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Sunil Kumar Samantra vs West Bengal Pcb Ors on 24 July, 2014

National Green Tribunal Sunil Kumar Samantra vs West Bengal Pcb Ors on 24 July, 2014

BEFORE THE NATIONAL GREEN TRIBUNAL

PRINCIPAL BENCH

NEW DELHI

…………..

M.A. NO. 573 OF 2013

IN

APPEAL NO. 67 OF 2013

In the matter of:

Sunil Kumar Samanta

M/s. Samanta Engineering Works,

1, B.T. Road, Barrackpore,

North 24-Parganas,

West Bengal

…..Appellants

Versus

1 West Bengal Pollution Control Board,

Paribesh Bhawan,

10-A, Block-LA, Sector – III,

Salt Lake, Kolkata – 700 098

2 Chief Scientist

West Bengal Pollution Control Board,

Paribesh Bhawan,

10-A, Block-LA, Sector – III,

Salt Lake, Kolkata – 700 098

3 Senior Environmental Engineer

West Bengal Pollution Control Board,

Kalyani Expressway, Panpur More,

P.O. Narayanpur, Kankinara

District North 24 Parganas – 743 126

4 Environmental Engineer

West Bengal Pollution Control Board,

Kalyani Expressway, Panpur More,

P.O. Narayanpur, Kankinara

District North 24 Parganas – 743 126

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5 The Pollution Control Appellate Authority (West Bengal)

Paribesh Bhawan,

10-A, Block-LA, Sector – III,

Salt Lake, Kolkata – 700 098

6 Government of West Bengal

Through the Secretary

Ministry of Transport

Writer’s Building

Kolkata – 700 001

…….Respondents

Counsel for Appellant:

Mr. Jayant K. Mehta with Ms. Kanchan Yadav, Advocates

Counsel for Respondent:

Mr. Amit Agrawal, Advocate for Respondents 1 to 5 Mr. Sachin Das and Mr. Bikas Kar Gupta, Advocate for Respondent No. 6

JUDGMENT

PRESENT:

Hon’ble Mr. Justice Swatanter Kumar (Chairperson) Hon’ble Mr. Justice M.S. Nambiar (Judicial Member) Hon’ble Dr. D.K. Agrawal (Expert Member) Hon’ble Prof. A.R. Yousuf (Expert Member) Hon’ble Dr. R.C.Trivedi (Expert Member)

Dated: July 24, 2014

JUSTICE SWATANTER KUMAR, (CHAIRPERSON)

The present appeal is preferred against the order dated 10th

April, 2012 passed by the Pollution Control Appellate Authority,

West Bengal (for short ‘appellate authority’), upholding the order

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of closure passed by the West Bengal Pollution Control Board (for

short ‘the Board’) dated 8th February, 2012.

2. The necessary facts are that the appellant is the sole

proprietor of M/s. Samanta Engineering Works, which is inter alia

engaged in the business of running an Auto Emission Testing

Centre situated at 1, B.T. Road, Barrackpore, North 24-Parganas,

West Bengal. The said Auto Emission Testing Centre checks

motor vehicles including two wheelers for emission of smoke

within permissible limits of pollution, as per the prescribed

norms. Licensing Authority under the relevant rules is the District

Magistrate, North 24-Paraganas, Barasat, West Bengal. The

appellant had made an application for Letter of Offer for

establishment of an Auto Emission Testing Centre before the

Licensing Authority. In furtherance to which, the Licensing

Authority vide its memo dated 8th February, 2005 called upon the

Board to conduct an enquiry and to submit a report. According to

the appellant, being satisfied, the consent to operate was issued

by the Board and the Licensing Authority also permitted the

appellant to operate. Two different licenses for operating the Auto

Emission Testing Centre were issued. These licenses were valid for

a period of one year. The appellant applied for the renewal of said

licenses in the prescribed format. Vide memo dated 10th March,

2011, the Board informed the appellant that their unit will be

inspected on that very date. The inspection was carried out in

relation to the instruments used for testing vehicles and/or two

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wheelers. According to the appellant, the said inspection was

satisfactory. In furtherance to the inspection dated 10th March,

2011, the appellant was called for a technical hearing to be

conducted at the head office of the respondent No. 1, where the

appellant brought to the notice of the officials that the copy of the

inspection report was not provided to the appellant as such. He

remained unaware about the contents thereof. Thereafter, vide

Memo dated 8th February, 2012, a closure order against the

appellant was issued by the Chief Scientist of the Board. Against

this order, the appellant preferred an appeal before the Appellate

Authority. The Appellate Authority in its order dated 10th April,

2012 noticed that during the inspection, it was found that:

1. RPM and oil temperature sensor were not functioning.

2. CO-correction software was not installed in the 4 –

gas analyzer software.

During inspection it was also found that Smoke Meter and

the 4-gas analyzer were operating unsatisfactorily.

3. In addition thereto, it was stated in the impugned order that

the unit was not possessed of any valid license in accordance with

the rules. The Appellate Authority, therefore, in its detailed order

dated 10th April, 2012, dismissed the appeal rejecting the

contentions raised by the appellant before it. Against the said

order dated 10th April, 2012, the appellant has preferred the

present appeal (Appeal No. 67 of 2013).

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4. According to the appellant, this appeal is barred by 104

days. Thus, the appellant has filed a Miscellaneous Application

No. 573 of 2013 praying for condonation of delay of 104 days in

filing the present appeal. This application is opposed and

vehemently contested by the respondents, particularly the Board

on the ground that firstly, the appeal is hopelessly barred by 104

days and secondly, this Tribunal has no jurisdiction to condone or

even entertain the appeal when it is filed beyond a total period of

90 days i.e. 30+60 days in terms of proviso to Section 16 of the

National Green Tribunal Act, 2010 (for short the ‘NGT Act’). In

support of his second contention, the Learned Counsel has relied

upon two judgments of this Tribunal in the case of Nikunj

Developers & Others v. State Of Maharashtra & Anr. 2013, All

India NGT Reporter page 40 and Krishna Stone Crushers and

Others v. Haryana State Pollution Control Board and Another,

2014, All India NGT Reporter page 42.

5. On the other hand, the Learned Counsel appearing for the

appellant contended that these judgments of the Tribunal do not

lay down the correct law. It is contended that the provisions of the

Sections 4 to 24 of the Limitation Act, 1963 (for short the

‘Limitation Act’) would be applicable to the application filed by the

appellant, as the NGT Act does not expressly or impliedly exclude

the applicability of the Limitation Act as contemplated under

Section 29(2) of the Limitation Act. Further, it is contended that

the language of proviso to Section 16 of the NGT Act has not been

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worded by the legislature in a manner so as to completely divest

the Tribunal from the jurisdiction of condoning of the delay

beyond a total period of 90 days provided under proviso to Section

16. To buttress these submissions, an argument has also been

advanced that this Tribunal being the first appellate judicial

forum, should construe the law of limitation liberally.

6. Before we proceed to examine the merit or otherwise of the

rival contentions raised before us, it is necessary for us to notice

certain further facts in relation to the filing of the present appeal

belatedly and for condonation of the delay.

7. The order of the Appellate Authority upholding the closure

order passed by the Board, was passed on 10th April, 2012. The

NGT Act had come into force on 2nd June, 2010. However, the

appellant initially did not prefer any appeal before the Tribunal

against the order of the Appellate Authority dated 10th April, 2012

but challenged the said order by filing a writ petition before the

High Court of Calcutta. The writ petition is stated to have been

filed on 17th May, 2012. The writ petition remained pending before

the High Court and by order dated 20th December, 2012, the

Board was asked to inspect the premises of the appellant as it

was the contention of the appellant that it had removed all the

defects. However, the writ petition of the appellant came to be

dismissed as withdrawn vide order dated 31st January, 2013. The

writ petition was withdrawn on the ground that the matter falls

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within the ambit of Section 2(m) read with Section 14 of the NGT

Act and therefore, the appeal would lie to this Tribunal. The

certified copy of the order dated 31st January, 2013 was applied

for on 1st February, 2013, which was ready on 12th February,

2013 and was delivered on 13th February, 2013. The present

appeal was filed in the registry of the Tribunal at the Principal

Bench on 29th May, 2013. Here we may notice that originally the

appellant had filed Miscellaneous Application No. 487 of 2013 for

condonation of delay without specifying the days by which the

appeal was barred. On the very first day of hearing of the appeal

before the Tribunal, i.e. on 3rd June, 2013, the appellant had

sought permission to file a better affidavit in support of the

application of condonation of delay. This liberty was granted.

Thereafter, instead of filing additional affidavit, the appellant filed

Miscellaneous Application No. 573 of 2013 praying for

condonation of delay. Vide order dated 9th July, 2013 notice was

issued to the other parties in Miscellaneous Application No. 573 of

2013. According to this application, there was a delay of 104 days

in filing the present appeal. But, from the above narrated facts, it

is clear that the appeal before the Tribunal ought to have been

filed by 10th July, 2012, however, it has been filed on 29th May,

2013. There appears to be a delay of 323 days in filing the appeal.

Even, if the time spent by the appellant before the High Court of

Calcutta is excluded, the appeal would still be barred by 125

days.

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8. From the above narrated factual matrix of the case it is

apparent that the present appeal has been filed beyond the outer

period of limitation i.e. 90 days as provided under proviso to

Section 16 of the NGT Act. Even if we take the case of the

appellant at its face value, then admittedly there is a delay of 104

days (which is in excess of the prescribed period of limitation).

However, upon proper computation there is in fact a delay of 125

days. If the period spent before the High Court and other period,

the exclusion of which is prayed for, is not excluded then the

appeal is barred by 323 days. Undisputedly, in any case the

appeal has been filed beyond 90 days which is the outer limit of

period of limitation prescribed under proviso to Section 16 of the

NGT Act.

It will be appropriate to refer to the relevant provisions

prescribing limitation under Section 16 of the NGT Act:

“Any person aggrieved by,–

(a) an order or decision, made, on or after the commencement of the National Green Tribunal Act, 2010, by the appellate authority under section 28 of the Water (Prevention and Control of Pollution) Act, 1974(6 of 1974);

(b) an order passed, on or after the commencement of the National Green Tribunal Act, 2010, by the State Government under section 29 of the Water (Prevention and Control of Pollution) Act, 1974(6 of 1974);

(c) directions issued, on or after the commencement of the National Green Tribunal Act, 2010, by a Board, under section 33A of the Water (Prevention and Control of Pollution) Act, 1974(6 of 1974);

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(d) an order or decision made, on or after the commencement of the National Green Tribunal Act, 2010, by the appellate authority under section 13 of the Water (Prevention and Control of Pollution) Cess Act, 1977(36 of 1977);

(e) an order or decision made, on or after the commencement of the National Green Tribunal Act, 2010, by the State Government or other authority under section 2 of the Forest (Conservation) Act, 1980(69 of 1980);

(f) an order or decision, made, on or after the commencement of the National Green Tribunal Act, 2010, by the Appellate Authority under section 31 of the Air (Prevention and Control of Pollution) Act, 1981(14 of 1981);

(g) any direction issued, on or after the

commencement of the National Green Tribunal Act, 2010, under section 5 of the Environment

(Protection) Act, 1986(29 of 1986);

(h) an order made, on or after the commencement of the National Green Tribunal Act, 2010, granting environmental clearance in the area in which any industries, operations or processes or class of industries, operations and processes shall not be carried out or shall be carried out subject to certain safeguards under the Environment (Protection)Act, 1986(29 of 1986);

(i) an order made, on or after the commencement of the National Green Tribunal Act, 2010, refusing to grant environmental clearance for carrying out any activity or operation or process under the Environment (Protection) Act, 1986(29 of 1986); (j) any determination of benefit sharing or order made, on or after the commencement of the National Green Tribunal Act, 2010, by the National

Biodiversity Authority or a State Biodiversity Board under the provisions of the Biological Diversity Act, 2002(18 of 2003),

may, within a period of thirty days from the date on which the order or decision or direction or determination is communicated to him, prefer an appeal to the Tribunal:

Provided that the Tribunal 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

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filed under this section within a further period not exceeding sixty days.”

9. A bare reading of the above provision shows that appeal as

contemplated under Section 16 against an order or decision or

direction or determination, has to be filed within 30 days from the

date on which the order is communicated to the aggrieved

persons. Proviso to Section 16 of the NGT Act provides for a

special limitation i.e. the appeal could be filed beyond the period

of 30 days within a further period not exceeding 60 days, upon

showing ‘sufficient cause’. This means the tribunal cannot allow

an appeal to be filed under Section 16 beyond a total period of 90

days. The NGT Act is a self-contained code as it provides for the

forum, procedure, limitation, functions and powers of the

tribunal. Furthermore, the scheme of the NGT Act, particularly,

with reference to the language of Section 16 of the NGT Act,

provides special limitation period. Thus, it necessarily excludes

the operation of the general law of limitation. The provisions of

the Limitation Act cannot be harmoniously construed with the

provisions prescribing special limitation under the NGT Act as in

that event it would defeat the very purpose of the NGT Act. A

limitation provided under special law must prevail over the

general law of limitation; particularly in face of the overriding

effect given to the NGT Act by the framers of the law in terms of

Section 33 of the NGT Act. In terms of Section 33, the provisions

of the NGT Act shall have effect notwithstanding anything

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inconsistent contained in any other law for the time being in force.

The cumulative effect of all these factors would be that the special

limitation prescribed under the NGT Act does not admit any

exception to attract the applicability of the provisions of the

Limitation Act. Section 16 of the NGT Act controls the very

institution of an appeal in the Registry of the Tribunal. In terms

of Section 16, the appeal can be filed ‘within a further period not

exceeding 60 days’ but thereafter the Tribunal is not vested with

the power to allow the appeal to be filed beyond the total period of

90 days. Thus, the tribunal loses its jurisdiction to entertain an

appeal after the expiry of the special period of limitation provided

under proviso to Section 16 of the NGT Act.

10. A bench of five members of the National Green Tribunal, in

the case of Nikunj Developers v. State of Maharashtra, 2013 All

India NGT Reporter (Delhi) (1) 40, after discussing various

judgments of the Supreme Court had taken the view that the

Tribunal has no jurisdiction to condone the delay beyond a period

of 90 days, even if a sufficient cause is shown and the provisions

of the Limitation Act including Section 5 are excluded. The

tribunal held as under:

“19. From language of the above provision it is clear that the Tribunal loses jurisdiction to condone the delay if the delay is of more than 90 days. Every appeal has to be filed within 30 days from the date of communication of the order. That is, what an applicant is required to ensure before the appeal is heard on merits. However, the Tribunal has been vested with the jurisdiction to entertain the appeal which is filed after 30 days from the date of communication of an order. This power to

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condone the delay has a clear inbuilt limitation as it ceases to exist if the appeal is filed in excess of 60 days, beyond the prescribed period of limitation of 30 days from the date of communication of such order. To put it simply, once the period of 90 days lapses from the date of communication of the order, the Tribunal has no jurisdiction to condone the delay. The language of the provision is clear and explicit. It admits of no ambiguity and the legislative intent that Tribunal should not and cannot condone the delay in excess of 90 days in all, is clear from the plain language of the provision.

20. As stated in the cases Hiralal Ratan Lal and India Houses (supra) the period of limitation statutorily prescribed, has to be strictly adhered to and cannot be relaxed and or departed from, on equitable consideration. Further, in construing a statutory provision, the first and the foremost rule of construction is that of literary construction. We do not see any reason to expand the scope of the provision and interpret the proviso to Section 16 in the manner that Tribunal can be vested with the power of condoning the delay beyond 90 days. Such interpretation would be contrary to the specific language of the Section and would defeat the very legislative intent and object behind this provision.

21. This controversy need not detain us any further as it is no more res integra and stands answered by the judgment of the Supreme Court in the case of Chhattisgarh State Electricity Board Vs. Central Electricity Regulatory Commission and others (2010) 5 SCC 23 where the court held as under:

“29. Section 34(3) of the Arbitration and Conciliation Act, 1996, which is substantially similar to Section 125 of the Electricity Act came to be interpreted in Union of India v. Popular Construction Company : (2001) 8 SCC 470. The precise question considered in that case was whether the provisions of Section 5 of the Limitation Act are applicable to an application challenging an award under Section 34 of the Arbitration and Conciliation Act, 1996. The two- Judge Bench referred to earlier decisions in Mangu Ram v. Municipal Corporation of Delhi: (1976) 1 SCC 392, Vidyacharan Shukla v. Khubchand Baghel AIR 1964 SC 1099, Hukumdev Narain Yadav v. L.N. Mishra (supra), Patel Naranbhai Marghabhai v. Dhulabhai Galbabhai : (1992) 4 SCC 264 and held:

12. As far as the language of Section 34 of the 1996 Act is concerned, the crucial words are “but

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not thereafter” used in the proviso to Sub-section (3). In our opinion, this phrase would amount to an express exclusion within the meaning of Section 29(2) of the Limitation Act, and would therefore bar the application of Section 5 of that Act. Parliament did not need to go further. To hold that the court could entertain an application to set aside the award beyond the extended period under the proviso, would render the phrase “but not thereafter” wholly otiose. No principle of interpretation would justify such a result.

16. Furthermore, Section 34(1) itself provides that recourse to a court against an arbitral award may be made only by an application for setting aside such award “in accordance with” Sub-section (2) and Sub-section (3). Sub-section (2) relates to grounds for setting aside an award and is not relevant for our purposes. But an application filed beyond the period mentioned in Section 34, Sub- section (3) would not be an application “in accordance with” that Sub-section. Consequently by virtue of Section 34(1), recourse to the court against an arbitral award cannot be made beyond the period prescribed. The importance of the period fixed under Section 34 is emphasised by the provisions of Section 36 which provide that

“where the time for making an application to set aside the arbitral award under Section 34 has expired … the award shall be enforced under the Code of Civil Procedure, 1908 in the same manner as if it were a decree of the court”.

This is a significant departure from the provisions of the Arbitration Act, 1940. Under the 1940 Act, after the time to set aside the award expired, the court was required to “proceed to pronounce judgment according to the award, and upon the judgment so pronounced a decree shall follow” (Section 17). Now the consequence of the time expiring under Section 34 of the 1996 Act is that the award becomes immediately enforceable

without any further act of the court. If there were any residual doubt on the interpretation of the language used in Section 34, the scheme of the 1996 Act would resolve the issue in favour of curtailment of the court’s powers by the exclusion of the operation of Section 5 of the Limitation Act.

(emphasis supplied)

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30. In Singh Enterprises v. C.C.E., Jamshedpur and Ors. (supra), the Court interpreted Section 35 of Central Excise Act, 1944, which is pari materia to Section 125 of the Electricity Act and observed:

8. The Commissioner of Central Excise (Appeals) as also the Tribunal being creatures of statute are vested with jurisdiction to condone the delay beyond the permissible period provided under the statute. The period up to which the prayer for condonation can be accepted is statutorily provided. It was submitted that the logic of Section 5 of the Limitation Act, 1963 (in short “the Limitation Act”) can be availed for condonation of delay. The first proviso to Section 35 makes the position clear that the appeal has to be preferred within three months from the date of communication to him of the decision or order. However, if the Commissioner is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of 60 days, he can allow it to be presented within a further period of 30 days. In other words, this clearly shows that the appeal has to be filed within 60 days but in terms of the proviso further 30 days’ time can be granted by the appellate authority to entertain the appeal. The proviso to Sub-section (1) of Section 35 makes the position crystal clear that the appellate authority has no power to allow the appeal to be presented beyond the period of 30 days. The language used makes the position clear that the legislature intended the appellate authority to entertain the appeal by condoning delay only up to 30 days after the expiry of 60 days which is the normal period for preferring appeal. Therefore, there is complete exclusion of Section 5 of the Limitation Act. The Commissioner and the High Court were therefore justified in holding that there was no power to condone the delay after the expiry of 30 days’ period.

(emphasis supplied)”

22. The same view was reiterated in Commissioner of Customs, Central Excise v. Punjab Fibres Ltd. : (2008) 3 SCC 73.

“31. In Commissioner of Customs and Central Excise v. Hongo India Private Limited and Anr. (2009) 5 SCC 791, a three-Judge Bench considered the scheme of the Central Excise Act, 1944 and held that High

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Court has no power to condone delay beyond the period specified in Section 35H thereof. The argument that Section 5 of the Limitation Act can be invoked for condonation of delay was rejected by the Court and observed:

“30. In the earlier part of our order, we have adverted to Chapter VI-A of the Act which

provides for appeals and revisions to various authorities. Though Parliament has specifically provided an additional period of 30 days in the case of appeal to the Commissioner, it is silent about the number of days if there is sufficient cause in the case of an appeal to the Appellate Tribunal. Also an additional period of 90 days in the case of revision by the Central

Government has been provided. However, in the case of an appeal to the High Court under

Section 35G and reference application to the High Court under Section 35H, Parliament has provided only 180 days and no further period for filing an appeal and making reference to the High Court is mentioned in the Act.

32. As pointed out earlier, the language used in Sections 35, 35B, 35EE, 35G and 35H makes the position clear that an appeal and reference to the High Court should be made within 180 days only from the date of communication of the decision or order. In other words, the language used in other provisions makes the position clear that the legislature intended the appellate authority to entertain the appeal by condoning the delay only up to 30 days after expiry of 60 days which is the preliminary limitation period for preferring an appeal. In the absence of any clause condoning the delay by showing sufficient cause after the prescribed period, there is complete exclusion of Section 5 of the Limitation Act. The High Court was, therefore, justified in holding that there was no power to condone the delay after expiry of the prescribed period of 180 days.

XXXXX XXXXX XXXXX XXXXX XXXXX

35. It was contended before us that the words “expressly excluded” would mean that there must be an express reference made in the special or local law to the specific provisions of the Limitation Act of which the operation is to be excluded. In this regard, we have to see the scheme of the special law

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which here in this case is the Central Excise Act. The nature of the remedy provided therein is such that the legislature intended it to be a complete code by itself which alone should govern the several matters provided by it. 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 therein cannot be called in aid to supplement the provisions of the Act. In our considered view, 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 scheme of the special law exclude their operation. In other words, the applicability of the provisions of the Limitation Act, therefore, is to be judged not from the terms of the Limitation Act but by the provisions of the Central Excise Act relating to filing of reference application to the High Court.

(emphasis supplied)

32. In view of the above discussion, we hold that Section 5 of the Limitation Act cannot be invoked by this Court for entertaining an appeal filed against the decision or order of the Tribunal beyond the period of 120 days specified in Section 125 of the Electricity Act and its proviso. Any interpretation of Section 125 of the Electricity Act which may attract applicability of Section 5 of the 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.”

23. Section 34 of the Arbitration and Conciliation Act, 1996 uses the expression ‘not thereafter’ while the provision under our consideration uses the terms ‘not exceeding’. Both these expressions use negative language. The intention is to divest the Courts/Tribunals from power to condone the delay beyond the prescribed period of limitation. Once such negative language is used, the application of provisions of Section 5 of the Limitation Act or such analogous provisions would not be applicable.

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24. The use of negative words has an inbuilt element of ‘mandatory’. The intent of legislation would be to necessarily implement those provisions as stated.

25. Introduction or alteration of words which would convert the mandatory into directory may not be permissible. Affirmative words stand at a weaker footing than negative words for reading the provisions as ‘mandatory’. It is possible that in some provision, the use of affirmative words may also be so limiting as to imply a negative. Once negative expression is evident upon specific or necessary implication, such provisions must be construed as mandatory. The legislative command must take precedence over equitable principle. The language of Section 16 of the NGT Act does not admit of any ambiguity, rather it is explicitly clear that the framers of law did not desire to vest the Tribunal with powers, specific or discretionary, of condoning the delay in excess of total period of 90 days. At this stage, we may also refer to Principle of Statutory Interpretation by Justice G.P. Singh, 13th Edition, where it is stated as under:

“(c) Use of negative words

Another mode of showing a clear intention that the provision enacted is mandatory, is by clothing the command in a negative form. As stated by

CRAWFORD: “Prohibitive or negative words can rarely, if ever, be directory. And this is so even though the statute provides no penalty for disobedience.” As observed by SUBBARAO, J.: “Negative words are clearly prohibitory and are ordinarily used as a legislative device to make a statute imperative”. Section 80 and Section 87-B of the Code of Civil Procedure, 1908; section 77 of the Railways Act, 1890; Section 15 of the Bombay Rent Act, 1947; section 213 of the Succession Act, 1925; section 5-A of the Prevention of Corruption Act, 1947; section 7 of the Stamp Act, 1899; section 108 of the Companies Act, 1965; section 20(1) of the Prevention of Food Adulteration Act, 1954; section 55 of the Wild Life Protection Act, 1972 (as amended in 1956); section 10A of Medical Council Act, 1965 (as amended in 1993) and similar other provisions have therefore, been construed as mandatory. A provision requiring ‘not less than three months’ notice’ is also for the same reason mandatory.

But the principle is not without exception. Section 256 of the Government of India, 1953, was construed by the Federal Court as directory though worded in

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the negative form. Directions related to solemnization of marriages though using negative words have been construed as directory in cases where the

enactments in question did not provide for the consequence that the marriage in breach of those directions shall be invalid. Considerations of general inconvenience, which would have resulted in holding these enactments mandatory, appear to have outweighed the effect of the negative words in reaching the conclusion that they were in their true meaning merely director. An interesting example, where negative words have been held to be directory, is furnished in the construction of section 25-F of the Industrial Dispute Act, 1947, where compliance of clause (c) has been held to be directory; although compliance of clauses (a) and (b) which are connected by the same negative words is understood as mandatory. These cases illustrate that the rule, that negative words are usually mandatory, is like any other rule subordinate to the context, and the object intended to be achieved by the particular

requirement.”

26. The provision of Section 16 of the NGT Act are somewhat similar to Section 34 of Arbitration and Conciliation Act, 1996. Thus, adopting an analogous reasoning, as was adopted in Chhattisgarh State Electricity Board (supra), we would have no hesitation in coming to the conclusion that we have no jurisdiction to condone the delay when the same is in excess of 90 days from the date of communication of the order to any person aggrieved.

27. Thus, the application must fail on this ground alone. We are of the considered view that the Tribunal has no jurisdiction to condone the delay of 19 days in filing the present appeal, the same being in excess of 90 days computed from the admitted date of communication of order, that is 2nd June, 2012.”

11. The above view of the tribunal was followed by different

Benches of this tribunal in the case of M/s. Krishna Stone

Crushers v. Haryana State Pollution Control Board, 2014 (1) All

India NGT Reporter (1) (Delhi) 42. In the case of Aradhana

Bhargav v. Ministry of Environment and Forests, 2013 All India

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NGT Reporter (2) (Bhopal) 1, besides following the law stated in

Nikunj Developers (supra), the bench also clearly held that a

special enactment, which specifically provides period of limitation

would exclude the general law of limitation. Similar view was also

expressed by another Bench of the Tribunal in the case of Ms.

Medha Patkar v. MoEF & Ors., 2013 All India NGT reporter (Delhi)

285.

12. In all the above cases, the consistent view of the tribunal has

been that the tribunal has no jurisdiction to condone the delay

beyond the period of 90 days and it is in fact the very filing of the

appeal that is impermissible in terms of proviso to Section 16 of

the NGT Act. Admittedly, in the present case, the delay in filing

the appeal is beyond 90 days i.e. the total delay being 125 days.

Thus, this tribunal has no jurisdiction to entertain the appeal

after the expiry of the special limitation period provided under the

relevant provisions. We are unable to find any substance in the

submissions of the learned counsel appearing for the appellant,

that the judgments of the tribunal do not state the correct law

and/or are not applicable to the facts of the present case. We

have no hesitation in rejecting the said contention raised on

behalf of the appellant.

13. Having said so, we would still proceed to discuss the other

contentions raised on behalf of the appellant before the tribunal.

It is argued that the language of Section 16 of the NGT Act does

not expressly or by necessary implication exclude the provisions

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of Sections 4 to 24 (inclusive) of the Limitation Act and thus,

squarely fall within the ambit of Section 29(2) of the Limitation

Act. A limitation period is the period of time prescribed by law

within which a person has to approach the prescribed

forum/court. The period of limitation is imposed by statutes.

There are different limitation periods for different types of cause of

action. The period of limitation controls the right of a party to

approach the court or tribunal. It also places an obligation upon

the court to examine if the claim arising before it, is barred by law

of limitation. For instance, the court can reject a plaint inter alia

on the ground that it is barred by any law in terms of Order VII

Rule 11 of the Code of Civil Procedure, 1908.

14. The policies underlying the law of limitation are ultimately

based on justice and convenience and an individual should not

live under the threat of a possible action for an indeterminate

period since it would be unjust. Prescription of limitation takes in

its ambit fairness and expeditious trial. Indefinite uncertainty in

relation to bringing an action would be opposed to public policy.

This concept is applicable with great emphasis to the

environmental jurisprudence where the project proponent may

invest large amount for making its project operational. Challenge

to such project on the ground that it does not have any

Environmental Clearance or otherwise, has to be within a

specified time, as otherwise it would not only be unfair but also be

seriously prejudicial to the interest of a party. Vigilance in the

20

pursuit of rightful claims should be encouraged so that these are

ethical or rational justifications for the law of limitation.

15. We have already noticed that NGT Act is a self-contained

code in itself. It provides the forum/procedure that has to be

adopted, the limitation period within which the jurisdiction of the

tribunal gets invoked, and the power and functions of the tribunal

in explicit terms. As a self-contained code, it does not admit of

any ambiguity with regard to application of other laws in the

adjudicatory process of the tribunal. The legislature in its wisdom

has worded provisions of Section 16 of the NGT Act so as to

prohibit even filing of an appeal beyond a total period of 90 days.

The language of these provisions clearly demonstrates the

legislative intendment on excluding application of general law of

limitation to this special statute. Such a view would also find

clear support from the language of Section 29 (2) of the Limitation

Act which postulates that when a special law prescribes for any

period of limitation different from the period prescribed in the

Schedule to the Limitation Act and the language of the provisions

of such special law is indicative of express or implied exclusion,

then Sections 4 to 24 (inclusive) of the Limitation Act shall apply

only and to the extent they are not excluded by the Special Law.

The cumulative reading of Section 16, particularly, the proviso

and Section 29 of the Limitation Act leaves no doubt in mind that

legislature had clearly intended to exclude the application of the

general law of limitation provided under the Limitation Act from

21

the NGT Act. Proviso to Section 16 of the NGT Act uses the

expression ‘allow it to be filed under this Section within a further

period not exceeding 60 days’. The use of the negative language

‘not’ in the proviso makes it mandatory that appeals cannot be

filed after the expiry of total period of 90 days and thus, there is

lack of jurisdiction of the tribunal to condone the delay beyond a

total period of 90 days. The framers of law, where, in their wisdom

wanted to give a benefit and/or restrict or place embargo on

exercise of a right, have done so by using specific language in

Section 16 of the NGT Act. A special concession is made available

to an appellant to file an appeal beyond 30 days, the initial period

of limitation prescribed under that provision. The framers there

put a specific embargo on the power of the Tribunal not to

entertain an appeal after the expiry of a further period of 60 days.

Thus the legislature, by necessary implication excluded the

application of general law of limitation from the provisions of the

NGT Act. At this stage we may refer to the judgment of the

Supreme Court in the case of Hukumdev Narain Yadav v. Lalit

Narain Mishra, (1974) 2 SCC 133, where the Supreme Court was

dealing with the provisions of the Representation of the Peoples’

Act, 1951 and the applicability of the provisions of the Limitation

Act. The Court in relation to the interpretation of the language of

Section 29(2) of the Limitation Act held as:

“17. What we have to determine is whether the provisions of this section are expressly excluded in the case of an election petition. It is contended before us that the words

22

“expressly excluded” would mean that there must be an express reference made in the special or local law to the specific provisions of the Limitation Act of which the operation is to be excluded. As usual the meaning given in the Dictionary has been relied upon, but what we have to see is whether the scheme of the special law, that is in this case the Act, and the nature of the remedy provided therein are such that the Legislature intended it to be a complete code by itself which alone should govern the several matters provided by it. 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 therein cannot be called in aid to supplement the provisions of the Act. In our view, even in a case where the special law does not exclude the provisions of Section 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 scheme of the special law exclude their operation.”

16. From the above dictum of the Supreme Court of India, it is

clear that the exclusion can be by explicit language or even by

necessary implication. It will depend upon the scheme of the Act,

it being a self-contained code and what is the intent of legislature?

Furthermore, in the case of Union of India v. Popular Construction

& Co., AIR 2001 SC 4010, the Supreme Court held that the word

‘excluded’ appearing in Section 29(2) of the Act would also include

‘exclusion by necessary implication’. In the case of Gopal Sardar

v. Karuna Sardar, (2004) 4 SCC 252, the Supreme Court read

exclusion by implication, where some of the provisions in West

Bengal Land Reforms Act, 1955, provided for giving benefit of

Section 5 of the Limitation Act but Section 8 of the said Act did

not make such a provision. The court took the view that

23

legislature consciously excluded the application of Section 5 of the

Limitation Act.

17. Now let us examine the principles or relevant considerations

that would help in determining the issue whether the legislature

while framing a particular statute intended express, implied or no

exclusion of the general law of limitation. It is difficult to state

such principles exhaustively but inter alia the following would be

the relevant considerations:

a) Whether the statute in question is a self-contained code and

provides for a special forum or Tribunal?

b) Whether the statute provides for special limitation and

expressly or impliedly excludes the applicability of general

law of limitation?

c) Whether the scheme and object of the statute and the

relevant provisions of the statute require the limitation

prescribed thereunder the special law to prevail over the

general law of limitation?

d) Whether the cumulative reading of the provisions of the

special statute in back drop of the underlying object of the

statute makes the provisions mandatory and/or directory?

If we apply the above principles to the provisions of the NGT

Act, then, it is clear that NGT Act is a self-contained code, the

tribunal is a special tribunal with defined powers and functions,

24

with a prescribed procedure and unambiguous provisions of

limitation, clearly stating exclusion of general law of limitation.

18. Now, we may refer to some of the provisions under different

statutes where the language used is para materia or substantially

similar to the provisions of Section 16 of the NGT Act and the

interpretation given by the higher judiciary to such provisions.

Section 125 of the Electricity Act, 2003 (hereafter ‘the Electricity

Act’) reads as under:

“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;

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.”

19. The bare reading of the above provision shows that power to

condone the delay is vested with the Tribunal under that Act but

the said appeal cannot be permitted to be filed before the

appellate tribunal beyond the period of 60 days. The expression

used in the proviso to the section is ‘allow it to be filed within a

further period not exceeding 60 days.’ This provision came up for

consideration before the Supreme Court in the case of

Chhattisgarh State Electricity Board v. Central Electricity

Regulatory Commission,

(2010) 5 SCC 23, where the Supreme

Court held that the appellate tribunal had no jurisdiction to

25

entertain the appeal beyond the prescribed period of 120 days

specified in Section 125 of the Electricity Act and Section 5 of the

Limitation Act was not applicable. It was held that the proviso to

Section 125 of the Electricity Act and the interpretation attracting

the application of Section 5 of the 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.

20. In the case of Singh Enterprises v. Commissioner of Central

Excise, (2008) 3 SCC 70, the Supreme Court was concerned with

Section 35 of the Central Excise Act, 1944. The proviso to Section

35(1) empowers the Commissioner to allow appeal to be presented

within a further period of 30 days. The Supreme Court held that

“proviso to sub-Section (1) of Section 35 makes the provision

crystal clear that appellate authority has no power to allow the

appeal to be presented beyond the period of 30 days. The

language used makes the position clear that the legislature

intended the appellate authority to entertain the appeal by

condoning delay only up to 30 days after the expiry of 60 days

which is the normal period for preferring appeal. Therefore, there

is complete exclusion of Section 5 of the Limitation Act. The

Commissioner and the High Court were, therefore, justified in

holding that there was no power to condone the delay after the

expiry of 30 days period.”

26

21. The Supreme Court with reference to the language of the

above provisions declared that there was legislative intent to

exclude the application of provision of the Limitation Act by

necessary implication. However, even in the cases where specific

exclusion was not evident from the language of the provision but

there was clear absence of the “delay-condoning sections” of the

Limitation Act in the special statute, there also the Court had

taken the view that non-mentioning of such specific provisions

would amount to exclusion thereof.

22. In the case of Commissioner of Customs, Central Excise,

Noida v. Punjab Fibers Ltd., Noida, (2008) 3 SCC 73, the Supreme

Court while dealing with the provisions of Section 35(H)(1) of the

Central Excise Act, 1944, where the section only provides a

specific limitation for filing of an appeal, held that the appellate

authority has no power to allow the appeal to be presented after

the prescribed period of 180 days of the date upon which he was

served with the notice. The court while reiterating the principles

stated in Singh Enterprises (supra) further held that logic of

Section 5 of the Limitation Act cannot be availed for condonation

of delay as there was exclusion of Limitation Act. In the case of

Smt. Hetal Alpesh Muchhala v. Adityesh Educational Institute and

Ors., (2009) 152 CompCas 75 (Bom), the High Court of Bombay

while dealing with the proviso to Section 10(F) of the Companies

Act, 1956, which uses the expression, ‘not exceeding 60 days’, the

contention that the benefit of Section 5 of the Limitation Act, 1963

27

can be granted and that an appeal could be entertained even after

the prescribed period of 60 days that there was clear exclusion of

Section 5 of the Limitation Act and held as under:

“20. The words used in the proviso to Section 10F of the Companies Act, 1956, are “not exceeding 60 days” thereby clearly prescribing the time limit of only 60 days, in addition to the initial period of 60 days allowed under Section 10F of the Companies Act, 1956, to enable a party to file an appeal. The proviso clearly shows that the power vested in the court to condone delay on sufficient cause being shown is directory and subject to the discretion vested in the court. However, the maximum period to the extent of which such delay is capable of being condoned is mandatorily prescribed and not open to exercise of any discretion. The words “not exceeding” cannot be given any other meaning except “not more than” or “not beyond” or “not thereafter”. Therefore, in my view, the words “not exceeding 60 days” would amount to an express exclusion within the meaning of Section 29(2) of the Limitation Act, 1963 and would therefore bar the application of Section 5 of the Limitation Act to Section 10F of the Companies Act, 1956. To hold that the court could entertain an application to set aside the decision/order passed by the Company Law Board beyond the extended period under the proviso, to Section 10F of the Companies Act, 1956, would render the phrase “not exceeding 60 days” wholly otiose.”

23. In the other case of Mer Ramda Vejunandbhai and etc. v.

Hardashbhai Parbatbhai and Ors, AIR 1992 Gujarat 122, the

Court while dealing with the provisions of Motor Vehicles Act

1988, which provides due limit of 12 months for filing claim under

the Act, held that provisions of Section 5 of the Limitation Act,

would not be applicable as the legislature has expressly excluded

the same by special law i.e. proviso to Section 163 of the Motor

Vehicle Act, 1988.

28

24. From the above dictum declared by the Supreme Court of

India, it is clear that wherever the words like ‘not exceeding’, ‘not

more than’, ‘not beyond’ or ‘not thereafter’ are used in the

provisions of limitation under different statutes, a view has been

taken that the general provisions of the Limitation Act would

stand excluded. Even if, there was no specific provision expressly

providing exclusion, the Courts have read exclusion into such

provisions on the principle of implied exclusion. In the case before

us, the Learned Counsel for the appellant, while contending that

there was no express or implied exclusion in the language of the

provisions of the NGT Act and that the benefit of the provisions of

the Limitation Act would be available to the appellant placed

relevance upon the judgment of the Supreme Court in the case of

Mangu Ram v. Municipal Corporation Of Delhi, (1976) 1 SCC, 392,

wherein the Supreme Court was considering the provisions of

Section 417(4) of Criminal Procedure Code, 1898 (378 of CrPC,

1973) which provides that no special leave to appeal from the

order of acquittal shall be entertained by the High Court where

the complainant is a public servant and 60 days in every other

case, computed from the date of that order of acquittal. The

question which the Court was called upon to decide was, whether

the provisions of Section 5 of the Limitation Act would be

attracted to the benefit of appellant or not and whether Section

29(2)(b) of the Limitation Act, 1908 would cover such a case.

Answering the above question in the affirmative, the Supreme

29

Court held that the provision of Section 5 were applicable and

while distinguishing the case of Kaushalya Rani v. Gopal Singh,

AIR 1964 SC 260 the Court held as under:

“7. It is only if the special or local law expressly excludes the applicability of Section 5, that it would stand displaced. Here, as pointed out by this Court in Kaushalya Rani’s case, the time limit of sixty days laid down in Sub-section (4) of Section 417 is a special law of limitation and we do not find anything in this special law which expressly excludes the applicability of Section 5. It is true that the language of Sub-section (4) of Section 417 is mandatory and compulsive, in that it provides in no uncertain terms that no application for grant of special leave to appeal from an order of acquittal shall be entertained by the High Court after the expiry of sixty days from the date of that order of acquittal. But that would be the language of every provision prescribing a period of limitation. It is because a bar against entertainment of an application beyond the period of limitation is created by a special or local law that it becomes necessary to invoke the aid of Section 5 in order that the application may be entertained despite such bar. Mere provision of a period of limitation in howsoever peremptory or imperative language is not sufficient to displace the applicability of Section 5. The conclusion is, therefore, irresistible that in a case where an application for special leave to appeal from an order of acquittal is filed after the coming into force of the Limitation Act, 1963, Section 5 would be available to the applicant and if he can show that he had sufficient cause for not preferring the application within the time limit of sixty days prescribed in Sub-section (4) of Section 417, the application would not be barred and despite the expiration of the time limit of sixty days, the High Court would have the power to entertain it.”

We may also notice here that Kaushalya Rani (supra) was a

Three Judge Bench judgment of the Supreme Court while Mangu

Ram (supra) was a Two Judge Bench judgment. In Mangu Ram,

the Bench had distinguished Kaushalya Rani also on the ground

that it dealt with Section 5 and 29 (2) (b) of the Limitation Act of

30

1908, while Mangu Ram was dealing with Section 5 and 29 (2) of

the Limitation Act of 1963 and there was not only linguistical

distinction between these provisions but they varied in substance

as well. Section 29 (2)(b) had dealt with specific application of

Section 5 of the Limitation Act of 1908, while Section 29 (2) of the

Limitation Act of 1963 dealt with Section 4 to 24, both inclusive,

of the Limitation Act of 1963.

25. The other judgment brought to the notice of the Tribunal is

Mukri Gopalan v. Cheppilat Puthanpurayil Aboobacker, (1995) 5

SCC 5, where another Two Judge Bench of the Supreme Court

dealing with the provisions of Section 18 of the Kerala Buildings

(Lease and Rent Control) Act, 1965 (for short ‘the Kerala Rent

Control Act’) and Section 29 (2) and 5 of the Limitation Act of

1963 took the view that the advantage of Section 5 of Limitation

Act would be applicable to such proceedings. Section 18 of the

Kerala Rent Control Act, provided for an appeal to the Appellate

Authority within 30 days from the date of the impugned order. It

further provided that the period taken to obtain certified copy of

the order shall be excluded. The Court held that the two

requirements stated in Section 29 (2) of the Limitation Act were

satisfied and thus it would follow that the provisions of Section 5

would be applicable and come to the aid of appellant in that case

if he has shown sufficient cause.

26. The above referred two judgments in the case of Mangu Ram

(supra) and Mukri Gopalan (supra) do not state or enunciate the

31

correct exposition of law for variety of reasons. Amongst others,

firstly, these judgments do not consider earlier judgments of the

Supreme Court even by larger Benches. This would attract the

principle of stare decisis. Secondly, the language of the provisions

that fall for consideration of the Supreme Court in these two

cases is completely distinct and different from the language of the

provision which came up for discussion before the Supreme Court

in other cases. They are in any case not in parity with the

language of Section 16 of the NGT Act. On a plain reading of the

provisions with which the Court was concerned in the above two

cases, the language of the relevant provisions did not either

expressly or impliedly provide for an exclusion of the Limitation

Act. Lastly, these cases came to be considered by the Supreme

Court itself, even by the larger Benches subsequently and more

particularly in the case of Gopal Sardar (supra) where in

paragraph 14 and 15 of the judgment, the Supreme Court

deliberated upon these judgments and did not concur with the

view. Same was also considered in the case of Chhattisgarh State

Electricity Board (supra) where in paragraph 33 of the case of

Mukri Gopalan (supra) was noticed by the Supreme Court,

however, the view expressed in that judgment was not followed.

The proposition of law has been clearly stated by the Supreme

Court in the case of Kaushalya Rani (supra), Hukum Dev Narayan

Yadav (supra), Vidyacharan Shukla v. Khubchand Baghel, AIR

1964 SC 1099 (Constitution Bench) and Chhattisgarh State

32

Electricity Board (supra) and The Commissioner of Sales Tax, U.P.,

Lucknow v. Parson Tools and Plants, (1975) 4 SCC 22.

27. In Parson Tools and Plants (supra), the Court observed that

where the legislature clearly declares its intent in the scheme and

language of the statute, it is the duty of the Court to give full

effect to the same, without scanning its wisdom and policy and

without engrafting, adding or implying anything which is not

congenial to or consistent with such expressed intent of the law-

giver. In the case of Vidya Charan Shukla (supra), the Bench of

the Supreme Court accepted the application of the principle of

implied exclusion. The concept of ‘complete code’ was applied by

the Supreme Court in Hukum Dev Narayan Yadav (supra) case,

where the Court discarded the dictionary meaning of the word

‘expressly excluded’ and accepted the doctrine of implied

exclusion.

28. In the case of Union of India v. M/s Popular Construction

Company (supra), the Supreme Court was concerned with the

provisions of Section 34 of the Arbitration and Conciliation Act,

1996 (for short ‘Arbitration and Conciliation Act’). The Learned

Single Judge of the High Court rejected the application on the

ground that it was barred by time, which view was upheld by the

Division Bench of the High Court. Proviso to Section 34(3) of the

Arbitration Act provided that if the Court was satisfied that

appellant was prevented by sufficient cause from making the

application “within the prescribed period of three months, it may

33

entertain the application within a further period of 30 days, but

not thereafter”. The Court held as under:

“12. As far as the language of Section 34 of the 1996 Act is concerned, the crucial words are ‘but not thereafter’ used in the proviso to sub-section (3). In our opinion, this phrase would amount to an express exclusion within the meaning of Section 29(2) of the Limitation Act, and would therefore bar the application of section 5 of that Act. Parliament did not need to go further. To hold that the Court could entertain an application to set aside the Award beyond the extended period under the proviso, would render the phrase ‘but not thereafter’ wholly otiose. No principle of interpretation would justify such a result.”

29. We may also refer to the case of Commissioner of Customs &

Central Excise v. Hongo India (P) Ltd., 2009 (5) SCC 791, where the

Court while considering the provisions of Section 35(H) of the

Central Excise Act, 1944 and applicability of Section 5 of the

Limitation Act to the applications filed beyond the prescribed

period of limitation, repelled the contention that Section 5 would

be attracted and held as under:

“31. In this regard, it is useful to refer to a recent decision of this Court in Punjab Fibres Ltd. The Commissioner of Customs, Central Excise, Noida was the appellant in this case. While considering the very same question, namely, whether the High Court has power to condone the delay in presentation of the reference under Section 35H(1) of the Act, the two-Judge Bench taking note of the said provision and the other related provisions following Singh Enterprises v. CCE6 concluded that: (Punjab Fibres Ltd. case1, SCC p. 75, para 8)

“the High Court was justified in holding that there was no power for condonation of delay in filing reference application.”

32. As pointed out earlier, the language used in Sections 35, 35B, 35EE, 35G and 35H makes the position clear

34

that an appeal and reference to the High Court should be made within 180 days only from the date of communication of the decision or order. In other words, the language used in other provisions makes the position clear that the legislature intended the appellate authority to entertain the appeal by condoning the delay only up to 30 days after expiry of 60 days which is the preliminary limitation period for preferring an 18 appeal. In the absence of any clause condoning the delay by showing sufficient cause after the prescribed period, there is complete exclusion of Section 5 of the Limitation Act. The High Court was, therefore, justified in holding that there was no power to condone the delay after expiry of the prescribed period of 180 days.

35. It was contended before us that the words “expressly excluded” would mean that there must be an express reference made in the special or local law to the specific provisions of the Limitation Act of which the operation is to be excluded. In this regard, we have to see the scheme of the special law here in this case is Central Excise Act. The nature of the remedy provided therein are such that the legislature intended it to be a complete Code by itself which alone should govern the several matters provided by it. 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 therein cannot be called in aid to supplement the provisions of the Act. In our considered view, 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 scheme of the special law exclude their operation. In other words, the applicability of the provisions of the Limitation Act, therefore, to be judged not from the terms of the Limitation Act but by the provisions of the Central Excise Act relating to filing of reference application to the High Court.”

Having noticed various judgments of the Supreme Court and

the High Courts for and against the proposition, the undisputed

principle that emerges and which has been consistently followed

35

by the Supreme Court, is that a mere provision of the period of

limitation in the statute is not sufficient to displace the

applicability of the provisions of the Limitation Act. But where the

act is a complete code in itself and where the scheme of the Act

and the language of the relevant provisions expressly or impliedly

exclude the applicability of the general law of limitation, then

such exclusion is accepted by the Court. Not only the scheme of

the NGT Act, which is a self contained code, clearly demonstrates

legislative intent for exclusion of the general law of limitation, but

specifically gives precedence to the provisions of the NGT Act in

terms of Section 33 of the NGT Act, which clearly means that the

provisions of limitation contained in the NGT Act would prevail

and by necessary implication would exclude the application of the

provisions of the Limitation Act. Thus, it squarely satisfies the

ingredients of Section 29(2) of the Limitation Act.

30. It is next contended on behalf of the appellant that since no

penal consequences for default in not filing application within 90

days have been provided under the NGT Act, it should be

construed that the legislature did not intend to exclude the

application of the provisions of the Limitation Act from the NGT

Act. Even this contention of the appellant does not impress us.

We have already referred to the relevant provisions of the NGT Act

in relation to limitation. The consequences of not filing an appeal

within the prescribed period of limitation are inbuilt in proviso to

Section 16. It is the very filing of the appeal under Section 16 of

36

the NGT Act that stands barred if it is brought beyond the period

of 90 days. The language of the proviso clearly imposes a duty

upon the Tribunal not to permit filing of the appeal if the same is

filed beyond the further period of 60 days.

31. In terms of the proviso to Section 16 of the NGT Act, the twin

consequences that flow from the very language thereof are that

firstly, it takes away the right of a party to file an appeal on the

expiry of 90 days and simultaneously, it vests a valuable right in

the opposite party. Secondly, it takes away the very jurisdiction of

the Tribunal to entertain or allow filing of appeal after the expiry

of the prescribed period. None of the provisions vest jurisdiction in

the Tribunal to condone the delay after the expiry of 90 days, be

there a sufficient cause or not for filing the appeal after that

period. In the light of this, the contention that the section does

not provide for any civil consequences can hardly be accepted. To

examine the consequences of a default in a provision, the rule of

plain construction should normally be applied. If upon bare

reading of the provision consequences are clear and such

consequences are in line with the object and purpose of the Act,

then there is no occasion for the Court or the Tribunal to read

words into the provisions which are non-existent. Wherever the

language of a statute, in its ordinary meaning and grammatical

construction, leads to a manifest contradiction of an apparent

purpose of the enactment, there it may be advisable to modify the

37

meaning of the words. The Court or the Tribunal would adopt an

interpretation which is reasonable and sensible rather than that

which is none of those things [Sri Nasiruddin v. State Transport

Appellate Tribunal, AIR (1976) SC 331]. Often applied principle of

interpretation is that where the statutory provision is plain and

unambiguous, the Court shall not interpret the same in a

different manner only because of harsh consequences arising

therefrom [Refer E. Palanisamy v. Palanisamy (D) by Lrs. and Ors.,

(2003) 1 SCC 123]. Mere inconvenience or some hardship has not

been accepted as a relevant consideration for giving different

meaning to the provision which otherwise is clear and

unambiguous on its plain reading. Limitation is a statute of

repose. It ordinarily bars a remedy, but does not extinguish a

right. Ordinarily, the words of a statute have to be given their

strict grammatical meaning and equitable considerations are out

of place, particularly in provisions of law limiting the period of

limitation for filing suits or legal proceedings. In General Accident

and Life Assurance Corporation Ltd. v. Janmahomed Abdul Rahim,

AIR 1941 PC 6, the Supreme Court held as under:

“A limitation Act ought to receive such a construction as the language in its plain meaning imports…… Great hardship may occasionally be caused by statutes of limitation in cases of poverty, distress and ignorance of rights, yet the statutory rules must be enforced according to their ordinary meaning in these and other like cases.”

32. The provisions providing for period of limitation cannot be so

liberally construed so as to not only deprive the right to other

38

party to whom a benefit has accrued, but even frustrate the very

purpose of such provision. In the case of P.K. Ramachandran v.

State of Kerala & another, AIR 1998 SC 2276, the Supreme Court

held as under:

“6. Law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribe and the Courts have no power to extend the period of limitation on equitable grounds. The discretion exercised by the High Court was, thus, neither proper nor judicious. The order condoning the delay cannot be sustained. This appeal, therefore, succeeds and the impugned order is set aside. Consequently, the application for condonation of delay filed in the High Court would stand rejected and the Miscellaneous First Appeal shall stand dismissed as barred by time. No costs.”

33. Normally, the statutory period of limitation provided in a

provision like under the NGT Act, is un-extendable by recourse to

provisions of Section 5 of the Limitation Act. While applying the

provisions of limitation, besides applying the rule of strict

construction, the Tribunal has to keep a balance between rival

rights of the parties; appellant who has lost his right or whose

remedy is barred by time and other to whom a benefit has

accrued as a result of loss of right of the first. At this stage, it

may be appropriate to make reference to a recent judgment of the

Supreme Court, in the case of Esha Bhattacharjee v. Managing

Committee of Raghunathpur Nafar Academy and others, Civil

Appeal Nos. 8183-8184 of 2013 (Arising out of SLP (C) Nos.

24868-24869 of 2011), where the Court was primarily concerned

with the condonation of delay in filing an appeal. The Court

39

adverted itself towards the respective rights and obligations of the

parties and held as under:

“26. The law of limitation is a substantive law and has definite consequences on the right and obligation of a party to arise. These principles should be adhered to and applied appropriately depending on the facts and circumstances of a given case. Once a valuable right has accrued in favour of one party as a result of the failure of the other party to explain the delay by showing sufficient cause and its own conduct, it will be unreasonable to take away that right on the mere asking of the applicant, particularly when the delay is directly a result of negligence, default or inaction of that party. Justice must be done to both parties equally. Then alone the ends of justice can be achieved. If a party has been thoroughly negligent in implementing its rights and remedies, it will be equally unfair to deprive the other party of a valuable right that has accrued to it in law as a result of his acting vigilantly.

vii) The concept of liberal approach has to encapsule the conception of reasonableness and it cannot be allowed a totally unfettered free play.”

In light of these principles, the contention of the appellant

that the National Green Tribunal is the forum to which first

appeal is provided against the orders specified in Section 16 of the

NGT Act and that these provisions should be construed liberally,

can hardly be accepted. Also there is no question of depravation of

right to appellant. The right of appeal is a statutory right and can

be exercised within the prescribed period of limitation. If a party

chooses to sleep over its right and permits the remedy available to

it to become barred by time, then it can hardly be heard to

contend that it has lost a valuable right and the result is unjust.

Such interpretation would be a normal corollary of application of

rule of ‘plain construction’. This would be in line with the object

40

and purpose of the Act and would also subserve the cause of

justice. This interpretation would not preclude any litigant from

taking recourse to an appropriate remedy prescribed in the Act

and in accordance with law.

34. The provisions of Section 16 of the NGT Act do not admit of

any ambiguity or absurdity. It clearly provides the period of

limitation and the consequences of default for not filing the appeal

within the prescribed period of limitation. We do not see any

reason to give any other interpretation to the provisions of Section

16 of the NGT Act than the one which the legislature in its

wisdom has expressed in plain and unambiguous terms.

35. Lastly, we shall deal with the contention of the appellant that

the provisions of Section 16 of the NGT Act prescribing limitation

are ‘directory’ and not ‘mandatory’, therefore, rule of ‘liberal

construction’ would justify recourse to the provisions of the

Limitation Act in condoning the delay even beyond the prescribed

period of limitation (90 days). In support of such contention,

reference is made to the provisions of Order VIII Rule 1 of the

Code of Civil Procedure, 1908, where language para materia to

Section 16 of the NGT Act has been used and has been held to be

‘directory’ in various cases. To examine the merit of this

contention, it is necessary for us to explain the distinction

between the ‘mandatory’ and ‘directory’ in law.

41

36. ‘Mandatory’ and ‘directory’ are two parallel expressions

which are incapable of being used synonymously or alternatively

for each other. What is ‘mandatory’ cannot be ‘directory’ and vice-

versa. With the development of law, the distinction between these

expressions has become finer but not clearly definite in terms.

Whereas ‘mandatory’ provisions should be fulfilled and obeyed

exactly, substantial compliance is all that is necessary with the

provisions of a ‘directory’ enactment. Even the question of

prejudice becomes relevant while examining the distinction

between these two expressions. Describing this distinction in his

book ‘Principle of Statutory Interpretation’, 13th Edition, 2012

(page 393 to Page 396), Justice G.P. Singh, referring to various

case laws on the subject noticed as follows:

“6. MANDATORY AND DIRECTORY PROVISIONS

(a) General

The study of numerous cases on this topic does not lead to formulation of any universal rule except this that language alone most often is not decisive, and regard must be had to the context, subject-matter and object of the statutory provision in question, in determining whether the same is mandatory or directory. In an oft-quoted passage LORD CAMPBELL said: “No universal rule can be laid down as to whether mandatory enactments shall be considered directory only or obligatory with an implied nullification for disobedience. It is the duty of Courts of justice to try to get at the real intention of the Legislature by carefully attending to the whole scope of the statute to be considered”. As approved by the Supreme Court; “The question as to whether a statute is mandatory or directory depends upon the

42

intent of the Legislature and not upon the language in which the intent is clothed. The meaning and intention of the Legislature must govern, and these are to be ascertained not only from the phraseology of the provision, but also by considering its nature, its design, and the consequences which would follow from construing it the one way or the other”. “For ascertaining the real intention of the Legislature”, points out SUBBARAO, J. “the court may consider inter alia, the nature and design of the statute, and the consequences which would follow from

construing it the one way or the other; the impact of other provisions whereby the necessity of complying with the provisions in question is avoided; the circumstances, namely, that the statute provides for a contingency of the non-compliance with the provisions; the fact that the non-compliance with the provisions is or is not visited by some penalty; the serious or the trivial consequences, that flow there from; and above all, whether the object of the legislation will be defeated or furthered”. If object of the enactment will be defeated by holding the same directory, it will be construed as mandatory, whereas if by holding it mandatory serious general inconvenience will be created to innocent persons without very much furthering the object of enactment, the same will be construed as directory. But all this does not mean that the language used is to be ignored but only that the prima facie inference of the intention of the Legislature arising from the words used may be displaced by considering the nature of the enactment, its design and the consequences flowing from alternative constructions. Thus, the use of the words ‘as nearly as may be’ in contrast to the words ‘at least’ will prima facie indicate a directory requirement, negative words a mandatory requirement ‘may’ a directory requirement and ‘shall’ a mandatory requirement.

If a provision is mandatory an act done in breach thereof will be invalid, but if it is directory the act will be valid although the non-compliance

43

may give rise to some other penalty if provided by the statute.”

37. One of the most often quoted distinction between a

mandatory and a directory provision is that failure to comply with

a ‘directory’ provision does not invalidate underlining proceedings

unless complaining party can show serious prejudice, while non-

compliance of ‘mandatory’ statute would not necessarily require

presence of prejudice. The Supreme Court in the case of Hari

Vishnu Kamath v. Syed Ahmad Ishaque and Ors., AIR (1955) SC

233, held “the practical bearing of the distinction between a

provision which is ‘mandatory’ and one which is ‘directory’ is that

the former must be strictly observed, while in the case of latter it

is sufficient that it is substantially complied with”.

38. The Supreme Court in the case of Fairgrowth Investments

Ltd. v. The Custodian, (2004) 11 SCC 472, was concerned with the

provisions of the Special Courts (Trial of Offences Relating to

Transactions in Securities) Act, 1992. Section 4(2) of the said Act

permitted any person aggrieved by a notification issued under

Sub-section (2) of Section 3 of the said Act, to file a petition

objecting to the notification within 30 days of the issuance of the

notification. Section 10(3) of the same Act provided that an appeal

to the Supreme Court would lie from any judgment, sentence or

order passed by the Special Court within a period of 30 days from

the date of such judgment or Order. Further, the proviso to

Section 10(3) empowered the Supreme Court to entertain the

44

appeal even after the expiry of 30 days, if the court was satisfied

that sufficient cause has been shown in filing the appeal

belatedly. Section 13 of the said Act provided that provisions of

the Act would have overriding effect over other laws. In light of

these provisions, the Supreme Court while rejecting the argument

that no penal consequences were provided and that Section 4(2)

did not exclude the application of the provisions of the Limitation

Act, held that under Section 4(2), the Special Court was not

vested with the power to condone the delay and, therefore,

provisions of Section 4 (2) of the Act could not be said to be

‘directory’. The Court held that Section 29 (2) of the Limitation Act

did not apply to the proceedings under the special law. The Court

while following the principle stated in Gopal Sardar (supra) held

as under:

“9. We are of the view that the provision prescribing a time limit for filing a petition for objection under Section 4(2) of the Act is mandatory in the sense that the period prescribed cannot be extended by the Court under any inherent jurisdiction of the Special Court. Prescribed periods for initiating or taking steps in legal proceedings are intended to be abided by, subject to any power expressly conferred on the court to condone any delay. Thus the Limitation Act 1963 provides for different periods of limitation within which suits, appeals and applications may be instituted or filed or made as the case may be. It also provides for exclusion of time from the prescribed periods in certain cases, lays down bases for computing the period of limitation prescribed and expressly provides for extension of time under Section 5 in respect of certain proceedings. If the periods prescribed were not mandatory, it was not necessary to provide for exclusion or extension of time in certain circumstances nor would the method of computation of time have any meaning.”

45

39. Still in the case of State Bank of India v. B.S. Agricultural

Industries, (2009) 5 SCC 121, the Supreme Court while dealing

with the Section 24A of the Consumer Protection Act, 1986, held

that the expression ‘shall not admit a complaint if it is filed after

two years from the date on which the cause of action has arisen’,

is sort of a legislative command to the forum to examine and

ensure that the complaint is filed within the prescribed time, thus

withholding the rule of plain construction.

40. At this stage, it will be appropriate to refer to the judgment

of the Supreme Court in the case of May George v. Special

Tahsildar and Ors., (2010) 13 SCC 98, where the Court stated the

precepts which would be normally examined by the Courts for

determining whether the provision is ‘mandatory’ or ‘directory’.

The Court held as under:

“(a) While determining whether a provision is mandatory or directory, somewhat on similar lines as afore-noticed, the Court has to examine the context in which the provision is used and the purpose it seeks to achieve;

(b) To find out the intent of the legislature, it may also be necessary to examine serious general inconveniences or injustices which may be caused to persons affected by the application of such provision;

(c) Whether the provisions are enabling the State to do some things and/or whether they prescribe the methodology or formalities for doing certain things;

(d) As a factor to determine legislative intent, the court may also consider, inter alia, the nature and design of the statute and the consequences which would flow from construing it, one way or the other;

46

(e) It is also permissible to examine the impact of other provisions in the same statute and the consequences of non-compliance of such provisions;

(f) Physiology of the provisions is not by itself a determinative factor. The use of the words ‘shall’ or ‘may’, respectively would ordinarily indicate imperative or directory character, but not always.

(g) The test to be applied is whether non-compliance with the provision would render the entire proceedings invalid or not.

(h) The Court has to give due weight age to whether the interpretation intended to be given by the Court would further the purpose of law or if this purpose could be defeated by terming it mandatory or otherwise.

41. The distinction between mandatory and directory provisions

is a well accepted norm of interpretation. The general rule of

interpretation would require the word to be given its own meaning

and the word ‘shall’ would be read as ‘must’ unless it was

essential to read it as ‘may’ to achieve the ends of legislative

intent and understand the language of the provisions. It is

difficult to lay down any universal rule, but wherever the word

‘shall’ is used in a substantive statute, it normally would indicate

mandatory intent of the legislature.

42. Crawford on ‘Statutory Construction’ has specifically stated

that language of the provision is not the sole criteria; but the

Courts should consider its nature, design and the consequences

which could flow from construing it one way or the other.”

43. In the case of Mulchand Khanumal Khatri v. State of Gujarat

and Ors., (2012) 5 SCC 365, the Court held that Section 11A of

47

the Land Acquisition Act, 1894 (amended in 1984), which

provides that if an award is not made within a period of

declaration, the acquisition proceedings would lapse, was

‘mandatory’.

44. In the case of Mohd. Ashfaq v. State Transport Appellate

Tribunal, Uttar Pradesh and Ors., (1976) 4 SCC 330, the Supreme

Court while dealing with the provisions of Section 58(2) of the

Motor Vehicles Act, 1939, where the application for renewal of

stage carriage permit was to be made in not less than 120 days

before the date of its expiry considered the question whether the

regional transport authority may entertain an application after

the last date specified as above ‘if the application is made not

more than 15 days after the said last date’. The Supreme Court

held as under:

“Section 29, Sub-section (2) of the Limitation Act, 1963 makes Section 5 applicable in the case of an application for renewal unless its applicability can be said to be expressly excluded by any provision of the Act. The only provision of the Act sought to be pressed into service for this purpose was Sub-section (3). Does Sub-section (3) expressly exclude further extension of time under Section 5 ? If it does, then Section 5 cannot be availed of by the appellant for condonation of the delay. Sub- section (3) in so many terms says that the Regional Transport Authority may condone the delay in making of an application for renewal and entertain it on merits provided the delay is of not more than 15 days. This clearly means that if the application for renewal is beyond time by more than 15 days, the Regional Transport Authority shall not be entitled to entertain it, or in other words, it shall have no power to condone the delay. There is thus an express provision in Sub-section (3) that delay in making an application for renewal shall be condonable only if it is of not more than 15 days and that expressly excludes the applicability of Section 5 in

48

cases where an application for renewal is delayed by more than 15 days.”

The Supreme Court took the view that the provisions of

Section 58(2) above expressly excluded the application of Section

5 of the Limitation Act within the provisions of Section 29(2)

thereof. Whenever the Court is called upon to examine whether a

provision of a statute or a rule having statutory force is

‘mandatory’ or merely ‘directory’, it can be decided only after

gathering the purpose and object behind such statute, the

scheme of the Act, fall out consequences that might flow from

insisting upon strict observance of a particular provision and its

correlation with the other provisions.

45. The purpose and object of the statute is important. The

weighing consequences of holding a provision to be ‘mandatory’ or

‘directory’ are of significant relevance. We have already indicated

that the consequences are inbuilt in the language of Section 16 of

the NGT Act and serious civil consequences flow from default in

adhering to the time prescribed therein. Not only that the party

loses the right to prefer an appeal against an order from which it

is aggrieved, but there is a duty cast upon the Tribunal not to

permit filing of the appeal beyond the prescribed period of

limitation.

46. The Learned Counsel appearing for the appellant relied upon

the judgment of Supreme Court in the case of Kailash v. Nanhku

and Ors, (2005) 4 SCC 480, to contend that the language used in

49

Section 16 of the NGT Act is para materia to the language used in

Order VIII Rule 1 of the Civil Procedure Code, 1908 and since the

Supreme Court in this case held Order VIII Rule 1 of the Civil

Procedure Code, 1908, as ‘directory’, therefore, the provisions of

Section 16 of the NGT Act should be held to be ‘directory’ by the

Tribunal. Thus, the appellant would be entitled to the benefit of

the provisions of the Limitation Act in regard to the condonation

of delay.

47. Reliance is also placed upon the judgment of the Supreme

Court in the case of Salem Advocate Bar Association, Tamil Nadu

v. Union of India, (2005) 6 SCC 344. The above contention can be

directed into two distinct sections. Firstly, whether the language

of Order VIII Rule 1 of Code of Civil Procedure, 1908 and Section

16 of the NGT Act are para materia and therefore, the provisions

of Section 16 should be held to be directory. Secondly, whether

the judgment of the Supreme Court on facts thereof and for the

reasons recorded therein, have any application to the present

case.

48. The language of Order VIII Rule 1 of the Code of Civil

Procedure, 1908, cannot by any stretch of imagination be equated

with, much less considered as identical to, the provisions of

Section 16 of the NGT Act. Order VIII Rule 1 relates to a

procedural law, while Section 16 is part of substantive law. A bare

reading of Order VIII Rule 1 clearly conveys the intent of the

50

framers to make the provisions ‘directory’ and it provides for no

consequences of default therein. Most importantly, it must be

noticed that even if a defendant does not file the written

statement under Order VIII Rule 1, the suit does not come to an

end and the defendant does not lose his right to contest the suit

on questions of law, cross examination of witnesses and even to

lead his own evidences. Order VIII Rule 1 has to be read with

other provisions of Code of Civil Procedure, 1908 which does not

render the default in filing the written statement within the time

prescribed, as of any fatal or serious civil consequences. More so,

the said provision does not even apply to the original side of the

Chartered High Courts, as held by the Supreme Court in Iridium

India Telecom Ltd. v. Motorola Inc., AIR 2005 SC 514.

49. In contradistinction thereto, the provision of Section 16 of

the NGT Act is specific, unambiguous and clearly conveys the

legislative intent of making the provisions ‘mandatory’. The

provision of Section 16 of the NGT Act, undisputedly has inbuilt

element of consequences. The party loses its right to even

institute an appeal after the prescribed period of limitation and a

duty is cast upon the Tribunal not to permit such institution. As

already stated by us above, the language of Section 16, by

necessary implication excludes the application of the general law

of limitation. Thus, it cannot be said that the language is para

materia to Order VIII Rule 1 and hence the consequences thereof

should be identical.

51

50. The Supreme Court in Kailash Nankhu (supra), while dealing

with the provisions of Order VIII Rule 1 clearly stated that the

provision does not deal with the power of the Court and also does

not specifically take away the power of the Court to take the

written statement on record, though filed beyond the time as

provided for. The nature of the provisions contained in Order VIII

Rule 1 is procedural. It is not a part of the substantive law.

Further, the object behind substituting Order VIII Rule 1 in the

present shape is to curb the mischief of unscrupulous defendants

adopting dilatory tactics, delaying the disposal of cases much to

the chagrin of the plaintiffs, approaching the court for quick relief

and also to the serious inconvenience of the court faced with

frequent prayers for adjournments. The object is to expedite the

hearing and not to scuttle the same (paragraph 27 of the

judgment). In paragraph 28 of the judgment, the Supreme Court

further noticed that in an adversarial system, no party should

ordinarily be denied the opportunity of participating in the

process of justice dispensation, unless compelled by express and

specific language of the statute. The provisions of the Code of

Civil Procedure, 1908, or any other procedural enactment ought

not to be construed in a manner which would leave the court

helpless to meet extraordinary situations in order to achieve the

ends of justice.

51. We may also notice here that the Court in Kailash Nankhu

(supra) specifically dealt with the view expressed by the Supreme

52

Court in the case of Dr. J.J. Merchant and Ors. v. Shrinath

Chaturvedi, (2002) 6 SCC 635, where the Court had taken the

view that proviso to Order VIII Rule 1 should be strictly construed

and adhered to. The Court in the case of Kailash Nankhu (supra)

referred to both Topline Shoes Ltd. v. Corporation Bank, (2002) 6

SCC 33 and Dr. J.J. Merchant (supra). In both these earlier

judgments of the Supreme Court, the Court was concerned with

Section 13(2) of the Consumer Protection Act, 1986, which

required the opposite party to a complaint to give his version of

the case within a period of thirty days or such extended period

not exceeding 15 days as may be granted by the District Forum.

This provision was treated by the Court in the case of Dr. J.J.

Merchant (supra) as para materia to Order VIII Rule 1 of the Civil

Procedure Code, 1908. In the case of Topline Shoes Ltd. (supra),

the Court held the same provision as ‘directory’, while in the case

of J.J. Merchant (supra), it was held to be ‘mandatory’, which view

in relation to interpretation of Order VIII Rule 1 was treated to be

obiter by the Supreme Court in the case of Fairgrowth

Investments Ltd. (supra).

52. The Supreme Court in the case of Topline Shoes Ltd. (supra),

also took the view that Section 13(1)(a) of the Consumer

Protection Act, 1986, need not be construed strictly.

53. From the above discussion, it is clear that provisions of

Order VIII Rule 1 of the Code of Civil Procedure, 1908, do not

53

impose any embargo upon the power of the Court to extend the

time. The provision is in the domain of procedural law and was

held to be ‘directory’ by the Supreme Court. On the contrary, the

provision of Section 16 of the NGT Act is in unambiguous

language and imposes restriction upon the power of Tribunal to

permit even institution of an appeal beyond the prescribed period.

Besides this and for the reasons afore-recorded, the provision has

to be construed as ‘mandatory’.

54. Having dealt with the various aspects of this case and the

rival contentions raised on behalf of the respective parties we are

of the considered view that the provisions of Section 16 of the

NGT Act are unexceptionally ‘mandatory’. The said provision

clearly conveys the legislative intent of excluding the application

of the provisions of the Limitation Act, 1963. Further, with

approval we reiterate the view taken by the Tribunal in the cases

referred supra that this Tribunal has no jurisdiction to condone

the delay beyond the total period of 90 days provided under

Section 16 of the NGT Act. In fact, the Tribunal cannot permit

even institution of an appeal if there is such a delay.

55. Accordingly, we hold that the present appeal is barred by

limitation and the Tribunal has no jurisdiction to condone the

delay of 104 days as prayed. Resultantly, the application for

condonation of delay is dismissed and appeal does not survive for

consideration.

54

56. The appeal and the application are thus dismissed while

leaving the parties to bear their own cost.

Hon’ble Mr. Justice Swatanter Kumar

Chairperson

Hon’ble Mr. Justice M.S. Nambiar

Judicial Member

Hon’ble Dr. D.K. Agrawal

Expert Member

Hon’ble Prof. A.R. Yousuf

Expert Member

Hon’ble Dr. R.C. Trivedi

Expert Member

Dated: July 24, 2014

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