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Sudipta Koley vs Smt. M Bhowmick And Anr on 10 July, 2019

WP No.84 of 2019
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
ORIGINAL SIDE

Present:
Hon’ble Justice Dipankar Datta

Hon’ble Justice Saugata Bhattacharyya

Sudipta Koley
v.
Smt. M Bhowmick and anr.

For the petitioner : Ms. Manju Agarwal,
Mr. Bajrang Manot.

For the CESC : Mr. Subir Sanyal,
Dr. Madhusudan Saha Roy.

Heard on: April 17, June 12, 2019
Judgment on: July 10, 2019

Dipankar Datta, J.:-

1. The petitioner is a consumer of electricity, supplied by the CESC Limited

(hereafter the company). An inspection conducted in the premises of the

petitioner on October 12, 2018 by certain officers of the company

resulted in alleged detection of unauthorized use of electricity by the

petitioner. The final order of assessment was passed by the relevant

officer under Sectionsection 126 of the Electricity Act, 2003 (hereafter the 2003

Act) on October 26, 2018. The same was challenged by the petitioner in

W.P.564 of 2018. A learned Judge of this Court disposed of the writ

petition on November 27, 2018 with directions which, inter alia, included
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a direction upon the petitioner to prefer an appeal under Sectionsection 127

within 7 days of restoration of supply. Supply was restored on December

7, 2018 and hence, an appeal should have been preferred by December

14, 2018. Due to his alleged sickness and December 15 and 16, 2018

being Saturday and Sunday, respectively, the petitioner could file the

appeal on December 17, 2018. The appellate authority under Sectionsection 127

passed an order dated January 30, 2019, whereby she upheld the

objection of the company that the appeal was time-barred and rejected

the same. Such order of the appellate authority (the first respondent) is

the subject matter of challenge in W.P.84 of 2019.

2. A learned Judge of this Court was hearing this writ petition. The

controversy that emerged for decision therein was, could an appeal under

Sectionsection 127 of the 2003 Act, carried from an order of assessment made

under Sectionsection 126 thereof, be entertained by the appellate authority if the

same were presented beyond the period of limitation prescribed in Sectionsection

127 itself upon condonation of delay in its presentation? Or, in other

words, does the appellate authority acting under Sectionsection 127 have the

power to condone the delay in presentation of a time-barred appeal, if

sufficient cause therefor were shown?

3. Ms. Manju, Agarwalla, learned advocate for the petitioner relied on the

decisions reported in (i) AIR 2015 Calcutta 382 [SectionOmvati Devi Agarwalla v.

CESC Ltd. Ors.], (ii) AIR 2002 Calcutta 99 [SectionShree Gopal Engineering

Works Ltd. v. CESC Ltd.], (iii) (2001) 8 SCC 470 [SectionUnion of India v.
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Popular Construction], (iv) (1995) 5 SCC 5 [SectionMukri Gopalan v. Cheppilat

Puthanpurayil Aboobacker], and (v) (1987) 2 SCC 107 [SectionCollector, Land

Acquisition, Anantnag Anr. v. Mst. Katiji Ors.], and an unreported

decision of the Bombay High Court dated October 18, 2016 in W.P.1674

of 2016 [SectionRakhee Gupta v. State of Maharashtra], in support of the

contention that a time-barred appeal may be entertained by the appellate

authority provided sufficient cause is shown for condonation of delay.

4. On behalf of the second respondent [The Deputy Manager, Loss Control

Cell, CESC Limited], Dr. M. Saha Roy, learned advocate placed reliance

on two decisions of coordinate Benches of this Court which, according to

him, provided a complete answer to the controversy. The first is reported

in 2011 (1) CHN (CAL) 182 [CESC Ltd. v. Kalavanti Doshi Trust Ors.]

and the other an unreported decision dated December 22, 2015 in MAT

1875 of 2015 [West Bengal State Electricity Distribution Company Ltd.

Ors. v. Pranab Kumar Sarkar].

5. The Bench while deciding Kalavanti Doshi Trust (supra) had referred to a

decision reported in (2010) 5 SCC 23 [SectionChhatisgarh State Electricity Board

v. Central Electricity Regulatory Commission Ors.] to hold that the

period of 30 days stipulated in Sectionsection 127 of the 2003 Act cannot be

extended by application of Sectionsection 5 of the Limitation Act, 1963 (hereafter

the 1963 Act). The same view was followed in Pranab Kumar Sarkar

(supra).

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6. The learned Judge in the order dated March 6, 2019 noticed a factual

dissimilarity in Kalavanti Doshi Trust (supra). While the writ petition

before the Division Bench involved interpretation of Sectionsection 127 of the

2003 Act, Chhatisgarh State Electricity Board (supra) was in respect of

interpretation of Sectionsection 125 thereof. The differences in the period of

limitation provided in the two sections coupled with the “vital aspect”

that the 2003 Act does not specifically exclude the provisions of the 1963

Act, led to formation of an opinion by the learned Judge that Chhatisgarh

State Electricity Board (supra) “may have or may not have been

applicable to a case under Sectionsection 127” of the 2003 Act. His Lordship also

referred to other decisions of the Supreme Court reported in AIR 1964 SC

1099 [SectionVidyacharan Shukla v. Khubchand Boghel], (2012) 6 SCC 782

[SectionDSR Steel Pvt. Ltd. v. State of Rajasthan] and (2016) 1 SCC 444

[SectionBaleshwar Dayal Jaiswal v. Bank of India]. While accepting that His

Lordship was bound by the Division Bench decisions in Kalavanti Doshi

Trust (supra) and Pranab Kumar Sarkar (supra), an opinion is also

reflected in such order that Kalavanti Doshi (supra) may not have

construed Chhatisgarh State Electricity Board (supra) correctly. In the

wake of divergent views having been expressed in several decisions of this

Court, His Lordship felt the need for a conclusive decision upon the issue

being revisited and settled by a larger Bench. Consequently, the learned

Judge by the said order dated March 6, 2019 formulated six questions

for being answered by a larger Bench as may be constituted by the
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Hon’ble the Acting Chief Justice and referred the matter to His Lordship.

By an administrative order dated March 25, 2019 of the Hon’ble the

Acting Chief justice, this matter has been placed before us.

7. We consider it proper, at this stage, to quote below the six questions that

we are tasked to answer:

1. In respect of a provision in a statute prescribing a fixed period of

time within which an appeal may be preferred against an order of

authority thereunder, and where the bonus period beyond the

regular period of limitation is stipulated and an expression ‘not any

further’ than the principal period and the bonus period where

apparently Section 5 of the Limitation Act may not have any

application, whether the same can be treated as applying mutatis

mutandis to a case where the statutory period for preferring an

appeal against the administrative order may be fixed but the

expression “not thereafter” is not used i.e. can the two situations

be treated as a (sic) similar?

2. Does the Chhattisgarh case (supra) apply even to appeals under

Section 127 of the Electricity Act where the said decision was

rendered in the context of Section 111(2) and Section 125 of the

said 2003 Act and whether the Kalavanti decision has correctly

viewed the Chhattisgarh case (supra)?

3. Whether or not the decision of the Hon’ble Supreme Court in the

context of specialised statutes like the Kerala Rent Control Act and
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the SectionLand Acquisition Act of the State of Jammu and Kashmir like

the Mukri Gopalan (supra) and Collector, Land Acquisition

Anantnag (supra), can be cited as exception to enable application

under Section 5 of the Limitation Act even in the context of appeals

under Section 127 of the Electricity Act, 2003?

4. Whether or not the decision of the Hon’ble Supreme Court in the

case of Popular Construction (Supra) conclusively decides the

circumstances in which Section 5 of the Limitation Act can be

applied to statutes worded with the expression ‘and not thereafter’?

5. When the provisions of the SectionLimitation Act, 1963 have not be (sic)

been specifically excluded under a special statute and particularly

in the SectionElectricity Act of 2003, a period is prescribed for preferring

an appeal, can the delay in preferring the same not be condoned by

applications of the provisions of Sections 4 to Section29 of the Limitation

Act, 1963?

6. Are the provisions of appeal under Section 127 of the Electricity

Act akin to a (sic) Section 17 of the Securitization and

Reconstruction of Financial Assets and SectionEnforcement of Security

Interest Act, 2003. The Supreme Court has held in the case of

SectionMardia Chemicals vs. Union of India, (2004) 4 SCC 311 that a

proceeding under Section 17 of the Act is in the nature of a suit

and not ‘an appeal’ as understood in common legal parlance.
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8. At the threshold of consideration of the six questions, referred to by the

learned Judge, Ms. Agarwalla took exception to the reference being made

to a Division Bench of two Judges for answers. She contended that the

learned Judge having not agreed with the decisions of the Division

Benches in Kalavanti Doshi Trust (supra) and Pranab Kumar Sarkar

(supra) and referred the matter for being conclusively decided by a larger

Bench, the writ petition ought to have been placed before a bench of

larger quorum.

9. Such contention was opposed by Mr. Sanyal, learned advocate for the

second respondent. According to him, the question of referring the matter

to a bench of larger quorum can arise only if the correctness of the said

Division Bench decisions is doubted by us and not otherwise.

10. Mr. Sanyal’s contention was upheld and we called upon the parties to

address us on the relevant issues. While not recording any formal order

with reasons for not accepting Ms. Agarwalla’s contention, it was made

clear to the parties verbally that if we were inclined to take a view at

variance with those in the said Division Bench decisions, we would have

no other option but to request the Hon’ble the Chief Justice to constitute

a larger bench.

11. We propose to assign our reasons at the outset for not accepting the

contention of Ms. Agarwalla that the matter should have been referred to

a bench of larger quorum than the quorum of benches which pronounced
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the decisions laying down the law, the correctness of which was doubted

by His Lordship.

12. Ordinarily, when a learned Judge of a high court is required to decide a

point, he is bound by the decision of a Division Bench of the same court

on a similar point. However, if such learned Judge is unable to agree with

the view taken by such Division Bench on the ground that it has either

not considered relevant decisions of the Supreme Court or the relevant

law, the question that naturally arises is what is the course of action to

be followed in such a case? Guidance flows from the decision of the

Supreme Court authored by Hon’ble P. B. Gajendragadkar, C.J. (as His

Lordship then was), reported in AIR 1965 SC 1767 [SectionLala Shri Bhagwan v.

Ram Chand]. Paragraph18, to the extent relevant, is quoted hereunder:

“18. Before we part with this appeal, however, we ought to point out
that it would have been appropriate if the learned Single Judge had
not taken upon himself to consider the question as to whether the
earlier decisions of the Division Benches of the High Court needed to
be re-considered and revised. It is plain that the said decisions had
not been directly or even by necessary implication overruled by any
decision of this Court, indeed, the judgment delivered by the learned
Single Judge shows that he was persuaded to re-examine the matter
himself and in fact he had substantially recorded his conclusion
that the earlier decisions were erroneous…. It is hardly necessary to
emphasise that considerations of judicial propriety and decorum
require that if a learned Single Judge hearing a matter is inclined to
take the view that the earlier decisions of the High Court, whether of
a Division Bench or of a Single Judge, needed to be reconsidered, he
should not embark upon that enquiry sitting as a Single Judge, but
should refer the matter to a Division Bench or, in a proper case,
place the relevant papers before the Chief Justice to enable him to
constitute a larger Bench to examine the question. That is the
proper and traditional way to deal with such matters and it is
founded on healthy principles of judicial decorum and propriety. It
is to be regretted that the learned Single Judge departed from this
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traditional way in the present case and chose to examine the
question himself.”

(underlined for emphasis)

13. The portion of the passage from paragraph 18 of the decision in Lala Shri

Bhagwan (supra) underlined above has been quoted with approval in

decisions of not too distant origin reported in (2008) 10 SCC 1 [SectionOfficial

Liquidator v. Dayanand] and (2012) 7 SCC 1 [U.P. Power Corporation Ltd.

v. Rajesh Kumar].

14. The Constitution Bench decision reported in (2005) 2 SCC 673 [SectionCentral

Board of Dawoodi Bohra Community v. State of Maharashtra] says much

the same thing as to what a single Judge ought to do when he is

disinclined to agree with the view expressed by a Division Bench of the

same high court on a given point without, however, referring to Lala Shri

Bhagwan (supra).

15. The order of the learned Judge dated March 6, 2019 although records

“that the matter needs to be conclusively decided by the larger Bench of

this Court as may be constituted by the Hon’ble the Acting Chief

Justice”, the same cannot be read as abrogating the power of the Hon’ble

the Chief Justice of a high court or the Hon’ble the Acting Chief Justice

thereof, as the case may be, to determine benches for hearing a

particular matter as the master of the roster. The judicial order of the

learned Judge notwithstanding, it is for the Hon’ble the Chief Justice or

the Hon’ble the Acting Chief Justice, in the absence of the former, to take
10

a call in this behalf. We felt that the Hon’ble the Acting Chief Justice by

assigning the writ petition to a Division Bench of two Judges did not

commit any act of impropriety; on the contrary, the administrative order

dated March 25, 2019 is in accord with the decisions of the Supreme

Court referred to above.

16. We now move on to the core issue.

17. Arguments have been advanced at length by Ms. Agarwalla and Mr.

Sanyal. Several authorities have been cited by them. We need not list the

same here; suffice it to record that those authorities which provide

adequate guidance to us to answer the questions shall be referred to as

and when the situation requires.

18. Since the controversy is directly related to the point of limitation, it would

be profitable to note what the law of limitation is about and what the

relevant provisions of the 1963 Act (which, in itself, is a complete code)

are.

19. Law is well settled that the object of the statutes of limitation is to compel

a person to exercise his right of action within a reasonable time as also to

discourage and suppress stale, fake or false claims. While this is so,

there are two aspects of the statutes of limitation, ~ the one concerns the

extinguishment of the right if a claim or action is not commenced within

a particular time and the other merely bars the claim without affecting

the right which either remains merely as a moral obligation or can be

availed of to furnish the consideration for a fresh enforceable obligation.
11

One may, in this connection, usefully refer to the decision of the Supreme

Court reported in AIR 1972 SC 1935 [SectionM/s. Bharat Barrel Drum Mfg.

Co. Private Ltd. v. The Employees’ State Insurance Corporation].

Section 3 of the 1963 Act provides for the bar of limitation. Leaving aside

sub-section (2) which is not too relevant here, we may take note of sub-

section (1) which is to the following effect

“Subject to the provisions contained in Sectionsections 4 to Section24 (inclusive),
every suit instituted, appeal preferred, and application made after the
prescribed period shall be dismissed although limitation has not been
set up as a defence”.

20. For ascertaining what is meant by the expression “the prescribed period”

in Sectionsection 3(1), one has to read clause (j) of Sectionsection 2 where it is defined

along with the expression “period of limitation”. As per clause (j) of Sectionsection

2, “period of limitation” means the period of limitation prescribed for any

suit, appeal or application by the Schedule and “prescribed period”

means the period of limitation computed in accordance with the

provisions of the 1963 Act.

21. Let us now take a look at the Schedule to the 1963 Act. It contains 3

(three) divisions, – the first relating to suits, the second relating to

appeals and the third relating to applications. Each of such division

prescribes the period of limitation within which a suit, an appeal and an

application of the nature appearing therein ought to be presented

together with indication of the time from which the period of limitation

would begin to run. It is, therefore, axiomatic that a suit, an appeal or an
12

application of the nature mentioned in the three divisions has to be

instituted, preferred or made, as the case may be, within the period of

limitation as prescribed if the subject matter of the

suit/appeal/application is covered by the 1963 Act.

22. Since the law of limitation appertains to remedies, the Schedule to the

1963 Act has to be so construed so as to fit in with the rule that, claims

in respect of rights cannot be entertained if not commenced within the

time prescribed by the relevant entries therein in respect of that right.

The Schedule to the 1963 Act notwithstanding, there could be a special

law or a local law prescribing a period of limitation which is different

from the one found in such Schedule. The possibility of a confusion

arising because of different periods of limitation having been prescribed

in the Schedule to the 1963 Act and the special/local law is taken care of

by Sectionsection 29(2) of the 1963 Act. Section 29(2) of the 1963 Act reads as

follows:

“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 Sectionsection 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 Sectionsections 4 to Section24 (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.”

23. A reading of Sectionsections 3 and Section29(2) would reveal reference to Sectionsections 4 to

Section24 of the 1963 Act. We are not concerned here with any of these

provisions, except Sectionsection 5. Section 5 reads as follows:
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“Extension of prescribed period in certain cases. – Any appeal
or any application, other than an application under any of the
provisions of Order XXI of the Code of Civil Procedure, 1908, may be
admitted after the prescribed period, if the appellant or the applicant
satisfies the court that he had sufficient cause for not preferring the
appeal or making the application within such period.
Explanation.- ***”

23. A plain reading of the aforesaid provision would leave none in doubt that

an application under Sectionsection 5 could be filed seeking condonation of

delay only in respect of a belated appeal or application, but not for

condoning the delay in instituting a suit. That apart, an application

under Sectionsection 5 would lie to a “court” and not to any adjudicatory body or

tribunal, which is not a “court”.

24. In order to avail the benefit of Sectionsection 29(2) read with Sectionsection 5 of the

1963 Act, three conditions thus have to be satisfied – (i) the special or

local law must prescribe a period of limitation different from the period of

limitation prescribed by the Schedule to the 1963 Act qua the suit,

appeal or application, description whereof is available in the first, second

and third divisions, respectively, of such schedule; (ii) the special or local

law should not expressly exclude applicability of Sectionsections 4 to Section24; and (iii)

an application for condonation of delay under Sectionsection 5 is presented

before a court by the appellant or the applicant who has preferred an

appeal or made an application beyond the prescribed period envisaged in

the special or local law and shows sufficient cause for his failure to

prefer/make the appeal/application within such period so as to obtain a

discretionary order for condonation of delay.

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25. However, in our considered opinion, although the 2003 Act is a special

law and does not contain express provision excluding the applicability of

the 1963 Act, Sectionsection 29(2) read with Sectionsection 5 thereof would have no

application to an appeal which is neither relatable to any of the several

types of appeals, referred to in the second division of the Schedule, nor is

required to be considered by a “court”.

26. In Civil Appeal No. 4582 of 2019 [Ganesan rep by its power agent G.

SectionRukmani Ganesan v. The Commissioner, The Tamil Nadu Hindu

Religious and Charitable Endowments Board] decided on May 3, 2019, a

bench of two Hon’ble Judges of the Supreme Court held in paragraph 54

as follows:

“54. The ratio which can be culled from above noted judgments,

especially judgment of three-Judge Benches, as noted above, is as

follows:

(1) The suits, appeals and application referred to in the SectionLimitation

Act, 1963 are suits, appeals and applications which are to be

filed in a Court.

(2) The suits, appeals and applications referred to in the SectionLimitation

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
15

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 SectionLimitation Act or exclude

applicability of any provision of SectionLimitation Act which can be

decided only after looking into the scheme of particular, special

or local law.”

27. Our understanding of the 1963 Act is fortified by Ganesan (supra);

hence, bearing the same in mind, we now proceed to examine the

provisions of the 2003 Act providing avenues for appellate remedy.

28. The parties before us are ad idem that the 2003 Act provides for appellate

remedies before different appellate fora.

29. In terms of Sectionsection 111, an appeal may lie before the Appellate Tribunal

for Electricity against (i) an order made by an adjudicating officer under

the 2003 Act (except under Sectionsection 127) or (ii) an order made by the

Appropriate Commission under such Act. Sub-section (2) of Sectionsection 111

provides as follows:

“(2) Every appeal under sub-section (1) shall be filed within a period
of forty-five days from the date on which a copy of the order made by
the adjudicating officer or the Appropriate Commission is received by
the aggrieved person and it shall be in such form, verified in such
manner and be accompanied by such fee as may be prescribed.

Provided that the Appellate Tribunal may entertain an appeal after
the expiry of the said period of forty-five days if it is satisfied that
there was sufficient cause for not filing it within the period”.

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30. A second avenue for appeal is found in Sectionsection 125 of the 2003 Act.

Section 125 reads as follows:

“Appeal to Supreme Court.- Any person aggrieved by any decision
or order of the Appellate Tribunal, may, file an appeal to the Supreme
Court within sixty days from the date of communication of the
decision or order of the Appellate Tribunal, to him, on any one or more
of the grounds specified in Section 100 of the Code of Civil Procedure,
1908 (5 of 1908).

Provided that the Supreme Court may, if it is satisfied that the
appellant was prevented by sufficient cause from filing the appeal
within the said period, allow it to be filed within a further period not
exceeding sixty days.”

31. The third provision for appeal is found in Sectionsection 127. Sub-section (1)

thereof reads as follows:

“(1) Any person aggrieved by the final order made under Sectionsection 126
may, within 30 days of the said order, prefer an appeal in such form,
verified in such manner and be accompanied by such fee as may be
specified by the State Commission, to an appellate authority as may
be prescribed”.

32. The aforesaid provisions (Sectionsections 111, Section125 and Section127) providing appellate

remedies prescribe different periods of limitation for preferring appeals.

Also, the three appellate fora have not been uniformly conferred with the

power of condonation of delay. The legislature, in its wisdom, has

selectively conferred power in certain cases of appeals where delay in

preferring an appeal may be condoned.

33. Although Sectionsection 111 provides a period of 45 (forty-five) days from the

date on which a copy of the order sought to be appealed against is

received by the intending appellant, the Appellate Tribunal for Electricity

is empowered to entertain an appeal preferred beyond the period of
17

limitation of 45 (forty-five) days without any outer limit being fixed, i.e., a

particular time-period beyond which delay cannot be condoned.

Irrespective of the length of delay, if sufficient cause is shown for which

the appellant was disabled to prefer the appeal within the period of 45

(forty-five) days and beyond, the tribunal has the power to condone the

delay in the wise exercise of its discretion.

34. Next, the proviso to Sectionsection 125 of the 2003 Act empowers the Supreme

Court to entertain an appeal which is preferred beyond a period of 60

days which is the period of limitation. If the Supreme Court is satisfied

that the appellant was prevented by sufficient cause from preferring the

appeal within such period, it has the power to condone the delay.

However, the power to condone delay is hedged with the condition that

the appeal must have been preferred within 120 (one hundred twenty)

days. Should an appeal be preferred beyond 120 (one hundred twenty)

days, power is not conferred on the Supreme Court by the statute to

grant the prayer for condonation of delay. Therefore, the maximum

period within which an appeal may be filed under Sectionsection 125 of the

2003 Act is 120 (one hundred twenty) days from the date of

communication of the decision or order of the appellate tribunal, but not

beyond.

35. Finally, adverting to Sectionsection 127, we find that an appeal has to be filed

within 30 (thirty) days. Neither does Sectionsection 127 enlarge the period of

limitation, as in Sectionsection 125, nor does it confer power on the appellate
18

authority, in similar vein as in Sectionsection 111, to condone the delay in

preferring an appeal (irrespective of the length of delay but subject of

course to satisfaction that the appellant was prevented by sufficient

cause from preferring the appeal earlier). The concept of condonation of

delay is completely absent insofar as Sectionsection 127 is concerned.

36. Section 181(1) of the 2003 Act confers power on the State Commissions

to frame regulations, not inconsistent with the provisions of the 2003 Act

and the rules, to carry out the provisions of such Act subject also to the

condition of a prior notification. Sub-section (2) of Sectionsection 181 lists the

matters in respect whereof regulations could be made by the State

Commissions. Clause (zo) permits regulations to be brought into

existence in respect of the form of preferring the appeal, the manner in

which such form shall be verified and the fee for preferring the appeal

under sub-section (1) of Sectionsection 127.

37. We have been shown the West Bengal Electricity Regulatory Commission

(Conduct of Business) Regulations, 2013. Paragraphs 3.1.1 and 3.1.2

under Chapter III of such Regulations refers to matters as in clause (zo)

of Sectionsection 181(2). The Regulations also do not speak of power being

conferred on an appellate authority exercising jurisdiction under Sectionsection

127 to condone the delay in preferring an appeal, assuming that the

State Commission has the power to so confer.

38. Chhatisgarh State Electricity Board (supra) is an authority for the

proposition that the 2003 Act is a self-contained comprehensive
19

legislation. Having read the provisions of the 2003 Act, to the extent

relevant, and discussed the same in some detail, we are clear in our

mind about the legislative intent that (i) Sectionsection 5 of the 1963 Act in

terms does not apply to an appeal under Sectionsection 111 of the 2003 Act,

although the principles underlying Sectionsection 5 are applicable to such

appeal; (ii) Sectionsection 5 in terms does not have any applicability in respect of

an appeal under Sectionsection 125 of the 2003 Act, although the principles of

Sectionsection 5 could apply in an appropriate case where an appeal thereunder

is preferred between 61 (sixty-one) and 120 (one hundred twenty) days of

communication of the decision or order to the appellant and he seeks

condonation of delay showing sufficient cause; (iii) neither the terms of

nor the principles underlying Sectionsection 5 have any application in respect of

an appeal under Sectionsection 127 thereof. We also hasten to add that the fact

of the 2003 Act not expressly excluding the provisions of the 1963 Act is

of no relevance. If in the same Act, i.e. the 2003 Act, the legislature has

consciously and expressly made provision for application of Sectionsection 5

principles (Sectionsection 111 and Section125) and such a provision is not made for an

appeal under Sectionsection 127, it necessarily follows that the legislature did

not intend to give such benefit in respect of an appeal under Sectionsection 127.

We hold so on the basis of the dicta of the Supreme Court decision

reported in (2004) 4 SCC 252 [SectionGopal Sardar v. Karuna Sardar].

39. In view of such discussion, we are unable to hold that a time-barred

appeal under Sectionsection 127 of the 2003 Act may be considered on merit by
20

the appellate authority upon condonation of delay. The appellate

authority has not been empowered to condone delay, as is the case of an

appeal under Sectionsection 111.

40. The off-shoot of the aforesaid conclusion is that the decisions of learned

Single Judges of this Court in Omevati Devi Agarwal (supra) and Shree

Gopal Engineering Works Limited (supra) do not lay down good law. We

concur with the opinions expressed by coordinate Benches of this Court

in Kalavanti Doshi Trust (supra) and Pranab Kumar Sarkar (supra) that

delay in preferring an appeal under Sectionsection 127 of the 2003 Act cannot

be condoned by the appellate authority since it is not empowered to do

so. We, however, wish to deal with a particular observation in Kalavanti

Doshi Trust (supra) before concluding our judgment.

41. We now answer the questions formulated by the learned Judge in

chronological order:

Answer to question 1: The language of the particular section has to be

seen in juxtaposition to the language in which the other sections are

couched. The language of Sectionsection 125 permits condonation of delay

beyond 60 (sixty) days but limited to 120 (one hundred twenty) days’

delay, whereas Sectionsection 127 does not permit condonation of delay at all.

The proviso to Sectionsection 125 cannot be read in a manner so as to clothe an

appellate authority under Sectionsection 127 to condone the delay. The result

arising out of preferring an appeal under Sectionsection 125 beyond 120 (one
21

hundred twenty) days and under Sectionsection 127 beyond 30 (thirty) days

would be similar, i.e., the delay cannot be condoned.

Answer to question 2: It is true that Chhatisgarh State Electricity Board

(supra) arose out of an appeal under Sectionsection 125 whereas Kalavanti

Doshi Trust (supra) involved interpretation of Sectionsection 127. The factual

dissimilarities notwithstanding, there would be no change in the result in

view of our answer to the preceding question.

Answer to question 3: In Mukri Gopalan (supra), the Supreme Court held

that the appellate authority under section 18 of the Kerala Buildings

(Lease and Rent Control) Act, 1965 was not a persona designata but it

was functioning as a court and hence Sectionsection 5 was automatically

applicable. Collector, Land Acquisition, Anantnag (supra) was a civil

appeal arising out of a judgment and order passed by the relevant high

court, to which Sectionsection 5 of the 1963 Act did apply. The appellate

authority under Sectionsection 127 not being a ‘court’, the referred decisions

cannot be called in aid in the context of Sectionsection 127. That apart, Mukri

Gopalan (supra) has been held not to lay down good law by the Supreme

Court in its decision reported in (2015) 7 SCC 58 [SectionM.P. Steel Corporation

v. Commissioner of Central Excise] and then again in Ganesan (supra).

Answer to question 4: Popular Construction (supra) involved

interpretation of Sectionsection 34 of the Arbitration and SectionConciliation Act, 1996.

The provision prescribing the period of limitation resembles the provision

in Sectionsection 125. Popular Construction (supra) and Chhatisgarh State
22

Electricity Board (supra) have read pari materia provisions in sync with

each other. However, the law that applies to Sectionsection 125 per se is not

applicable to Sectionsection 127. Popular Construction (supra), therefore, has

no application here.

Answer to question 5: The provisions of the 1963 Act need not have been

expressly excluded by the legislature in its application to the 2003 Act,

for the reasons discussed above. The conclusion in paragraph 38

provides a complete answer to this question and hence we refrain from

repeating the same.

Answer to question 6: Although Sectionsection 17 of the SARFAESI Act, 2002

refers to an appeal, the learned Judge is right in observing that the

proceeding thereunder is to be treated as a suit, as held by the Supreme

Court in its decision reported in (2004) 4 SCC 311 [SectionMardia Chemicals

ors. v. Union of India ors.]. However, a proceeding under Sectionsection 17 of

the SARFAESI Act, 2002 being a suit, it is not akin to a proceeding under

Sectionsection 127 of the 2003 Act which is an appeal conferring a statutory

right to challenge an order of assessment made under Sectionsection 126.

42. Before parting, we wish to deal with the observation in Kalavanti Doshi

Trust (supra) that a writ court should not by invoking jurisdiction under

SectionArticle 226 of the Constitution of India revive a barred remedy, is the

settled law. The observation in our view narrows the amplitude of SectionArticle

226 of the Constitution of India. Mr. Sanyal was called upon to address

us under what circumstances law had been previously settled that writ
23

jurisdiction cannot be exercised to revive a barred remedy. We received

no answer.

43. We need to clarify the position. Take the case of a consumer who, despite

the remedy of an appeal under Sectionsection 127 being available, invokes the

writ jurisdiction by challenging an order of assessment passed under

Sectionsection 126 of the 2003 Act within 20 (twenty) days of such order and

prima facie satisfies the Court that any of the conditions for entertaining

a writ petition despite such existence of an alternative remedy is present

whereupon the same is admitted with interim relief being granted;

however, at the stage of final hearing [say after 6 (six) months], the

learned Judge is persuaded by the company not to hear the writ petition

on merits in view of availability of the alternative appellate remedy which

leads to dismissal of the same on this ground only. By such time, the

limitation to approach the appellate authority under Sectionsection 127 has set

in and by reason of non-attraction of principles underlying Sectionsection 5 of

the 1963 Act, the remedy of appeal has become barred. In such a

situation, can the writ court not grant leave to the consumer to avail the

appellate remedy and direct the appellate authority to hear the appeal on

merits? The answer, to our mind, should be in the affirmative or else for

entertainment of the writ petition by the court and for its subsequent

dismissal later, on the above ground, the consumer would be non-suited.

44. We are conscious that the delay in preferring an appeal under Sectionsection

127 within 30 (thirty) days could result in the person, against whom an
24

adverse order under Sectionsection 126 has been passed, being left without the

statutory appellate remedy; however, we are also of the opinion that such

a person would not find himself totally without any remedy. A final order

of assessment under Sectionsection 126 could be a subject of judicial review, if

any of the conditions for entertainment of a writ petition (existence of an

efficacious alternative remedy notwithstanding) is satisfied. If indeed the

writ petitioner satisfies the writ court that for genuine reasons he could

not avail the remedy of appeal and seeks a writ of certiorari to have the

impugned order quashed, the writ court may in its discretion entertain

the writ petition and judicially review the decision making process

drawing inspiration from the Constitution Bench decision of the Supreme

Court reported in AIR 1961 SC 1506 [SectionA.V. Venkateswaran v. Ramchand

Sobhraj Wadhwani] and other Constitution Bench decisions referred to

therein. However, if the writ court is approached long after the final order

of assessment under Sectionsection 126 is made and proper explanation for the

belated approach is either not shown or the court is satisfied that the

petitioner disabled himself to pursue the appellate remedy for his own

fault, the court may not entertain the writ petition at all.

45. The reference is answered accordingly. Let the records of the writ petition

be placed before the learned Judge having determination to hear it,

immediately.

(SAUGATA BHATTACHARYYA, J.) (DIPANKAR DATTA, J.)

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