Calcutta High Court
Sudipta Koley vs Smt. M Bhowmick And Anr on 10 July, 2019
Bench: Dipankar Datta, Saugata Bhattacharyya
WP No.84 of 2019
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
ORIGINAL SIDE
Present:
Hon'ble Justice Dipankar Datta
&
Hon'ble Justice Saugata Bhattacharyya
Sudipta Koley
v.
Smt. M Bhowmick and anr.
For the petitioner : Ms. Manju Agarwal,
Mr. Bajrang Manot.
For the CESC : Mr. Subir Sanyal,
Dr. Madhusudan Saha Roy.
Heard on: April 17, & June 12, 2019
Judgment on: July 10, 2019
Dipankar Datta, J.:-
1. The petitioner is a consumer of electricity, supplied by the CESC Limited
(hereafter the company). An inspection conducted in the premises of the
petitioner on October 12, 2018 by certain officers of the company
resulted in alleged detection of unauthorized use of electricity by the
petitioner. The final order of assessment was passed by the relevant
officer under section 126 of the Electricity Act, 2003 (hereafter the 2003
Act) on October 26, 2018. The same was challenged by the petitioner in
W.P.564 of 2018. A learned Judge of this Court disposed of the writ
petition on November 27, 2018 with directions which, inter alia, included
2
a direction upon the petitioner to prefer an appeal under section 127
within 7 days of restoration of supply. Supply was restored on December
7, 2018 and hence, an appeal should have been preferred by December
14, 2018. Due to his alleged sickness and December 15 and 16, 2018
being Saturday and Sunday, respectively, the petitioner could file the
appeal on December 17, 2018. The appellate authority under section 127
passed an order dated January 30, 2019, whereby she upheld the
objection of the company that the appeal was time-barred and rejected
the same. Such order of the appellate authority (the first respondent) is
the subject matter of challenge in W.P.84 of 2019.
2. A learned Judge of this Court was hearing this writ petition. The controversy that emerged for decision therein was, could an appeal under section 127 of the 2003 Act, carried from an order of assessment made under section 126 thereof, be entertained by the appellate authority if the same were presented beyond the period of limitation prescribed in section 127 itself upon condonation of delay in its presentation? Or, in other words, does the appellate authority acting under section 127 have the power to condone the delay in presentation of a time-barred appeal, if sufficient cause therefor were shown?
3. Ms. Manju, Agarwalla, learned advocate for the petitioner relied on the decisions reported in (i) AIR 2015 Calcutta 382 [Omvati Devi Agarwalla v. CESC Ltd. & Ors.], (ii) AIR 2002 Calcutta 99 [Shree Gopal Engineering Works Ltd. v. CESC Ltd.], (iii) (2001) 8 SCC 470 [Union of India v. 3 Popular Construction], (iv) (1995) 5 SCC 5 [Mukri Gopalan v. Cheppilat Puthanpurayil Aboobacker], and (v) (1987) 2 SCC 107 [Collector, Land Acquisition, Anantnag & Anr. v. Mst. Katiji & Ors.], and an unreported decision of the Bombay High Court dated October 18, 2016 in W.P.1674 of 2016 [Rakhee Gupta v. State of Maharashtra], in support of the contention that a time-barred appeal may be entertained by the appellate authority provided sufficient cause is shown for condonation of delay.
4. On behalf of the second respondent [The Deputy Manager, Loss Control Cell, CESC Limited], Dr. M. Saha Roy, learned advocate placed reliance on two decisions of coordinate Benches of this Court which, according to him, provided a complete answer to the controversy. The first is reported in 2011 (1) CHN (CAL) 182 [CESC Ltd. v. Kalavanti Doshi Trust & Ors.] and the other an unreported decision dated December 22, 2015 in MAT 1875 of 2015 [West Bengal State Electricity Distribution Company Ltd. & Ors. v. Pranab Kumar Sarkar].
5. The Bench while deciding Kalavanti Doshi Trust (supra) had referred to a decision reported in (2010) 5 SCC 23 [Chhatisgarh State Electricity Board v. Central Electricity Regulatory Commission & Ors.] to hold that the period of 30 days stipulated in section 127 of the 2003 Act cannot be extended by application of section 5 of the Limitation Act, 1963 (hereafter the 1963 Act). The same view was followed in Pranab Kumar Sarkar (supra).
4
6. The learned Judge in the order dated March 6, 2019 noticed a factual dissimilarity in Kalavanti Doshi Trust (supra). While the writ petition before the Division Bench involved interpretation of section 127 of the 2003 Act, Chhatisgarh State Electricity Board (supra) was in respect of interpretation of section 125 thereof. The differences in the period of limitation provided in the two sections coupled with the "vital aspect"
that the 2003 Act does not specifically exclude the provisions of the 1963 Act, led to formation of an opinion by the learned Judge that Chhatisgarh State Electricity Board (supra) "may have or may not have been applicable to a case under section 127" of the 2003 Act. His Lordship also referred to other decisions of the Supreme Court reported in AIR 1964 SC 1099 [Vidyacharan Shukla v. Khubchand Boghel], (2012) 6 SCC 782 [DSR Steel Pvt. Ltd. v. State of Rajasthan] and (2016) 1 SCC 444 [Baleshwar Dayal Jaiswal v. Bank of India]. While accepting that His Lordship was bound by the Division Bench decisions in Kalavanti Doshi Trust (supra) and Pranab Kumar Sarkar (supra), an opinion is also reflected in such order that Kalavanti Doshi (supra) may not have construed Chhatisgarh State Electricity Board (supra) correctly. In the wake of divergent views having been expressed in several decisions of this Court, His Lordship felt the need for a conclusive decision upon the issue being revisited and settled by a larger Bench. Consequently, the learned Judge by the said order dated March 6, 2019 formulated six questions for being answered by a larger Bench as may be constituted by the 5 Hon'ble the Acting Chief Justice and referred the matter to His Lordship. By an administrative order dated March 25, 2019 of the Hon'ble the Acting Chief justice, this matter has been placed before us.
7. We consider it proper, at this stage, to quote below the six questions that we are tasked to answer:
1. In respect of a provision in a statute prescribing a fixed period of time within which an appeal may be preferred against an order of authority thereunder, and where the bonus period beyond the regular period of limitation is stipulated and an expression 'not any further' than the principal period and the bonus period where apparently Section 5 of the Limitation Act may not have any application, whether the same can be treated as applying mutatis mutandis to a case where the statutory period for preferring an appeal against the administrative order may be fixed but the expression "not thereafter" is not used i.e. can the two situations be treated as a (sic) similar?
2. Does the Chhattisgarh case (supra) apply even to appeals under Section 127 of the Electricity Act where the said decision was rendered in the context of Section 111(2) and Section 125 of the said 2003 Act and whether the Kalavanti decision has correctly viewed the Chhattisgarh case (supra)?
3. Whether or not the decision of the Hon'ble Supreme Court in the context of specialised statutes like the Kerala Rent Control Act and 6 the Land Acquisition Act of the State of Jammu and Kashmir like the Mukri Gopalan (supra) and Collector, Land Acquisition Anantnag (supra), can be cited as exception to enable application under Section 5 of the Limitation Act even in the context of appeals under Section 127 of the Electricity Act, 2003?
4. Whether or not the decision of the Hon'ble Supreme Court in the case of Popular Construction (Supra) conclusively decides the circumstances in which Section 5 of the Limitation Act can be applied to statutes worded with the expression 'and not thereafter'?
5. When the provisions of the Limitation Act, 1963 have not be (sic) been specifically excluded under a special statute and particularly in the Electricity Act of 2003, a period is prescribed for preferring an appeal, can the delay in preferring the same not be condoned by applications of the provisions of Sections 4 to 29 of the Limitation Act, 1963?
6. Are the provisions of appeal under Section 127 of the Electricity Act akin to a (sic) Section 17 of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2003. The Supreme Court has held in the case of Mardia Chemicals vs. Union of India, (2004) 4 SCC 311 that a proceeding under Section 17 of the Act is in the nature of a suit and not 'an appeal' as understood in common legal parlance. 7
8. At the threshold of consideration of the six questions, referred to by the learned Judge, Ms. Agarwalla took exception to the reference being made to a Division Bench of two Judges for answers. She contended that the learned Judge having not agreed with the decisions of the Division Benches in Kalavanti Doshi Trust (supra) and Pranab Kumar Sarkar (supra) and referred the matter for being conclusively decided by a larger Bench, the writ petition ought to have been placed before a bench of larger quorum.
9. Such contention was opposed by Mr. Sanyal, learned advocate for the second respondent. According to him, the question of referring the matter to a bench of larger quorum can arise only if the correctness of the said Division Bench decisions is doubted by us and not otherwise.
10. Mr. Sanyal's contention was upheld and we called upon the parties to address us on the relevant issues. While not recording any formal order with reasons for not accepting Ms. Agarwalla's contention, it was made clear to the parties verbally that if we were inclined to take a view at variance with those in the said Division Bench decisions, we would have no other option but to request the Hon'ble the Chief Justice to constitute a larger bench.
11. We propose to assign our reasons at the outset for not accepting the contention of Ms. Agarwalla that the matter should have been referred to a bench of larger quorum than the quorum of benches which pronounced 8 the decisions laying down the law, the correctness of which was doubted by His Lordship.
12. Ordinarily, when a learned Judge of a high court is required to decide a point, he is bound by the decision of a Division Bench of the same court on a similar point. However, if such learned Judge is unable to agree with the view taken by such Division Bench on the ground that it has either not considered relevant decisions of the Supreme Court or the relevant law, the question that naturally arises is what is the course of action to be followed in such a case? Guidance flows from the decision of the Supreme Court authored by Hon'ble P. B. Gajendragadkar, C.J. (as His Lordship then was), reported in AIR 1965 SC 1767 [Lala Shri Bhagwan v. Ram Chand]. Paragraph18, to the extent relevant, is quoted hereunder:
"18. Before we part with this appeal, however, we ought to point out that it would have been appropriate if the learned Single Judge had not taken upon himself to consider the question as to whether the earlier decisions of the Division Benches of the High Court needed to be re-considered and revised. It is plain that the said decisions had not been directly or even by necessary implication overruled by any decision of this Court, indeed, the judgment delivered by the learned Single Judge shows that he was persuaded to re-examine the matter himself and in fact he had substantially recorded his conclusion that the earlier decisions were erroneous.... It is hardly necessary to emphasise that considerations of judicial propriety and decorum require that if a learned Single Judge hearing a matter is inclined to take the view that the earlier decisions of the High Court, whether of a Division Bench or of a Single Judge, needed to be reconsidered, he should not embark upon that enquiry sitting as a Single Judge, but should refer the matter to a Division Bench or, in a proper case, place the relevant papers before the Chief Justice to enable him to constitute a larger Bench to examine the question. That is the proper and traditional way to deal with such matters and it is founded on healthy principles of judicial decorum and propriety. It is to be regretted that the learned Single Judge departed from this 9 traditional way in the present case and chose to examine the question himself."
(underlined for emphasis)
13. The portion of the passage from paragraph 18 of the decision in Lala Shri Bhagwan (supra) underlined above has been quoted with approval in decisions of not too distant origin reported in (2008) 10 SCC 1 [Official Liquidator v. Dayanand] and (2012) 7 SCC 1 [U.P. Power Corporation Ltd. v. Rajesh Kumar].
14. The Constitution Bench decision reported in (2005) 2 SCC 673 [Central Board of Dawoodi Bohra Community v. State of Maharashtra] says much the same thing as to what a single Judge ought to do when he is disinclined to agree with the view expressed by a Division Bench of the same high court on a given point without, however, referring to Lala Shri Bhagwan (supra).
15. The order of the learned Judge dated March 6, 2019 although records "that the matter needs to be conclusively decided by the larger Bench of this Court as may be constituted by the Hon'ble the Acting Chief Justice", the same cannot be read as abrogating the power of the Hon'ble the Chief Justice of a high court or the Hon'ble the Acting Chief Justice thereof, as the case may be, to determine benches for hearing a particular matter as the master of the roster. The judicial order of the learned Judge notwithstanding, it is for the Hon'ble the Chief Justice or the Hon'ble the Acting Chief Justice, in the absence of the former, to take 10 a call in this behalf. We felt that the Hon'ble the Acting Chief Justice by assigning the writ petition to a Division Bench of two Judges did not commit any act of impropriety; on the contrary, the administrative order dated March 25, 2019 is in accord with the decisions of the Supreme Court referred to above.
16. We now move on to the core issue.
17. Arguments have been advanced at length by Ms. Agarwalla and Mr. Sanyal. Several authorities have been cited by them. We need not list the same here; suffice it to record that those authorities which provide adequate guidance to us to answer the questions shall be referred to as and when the situation requires.
18. Since the controversy is directly related to the point of limitation, it would be profitable to note what the law of limitation is about and what the relevant provisions of the 1963 Act (which, in itself, is a complete code) are.
19. Law is well settled that the object of the statutes of limitation is to compel a person to exercise his right of action within a reasonable time as also to discourage and suppress stale, fake or false claims. While this is so, there are two aspects of the statutes of limitation, ~ the one concerns the extinguishment of the right if a claim or action is not commenced within a particular time and the other merely bars the claim without affecting the right which either remains merely as a moral obligation or can be availed of to furnish the consideration for a fresh enforceable obligation. 11 One may, in this connection, usefully refer to the decision of the Supreme Court reported in AIR 1972 SC 1935 [M/s. Bharat Barrel & Drum Mfg. Co. Private Ltd. v. The Employees' State Insurance Corporation]. Section 3 of the 1963 Act provides for the bar of limitation. Leaving aside sub-section (2) which is not too relevant here, we may take note of sub- section (1) which is to the following effect "Subject to the provisions contained in sections 4 to 24 (inclusive), every suit instituted, appeal preferred, and application made after the prescribed period shall be dismissed although limitation has not been set up as a defence".
20. For ascertaining what is meant by the expression "the prescribed period"
in section 3(1), one has to read clause (j) of section 2 where it is defined along with the expression "period of limitation". As per clause (j) of section 2, "period of limitation" means the period of limitation prescribed for any suit, appeal or application by the Schedule and "prescribed period"
means the period of limitation computed in accordance with the provisions of the 1963 Act.
21. Let us now take a look at the Schedule to the 1963 Act. It contains 3 (three) divisions, - the first relating to suits, the second relating to appeals and the third relating to applications. Each of such division prescribes the period of limitation within which a suit, an appeal and an application of the nature appearing therein ought to be presented together with indication of the time from which the period of limitation would begin to run. It is, therefore, axiomatic that a suit, an appeal or an 12 application of the nature mentioned in the three divisions has to be instituted, preferred or made, as the case may be, within the period of limitation as prescribed if the subject matter of the suit/appeal/application is covered by the 1963 Act.
22. Since the law of limitation appertains to remedies, the Schedule to the 1963 Act has to be so construed so as to fit in with the rule that, claims in respect of rights cannot be entertained if not commenced within the time prescribed by the relevant entries therein in respect of that right. The Schedule to the 1963 Act notwithstanding, there could be a special law or a local law prescribing a period of limitation which is different from the one found in such Schedule. The possibility of a confusion arising because of different periods of limitation having been prescribed in the Schedule to the 1963 Act and the special/local law is taken care of by section 29(2) of the 1963 Act. Section 29(2) of the 1963 Act reads as follows:
"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."
23. A reading of sections 3 and 29(2) would reveal reference to sections 4 to 24 of the 1963 Act. We are not concerned here with any of these provisions, except section 5. Section 5 reads as follows: 13
"Extension of prescribed period in certain cases. - Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period, if the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period. Explanation.- ***"
23. A plain reading of the aforesaid provision would leave none in doubt that an application under section 5 could be filed seeking condonation of delay only in respect of a belated appeal or application, but not for condoning the delay in instituting a suit. That apart, an application under section 5 would lie to a "court" and not to any adjudicatory body or tribunal, which is not a "court".
24. In order to avail the benefit of section 29(2) read with section 5 of the 1963 Act, three conditions thus have to be satisfied - (i) the special or local law must prescribe a period of limitation different from the period of limitation prescribed by the Schedule to the 1963 Act qua the suit, appeal or application, description whereof is available in the first, second and third divisions, respectively, of such schedule; (ii) the special or local law should not expressly exclude applicability of sections 4 to 24; and (iii) an application for condonation of delay under section 5 is presented before a court by the appellant or the applicant who has preferred an appeal or made an application beyond the prescribed period envisaged in the special or local law and shows sufficient cause for his failure to prefer/make the appeal/application within such period so as to obtain a discretionary order for condonation of delay.
14
25. However, in our considered opinion, although the 2003 Act is a special law and does not contain express provision excluding the applicability of the 1963 Act, section 29(2) read with section 5 thereof would have no application to an appeal which is neither relatable to any of the several types of appeals, referred to in the second division of the Schedule, nor is required to be considered by a "court".
26. In Civil Appeal No. 4582 of 2019 [Ganesan rep by its power agent G. Rukmani Ganesan v. The Commissioner, The Tamil Nadu Hindu Religious and Charitable Endowments Board] decided on May 3, 2019, a bench of two Hon'ble Judges of the Supreme Court held in paragraph 54 as follows:
"54. The ratio which can be culled from above noted judgments, especially judgment of three-Judge Benches, as noted above, is as follows:
(1) The suits, appeals and application referred to in the Limitation Act, 1963 are suits, appeals and applications which are to be filed in a Court.
(2) The suits, appeals and applications referred to in the Limitation Act are not the suits, appeals and applications which are to be filed before a statutory authority like Commissioner under Act, 1959.
(3) Operation of Section 29(2) of the Limitation Act is confined to the suits, appeals and applications referred to in a special or local 15 law to be filed in Court and not before statutory authorities like Commissioner under Act, 1959.
(4) However, special or local law vide statutory scheme can make applicable any provision of the Limitation Act or exclude applicability of any provision of Limitation Act which can be decided only after looking into the scheme of particular, special or local law."
27. Our understanding of the 1963 Act is fortified by Ganesan (supra);
hence, bearing the same in mind, we now proceed to examine the provisions of the 2003 Act providing avenues for appellate remedy.
28. The parties before us are ad idem that the 2003 Act provides for appellate remedies before different appellate fora.
29. In terms of section 111, an appeal may lie before the Appellate Tribunal for Electricity against (i) an order made by an adjudicating officer under the 2003 Act (except under section 127) or (ii) an order made by the Appropriate Commission under such Act. Sub-section (2) of section 111 provides as follows:
"(2) Every appeal under sub-section (1) shall be filed within a period of forty-five days from the date on which a copy of the order made by the adjudicating officer or the Appropriate Commission is received by the aggrieved person and it shall be in such form, verified in such manner and be accompanied by such fee as may be prescribed.
Provided that the Appellate Tribunal may entertain an appeal after the expiry of the said period of forty-five days if it is satisfied that there was sufficient cause for not filing it within the period". 16
30. A second avenue for appeal is found in section 125 of the 2003 Act.
Section 125 reads as follows:
"Appeal to Supreme Court.- Any person aggrieved by any decision or order of the Appellate Tribunal, may, file an appeal to the Supreme Court within sixty days from the date of communication of the decision or order of the Appellate Tribunal, to him, on any one or more of the grounds specified in Section 100 of the Code of Civil Procedure, 1908 (5 of 1908).
Provided that the Supreme Court may, if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal within the said period, allow it to be filed within a further period not exceeding sixty days."
31. The third provision for appeal is found in section 127. Sub-section (1) thereof reads as follows:
"(1) Any person aggrieved by the final order made under section 126 may, within 30 days of the said order, prefer an appeal in such form, verified in such manner and be accompanied by such fee as may be specified by the State Commission, to an appellate authority as may be prescribed".
32. The aforesaid provisions (sections 111, 125 and 127) providing appellate remedies prescribe different periods of limitation for preferring appeals. Also, the three appellate fora have not been uniformly conferred with the power of condonation of delay. The legislature, in its wisdom, has selectively conferred power in certain cases of appeals where delay in preferring an appeal may be condoned.
33. Although section 111 provides a period of 45 (forty-five) days from the date on which a copy of the order sought to be appealed against is received by the intending appellant, the Appellate Tribunal for Electricity is empowered to entertain an appeal preferred beyond the period of 17 limitation of 45 (forty-five) days without any outer limit being fixed, i.e., a particular time-period beyond which delay cannot be condoned. Irrespective of the length of delay, if sufficient cause is shown for which the appellant was disabled to prefer the appeal within the period of 45 (forty-five) days and beyond, the tribunal has the power to condone the delay in the wise exercise of its discretion.
34. Next, the proviso to section 125 of the 2003 Act empowers the Supreme Court to entertain an appeal which is preferred beyond a period of 60 days which is the period of limitation. If the Supreme Court is satisfied that the appellant was prevented by sufficient cause from preferring the appeal within such period, it has the power to condone the delay. However, the power to condone delay is hedged with the condition that the appeal must have been preferred within 120 (one hundred twenty) days. Should an appeal be preferred beyond 120 (one hundred twenty) days, power is not conferred on the Supreme Court by the statute to grant the prayer for condonation of delay. Therefore, the maximum period within which an appeal may be filed under section 125 of the 2003 Act is 120 (one hundred twenty) days from the date of communication of the decision or order of the appellate tribunal, but not beyond.
35. Finally, adverting to section 127, we find that an appeal has to be filed within 30 (thirty) days. Neither does section 127 enlarge the period of limitation, as in section 125, nor does it confer power on the appellate 18 authority, in similar vein as in section 111, to condone the delay in preferring an appeal (irrespective of the length of delay but subject of course to satisfaction that the appellant was prevented by sufficient cause from preferring the appeal earlier). The concept of condonation of delay is completely absent insofar as section 127 is concerned.
36. Section 181(1) of the 2003 Act confers power on the State Commissions to frame regulations, not inconsistent with the provisions of the 2003 Act and the rules, to carry out the provisions of such Act subject also to the condition of a prior notification. Sub-section (2) of section 181 lists the matters in respect whereof regulations could be made by the State Commissions. Clause (zo) permits regulations to be brought into existence in respect of the form of preferring the appeal, the manner in which such form shall be verified and the fee for preferring the appeal under sub-section (1) of section 127.
37. We have been shown the West Bengal Electricity Regulatory Commission (Conduct of Business) Regulations, 2013. Paragraphs 3.1.1 and 3.1.2 under Chapter III of such Regulations refers to matters as in clause (zo) of section 181(2). The Regulations also do not speak of power being conferred on an appellate authority exercising jurisdiction under section 127 to condone the delay in preferring an appeal, assuming that the State Commission has the power to so confer.
38. Chhatisgarh State Electricity Board (supra) is an authority for the proposition that the 2003 Act is a self-contained comprehensive 19 legislation. Having read the provisions of the 2003 Act, to the extent relevant, and discussed the same in some detail, we are clear in our mind about the legislative intent that (i) section 5 of the 1963 Act in terms does not apply to an appeal under section 111 of the 2003 Act, although the principles underlying section 5 are applicable to such appeal; (ii) section 5 in terms does not have any applicability in respect of an appeal under section 125 of the 2003 Act, although the principles of section 5 could apply in an appropriate case where an appeal thereunder is preferred between 61 (sixty-one) and 120 (one hundred twenty) days of communication of the decision or order to the appellant and he seeks condonation of delay showing sufficient cause; (iii) neither the terms of nor the principles underlying section 5 have any application in respect of an appeal under section 127 thereof. We also hasten to add that the fact of the 2003 Act not expressly excluding the provisions of the 1963 Act is of no relevance. If in the same Act, i.e. the 2003 Act, the legislature has consciously and expressly made provision for application of section 5 principles (section 111 and 125) and such a provision is not made for an appeal under section 127, it necessarily follows that the legislature did not intend to give such benefit in respect of an appeal under section 127. We hold so on the basis of the dicta of the Supreme Court decision reported in (2004) 4 SCC 252 [Gopal Sardar v. Karuna Sardar].
39. In view of such discussion, we are unable to hold that a time-barred appeal under section 127 of the 2003 Act may be considered on merit by 20 the appellate authority upon condonation of delay. The appellate authority has not been empowered to condone delay, as is the case of an appeal under section 111.
40. The off-shoot of the aforesaid conclusion is that the decisions of learned Single Judges of this Court in Omevati Devi Agarwal (supra) and Shree Gopal Engineering Works Limited (supra) do not lay down good law. We concur with the opinions expressed by coordinate Benches of this Court in Kalavanti Doshi Trust (supra) and Pranab Kumar Sarkar (supra) that delay in preferring an appeal under section 127 of the 2003 Act cannot be condoned by the appellate authority since it is not empowered to do so. We, however, wish to deal with a particular observation in Kalavanti Doshi Trust (supra) before concluding our judgment.
41. We now answer the questions formulated by the learned Judge in chronological order:
Answer to question 1: The language of the particular section has to be seen in juxtaposition to the language in which the other sections are couched. The language of section 125 permits condonation of delay beyond 60 (sixty) days but limited to 120 (one hundred twenty) days' delay, whereas section 127 does not permit condonation of delay at all. The proviso to section 125 cannot be read in a manner so as to clothe an appellate authority under section 127 to condone the delay. The result arising out of preferring an appeal under section 125 beyond 120 (one 21 hundred twenty) days and under section 127 beyond 30 (thirty) days would be similar, i.e., the delay cannot be condoned. Answer to question 2: It is true that Chhatisgarh State Electricity Board (supra) arose out of an appeal under section 125 whereas Kalavanti Doshi Trust (supra) involved interpretation of section 127. The factual dissimilarities notwithstanding, there would be no change in the result in view of our answer to the preceding question.
Answer to question 3: In Mukri Gopalan (supra), the Supreme Court held that the appellate authority under section 18 of the Kerala Buildings (Lease and Rent Control) Act, 1965 was not a persona designata but it was functioning as a court and hence section 5 was automatically applicable. Collector, Land Acquisition, Anantnag (supra) was a civil appeal arising out of a judgment and order passed by the relevant high court, to which section 5 of the 1963 Act did apply. The appellate authority under section 127 not being a 'court', the referred decisions cannot be called in aid in the context of section 127. That apart, Mukri Gopalan (supra) has been held not to lay down good law by the Supreme Court in its decision reported in (2015) 7 SCC 58 [M.P. Steel Corporation v. Commissioner of Central Excise] and then again in Ganesan (supra). Answer to question 4: Popular Construction (supra) involved interpretation of section 34 of the Arbitration and Conciliation Act, 1996. The provision prescribing the period of limitation resembles the provision in section 125. Popular Construction (supra) and Chhatisgarh State 22 Electricity Board (supra) have read pari materia provisions in sync with each other. However, the law that applies to section 125 per se is not applicable to section 127. Popular Construction (supra), therefore, has no application here.
Answer to question 5: The provisions of the 1963 Act need not have been expressly excluded by the legislature in its application to the 2003 Act, for the reasons discussed above. The conclusion in paragraph 38 provides a complete answer to this question and hence we refrain from repeating the same.
Answer to question 6: Although section 17 of the SARFAESI Act, 2002 refers to an appeal, the learned Judge is right in observing that the proceeding thereunder is to be treated as a suit, as held by the Supreme Court in its decision reported in (2004) 4 SCC 311 [Mardia Chemicals & ors. v. Union of India & ors.]. However, a proceeding under section 17 of the SARFAESI Act, 2002 being a suit, it is not akin to a proceeding under section 127 of the 2003 Act which is an appeal conferring a statutory right to challenge an order of assessment made under section 126.
42. Before parting, we wish to deal with the observation in Kalavanti Doshi Trust (supra) that a writ court should not by invoking jurisdiction under Article 226 of the Constitution of India revive a barred remedy, is the settled law. The observation in our view narrows the amplitude of Article 226 of the Constitution of India. Mr. Sanyal was called upon to address us under what circumstances law had been previously settled that writ 23 jurisdiction cannot be exercised to revive a barred remedy. We received no answer.
43. We need to clarify the position. Take the case of a consumer who, despite the remedy of an appeal under section 127 being available, invokes the writ jurisdiction by challenging an order of assessment passed under section 126 of the 2003 Act within 20 (twenty) days of such order and prima facie satisfies the Court that any of the conditions for entertaining a writ petition despite such existence of an alternative remedy is present whereupon the same is admitted with interim relief being granted; however, at the stage of final hearing [say after 6 (six) months], the learned Judge is persuaded by the company not to hear the writ petition on merits in view of availability of the alternative appellate remedy which leads to dismissal of the same on this ground only. By such time, the limitation to approach the appellate authority under section 127 has set in and by reason of non-attraction of principles underlying section 5 of the 1963 Act, the remedy of appeal has become barred. In such a situation, can the writ court not grant leave to the consumer to avail the appellate remedy and direct the appellate authority to hear the appeal on merits? The answer, to our mind, should be in the affirmative or else for entertainment of the writ petition by the court and for its subsequent dismissal later, on the above ground, the consumer would be non-suited.
44. We are conscious that the delay in preferring an appeal under section 127 within 30 (thirty) days could result in the person, against whom an 24 adverse order under section 126 has been passed, being left without the statutory appellate remedy; however, we are also of the opinion that such a person would not find himself totally without any remedy. A final order of assessment under section 126 could be a subject of judicial review, if any of the conditions for entertainment of a writ petition (existence of an efficacious alternative remedy notwithstanding) is satisfied. If indeed the writ petitioner satisfies the writ court that for genuine reasons he could not avail the remedy of appeal and seeks a writ of certiorari to have the impugned order quashed, the writ court may in its discretion entertain the writ petition and judicially review the decision making process drawing inspiration from the Constitution Bench decision of the Supreme Court reported in AIR 1961 SC 1506 [A.V. Venkateswaran v. Ramchand Sobhraj Wadhwani] and other Constitution Bench decisions referred to therein. However, if the writ court is approached long after the final order of assessment under section 126 is made and proper explanation for the belated approach is either not shown or the court is satisfied that the petitioner disabled himself to pursue the appellate remedy for his own fault, the court may not entertain the writ petition at all.
45. The reference is answered accordingly. Let the records of the writ petition be placed before the learned Judge having determination to hear it, immediately.
(SAUGATA BHATTACHARYYA, J.) (DIPANKAR DATTA, J.)