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Sudipta Koley vs Smt. M Bhowmick And Anr on 6 March, 2019

ORDER SHEET
WP 84/2019; GA 98/2019; WP 564/2018
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
ORIGINAL SIDE

SUDIPTA KOLEY
Versus
SMT. M BHOWMICK AND ANR

BEFORE:
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

Act, 1963.

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
2

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

Limitation Act.

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.
3

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

Limitation Act.

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.
4

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

condoned.

Yet another vital aspect must be borne in mind that Electricity Act,

2003 does not specifically exclude the provisions of the Limitation Act,

1963.

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.

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 referring an appeal against the administrative
5

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

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 statues worded with the expression ‘and not

thereafter’?

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
6

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

parlance.

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

as above.

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
7

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.)

tk/akg

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