Supreme Court of India
SUPERINTENDING ENGINEER/ DEHAR POWER HOUSE CIRCLE BHAKRA BEAS MANAGEMENT BOARD (PW) SLAPPER & ANOTHERversusEXCISE AND TAXATION OFFICER, SUNDER NAGAR/ ASSESSING AUTHORITY
- Citation
- 2019 INSC 1200
- Decided
- 25 October 2019
- Bench
- ARUN MISHRA
Holding
Section 5 of the Limitation Act, 1963 applies to revisions under Section 48 of the Himachal Pradesh VAT Act, 2005, and the delay in filing the revision is condoned.
Summary
The petitioners, the Himachal Pradesh Bhakra Beas Management Board and others, challenged a High Court order that refused to condone a revision filed under Section 48 of the Himachal Pradesh Value Added Tax Act, 2005 after the 90‑day period prescribed for such revisions. The issue was whether Section 5 of the Limitation Act, 1963, which allows courts to extend prescribed periods for sufficient cause, applies to revisions under Section 48. The Supreme Court held that Section 5 is attracted by Section 29(2) of the Limitation Act because the VAT Act does not expressly exclude it. Consequently, the High Court’s refusal to condone the delay was unsustainable. The Court set aside the High Court judgment, condoned the delay, and remitted the matter to the High Court for merits.
Issues considered
- The applicability of Section 5 of the Limitation Act, 1963 to revision proceedings under Section 48 of the Himachal Pradesh Value Added Tax Act, 2005.
- Whether the Himachal Pradesh VAT Act expressly excludes the provisions of the Limitation Act, particularly Section 5.
- The power of the High Court to condone delay beyond the 90‑day period prescribed for filing a revision.
Legislation cited
- Code of Civil Procedure, 1908s. Order XXI
- Himachal Pradesh Value Added Tax Act, 2005s. 45, s. 46, s. 48
- Limitation Act, 1963s. 29, s. 3, s. 5
Subjects
Limitation ActSection 5Section 48Himachal Pradesh VAT ActRevisionCondonation of delaySpecial lawSection 29High Court jurisdictionAppeal period
Judgment
534 [2019]
SUPREME COURT 13 S.C.R. 534
REPORTS [2019] 13 S.C.R.
A SUPERINTENDING ENGINEER/ DEHAR POWER HOUSE
CIRCLE BHAKRA BEAS MANAGEMENT BOARD (PW)
SLAPPER & ANOTHER
v.
EXCISE AND TAXATION OFFICER, SUNDER NAGAR/
B ASSESSING AUTHORITY
(Civil Appeal No. 8276–8277 of 2019)
OCTOBER 25, 2019
[ARUN MISHRA, M. R. SHAH AND B. R. GAVAI, JJ.]
C
Himachal Pradesh Value Added Tax Act, 2005: s. 48 – Exercise of
revisional power u/s. 48 by the High Court – Condonation of delay
in case a revision is filed beyond 90 days from the date of
communication of the order – Applicability of ss. 5, 29 of the
Limitation Act – Division Bench held that provision of s. 5 of the
D Limitation Act cannot be applied and the High Court cannot condone
the delay – Sustainability of – Held: Held: Not sustainable – As the
revision under the Act of 2005 lies to the High Court, the provisions
of s. 5 of the Limitation Act are applicable, and there is no express
exclusion of the provisions of s. 5 and as per s. 29(2), unless a
special law expressly excludes the provision, ss. 4 to 24 of the
E
Limitation Act are applicable – Thus, provisions of s. 5 are applicable
to revisional provision u/s. 48 as they are not expressly excluded by
the provisions under the Act of 2005 - Delay in filing of revision
condoned – Limitation Act, 1963 – ss. 5, 29.
Remitting the matter to the High Court, the Court
F
HELD: 1.1 The provisions contained in Section 29 of the
Limitation Act deals with savings. The provisions in respect to
the limitation prescribed for any suit, appeal or application by
any special or local law, is different from the period prescribed by
the Schedule, the provisions of Section 3 shall apply if the Schedule
G prescribed such period. The provisions contained in Sections 4
to 24 shall apply only in so far as and to the extent to which they
are not expressly excluded. Section 5 of the Limitation Act deals
with the extension of the prescribed period in particular
exigencies. The provision applies to the Court and is excluded
H
534
SUPERINTENDING ENGR./ DPHCBB MNGMT BOARD (PW) SLAPPER v. 535
ETO, SUNDER NAGAR/ASSESSING AUTHY.
in the application to the provisions of Order XXI of the Code of A
Civil Procedure, 1908 (5 of 1908). It provides that if the Court is
satisfied that the appellant/applicant had sufficient cause for not
preferring the appeal or making the application within limitation,
the Court may admit the same after the prescribed period.
Explanation attached to Section 5 makes it clear that in case the
B
appellant or the applicant was misled by any order, practice, or
judgment of the High Court in ascertaining or computing the
prescribed period, may be sufficient cause within the meaning of
Section 5. [Para 5, 6] [540-E; 541-A-B]
1.2 The provisions contained in section 45 of the Himachal
Pradesh Value Added Tax Act, 2005 provides for an appeal from C
every original order passed under the Act or the Rules made
thereunder. Sub–section (4) of section 45 provides appeal to be
filed within 60 days, or such more extended period as the appellate
authority may allow, for reasons to be recorded in writing. Thus,
because of the provisions contained in section 45(4), the principles D
of section 5 would apply to an appeal before the appellate authority,
which otherwise in the absence of specific provision would not
have applied to authority. The revision is provided to the
Commissioner suo motu under the provisions of section 46(1),
and the period provided is 5 years for suo motu exercise of
revisional power. However, the tribunal has the power to entertain E
application within 60 days from the date of communication of the
order. When the provisions of section 48 are considered, revision
is provided to the High Court, and an aggrieved person may within
90 days of the communication of such order, file a revision. Section
48(1) nowhere expressly excludes the applicability of provisions F
of the Limitation Act. The provisions of section 5 are applicable
to Section 48 as they are not expressly excluded by the provisions
under the Act of 2005. More so, in view of the provisions in
section 45(4), which makes provisions to condone the delay like
the Limitation Act, conferring power upon an authority also to
condone delay. Further, suo motu revision has also been provided G
under section 46. In section 48, there is no express exclusion.
Because of the scheme of the Act, it cannot be inferred that by
implication, the provisions of section 5 of the Limitation Act are
H
536 SUPREME COURT REPORTS [2019] 13 S.C.R.
A excluded. Provisions contained in section 29(2) would be attracted
as there is no express exclusion or by implication, in view of the
provisions of the Act of 2005. By virtue of the provisions contained
in section 29(2), provisions of section 5 of the Limitation Act
would apply to proceedings under Section 48 of the Act of 2005.
[Para 21] [562-F-H; 563-A-C]
B
1.3 As the revision under the Act of 2005 lies to the High
Court, the provisions of section 5 of the Limitation Act are
applicable, and there is no express exclusion of the provisions of
section 5 and as per section 29(2), unless a special law expressly
excludes the provision, sections 4 to 24 of the Limitation Act are
C applicable. On consideraton of the scheme of the Himachal
Pradesh VAT Act, 2005, it is apparent that its scheme is not
ousting the provisions of the Limitation Act from its ken which
makes principles of section 5 applicable even to an authority in
the matter of filing an appeal but for the said provision the authority
D would not have the power to condone the delay. By implication
also, it is apparent that the provisions of Section 5 of the Limitation
Act have not been ousted; they have the play for condoning the
limitation under Section 48 of the Act of 2005. Suo motu provision
of revisional power is also provided to the Commissioner within
5 years. Thus, the intendment is not to exclude the Limitation
E Act. The delay in filing of revision is condoned. [Para 22]
[563-E-H; 564-A]
1.4 The decision of the High Court cannot be said to be
sustainable. The provisions of Section 5 of the Limitation Act are
held applicable to the revisional provision under Section 48 of
F the Act of 2005. The impugned judgments and orders are set
aside. [Para 23] [564-B]
Patel Brothers v. State of Assam & Ors. (2017) 2 SCC
350 ; Commissioner of Customs and Central Excise v.
Hongo India Private Limited (2009) 5 SCC 791 ;
G Hukumdev Narain Yadav v. Lalit Narain Mishra (1974)
2 SCC 133 ; Sakuru v. Tanaji AIR 1985 SC 1279 ;
Lata Kamat v. Vilas (1989) 2 SCC 613 ; State of W.B. &
Ors. v. Kartick Chandra Das & Ors. (1996) 5 SCC
342 ; Mukri Gopalan v. Cheppilat Puthanpurayil
H
SUPERINTENDING ENGR./ DPHCBB MNGMT BOARD (PW) SLAPPER v. 537
ETO, SUNDER NAGAR/ASSESSING AUTHY.
Aboobacker (1995) 5 SCC 5 ; Mangu Ram v. Municipal A
Corporation of Delhi (1976) 1 SCC 392 ; Union of
India v. Popular Construction Co. (2001) 8 SCC 470 ;
Consolidated Engineering Enterprises v. Principal
Secretary, Irrigation Department & Ors. (2008) 7 SCC
169 ; Commissioner of Customs & Central Excise v.
B
Hongo India Pvt. Ltd. & Anr., (2009) 5 SCC 791 ; State
of Madhya Pradesh & Anr. v. Anshuman Shukla (2014)
10 SCC 814 ; Patel Brothers v. State of Assam & Ors.
(2017) 2 SCC 350 ; M. P. Steel Corporation v.
Commissioner of Central Excise (2015) 7 SCC 58 ;
Commissioner of Customs, Central Excise, Noida v. C
Punjab Fibres Ltd., Noida (2008) 3 SCC 73 ; Singh
Enterprises v. Commissioner of Central Excise,
Jamshedpur & Ors. (2008) 3 SCC 70 ; Chaudharana
Steels Private Ltd. v. Commissioner of Central Excise,
Allahabad (2009) 15 SCC 183 – referred to.
D
Case Law Reference
[2017] 1 SCR 95 referred to Para 4
(2009) 5 SCC 791 referred to Para 4
[1974] 3 SCR 31 referred to Para 7 E
AIR 1985 SC 1279 referred to Para 8
[1989] 2 SCR 137 referred to Para 9
[1996] 2 Suppl. SCR 373 referred to Para 10
[1995] 2 Suppl. SCR 1 referred to Para 11 F
[1976] 2 SCR 260 referred to Para 12
[2001] 3 Suppl. SCR 619 referred to Para 13
[2008] 5 SCR 1108 referred to Para 14
(2009) 5 SCC 791 referred to Para 15 G
[2014] 11 SCR 361 referred to Para 16
[2017] 1 SCR 95 referred to Para 17
(2015) 7 SCC 58 referred to Para 18
H
538 SUPREME COURT REPORTS [2019] 13 S.C.R.
A (2008) 3 SCC 73 referred to Para 19
[2007] 13 SCR 952 referred to Para 19
(2009) 15 SCC 183 referred to Para 20
CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 8276-
B 8277 of 2019.
From the Judgment and Order 19.11.2018 of the High Court of
Himachal Pradesh at Shimla in CR Nos. 224 and 225 of 2018.
With
Civil Appeal Nos. 8278, 8279, 8280, 8281 of 2019.
C
Dhruv Mehta, Ajay Vohra, Sr. Advs., Yashraj Singh Deora, Shyam
Agarwal, Ms. Sonal Mashankar, Anmol Mehta, Abhimanyu Jhamba,
Ms. Hemlata Ranga, Ashish Jhamba, Samir Ali Khan, Ms. Kavita Jha,
Shammi Kapoor, Ms. Swati Agarwal, T. Ramesh, Ms. L. Maheswari,
A. Lakshminarayanan, Sandeep Goyal, Ms. A. Anamika, Pawanshree
D
Agrawal, Advs. for the appearing parties.
The Judgment of the Court was delivered by
ARUN MISHRA, J.
1. The question involved is whether the High Court while
E exercising revisional power under Section 48 of the Himachal Pradesh
Value Added Tax Act, 2005 (‘the Act of 2005’), condone the delay in
case a revision under Section 48 of the Act of 2005, is filed beyond 90
days from the date of communication of the order or it excludes the
applicability of Section 29 of the Limitation Act, 1963, and in consequence
F of Section 5 of the Limitation Act.
2. The High Court vide impugned judgment and order dated
19.11.2018, has refused to condone the delay in the revision filed under
Section 48 read with Section 64(5) of the Act of 2005, against the order
passed by Himachal Pradesh Tax Tribunal. The Division Bench of the
G High Court relying upon the decision of a Coordinate Bench in CMP(M)
No.1371 of 2017 titled State of Himachal Pradesh & others v.
Tritronics India Private Limited, has held that provision of Section 5 of
the Limitation Act, cannot be applied and the High Court cannot condone
the delay. The revision has to be filed within 90 days, as provided in
Section 48 of the Act of 2005.
H
SUPERINTENDING ENGR./ DPHCBB MNGMT BOARD (PW) SLAPPER v. 539
ETO, SUNDER NAGAR/ASSESSING AUTHY. [ARUN MISHRA, J.]
3. The provisions contained in Section 48 of the Act of 2005, A
relating to the revisional power of the High Court, read as under:
“48. Revision to High Court. - (1) Any person aggrieved by an
order made by the tribunal under sub-section (2) of section 45 or
under sub-section (3) of section 46, may, within 90 days of the
communication of such order, apply to the High Court of Himachal B
Pradesh for revision of such order if it involves any question of
law arising out of erroneous decision of law or failure to decide a
question of law.
(2) The application for revision under sub-section (1) shall precisely
state the question of law involved in the order, and it shall be C
competent for the High Court to formulate the question of law.
(3) Where an application under this section is pending, the High
Court may, or on application, in this behalf, stay recovery of any
disputed amount of tax, penalty or interest payable or refund of
any amount due under the order sought to be revised: D
Provided that no order for stay of recovery of such disputed
amount shall remain in force for more than 30 days unless the
applicant furnishes adequate security to the satisfaction of the
Assessing Authority concerned.
(4) The application for revision under sub-section (1) or the E
application for stay under sub-section (3) shall be heard and decided
by a bench consisting of not less than two judges.
(5) No order shall be passed under this section which adversely
affects any person unless such person has been given a reasonable
opportunity of being heard.” F
4. The Division Bench of the High Court of Himachal Pradesh
held that considering the expression used in the provisions contained in
Section 48(1), the High Court could not condone the delay in filing
revision. The language contained therein excludes the applicability of
Section 5 of the Limitation Act. The Court cannot also exercise the G
inherent powers to condone the delay. The High Court has taken into
consideration the provisions contained in Assam Value Added Tax, 2003.
The provisions contained in Section 81 of the Assam Value Added Tax,
2003, is held to be pari materia with the provisions of Section 48 of the
Act of 2005. The High Court has also referred to Section 84 of the
H
540 SUPREME COURT REPORTS [2019] 13 S.C.R.
A Assam Value Added Tax, 2003, which provides that provisions of Sections
4 and 12 of the Limitation Act, shall apply in computing the period of
limitation in relation to the provisions contained in the chapter. It was
further observed that in the Act of 2005, there is no provision to infer
that any provisions of the Limitation Act apply. The decision in Patel
Brothers v. State of Assam & Ors., (2017) 2 SCC 350, has been relied
B
on, in which while considering the provisions contained in Section 81 of
the Assam Value Added Tax, 2003, it was held that provisions contained
in Section 5 of the Limitation Act, stand excluded by necessary implication
by the language employed in Section 84. The High Court has also referred
to the decision of this Court in Commissioner of Customs and Central
C Excise v. Hongo India Private Limited, (2009) 5 SCC 791, rendered in
the context of the provisions contained in Section 35 of the Central Excise
Act, 1944, in which it has been held that reference has to be made to the
High Court within 180 days, and there is no power of the High Court to
condone the delay after the expiry of the prescribed period of 180 days.
Thus, the High Court has held that provisions of Section 5 of the Limitation
D
Act, are not applicable and stand excluded in the matter of revision filed
under Section 48 of the Act of 2005.
5. The provisions contained in Section 29 of the Limitation Act
deals with savings. The provisions in respect to the limitation prescribed
for any suit, appeal or application by any special or local law, is different
E from the period prescribed by the Schedule, the provisions of Section 3
shall apply if the Schedule prescribed such period. The provisions
contained in Sections 4 to 24 shall apply only in so far as and to the
extent to which they are not expressly excluded. Section 29(2) is extracted
hereunder:
F “29. Savings.—
(2) Where any special or local law prescribes for any suit, appeal
or application a period of limitation different from the period
prescribed by the Schedule, the provisions of section 3 shall apply
as if such period were the period prescribed by the Schedule and
G for the purpose of determining any period of limitation prescribed
for any suit, appeal or application by any special or local law, the
provisions contained in sections 4 to 24 (inclusive) shall apply only
in so far as, and to the extent to which, they are not expressly
excluded by such special or local law.”
H (emphasis added)
SUPERINTENDING ENGR./ DPHCBB MNGMT BOARD (PW) SLAPPER v. 541
ETO, SUNDER NAGAR/ASSESSING AUTHY. [ARUN MISHRA, J.]
6. Section 5 of the Limitation Act deals with the extension of the A
prescribed period in particular exigencies. The provision applies to the
Court and is excluded in the application to the provisions of Order XXI
of the Code of Civil Procedure, 1908 (5 of 1908). It provides that if the
Court is satisfied that the appellant/applicant had sufficient cause for not
preferring the appeal or making the application within limitation, the Court
B
may admit the same after the prescribed period. Explanation attached
to Section 5 makes it clear that in case the appellant or the applicant was
misled by any order, practice, or judgment of the High Court in ascertaining
or computing the prescribed period, may be sufficient cause within the
meaning of Section 5.
7. Learned counsel appearing on behalf of appellants has placed C
reliance on Hukumdev Narain Yadav v. Lalit Narain Mishra, (1974)
2 SCC 133, in which it has been observed that 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 to what extent the scheme of special law exclude D
the operation of Limitation Act. 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 condone the delay under the Special Act. In the context of
Section 86 of Representation of People Act, it has been held that the
High Court is bound to dismiss an election petition, which does not comply E
with the provisions of Section 81, 82 or 117. The election petition has to
be preferred within the period prescribed in Section 81. Thus, the
provision was held to be mandatory. The non-compliance with which
visits the penalty of the petition being dismissed. Following observations
have been made: F
“17. Though Section 29(2) of the Limitation Act has been made
applicable to appeals both under the Act as well as under the
Code of Criminal Procedure, no case has been brought to our
notice where Section 29(2) has been made applicable to an election
petition filed under Section 81 of the Act by virtue of which either G
Sections 4, 5 or 12 of the Limitation Act has been attracted. Even
assuming that where a period of limitation has not been fixed for
election petitions in the Schedule to the Limitation Act which is
different from that fixed under Section 81 of the Act, Section
29(2) would be attracted, and what we have to determine is
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542 SUPREME COURT REPORTS [2019] 13 S.C.R.
A whether the provisions of this Section are expressly excluded in
the case of an election petition. It is 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. As usual the meaning given in the Dictionary has been
B
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
C 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 Sections 4 to 24 of the Limitation Act by an express
reference, it would nonetheless be open to the Court to examine
D
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. The provisions of Section 3 of the Limitation Act
that a suit instituted, appeal preferred and application made after
the prescribed period shall be dismissed are provided for in Section
E 86 of the Act which gives a peremptory command that the High
Court shall dismiss an election petition which does not comply
with the provisions of Sections 81, 82 or 117. It will be seen that
Section 81 is not the only Section mentioned in Section 86, and if
the Limitation Act were to apply to an election petition under
Section 81 it should equally apply to Sections 82 and 117 because
F
under Section 86 the High Court cannot say that by an application
of Section 5 of the Limitation Act, Section 81 is complied with
while no such benefit is available in dismissing an application for
non-compliance with the provisions of Sections 82 and 117 of the
Act, or alternatively if the provisions of the Limitation Act do not
G apply to Section 82 and Section 117 of the Act, it cannot be said
that they apply to Section 81. Again Section 6 of the Limitation
Act which provides for the extension of the period of limitation till
after the disability in the case of a person who is either a minor or
insane or an idiot is inapplicable to an election petition. Similarly,
Sections 7 to 24 are in terms inapplicable to the proceedings under
H
SUPERINTENDING ENGR./ DPHCBB MNGMT BOARD (PW) SLAPPER v. 543
ETO, SUNDER NAGAR/ASSESSING AUTHY. [ARUN MISHRA, J.]
the Act, particularly in respect of the filing of election petitions A
and their trial.”
(emphasis added)
8. In Sakuru v. Tanaji, AIR 1985 SC 1279, it has been held that
the provisions of the Limitation Act apply only to proceedings in Courts
and not to appeals or applications of bodies other than Courts such as B
quasi-judicial Tribunals or executive authorities. Though the bodies or
authorities may be conferred with the powers under the Codes of Civil
or Criminal Procedure, however, special statute may contain an express
provision conferring on the Appellate Authority the power to extend the
prescribed period of limitation on sufficient cause being shown by laying C
down that the provisions of Section 5 of the Limitation Act shall be
applicable to such proceedings. In the absence of such provisions, Section
5 would have no application.
9. In Lata Kamat v. Vilas, (1989) 2 SCC 613, provisions contained
in Section 28(4) of the Hindu Marriage Act, came up for consideration, D
wherein it was held that limitation prescribed therein is different from
the Schedule of Limitation Act. Regarding the provisions of Section 29(2)
of the Limitation Act, it was observed that the provisions of the Hindu
Marriage Act do not exclude the operation of the provisions of Sections
4 to 24 of Limitation Act. They have been held to be applicable.
Therefore, the time required for obtaining the copy of judgment has to E
be excluded, as provided in Section 12(2) of Limitation Act. The Court
observed:
“12. The Schedule in the Limitation Act does not provide for an
appeal under the Hindu Marriage Act, but it is only provided in
sub-section (4) of Section 28 of the Hindu Marriage Act. Thus F
the limitation provided, in sub-section (4) of Section 28, is different
from the Schedule of the Limitation Act. According to sub-section
(2) of Section 29, provisions contained in Sections 4 to 24 will be
applicable unless they are not expressly excluded. It is clear that
the provisions of the Act do not exclude the operation of provisions G
of Sections 4 to 24 of the Limitation Act, and therefore it could
not be said that these provisions will not be applicable. It is therefore
clear that to an appeal under Section 28 of the Hindu Marriage
Act, provisions contained in Section 12 sub-section (2) will be
applicable; therefore, the time required for obtaining copies of the
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544 SUPREME COURT REPORTS [2019] 13 S.C.R.
A judgment will have to be excluded for computing the period of
limitation for appeal. A Division Bench of Delhi High Court in
Chandra Dev Chadha case1held as under: (AIR pp. 24-25)
“The Hindu Marriage Act is a special law. That this ‘special
law’ prescribes ‘for an appeal a period of limitation’ is also-evident.
B The period of limitation is 30 days. It is a period different from
that prescribed in the First Schedule to the Limitation Act, 1963.
But when we turn to the First Schedule, we find there is no provision
in the First Schedule for an appeal against the decree or order
passed under the Hindu Marriage Act. Now it has been held that
the test of a ‘prescription of a period of limitation different from
C the period prescribed by the First Schedule’ as laid down in Section
29(2), Limitation Act, 1963 is satisfied even in a case where a
difference between the special law and Limitation Act arose by
omissions to provide for a limitation to a particular proceeding
under the Limitation Act, see, Canara Bank, Bombay v. Warden
D Insurance Co. Ltd., Bombay, AIR 1953 Bom 35, approved by
the Supreme Court in Vidyacharan Shukla v. Khubchand
Baghel 2.
Once the test is satisfied, the provisions of Sections 3, 4 to 24,
Limitation Act, 1963 would at once apply to the special law. The
E result is that the court hearing the appeal from the decree or order
passed under the Hindu Marriage Act would under Section 3 of
the Limitation Act have the power to dismiss the appeal if made
after the period of limitation of 30 days prescribed therefor by the
special law. Similarly, under Section 5 for sufficient cause, it will
have the power to condone the delay. Likewise, under Section
F 12(2), the time spent in obtaining a certified copy of the decree or
order appealed from will be excluded. If it is so, Section 12(2) of
the Limitation Act is attracted, and the appellants in all three appeals
will be entitled to exclude the time taken by them for obtaining a
certified copy of the decree and order. The appeals are, therefore,
G within time.”
Similar is the view taken by the Calcutta High Court in Sipra
Dey case3and also the M.P. High Court in Kantibai case4. It is
1
AIR 1979 Del 22
2
AIR 1964 SC 1099
3
AIR 1988 Cal 28
H 4
AIR 1978 MP 245
SUPERINTENDING ENGR./ DPHCBB MNGMT BOARD (PW) SLAPPER v. 545
ETO, SUNDER NAGAR/ASSESSING AUTHY. [ARUN MISHRA, J.]
therefore clear that the contention advanced by the learned counsel A
for the respondent based on the Limitation Act also is of no
substance.”
10. In State of W.B. & Ors. v. Kartick Chandra Das & Ors,
(1996) 5 SCC 342, provisions of Section 29 of the Limitation Act came
up for consideration concerning the letters patent appeal filed in contempt B
proceedings. It has been observed that there is no express exclusion of
provisions of Sections 4 to 24 of Limitation Act by a special or local law,
thus, on the strength of Section 29(2), Section 5 of Limitation Act becomes
applicable. The Court held:
4. It is not in dispute that under Section 19 of the Contempt of C
Courts Act, 1971, an appeal would lie to the Division Bench, and
limitation of 30 days from the date of the order has been prescribed
subject to the exclusion of the time taken for obtaining the certified
copy thereof. We have seen that the Appellate Side Rules of the
Calcutta High Court applicable to the area other than the city of
Calcutta had not expressly excluded the application of the limitation D
under the Limitation Act.
5. The learned counsel for the respondent sought to contend that
by operation of Rule 3 of Chapter 8 of the Appellate Side Rules
under the Letters Patent the memorandum of appeal drawn up
under Order 41 Rule 1 CPC requires to be complied with as E
envisaged thereunder since it had not been provided with any
limitation. The Division Bench was, therefore, right in holding that
the Limitation Act was not extended for an appeal filed under
clause 15 of the Letters Patent against the order passed by the
learned Single Judge under the provisions of the Contempt of F
Courts Act. It is seen that under the Contempt of Courts Act, the
High Court has framed the Rules. Rule 35 envisages that:
“35. In respect of appeals from the orders of any Judge or
Bench of the original side, the rules of the original side relating
to appeals and in respect of appeals from the order of any G
Judge or Bench of the appellate side, the rules of the appellate
side shall apply mutatis mutandis.”
Therefore, for the appeals filed under clause 15 of the Letters
Patent against the order of the learned Single Judge for the
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546 SUPREME COURT REPORTS [2019] 13 S.C.R.
A contempt proceedings by necessary consequences, the procedure
prescribed in the appellate side would also be applicable and
followed.
***
7. In consequence, by operation of Section 29(2) read with Section
B 3 of the Limitation Act, limitation stands prescribed as a special
law under Section 19 of the Contempt of Courts Act, and limitation
in filing Letters Patent appeal stands attracted. In consequence,
Sections 4 to 24 of the Limitation Act stands attracted to Letters
Patent appeal insofar as and to the extent to which they are not
C expressly excluded either by special or local law. Since the rules
made on the appellate side, either for entertaining the appeals
under clause 15 of the Letters Patent or appeals arising under the
contempt of courts, had not expressly excluded, Section 5 of the
Limitation Act becomes applicable. We hold that Section 5 of the
Limitation Act does apply to the appeals filed against the order of
D the learned Single Judge for the enforcement by way of a contempt.
The High Court, therefore, was not right in holding that Section 5
of the Limitation Act does not apply. The delay stands condoned.
Since the High Court had not dealt with the matter on merits, we
decline to express any opinion on merits. The case stands remitted
E to the Division Bench for decision on merits.”
11. In Mukri Gopalan v. Cheppilat Puthanpurayil Aboobacker,
(1995) 5 SCC 5, the question arose whether Appellate Authority
constituted under Section 18 of Kerala Buildings (Lease and Rent Control)
Act, 1965 has the power to condone the delay in filing of the appeal.
F The Appellate Authority dismissed the appeal on the ground that it had
no power to condone the delay. The application for condonation of
delay was not maintainable. This Court held that the Appellate Authority
under Section 18 of Kerala Buildings (Lease and Rent Control) Act,
1965, acts as a Court and not a persona designatum, it can condone
the delay under Section 5 of Limitation Act as the two requirements for
G the applicability of Section 29 are satisfied, namely, (i) different periods
of limitation being prescribed under the local law; and (ii) there is no
express exclusion of provisions of Limitation Act. Following are the
relevant observations:
H
SUPERINTENDING ENGR./ DPHCBB MNGMT BOARD (PW) SLAPPER v. 547
ETO, SUNDER NAGAR/ASSESSING AUTHY. [ARUN MISHRA, J.]
“9. If the aforesaid two requirements are satisfied, the A
consequences contemplated by Section 29(2) would automatically
follow. These consequences are as under:
(i) In such a case, Section 3 of the Limitation Act would apply as
if the period prescribed by the special or local law was the period
prescribed by the Schedule. B
(ii) For determining any period of limitation prescribed by such
special or local law for a suit, appeal or application all the provisions
containing Sections 4 to 24 (inclusive) would apply insofar as and
to the extent to which they are not expressly excluded by such
special or local law. C
10. In the light of the aforesaid analysis of the relevant clauses of
Section 29(2) of the Limitation Act, let us see whether Section 18
of the Rent Act providing for a statutory appeal to the appellate
authority satisfies the aforesaid twin conditions for attracting the
applicability of Section 29(2) of the Limitation Act. It cannot be D
disputed that Kerala Rent Act is a special Act or a local law. It
also cannot be disputed that it prescribes for appeal under Section
18 a period of limitation which is different from the period
prescribed by the Schedule as the Schedule to the Limitation Act
does not contemplate any period of limitation for filing appeal before
the appellate authority under Section 18 of the Rent Act or in E
other words it prescribes nil period of limitation for such an appeal.
It is now well settled that a situation wherein a period of limitation
is prescribed by a special or local law for an appeal or application
and for which there is no provision made in the Schedule to the
Act, the second condition for attracting Section 29(2) would get F
satisfied. As laid down by a majority decision of the Constitution
Bench of this Court in the case of Vidyacharan Shukla v.
Khubchand Baghel5, when the First Schedule of the Limitation
Act prescribes no time-limit for a particular appeal, but the special
law prescribes a time-limit for it, it can be said that under the First
Schedule of the Limitation Act all appeals can be filed at any G
time, but the special law by limiting it provides for a different
period, while the former permits the filing of an appeal at any
time, the latter limits it to be filed within the prescribed period. It
5
AIR 1964 SC 1099
H
548 SUPREME COURT REPORTS [2019] 13 S.C.R.
A is, therefore, different from that prescribed in the former, and
thus Section 29(2) would apply even to a case where a difference
between the special law and Limitation Act arose by the omission
to provide for limitation to a particular proceeding under the
Limitation Act.
B 11. It is also obvious that once the aforesaid two conditions are
satisfied, Section 29(2), on its own force will get attracted to
appeals filed before appellate authority under Section 18 of the
Rent Act. When Section 29(2) applies to appeals under Section
18 of the Rent Act, for computing the period of limitation prescribed
for appeals under that Section, all the provisions of Sections 4 to
C 24 of the Limitation Act would apply. Section 5, being one of
them, would, therefore, get attracted. It is also obvious that there
is no express exclusion anywhere in the Rent Act, taking out the
applicability of Section 5 of the Limitation Act to appeals filed
before appellate authority under Section 18 of the Act.
D Consequently, all the legal requirements for applicability of Section
5 of the Limitation Act to such appeals in the light of Section
29(2) of Limitation Act can be said to have been satisfied. That
was the view taken by the minority decision of the learned Single
Judge of Kerala High Court in Jokkim Fernandez v. Amina Kunhi
Umma6. The majority did not agree on account of its wrong
E supposition that appellate authority functioning under Section 18
of the Rent Act is a persona designata. Once that presumption is
found to be erroneous as discussed by us earlier, it becomes at
once clear that minority view in the said decision was the correct
view and the majority view was an erroneous view.”
F It has been held that if there is no express exclusion in the local or
special law, then the provisions contained in Sections 4 to 24 of the
Limitation Act shall apply by the provisions contained in Section 29(2) of
the Limitation Act.
12. In Mangu Ram v. Municipal Corporation of Delhi, (1976)
G 1 SCC 392, question came up for consideration when the application of
Section 5 of the Limitation Act is to be excluded and whether peremptory
or imperative language of the special or local law can exclude the
application of Section 5, if not otherwise explicitly excluded. The
6
AIR 1974 Ker 162
H
SUPERINTENDING ENGR./ DPHCBB MNGMT BOARD (PW) SLAPPER v. 549
ETO, SUNDER NAGAR/ASSESSING AUTHY. [ARUN MISHRA, J.]
Municipal Corporation of Delhi against the acquittal order, filed an A
application in the High Court of Delhi under Section 417, sub-Section (3)
of Code of Criminal Procedure, 1898 for special leave to appeal from
the order of acquittal. Section 417(4) of the Code of Criminal Procedure
required that application for special leave should be filed before the expiry
of sixty days. The application for special leave should have been filed
B
on 25.8.1971, but it was filed on 27.8.1971. The argument was raised
that time frame is sixty days as prescribed in Section 417(4) for making
an application for special leave under sub-Section (3) of that section
was mandatory and inexorable time limit which could not be relieved
against or relaxed, and it excluded the applicability of Section 5 of the
Limitation Act. It has also been held that the provision of a period of C
limitation in a howsoever peremptory or imperative language is not
sufficient to displace the applicability of Section 5. The provisions of
Section 5 of the Limitation Act have been held to be applicable to condone
the delay in applying under Section 417(4), Code of Criminal Procedure.
The Court has observed:
D
“6. The question which arose for consideration in Kaushalya Rani
case was apparently the same as in the present case, namely,
whether the time limit of sixty days prescribed in sub-section (4)
of Section 417 for making an application for special leave under
sub-section (3) of that section could be extended by invoking
Section 5 of the Indian Limitation Act, 1908. This Court held that E
sub-section (4) of Section 417 laid down a special period of
limitation for an application by a complainant for special leave to
appeal against an order of acquittal and
“in that sense, this rule of sixty days bar is a special law, that is to
say, a rule of limitation which is specially provided for in the Code F
itself, which does not ordinarily provide for a period of limitation
for appeals or applications.
This Court pointed out that since
“the special rule of limitation laid down in sub-section (4) of Section G
417 of the Code is a special law of limitation governing appeals by
private prosecutors, there is no difficulty in coming to the conclusion
that Section 5 of the Limitation Act is wholly out of the way, in
view of Section 29(2)(b) of the Limitation Act.”
H
550 SUPREME COURT REPORTS [2019] 13 S.C.R.
A The applicability of Section 5 of the Indian Limitation Act, 1908
was thus held to be excluded in determining the period of limitation
of sixty days prescribed in sub-section (4) of Section 417 by reason
of Section 29(2)(b) of that Act, which provided in so many terms
that
B “for the purpose of determining any period of limitation prescribed
for any suit, appeal or application by any special or local law, the
remaining provisions of this Act”
that is, sections other than Sections 4, 9 to 18, and 22 “shall not
apply.” Now, there can be no doubt that if the present case were
C governed by the Indian Limitation Act, 1908, this decision would
wholly apply and the Municipal Corporation of Delhi would not be
entitled to invoke the aid of Section 5 of that Act for the purpose
of extending the period of limitation of sixty days prescribed in
sub-section (4) of Section 417 for an application by a complainant
for special leave to appeal against an order of acquittal. But the
D Indian Limitation Act, 1908 has clearly no application in the present
case since that Act is repealed by the Limitation Act, 1963 which
came into force with effect from January 1, 1964, and the present
case must, therefore, be decided by reference to the provisions of
the Limitation Act, 1963.
E 7. There is an important departure made by the Limitation Act,
1963 insofar as the provision contained in Section 29, sub-section
(2), is concerned. Whereas, under the Indian Limitation Act, 1908,
Section 29, sub-section (2), clause (b) provided that for the purpose
of determining any period of limitation prescribed for any suit,
F appeal or application by any special or local law, the provisions of
the Indian Limitation Act, 1908, other than those contained in
Sections 4, 9 to 18 and 22, shall not apply and, therefore, the
applicability of Section 5 was in clear and specific terms excluded,
Section 29, sub-section (2) of the Limitation Act, 1963 enacts in
so many terms that for the purpose of determining the period of
G limitation prescribed for any suit, appeal or application by any
special or local law the provisions contained in Sections 4 to 24,
which would include Section 5, shall apply insofar as and to the
extent to which they are not expressly excluded by such special
or local law. Section 29, sub-section (2), clause (b) of the Indian
H
SUPERINTENDING ENGR./ DPHCBB MNGMT BOARD (PW) SLAPPER v. 551
ETO, SUNDER NAGAR/ASSESSING AUTHY. [ARUN MISHRA, J.]
Limitation Act, 1908 specifically excluded the applicability of A
Section 5, while Section 29, sub-section (2) of the Limitation Act,
1963, in clear and unambiguous terms, provides for the applicability
of Section 5 and the ratio of the decision in Kaushalya Rani
case7 can, therefore, have no application in cases governed by
the Limitation Act, 1963, since that decision proceeded on the
B
hypothesis that the applicability of Section 5 was excluded by
reason of Section 29(2)(b) of the Indian Limitation Act, 1908.
Since under the Limitation Act, 1963, Section 5 is specifically made
applicable by Section 29, sub-section (2), it can be availed of for
the purpose of extending the period of limitation prescribed by a
special or local law, if the applicant can show that he had sufficient C
cause for not presenting the application within the period of
limitation. 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 case, the time
limit of sixty days laid down in sub-section (4) of Section 417 is a
D
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 E
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
F
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 G
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
7
AIR 1964 SC 260 H
552 SUPREME COURT REPORTS [2019] 13 S.C.R.
A not be barred and despite the expiration of the time limit of sixty
days, the High Court would have the power to entertain it. The
High Court, in the present case, did not, therefore, act without
jurisdiction in holding that the application preferred by the Municipal
Corporation of Delhi was not barred by the time limit of sixty
days laid down in sub-section (4) of Section 417 since the Municipal
B
Corporation of Delhi had sufficient cause for not preferring the
application within such time limit. The order granting special leave
was in the circumstances, not an order outside the power of the
High Court.”
13. In Union of India v. Popular Construction Co., (2001) 8
C SCC 470, the Court considered the question of applicability of the
provisions contained in Section 5 of the Limitation Act to the proceedings
under Section 34(3) of the Arbitration and Conciliation Act, 1996. The
provisions contained in Section 34 of the Arbitration and Conciliation
Act, 1996, came up for consideration. Relevant provisions contained in
D Section 34(3) is extracted hereunder:
“34. Application for setting aside arbitral award.—
(3) An application for setting aside may not be made after three
months have elapsed from the date on which the party making
that application had received the arbitral award or, if a request
E had been made under Section 33, from the date on which that
request had been disposed of by the Arbitral Tribunal:
Provided that if the court is satisfied that the applicant was
prevented by sufficient cause from making the application within
the said period of three months, it may entertain the application
F within a further period of thirty days, but not thereafter.”
Proviso to Section 34(3) provides three months period for making
an application. The Court, if satisfied on sufficient cause shown, may
entertain the application within a further period of thirty days, but not
thereafter. In Popular Construction Co. (supra) the Court held:
G
“8. Had the proviso to Section 34 merely provided for a period
within which the court could exercise its discretion, that would
not have been sufficient to exclude Sections 4 to 24 of the Limitation
Act because “mere provision of a period of limitation in howsoever
H
SUPERINTENDING ENGR./ DPHCBB MNGMT BOARD (PW) SLAPPER v. 553
ETO, SUNDER NAGAR/ASSESSING AUTHY. [ARUN MISHRA, J.]
peremptory or imperative language is not sufficient to displace A
the applicability of Section 5” 8.
***
11. Thus, where the legislature prescribed a special limitation for
the purpose of the appeal and the period of limitation of 60 days
was to be computed after taking the aid of Sections 4, 5 and 12 of B
the Limitation Act, the specific inclusion of these sections meant
that to that extent only the provisions of the Limitation Act stood
extended and the applicability of the other provisions, by necessary
implication stood excluded9.
12. As far as the language of Section 34 of the 1996 Act is C
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 D
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.”
It has been held that had the proviso to Section 34 merely provided E
for a period within which the Court could exercise its discretion, that
would not have been sufficient to exclude Sections 4 to 24 of the Limitation
Act. However, the expression in Section 34 “but not thereafter” would
amount to express exclusion within the meaning of Section 29(2) of the
Limitation Act.
F
14. In Consolidated Engineering Enterprises v. Principal
Secretary, Irrigation Department & Ors., 2008 (7) SCC 169, the
question arose for consideration concerning the limitation period prescribed
in Section 34(3) of the Arbitration & Conciliation Act, for setting aside
of the arbitral award. It has been held that Section 14 of the Limitation
Act is not excluded. However, applicability of Section 5 of the Limitation G
Act is excluded. Following is the relevant discussion:
“53. Sub-section (3) of Section 34 of the AC Act prescribes the
period of limitation for filing an application for setting aside an
8
Mangu Ram v. Municipal Corpn. of Delhi, (1976) 1 SCC 392 at p. 397, para 7.
9
Patel Naranbhai Margabhai v. Dhulabhai Galbabhai, (1992) 4 SCC 264. H
554 SUPREME COURT REPORTS [2019] 13 S.C.R.
A award as three months from the date on which the applicant has
received the arbitral award. The proviso thereto vests in the court
discretion to extend the period of limitation by a further period not
exceeding thirty days if the court is satisfied that the applicant
was prevented by sufficient cause for not making the application
within three months. The use of the words “but not thereafter” in
B
the proviso makes it clear that even if a sufficient cause is made
out for a longer extension, the extension cannot be beyond thirty
days. The purpose of proviso to Section 34(3) of the AC Act is
similar to that of Section 5 of the Limitation Act, which also relates
to extension of the period of limitation prescribed for any
C application or appeal. It vests a discretion in a court to extend the
prescribed period of limitation if the applicant satisfies the court
that he had sufficient cause for not making the application within
the prescribed period. Section 5 of the Limitation Act does not
place any outer limit in regard to the period of extension, whereas
the proviso to sub-section (3) of Section 34 of the AC Act places
D
a limit on the period of extension of the period of limitation. Thus
the proviso to Section 34(3) of the AC Act is also a provision
relating to extension of period of limitation, but differs from Section
5 of the Limitation Act, in regard to period of extension, and has
the effect of excluding Section 5 alone of the Limitation Act.
E 54. On the other hand, Section 14 contained in Part III of the
Limitation Act does not relate to extension of the period of limitation
but relates to exclusion of certain period while computing the period
of limitation. Neither subsection (3) of Section 34 of the AC Act
nor any other provision of the AC Act exclude the applicability of
F Section 14 of the Limitation Act to applications under Section
34(1) of the AC Act. Nor will the proviso to Section 34(3) exclude
the application of Section 14, as Section 14 is not a provision for
extension of period of limitation, but for exclusion of certain period
while computing the period of limitation. Having regard to Section
29(2) of the Limitation Act, Section 14 of that Act will be applicable
G to an application under Section 34(1) of the AC Act. Even when
there is cause to apply Section 14, the limitation period continues
to be three months and not more, but in computing the limitation
period of three months for the application under Section 34(1) of
the AC Act, the time during which the applicant was prosecuting
H such application before the wrong court is excluded, provided the
SUPERINTENDING ENGR./ DPHCBB MNGMT BOARD (PW) SLAPPER v. 555
ETO, SUNDER NAGAR/ASSESSING AUTHY. [ARUN MISHRA, J.]
proceeding in the wrong court was prosecuted bona fide, with A
due diligence. Western Builders10, therefore, lays down the correct
legal position.”
15. In Commissioner of Customs & Central Excise v. Hongo
India Pvt. Ltd. & Anr., (2009) 5 SCC 791, the question arose for
consideration whether the High Court has the power to condone delay B
beyond the period specified in section 35-H of the Central Excise Act.
The limitation for an appeal and reference is within 180 days from the
date of communication of the decision or order. Because of the provisions
and the Act, it was held that the time limit prescribed for making a
reference to the High Court is absolute and unextendible by Court under
section 5 of the Limitation Act. The Central Excise Act has been held to C
be a complete Code by itself. The import of “expressly excluded” in
section 29(2) was considered, and it has been observed that even in the
absence of express exclusion, the court can examine the extent of
exclusion of Limitation Act by a special law, based on the provisions or
the nature of the subject matter. This Court has considered the scheme D
of the various provisions and the scheme thereunder thus:
“4. Chapter VI-A of the Act deals with appeals. As per Section
35, any person aggrieved by any decision or order passed by a
Central Excise Officer may file an appeal to the Commissioner of
Central Excise (Appeals) within sixty days from the date of the E
communication to him of such decision or order. The proviso to
sub-section (1) enables the Commissioner (Appeals) if he is
satisfied that the appellant was prevented by sufficient cause from
presenting the appeal within the aforesaid period of sixty days, to
allow it to be presented within a further period of thirty days.
F
5. Section 35-B speaks about appeals to the Appellate Tribunal.
Any person aggrieved by certain decisions/orders passed by the
Commissioner of Central Excise or the Commissioner (Appeals),
may prefer an appeal to the Appellate Tribunal within three months
from the date on which the order sought to be appealed against is
communicated to the officer concerned or the other party. Sub- G
section (5) enables the Appellate Tribunal to condone delay even
beyond the prescribed period if there was sufficient cause for not
presenting it within that period.
10
(2006) 6 SCC 239
H
556 SUPREME COURT REPORTS [2019] 13 S.C.R.
A 6. Section 35-EE provides for revision by the Central Government.
As per sub-section (2), an application under sub-section (1) shall
be made within three months from the date of the communication.
However, proviso to sub-section (2) enables the revisional authority
to condone the delay for a further period of ninety days, if sufficient
cause is shown.
B
7. Unamended Section 35-G speaks about appeal to the High
Court. Sub-section 2(a) enables the aggrieved person to file an
appeal to the High Court within 180 days from the date on which
the order appealed against is received by the Commissioner of
Central Excise or the other party. There is no provision to condone
C the delay in filing appeal beyond the prescribed period of 180
days.
8. Unamended Section 35-H speaks about reference application
to the High Court. As per sub-section (1), the Commissioner of
Central Excise or the other party within a period of 180 days of
D the date upon which he is served with notice of an order under
Section 35-C direct the Tribunal to refer to the High Court any
question of law arising from such order of the Tribunal. Here
again, as per sub-section (1), application for reference is to be
made to the High Court within 180 days, and there is no provision
E to extend the period of limitation for filing the application to the
High Court beyond the said period and to condone the delay.
9. In these three appeals, we are concerned with “reference
application” made to the High Court under Section 35-H(1) of the
Act before amendment of the Central Excise Act by Act 49 of
F 2005 (w.e.f. 28-12-2005) by which several provisions of the Act
were omitted including Section 35-H. However, in view of the
reference made, it is but proper to consider the question referred
before us.
** ** **
G 32. As pointed out earlier, the language used in Sections 35, 35-B,
35-EE, 35-G, and 35-H 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
H
SUPERINTENDING ENGR./ DPHCBB MNGMT BOARD (PW) SLAPPER v. 557
ETO, SUNDER NAGAR/ASSESSING AUTHY. [ARUN MISHRA, J.]
to entertain the appeal by condoning the delay only up to 30 days A
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
B
no power to condone the delay after expiry of the prescribed
period of 180 days.”
The Court has also taken note of the fact that the sufficient period
of limitation of 180 days has been provided for reference, provision for
condonation of delay was not made in filing the reference. The legislature
intended that there should not be any condonation of delay beyond 180 C
days. The Court has observed with respect to the sufficiency of a period
of 180 days which is more than the period prescribed for an appeal and
revision thus:
“33. Even otherwise, for filing an appeal to the Commissioner,
and to the Appellate Tribunal as well as revision to the Central D
Government, the legislature has provided 60 days and 90 days
respectively, on the other hand, for filing an appeal and reference
to the High Court larger period of 180 days has been provided
with to enable the Commissioner and the other party to avail the
same. We are of the view that the legislature provided sufficient E
time, namely, 180 days for filing reference to the High Court,
which is more than the period prescribed for an appeal and
revision.”
Under the scheme of the Act and the provision of limitation of
180 days, for filing reference to the High Court was more than the period F
prescribed for an appeal and revision.
16. In State of Madhya Pradesh & Anr. v. Anshuman Shukla,
(2014) 10 SCC 814, a 3-Judge Bench of this Court held that even if the
amendment to section 19 of the M.P. Madhyastham Adhikaran
Adhiniyam, 1983 was made in 2005, as the court had the power to take G
suo moto cognizance and call for record of an award at any time, there
was no legislative intent to exclude the applicability of section 5 of the
Limitation Act. Apart from that, this Court observed that section 19 of
the Act of 1983, did not contain any express rider on the power of the
High Court to entertain an application for revision after the expiry of the
H
558 SUPREME COURT REPORTS [2019] 13 S.C.R.
A prescribed limitation thereunder. Thus, the provisions of section 29(2)
are applicable in the absence of such rider, and delay in filing the revision
was condoned. The Court observed:
“32. Section 19 of the 1983 Act does not contain any express
rider on the power of the High Court to entertain an application
B for revision after the expiry of the prescribed period of three
months. On the contrary, the High Court is conferred with suo
motu power, to call for the record of an award at any time. It
cannot, therefore, be said that the legislative intent was to exclude
the applicability of Section 5 of the Limitation Act to Section 19 of
the 1983 Act.
C
33. In our opinion, it is unnecessary to delve into the question
whether the Arbitral Tribunal constituted under the Act is a court
or not for answering the issue in the present case as the delay in
filing the revision has occurred before the High Court, and not the
Arbitral Tribunal.
D
Answer to Point (ii)
34. In light of the reasons recorded above, we are of the opinion
that the case of Nagar Palika Parishad, Morena11, was decided
erroneously. Section 5 of the Limitation Act is applicable to Section
E 19 of the 1983 Act. No express exclusion has been incorporated
therein, and there is neither any evidence to suggest that the
legislative intent was to bar the application of Section 5 of the
Limitation Act on Section 19 of the 1983 Act. The cases which
were relied upon to dismiss the special leave petition, namely,
Nasiruddin12 and Popular Construction13, can be distinguished
F both in terms of the facts as well as the law applicable, and thus,
have no bearing on the facts of the present case.”
The provision of section 19(1) of the Madhya Pradesh
Madhyastham Adhikaran Adhiniyam, 1983 is extracted hereunder:
“19. High Court’s power of revision.—(1) The High Court may
G
suo motu at any time or on an application for revision made to it
within three months of the award by an aggrieved party, call for
the record of any case in which an award has been made under
11
(2004) 2 MPJR (SN) 374
12
(2003) 2 SCC 577
H 13
(2001) 8 SCC 470
SUPERINTENDING ENGR./ DPHCBB MNGMT BOARD (PW) SLAPPER v. 559
ETO, SUNDER NAGAR/ASSESSING AUTHY. [ARUN MISHRA, J.]
this Act by issuing a requisition to the Tribunal, and upon receipt A
of such requisition, the Tribunal shall send or cause to be sent to
that Court the concerned award and record thereof.”
17. In Patel Brothers v. State of Assam & Ors., 2017 (2) SCC
350, the question came up for consideration concerning the provisions
contained in the Assam Value Added Tax Act. This Court considered B
the provisions contained in sections 81 and 84 of the VAT Act read with
sections 5 and 29(2) of the Limitation Act. In the matter of condoning
the delay in filing revision in the High Court, it has been held that given
the provisions contained in sections 81 and 84 of the VAT Act, the
provisions of section 5 of the Limitation Act cannot be said to be applicable.
There can be implied exclusion of the provisions of section 29(2) of the C
Limitation Act. Even in the absence of express exclusion of the provisions
of the Limitation Act, it is open to a court to consider the implied exclusion.
It has been held:
“20. Thus, the approach which is to be adopted by the Court in
such cases is to examine the provisions of the special law to arrive D
at a conclusion as to whether there was legislative intent to exclude
the operation of the Limitation Act. In the instant case, we find
that Section 84 of the VAT Act made only Sections 4 and 12 of
the Limitation Act applicable to the proceedings under the VAT
Act. The apparent legislative intent, which can be clearly evinced, E
is to exclude other provisions, including Section 5 of the Limitation
Act. Section 29(2) stipulates that in the absence of any express
provision in a special law, provisions of Sections 4 to 24 of the
Limitation Act would apply. If the intention of the legislature was
to make Section 5, or for that matter, other provisions of the
Limitation Act applicable to the proceedings under the VAT Act, F
there was no necessity to make specific provision like Section 84
thereby making only Sections 4 and 12 of the Limitation Act
applicable to such proceedings, inasmuch as these two sections
would also have become applicable by virtue of Section 29(2) of
the Limitation Act. It is, thus, clear that the legislature intended G
only Sections 4 and 12 of the Limitation Act, out of Sections 4 to
24 of the said Act, applicable under the VAT Act, thereby excluding
the applicability of the other provisions.
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560 SUPREME COURT REPORTS [2019] 13 S.C.R.
A 21. The judgment in Mangu Ram14, would not come to the aid of
the appellant as the Court found that there was no provision under
CrPC from which legislative intent to exclude Section 5 of the
Limitation Act could be discerned and, therefore, Section 29(2) of
the Limitation Act was taken aid of. Similar situation prevailed in
Anshuman Shukla case15. On the contrary, in the instant case, a
B
scrutiny of the scheme of the VAT Act goes to show that it is a
complete code not only laying down the forum but also prescribing
the time-limit within which each forum would be competent to
entertain the appeal or revision. The underlying object of the Act
appears to be not only to shorten the length of the proceedings
C initiated under the different provisions contained therein but also
to ensure finality of the decision made thereunder. The fact that
the period of limitation described therein has been equally made
applicable to the assessee as well as the Revenue lends ample
credence to such a conclusion. We, therefore, unhesitatingly hold
that the application of Section 5 of the Limitation Act, 1963 to a
D
proceeding under Section 81(1) of the VAT Act, stands excluded
by necessary implication, by virtue of the language employed in
Section 84.”
This Court has considered section 84 of the VAT Act of Assam.
Same is as follows:
E
“84. Application of Sections 4 and 12 of the Limitation Act, 1963.—
In computing the period of limitation under this Chapter, the
provisions of Sections 4 and 12 of the Limitation Act, 1963, shall,
so far as may be, apply.”
F Section 81 deals with revision, and section 84 deals with the
Limitation Act. Section 84 makes a vital difference for the Chapter in
which the provision of section 81 finds a place. Only the provisions of
sections 4 and 12 of the Limitation Act are made applicable, and other
provisions stand excluded by limited application of the provisions of the
Limitation Act. The decision under the Assam VAT Act has turned on
G the aforesaid crucial provision of section 84.
18. In M. P. Steel Corporation v. Commissioner of Central
Excise, (2015) 7 SCC 58, this Court considered the connotations of the
14
(1976) 1 SCC 392
15
H (2014) 10 SCC 814
SUPERINTENDING ENGR./ DPHCBB MNGMT BOARD (PW) SLAPPER v. 561
ETO, SUNDER NAGAR/ASSESSING AUTHY. [ARUN MISHRA, J.]
court and civil proceedings under section 14 of the Limitation Act and A
the provisions were held applicable to the proceedings in the case of the
appeal being filed under section 120 of the Customs Act.
19. In Commissioner of Customs, Central Excise, Noida v.
Punjab Fibres Ltd., Noida, (2008) 3 SCC 73, a question arose of
condonation of delay in filing reference application to the High Court. It B
has been held that section 5 is not applicable. In the said case, the court
has followed the decision in Singh Enterprises v. Commissioner of
Central Excise, Jamshedpur & Ors., (2008) 3 SCC 70. In Singh
Enterprises (supra), it has been held:
“6. At this juncture, it is relevant to take note of Section 35 of the C
Act which reads as follows:
“35. Appeals to Commissioner (Appeals).—(1) Any person
aggrieved by any decision or order passed under this Act by a
Central Excise Officer, lower in rank than a Commissioner of
Central Excise, may appeal to the Commissioner of Central D
Excise (Appeals) [hereafter in this Chapter referred to as the
Commissioner (Appeals)] within sixty days from the date of
the communication to him of such decision or order:
Provided that the Commissioner (Appeals) may if he is satisfied
that the appellant was prevented by sufficient cause from E
presenting the appeal within the aforesaid period of sixty days,
allow it to be presented within a further period of thirty days.
(2) Every appeal under this section shall be in the prescribed
form and shall be verified in the prescribed manner.”
** ** ** F
8. The Commissioner of Central Excise (Appeals) as also the
Tribunal being creatures of statute are not 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 G
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
H
562 SUPREME COURT REPORTS [2019] 13 S.C.R.
A 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
B
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
C 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.”
D
20. In Chaudharana Steels Private Ltd. v. Commissioner of
Central Excise, Allahabad, (2009) 15 SCC 183, the question of delay
in filing an appeal under section 35-G of the Central Excise Act, 1944
came up for consideration. The Court held that the High Court has no
power to condone the delay and followed the decision in Punjab Fibres
E Ltd. (supra).
21. In the light of the decisions as mentioned earlier, when we
examine the scheme of the Act of 2005, the provisions contained in
section 45 provides for an appeal from every original order passed under
the Act or the Rules made thereunder. Sub-section (4) of section 45
F provides appeal to be filed within 60 days, or such more extended period
as the appellate authority may allow, for reasons to be recorded in writing.
Thus, because of the provisions contained in section 45(4), the principles
of section 5 would apply to an appeal before the appellate authority,
which otherwise in the absence of specific provision would not have
G applied to authority. The revision is provided to the Commissioner suo
motu under the provisions of section 46(1), and the period provided is 5
years for suo motu exercise of revisional power. However, the tribunal
has the power to entertain application within 60 days from the date of
communication of the order. When we consider the provisions of section
48, revision is provided to the High Court, and an aggrieved person may
H
SUPERINTENDING ENGR./ DPHCBB MNGMT BOARD (PW) SLAPPER v. 563
ETO, SUNDER NAGAR/ASSESSING AUTHY. [ARUN MISHRA, J.]
within 90 days of the communication of such order, file a revision. Section A
48(1) nowhere expressly excludes the applicability of provisions of the
Limitation Act. The provisions of section 5 are applicable to Section 48
as they are not expressly excluded by the provisions under the Act of
2005. More so, in view of the provisions in section 45(4), which makes
provisions to condone the delay like the Limitation Act, conferring power
B
upon an authority also to condone delay. Further, suo motu revision has
also been provided under section 46. In section 48, there is no express
exclusion. Because of the scheme of the Act, it cannot be inferred that
by implication, the provisions of section 5 of the Limitation Act are
excluded. Provisions contained in section 29(2) of the Limitation Act
would be attracted as there is no express exclusion or by implication, in C
view of the provisions of the Act of 2005. We hold that by virtue of the
provisions contained in section 29(2), provisions of section 5 of the
Limitation Act would apply to proceedings under Section 48 of the Act
of 2005.
22. The High Court has relied upon the decision of this Court in D
Patel Brothers (supra) in the context of the Assam VAT Act in which
the abovementioned provision of section 84 made the difference, which
makes specific provision that only sections 4 and 12 of the Limitation
Act are applicable. Consequently, it follows that other provisions are not
applicable. The decision in Hongo India Private Limited (supra) also
turned on the scheme of the Excise Act. The scheme of the Excise Act E
is materially different than that of the Himachal Pradesh VAT Act. Thus,
the decision in Hongo India Private Limited (supra) also cannot be
said to be applicable to interpret the Himachal Pradesh VAT Act. As the
revision under the Act of 2005 lies to the High Court, the provisions of
section 5 of the Limitation Act are applicable, and there is no express F
exclusion of the provisions of section 5 and as per section 29(2), unless
a special law expressly excludes the provision, sections 4 to 24 of the
Limitation Act are applicable. When we consider the scheme of the
Himachal Pradesh VAT Act, 2005, it is apparent that its scheme is not
ousting the provisions of the Limitation Act from its ken which makes
principles of section 5 applicable even to an authority in the matter of G
filing an appeal but for the said provision the authority would not have
the power to condone the delay. By implication also, it is apparent that
the provisions of Section 5 of the Limitation Act have not been ousted;
they have the play for condoning the limitation under Section 48 of the
H
564 SUPREME COURT REPORTS [2019] 13 S.C.R.
A Act of 2005. Suo motu provision of revisional power is also provided to
the Commissioner within 5 years. Thus, the intendment is not to exclude
the Limitation Act. We condone the delay in filing of revision.
23. We are of the considered view that the decision of the High
Court cannot be said to be sustainable. The provisions of Section 5 of
B the Limitation Act are held applicable to the revisional provision under
Section 48 of the Act of 2005. The impugned judgments and orders are
set aside; the cases are remitted to the High Court to examine the same
on merits in accordance with the law.
C Nidhi Jain Matter remitted to High Court.
D
E
F
G
H
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