WP 84/2019; GA 98/2019; WP 564/2018
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
SMT. M BHOWMICK AND ANR
The Hon’ble JUSTICE RAJASEKHAR MANTHA
Date : 6th March, 2019.
Ms. M. Agarwalla, Adv.; Mr. R.C. Agarwalla, Adv.
Dr. M. Saha Roy, Adv.
Mr. L. Chatterjee, Adv.
Ms. S. Majumdar, Adv.; Ms. D. Halder, Adv.
The Court : The issue raised in the writ application has wide
ramifications on the right to an appeal under section 127 of the
Electricity Act, 2003 for both a licensee and the distribution company.
The controversy is whether the delay beyond the statutory time period of
thirty days for preferring an appeal under section 127(1) against an order
under section 126 of the Indian Electricity Act, 2003 can be condoned
applying section 5 of the Limitation Act.
The first case referred to in the context by the petitioner is the
case of Omvati Devi Agarwalla -vs- CESC Ltd. Ors., reported in AIR 2015
SC 382, where a Single Judge of this Court had held that the delay in
filing an appeal preferred under section 127(1), beyond the statutory
period of 30 days, can be condoned by applying section 5 of the Limitation
The next decision relied upon by the petitioner is the case of
Shreegopal Engineering Works Ltd. -vs- CESC Ltd., reported in AIR 2002
Calcutta 99, rendered by another Single Judge of this Court. It was held
in the said decision, at paragraph 14, that an appeal under section 36(2)
of the Indian Electricity Act, 1910, i.e. against an award of the Chief
Electrical Inspector, can be preferred within a period of 3 months
stipulated under Rule 6(3) of the Electricity Rules of 1956. The Court
went on to hold that section 5 of the Limitation Act applies to an appeal
under section 36(2) of the Electricity Act.
The petitioner also relies upon a decision in the case of Union of
India -vs- Popoular Construction Co., reported in (2001) 8 SCC 470, where
under section 34 of the Arbitration and Conciliation Act, 1996, an
application under section 34 of the Arbitration Act seeking setting aside
of an arbitral award must be made within ninety days and a further period
of thirty days but not thereafter.
According to the Supreme Court, the expression “not thereafter”
would bar the application under section 5 of the Limitation Act. It is,
therefore, axiomatic that where the expression “not thereafter” is not
used in a statute, there may be a case for application of section 5 of the
The next decision relied upon is the case of Mukri Gopalan vs.
Cheppilat Puthanpurayil Aboobacker reported in (1995) 5 SCC 5. In the said
case, before the Supreme Court, under the Rent Control Eviction Act of
State of Kerala, the power of an appellate authority under Section 18 to
condone the delay in filing of a statutory appeal was being addressed and
it was held that Section 5 of the Limitation Act is applicable to the said
Kerala Act in the absence of any restriction to the contrary.
A Single Bench of the Bombay High Court by a judgment dated 18th
October, 2016 in WP No.1674 of 2016 in the case of Rakhee Gupta vs. State
of Maharashtra has also held in the context of Section 127 of the
Electricity Act that Section 29 (2) of the Limitation Act would be
applicable, there by meaning that Section 5 of the Limitation Act would
apply to any special statute unless the same was impliedly excluded by
reason of the language of such statute.
The Counsel for the petitioner also relies upon the case of
Collector, Land Acquisition, Anantnag Anr. vs. Mst. Katiji Ors.,
reported in (1987) 2 SCC 107. At paragraph 3 of the said judgment, while
holding that a liberal approach must be taken in the context of applying
Section 5 of the Limitation Act, principles have been laid down by the
Hon’ble Supreme Court for application of Section 5.
Per contra, learned Advocate for the licensee first relies upon a
decision of the Division Bench of this Court in the case of CESC Ltd.
Anr. vs. Kalavanti Doshi Trust Ors., reported in 2011 (1) CHN (CAL) 182.
A Division Bench of this Court while referring to the decision of the
Hon’ble Supreme Court in the case of Chhattisgarh State Electricity Board
vs. Central Electricity Regulatory Commission Ors. reported in (2010) 5
SCC 23 has held that the period of 30 days stipulated under Section 127 of
the Electricity Act cannot be extended by application of Section 5 of the
The same view was followed in an unreported decision of another
Division Bench of this Court dated 22nd December, 2015 in the case of the
West Bengal State Electricity Distribution Company Ltd. Ors. vs. Pranab
Kr. Sarkar in MAT 1875 of 2015.
There is one distinction that this Court notices in the context of
Kalavanti Doshi (Supra) case. In the said case the Division Bench of the
Calcutta High Court (Supra) was relying upon a Supreme Court decision in
the Chhattisgarh State Electricity Board reported in (2016) 1 SCC 444. One
cannot lose sight of the fact that in the Chhattisgarh case (supra) the
Supreme Court was dealing with Section 125 of the Electricity Act, 2003
which prescribes a limitation of 60 days for preferring an appeal to the
Supreme Court and also prescribes the power to extend the period by
another period of 60 days but no more. There is no such restriction
imposed under Section 127 of the Electricity Act, 2003.
Section 127 only prescribes a period of 30 days in preferring an
appeal from an order of the assessing authority. The language of Section
127 does not contain the restriction similar to the proviso to Section
125. Equally Section 111A confers powers on the appellate Tribunal to
extend the period of limitation to prefer an appeal. Neither Section 111A
nor Section 127 impose any restriction on the period of delay that may be
Yet another vital aspect must be borne in mind that Electricity Act,
2003 does not specifically exclude the provisions of the Limitation Act,
In view of the decision of Kalavanti Doshi (Supra) which followed
Chhattisgarh State Electricity Board (Supra) which may have or may not
have been applicable to a case under Section 127 of the Electricity Act,
2003 as also the other decision of the Supreme Court like Vidyacharan
Shukla vs. Khubchand Boghel (AIR 1964 SC 1099), DSR Steel Pvt. Ltd. vs.
State of Rajasthan (2012) 6 SCC 782, Baleshwar Dayal Jaiswal vs. Bank of
India (2016) 1 SCC 444.
This Court feels that the issue must be revisited and settled by a
larger Bench and that may be constituted by the Hon’ble the Acting Chief
Justice on the following questions of law.
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 referring 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 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 the Land 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
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 statues worded with the expression ‘and not
5. When the provisions of the Limitation Act, 1963 have not be
specifically excluded under a special statute and particularly
in the Electricity 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
29 of the Limitation Act, 1963?
6. Are the provisions of appeal under Section 127 of the
Electricity Act akin to a Section 17 of the Securitization and
Reconstruction of Financial Assets and Enforcement of Security
Interest Act, 2003. The Supreme Court has held in the case of
Merdia 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
While it is true that a decision of a Division Bench is binding on
the Court, more so two in the instant case, but since the other two Single
Bench judgments of this Court in Omvati Devi (supra) and Shreegopal
Engineering (supra) as also the context in which the decision of
Chhattisgarh case (Supra) of the Hon’ble Supreme Court had been rendered
may not have been construed correctly in the decision of Kalavanti Doshi
(Supra), this Court feels it necessary that the matter needs to be
conclusively decided by the larger Bench of this Court as may be
constituted by the Hon’ble Acting the Chief Justice.
Let the matter be placed before the Hon’ble Acting the Chief Justice
GA No.98 of 2019
GA No.98 of 2019 has been filed by the petitioner. By an order dated
27th November, 2018 in WP No.564 of 2018, a coordinate Bench of this Court
had granted 7 days’ time to the writ petitioner to prefer an appeal before
the appellate authority. The petitioner admittedly has preferred the
appeal in question after 9 days instead of 7 days in view of an
intervening weekend. She has fled the instant application for extension of
time for two days.
In normal practice as has been ordained by the Hon’ble Supreme
Court, orders passed in the disposed of writ application cannot be
reviewed and/or recalled.
However, since the time to file the appeal was granted by an order
of Court, the delay of 2 days in preferring the appeal is also considered
by a period of three days as a weekend has intervened. What is also
necessary to note is that the rejection of the appeal for being 2 days
beyond the time granted by this Court, that too for an intervening
weekend, was by way of an interim order passed by the appellate authority.
The Appellate Authority is directed to hear out the appeal in
question on merits and dispose of the same in accordance with law.
However, it is made clear that the result of the appeal shall abide by any
decision rendered by the larger Bench that this Court has referred to on
those questions of law in WP No.84 of 2019 and without prejudice to the
rights and contentions of the licensee.
(RAJASEKHAR MANTHA, J.)