substantive statutes itself had barred such power, then on the strength of mere High Court Rules, the Court would not have exercised such power. However, in the instant case, on the strength of the provisions of statute and the scheme of the Act and decisions of the Supreme Court and the aforesaid discussion, would indicate that there exists a power to condone delay, as Section 23 of the Railway Claims Tribunal Act, cannot be treated to have excluded the provision of the Limitation Act expressly or impliedly and therefore, the power of condonation of delay is existing in the Court, so far as Section 23 of the Railway Claims Tribunal Act, are concerned.

20. In view of this, we are of the considered view that the provisions of Limitation Act are applicable and therefore, the delay is sufficiently explained, as the respondents have failed in pointing out how and in what manner the cause of action is said to have been given up by the applicant and therefore, sufficient cause is made out to condone the delay. Hence, the delay is condoned. Applications are allowed. Rule is made absolute to the aforesaid extent.

Office to place copy of this order in each matter.

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