Whether sec. 5 of limitation Act applies whiling filing revision under Section 48 of the Himachal Pradesh Value Added Tax Act, 2005 (‘the Act of 2005’)?
whether the High Court while 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 of Section 5 of the Limitation 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 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 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 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. 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 the Limitation Act are held applicable to the revisional provision under Section 48 of the Act of 2005.
1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 82768277 OF 2019
(ARISING OUT OF S.L.P. (C) NOS.1528015281 OF 2019)
SUPERINTENDING ENGINEER/ DEHAR
POWER HOUSE CIRCLE BHAKRA BEAS
MANAGEMENT BOARD (PW) SLAPPER &
ANOTHER ….APPELLANTS
VERSUS
EXCISE AND TAXATION OFFICER,
SUNDER NAGAR/ASSESSING AUTHORITY ….RESPONDENTS
WITH
CIVIL APPEAL NO. 8278 OF 2019
(ARISING OUT OF S.L.P. (C) NO.15283 OF 2019)
CIVIL APPEAL NO. 8279 OF 2019
(ARISING OUT OF S.L.P. (C) NO.15284 OF 2019)
CIVIL APPEAL NO. 8280 OF 2019
(ARISING OUT OF S.L.P. (C) NO.15285 OF 2019)
CIVIL APPEAL NO. 8281 OF 2019
(ARISING OUT OF S.L.P. (C) NO.15288 OF 2019)
J U D G M E N T
ARUN MISHRA, J.
1. The question involved is whether the High Court while 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
2
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 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 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.
3. The provisions contained in Section 48 of the Act of 2005,
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 subsection (2) of section 45 or
under subsection (3) of section 46, may, within 90 days of the
communication of such order, apply to the High Court of
Himachal 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 subsection (1) shall
precisely state the question of law involved in the order, and it
shall be competent for the High Court to formulate the question
of law.
3
(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:
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 subsection (1) or the
application for stay under subsection (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.”
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
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 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
4
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 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
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 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 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
5
in so far as and to the extent to which they are not expressly excluded.
Section 29(2) is extracted hereunder:
“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 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.”
(emphasis added)
6. 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 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 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.
6
7. Learned counsel appearing on behalf of appellants has placed
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 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 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 noncompliance with which visits the penalty of the petition being
dismissed. Following observations have been made:
“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 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 whether the provisions of this Section are expressly
excluded in the case of an election petition. It is contended before
7
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 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 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. 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
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 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 noncompliance with the provisions of Sections 82
and 117 of the Act, or alternatively if the provisions of the
Limitation Act do not 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 the Act, particularly in
respect of the filing of election petitions 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
quasijudicial Tribunals or executive authorities. Though the bodies or
8
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 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,
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 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
subsection (4) of Section 28 of the Hindu Marriage Act. Thus the
limitation provided, in subsection (4) of Section 28, is different
from the Schedule of the Limitation Act. According to subsection
(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 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
9
Hindu Marriage Act, provisions contained in Section 12 subsection (2) will be applicable; therefore, the time required for
obtaining copies of the 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. 2425)
“The Hindu Marriage Act is a special law. That this
‘special law’ prescribes ‘for an appeal a period of limitation’ is
alsoevident. 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 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 Insurance Co. Ltd., Bombay, AIR 1953
Bom 35, approved by the Supreme Court in Vidyacharan
Shukla v. Khubchand Baghel2
.
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 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 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, 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
therefore clear that the contention advanced by the learned
counsel for the respondent based on the Limitation Act also is of
no substance.”
1 AIR 1979 Del 22
2 AIR 1964 SC 1099
3 AIR 1988 Cal 28
4 AIR 1978 MP 245
10
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
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
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
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 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 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 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 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 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,
11
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
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
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 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. 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 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:
“9. If the aforesaid two requirements are satisfied, the
consequences contemplated by Section 29(2) would automatically
follow. These consequences are as under:
12
(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.
(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.
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
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 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 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 timelimit for a
particular appeal, but the special law prescribes a timelimit for
it, it can be said that under the First Schedule of the Limitation
Act all appeals can be filed at any 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 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.
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
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
5 AIR 1964 SC 1099
13
before appellate authority under Section 18 of the Act.
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
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.”
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) 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 Municipal Corporation of Delhi against the acquittal
order, filed an application in the High Court of Delhi under Section
417, subSection (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 on 25.8.1971, but it was filed on
6 AIR 1974 Ker 162
14
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 subSection (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 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:
“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 subsection (4) of
Section 417 for making an application for special leave under subsection (3) of that section could be extended by invoking Section 5 of
the Indian Limitation Act, 1908. This Court held that subsection
(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
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 subsection (4) of Section
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.”
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 subsection (4) of Section 417 by reason of
Section 29(2)(b) of that Act, which provided in so many terms that
15
“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
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 subsection (4) of Section 417 for an application by a complainant for
special leave to appeal against an order of acquittal. But the 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.
7. There is an important departure made by the Limitation Act,
1963 insofar as the provision contained in Section 29, subsection
(2), is concerned. Whereas, under the Indian Limitation Act, 1908,
Section 29, subsection (2), clause (b) provided that for the purpose
of determining any period of limitation prescribed for any suit,
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, subsection (2) of the Limitation Act, 1963 enacts in so
many terms that for the purpose of determining the period of
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, subsection (2), clause (b) of the Indian
Limitation Act, 1908 specifically excluded the applicability of
Section 5, while Section 29, subsection (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
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, subsection (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 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 subsection (4) of Section 417 is a special law of limitation,
7 AIR 1964 SC 260
16
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
subsection (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 subsection (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. 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 subsection (4) of Section 417 since the
Municipal 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 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 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
17
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
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:
“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
peremptory or imperative language is not sufficient to displace 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
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
concerned, the crucial words are "but not thereafter" used in the
proviso to subsection (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.”
It has been held that had the proviso to Section 34 merely
provided for a period within which the Court could exercise its
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.
18
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.
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
Act is excluded. Following is the relevant discussion:
“53. Subsection (3) of Section 34 of the AC Act prescribes the
period of limitation for filing an application for setting aside an
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 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 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 subsection
(3) of Section 34 of the AC Act places 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.
19
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 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 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 such
application before the wrong court is excluded, provided the
proceeding in the wrong court was prosecuted bona fide, with 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 beyond the
period specified in section 35H 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 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
10 (2006) 6 SCC 239
20
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 of the various provisions and the scheme
thereunder thus:
“4. Chapter VIA 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
communication to him of such decision or order. The proviso to
subsection (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.
5. Section 35B 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. Subsection (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.
6. Section 35EE provides for revision by the Central Government.
As per subsection (2), an application under subsection (1) shall be
made within three months from the date of the communication.
However, proviso to subsection (2) enables the revisional authority
to condone the delay for a further period of ninety days, if sufficient
cause is shown.
7. Unamended Section 35G speaks about appeal to the High Court.
Subsection 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 the delay in
filing appeal beyond the prescribed period of 180 days.
8. Unamended Section 35H speaks about reference application to
the High Court. As per subsection (1), the Commissioner of Central
Excise or the other party within a period of 180 days of the date
upon which he is served with notice of an order under Section 35C
direct the Tribunal to refer to the High Court any question of law
arising from such order of the Tribunal. Here again, as per subsection (1), application for reference is to be made to the High Court
within 180 days, and there is no provision to extend the period of
21
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 35H(1) of the
Act before amendment of the Central Excise Act by Act 49 of 2005
(w.e.f. 28122005) by which several provisions of the Act were
omitted including Section 35H. However, in view of the reference
made, it is but proper to consider the question referred before us.
** ** **
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."
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 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
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 time, namely,
180 days for filing reference to the High Court, which is more than
the period prescribed for an appeal and revision."
22
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 prescribed for an appeal and revision.
16. In State of Madhya Pradesh & Anr. v. Anshuman Shukla, (2014)
10 SCC 814, a 3Judge 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 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 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 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.
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.
Answer to Point (ii)
23
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
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 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 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 this Act by
issuing a requisition to the Tribunal, and upon receipt 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
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
11 (2004) 2 MPJR (SN) 374
12 (2003) 2 SCC 577
13 (2001) 8 SCC 470
24
of section 29(2) of the 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
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, 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, 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 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.
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
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 timelimit 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
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
proceeding under Section 81(1) of the VAT Act, stands excluded by
necessary implication, by virtue of the language employed in Section
84.”
14 (1976) 1 SCC 392
15 (2014) 10 SCC 814
25
This Court has considered section 84 of the VAT Act of Assam.
Same is as follows:
"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.”
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 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 court
and civil proceedings under section 14 of the Limitation Act and 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 has been held
that section 5 is not applicable. In the said case, the court has
26
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
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
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
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.”
** ** **
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 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 subsection (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.”
27
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 35G 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 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. Subsection (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 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 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 within 90 days of the
28
communication of such order, file a revision. Section 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 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 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
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
29
turned on the scheme of the Excise Act. The scheme of the Excise Act
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 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 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 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 the
30
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.
…………………………J.
(Arun Mishra)
………………………..J.
(M.R. Shah)
New Delhi; ………………….…….J.
October 25, 2019. (B.R. Gavai)
whether the High Court while 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 of Section 5 of the Limitation 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 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 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 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. 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 the Limitation Act are held applicable to the revisional provision under Section 48 of the Act of 2005.
1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 82768277 OF 2019
(ARISING OUT OF S.L.P. (C) NOS.1528015281 OF 2019)
SUPERINTENDING ENGINEER/ DEHAR
POWER HOUSE CIRCLE BHAKRA BEAS
MANAGEMENT BOARD (PW) SLAPPER &
ANOTHER ….APPELLANTS
VERSUS
EXCISE AND TAXATION OFFICER,
SUNDER NAGAR/ASSESSING AUTHORITY ….RESPONDENTS
WITH
CIVIL APPEAL NO. 8278 OF 2019
(ARISING OUT OF S.L.P. (C) NO.15283 OF 2019)
CIVIL APPEAL NO. 8279 OF 2019
(ARISING OUT OF S.L.P. (C) NO.15284 OF 2019)
CIVIL APPEAL NO. 8280 OF 2019
(ARISING OUT OF S.L.P. (C) NO.15285 OF 2019)
CIVIL APPEAL NO. 8281 OF 2019
(ARISING OUT OF S.L.P. (C) NO.15288 OF 2019)
J U D G M E N T
ARUN MISHRA, J.
1. The question involved is whether the High Court while 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
2
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 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 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.
3. The provisions contained in Section 48 of the Act of 2005,
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 subsection (2) of section 45 or
under subsection (3) of section 46, may, within 90 days of the
communication of such order, apply to the High Court of
Himachal 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 subsection (1) shall
precisely state the question of law involved in the order, and it
shall be competent for the High Court to formulate the question
of law.
3
(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:
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 subsection (1) or the
application for stay under subsection (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.”
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
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 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
4
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 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
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 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 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
5
in so far as and to the extent to which they are not expressly excluded.
Section 29(2) is extracted hereunder:
“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 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.”
(emphasis added)
6. 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 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 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.
6
7. Learned counsel appearing on behalf of appellants has placed
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 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 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 noncompliance with which visits the penalty of the petition being
dismissed. Following observations have been made:
“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 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 whether the provisions of this Section are expressly
excluded in the case of an election petition. It is contended before
7
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 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 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. 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
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 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 noncompliance with the provisions of Sections 82
and 117 of the Act, or alternatively if the provisions of the
Limitation Act do not 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 the Act, particularly in
respect of the filing of election petitions 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
quasijudicial Tribunals or executive authorities. Though the bodies or
8
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 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,
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 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
subsection (4) of Section 28 of the Hindu Marriage Act. Thus the
limitation provided, in subsection (4) of Section 28, is different
from the Schedule of the Limitation Act. According to subsection
(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 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
9
Hindu Marriage Act, provisions contained in Section 12 subsection (2) will be applicable; therefore, the time required for
obtaining copies of the 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. 2425)
“The Hindu Marriage Act is a special law. That this
‘special law’ prescribes ‘for an appeal a period of limitation’ is
alsoevident. 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 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 Insurance Co. Ltd., Bombay, AIR 1953
Bom 35, approved by the Supreme Court in Vidyacharan
Shukla v. Khubchand Baghel2
.
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 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 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, 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
therefore clear that the contention advanced by the learned
counsel for the respondent based on the Limitation Act also is of
no substance.”
1 AIR 1979 Del 22
2 AIR 1964 SC 1099
3 AIR 1988 Cal 28
4 AIR 1978 MP 245
10
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
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
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
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 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 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 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 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 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,
11
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
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
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 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. 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 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:
“9. If the aforesaid two requirements are satisfied, the
consequences contemplated by Section 29(2) would automatically
follow. These consequences are as under:
12
(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.
(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.
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
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 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 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 timelimit for a
particular appeal, but the special law prescribes a timelimit for
it, it can be said that under the First Schedule of the Limitation
Act all appeals can be filed at any 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 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.
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
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
5 AIR 1964 SC 1099
13
before appellate authority under Section 18 of the Act.
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
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.”
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) 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 Municipal Corporation of Delhi against the acquittal
order, filed an application in the High Court of Delhi under Section
417, subSection (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 on 25.8.1971, but it was filed on
6 AIR 1974 Ker 162
14
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 subSection (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 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:
“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 subsection (4) of
Section 417 for making an application for special leave under subsection (3) of that section could be extended by invoking Section 5 of
the Indian Limitation Act, 1908. This Court held that subsection
(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
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 subsection (4) of Section
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.”
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 subsection (4) of Section 417 by reason of
Section 29(2)(b) of that Act, which provided in so many terms that
15
“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
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 subsection (4) of Section 417 for an application by a complainant for
special leave to appeal against an order of acquittal. But the 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.
7. There is an important departure made by the Limitation Act,
1963 insofar as the provision contained in Section 29, subsection
(2), is concerned. Whereas, under the Indian Limitation Act, 1908,
Section 29, subsection (2), clause (b) provided that for the purpose
of determining any period of limitation prescribed for any suit,
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, subsection (2) of the Limitation Act, 1963 enacts in so
many terms that for the purpose of determining the period of
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, subsection (2), clause (b) of the Indian
Limitation Act, 1908 specifically excluded the applicability of
Section 5, while Section 29, subsection (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
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, subsection (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 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 subsection (4) of Section 417 is a special law of limitation,
7 AIR 1964 SC 260
16
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
subsection (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 subsection (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. 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 subsection (4) of Section 417 since the
Municipal 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 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 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
17
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
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:
“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
peremptory or imperative language is not sufficient to displace 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
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
concerned, the crucial words are "but not thereafter" used in the
proviso to subsection (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.”
It has been held that had the proviso to Section 34 merely
provided for a period within which the Court could exercise its
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.
18
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.
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
Act is excluded. Following is the relevant discussion:
“53. Subsection (3) of Section 34 of the AC Act prescribes the
period of limitation for filing an application for setting aside an
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 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 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 subsection
(3) of Section 34 of the AC Act places 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.
19
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 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 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 such
application before the wrong court is excluded, provided the
proceeding in the wrong court was prosecuted bona fide, with 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 beyond the
period specified in section 35H 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 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
10 (2006) 6 SCC 239
20
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 of the various provisions and the scheme
thereunder thus:
“4. Chapter VIA 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
communication to him of such decision or order. The proviso to
subsection (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.
5. Section 35B 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. Subsection (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.
6. Section 35EE provides for revision by the Central Government.
As per subsection (2), an application under subsection (1) shall be
made within three months from the date of the communication.
However, proviso to subsection (2) enables the revisional authority
to condone the delay for a further period of ninety days, if sufficient
cause is shown.
7. Unamended Section 35G speaks about appeal to the High Court.
Subsection 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 the delay in
filing appeal beyond the prescribed period of 180 days.
8. Unamended Section 35H speaks about reference application to
the High Court. As per subsection (1), the Commissioner of Central
Excise or the other party within a period of 180 days of the date
upon which he is served with notice of an order under Section 35C
direct the Tribunal to refer to the High Court any question of law
arising from such order of the Tribunal. Here again, as per subsection (1), application for reference is to be made to the High Court
within 180 days, and there is no provision to extend the period of
21
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 35H(1) of the
Act before amendment of the Central Excise Act by Act 49 of 2005
(w.e.f. 28122005) by which several provisions of the Act were
omitted including Section 35H. However, in view of the reference
made, it is but proper to consider the question referred before us.
** ** **
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."
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 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
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 time, namely,
180 days for filing reference to the High Court, which is more than
the period prescribed for an appeal and revision."
22
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 prescribed for an appeal and revision.
16. In State of Madhya Pradesh & Anr. v. Anshuman Shukla, (2014)
10 SCC 814, a 3Judge 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 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 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 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.
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.
Answer to Point (ii)
23
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
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 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 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 this Act by
issuing a requisition to the Tribunal, and upon receipt 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
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
11 (2004) 2 MPJR (SN) 374
12 (2003) 2 SCC 577
13 (2001) 8 SCC 470
24
of section 29(2) of the 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
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, 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, 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 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.
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
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 timelimit 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
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
proceeding under Section 81(1) of the VAT Act, stands excluded by
necessary implication, by virtue of the language employed in Section
84.”
14 (1976) 1 SCC 392
15 (2014) 10 SCC 814
25
This Court has considered section 84 of the VAT Act of Assam.
Same is as follows:
"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.”
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 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 court
and civil proceedings under section 14 of the Limitation Act and 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 has been held
that section 5 is not applicable. In the said case, the court has
26
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
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
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
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.”
** ** **
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 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 subsection (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.”
27
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 35G 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 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. Subsection (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 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 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 within 90 days of the
28
communication of such order, file a revision. Section 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 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 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
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
29
turned on the scheme of the Excise Act. The scheme of the Excise Act
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 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 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 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 the
30
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.
…………………………J.
(Arun Mishra)
………………………..J.
(M.R. Shah)
New Delhi; ………………….…….J.
October 25, 2019. (B.R. Gavai)
