Andhra HC (Pre-Telangana)
Mahendra Kumar Goyal vs Ex-Officio Joint Secretary And Addl. ... on 29 October, 1996
Equivalent citations: 1997(1)ALD(CRI)317, 1997(2)ALT722, 1997 A I H C 2266, (1997) 2 EFR 142, (1997) 1 LS 127, (1997) 1 CURCRIR 556, (1997) 1 ANDHLD 623, (1997) 2 ANDH LT 722, (1997) 2 CRIMES 437
Bench: B. Subhashan Reddy, T. Ranga Rao
ORDER
1. Whether Indian Limitation Act, 1963 (hereinafter referred to as the Limitation Act') is applicable only to the Courts and as to whether Section 5 of the said Act can beavailed of for appeals filed under Section 6-C of the Essential Commodities Act, 1955 (hereinafter referred to as 'the E.C., 'Act') as also the Orders made thereunder - are the important points for consideration in this batch of writ petitions.
2. In all these cases, the proceedings under Section 6-A of E.C. Act were initiated after seizing the essential commodities on the ground of violation of the provisions of the Orders promulgated under Section 3 thereof and consequently violating Section 3 and attracting penal provisions for confiscation of the commodities. Section 6-A of E.C. Actcontemplates initiation of proceedings and issuance of show-cause notice from -which stage the proceedings are started and after holding enquiry, orders are passed under Section 6-A of Act by the primary authority. In all these cases, the primary authority has passed orders against the petitioners holding that violations were committed and consequently confiscation was ordered. Statutory appeal is provided under Section 6-C of the E.C. Act to the State Government, within a period of one month from the date of communication of the said order. In all the cases, except in W.P. No. 13495 of 1993, appeal provision was invoked by the petitioners, but with delay, as the appeals were filed beyond the said period of one month. While some appeals were filed with delay contending that there was no delay on the ground of delay in communication of the order, in some cases delay condonation petitions were filed invoking Section 5 of Limitation Act. Holding that the appellate authority is not vested with the power of condoningdelay and that Section 5 of Limitation Act is not applicable, the appeals were dismissed without entering into the merits. Hence, these writ petitions.
3. Mr. M.V. Durga Prasad, the learned Counsel appearing for some of the writ petitioners led the arguments and submitted that in view of Section 29(2) of Limitation Act, Section 5 thereof is applicable to the appeals filed under Section 6-C of E.C. Act, as also the appeals provided under the Orders promulgated in exercise of the power under Section 3 thereof. He relies upon the latest Judgment of the Supreme Court in Mukri Gopalan v. C.P. Aboobacker., .
4. Ms. Rohini, the learned Government Pleader counters the arguments and supports the orders of the appellate authority under Section 6-C of E.C. Act dismissing the appeals on the ground of bar of limitation of one month prescribed therein and that Section 5 of Indian Limitation Act is not applicable. She relies upon the two Judgments of this Court rendered by the learned single Judge in Rajendra Modern Rice Mill v. Govt. of A.P., . and T.M. Asilamnni v. State of A.P., .
5. Savings clause provided under Section 29 was differently worded in Indian Limitation Act, 1908 as compared to the Limitation Act of 1963. While under the Limitation Act of 1908, Sections 4, 9 to 18 and 22 were applicable for determining the period of limitation prescribed for any suit, appeal or application by any special or local law, if the application of the said sections was not excluded by such special or local law. It was emphatic and it expressly excluded the applicability of any other provision of Indian Limitation Act, 1908 other than Sections 4, 9 to 18 and 22 to any suit, appeal or application under any special or local law. As such, Section 5 of Indian Limitation Act was not applicable as the application of the same was expressly barred. Coming to the same provision, as amended in 1963, the words employed are converse and sub-section (2) of Section 29 of Limitation Act, 1963 makes the Sees. 4 to 24 applicable to any suit, appeal or application under any special or local law, if the special or local law does not expressly exclude the application of the said provisions. As such, there is a marked difference between the Indian Limitation Act, 1908 to that of the Limitation Act, 1963 with regard to the savings clause contained under Section 29.
6. In Athani Municipality v. labour Court, Hubli, . the savings clause under Section 29 of Limitation Act did not come up for consideration. In that case, the question of applicability of Article 137 of Limitation Act to the proceedings before the Labour Court was the consideration. The Labour Court was seized of an application filed by a workman under Section 33-C(2) of Industrial Disputes Act, 1947. The argument advanced on behalf of the employer that in view of Article 137 of Limitation Act, the said application was barred by limitation as the same was filed beyond 3 years from the date of the amounts becoming payable, was repelled by the Supreme Court confirming the view of the High Court that Article 137 had no application. Of course, the Supreme Court did hold that Limitation Act has no application to the Labour Court as the same is not a Court. The said judgment also held that Limitation Act was applicable only to such proceedings which arose under the Code of Civil Procedure and not under other enactments. In Nityanand v. L.I.C. of India, . the said Judgment was relied upon when a similar question arose. The Supreme Court while upholding the view expressed in Athani's case (4 supra) that Labour Court is not a Court and that Indian Limitation Act is not applicable, did not approve the other principle laid down in that case regarding the inapplicability of the Limitation Act to the applications filed even though before the Court, but under legal provisions other than the Code of Civil Procedure. As the case was disposed of on other point, the Supreme Court did not proceed further to decide the applicability of Limitation Act for applications filed before the Court under the provisions other than the Code of Civil Procedure.
7. The above two decisions of the Supreme Court were relied upon by a learned single Judge of this Court in the two decisions rendered in Rajendra Modern Rice Mill v. Govt. of A.P. (2 supra) and TM. Asilamani v. State of A.P. (3 supra). The above two decisions directly arose under the E.C. Act. In Rnjendra Modem Rice Mill v. Govt. of A.P. (2 supra), the contravention was the A.P. Rice Procurement (Levy) Order, 1984 and the resultant proceedings under Section 6-A of the E.C. Act ended in confiscation and the appeal having been preferred under Section 6-C with delay, was dismissed on that ground holding that there was no power to condone the delay and the same was upheld by this Court. In another decision in the same volume in T.M. Asilamani v. State of A.P. (3 supra), the same learned single Judge considered the scope of Secs. 4 to 24 of Limitation Act, 1963 in a case arising under Andhra Pradesh Scheduled Commodities (Regulation and Distribution by Card System) Order, 1973 and held that the appeal filed with delay was not maintainable and that there was no power to condone the delay. Both the decisions of this Court and by the same learned single Judge held that the provisions of Limitation Act, 1963 cannot be applied to the cases dealt by the executive authorities which are only quasi-judicial authorities under the E.C. Act or the Orders promulgated thereunder and that the appeals have to be filed within the stipulated time thereunder and the delay in filing the said appeals cannot be condoned. The decision rendered by the Supreme Court in Smt. Lata Kamat v. Vilas, . and the decision rendered by a Division Bench of this Court in Government of A.P. v. Durgaram Prasad, 1983 (2) APLJ 83 = 1983 (1) ALT 100 (NRC). were not followed and following the decisions in Athani Municipality v. Labour Court, Hubli (4 supra) and Nityanand v. L.J.C. of India (5 supra), it was held that the Limitation Act has got no application for the appeals under the E.C. Act or the Orders issued thereunder.
8. In Smt. Lata Kamat v. Vilas (6 supra), it was held that Section 12(2) of Limitation Act, 1 63 was applicable to the appeals filed under Hindu Marriage Act, 1955 for the reason that the application of Sections 4 to 24 of Limitation Act, 1963 was not excluded. To the same effect is the decision rendered by the Division Bench of this Court in Government of A.P. v. Durgaram Prasad, 1983 (2) APLJ 83 = 1983 (1) ALT 100 (NRC). in which it was held that Section 5 of Limitation Act, 1963 is applicable in view of Section 29(2) of the said Act making applicable Sections 4 to 24 thereof, if the application of the same was not specifically barred under the special statute. In the said case, the special statute was the Arbitration Act and applying the said principles, the Division Bench of this Court held that the Court had power to extend time for filing objections.
9. In Nalgonda Co-operative Marketing Society Ltd. v. Labour Court, Hyderabad, (F.B.). a Full Bench of this Court held that since the Industrial Tribunals and Labour Courts are not Courts within the meaning of Limitation Act, 1963, the applications or the references arising either out of Industrial Disputes Act or A.P. Shops and Establishments Act cannot be filed with delay and if there is delay, the same cannot be condoned. There also reference was made to Sections 5 and 29(2) and Article 137 of Limitation Act, 1963 holding that even though Industrial Tribunal and Labour Court exercise the Judicial functions, they are not the Courts and as such, the Limitation Act, 1963 is not applicable, The result was the appeals filed beyond the period of limitation were held to be barred and were not entitled to be entertained by condoning the delay. In Kerala Electricity Board v. T.P. Kunhaliumma, . the Supreme Court held that Limitation Act is applicable not only to the proceedings under C.P.C., but also to the applications under provisions of law even other than C.P.C. But, a restricted meaning was given that all such applications, be it under C.P.C. or otherwise, are applicable only to the proceedings before a Court. Now, we need not multiply the case law for the reason that the Supreme Court in a recent Judgment in Mukri Gopal v. C.P. Aboobacker (1 supra) has comprehensively considered the entire case law on the subject touching upon both the aspects i.e. the applicability of the Limitation Act, 1963 for special statutes, as also the applicability of the same not only before the Courts, but also other authorities. The decisions in Athani Municipality v. Labour Court (4 supra), Nityanand v. LIC of India (5 supra) and Kerala Electricity Board v. T.P. Kunhaliumma, . were not approved. It was held in the said case that in view of Section 29(2) of the Limitation Act, 1963, Sections 4 to 24 of the said Act are applicable to the proceedings not only before the Civil Court, but also before all other authorities and not only to the proceedings under the Civil Procedure Code, but to all other proceedings even under the Special or local law, provided two conditions, namely (1) that the special or local law does not exclude the operation of the Limitation Act, 1963; and (2) that the limitation prescribed under the special or local law is different from what is prescribed under the schedule to the Limitation Act (exist). This is the authoritative Judgment as the same has comprehensively considered making references to the earlier Supreme Court Judgments and held as mentioned above. The same is a stare decis traceable to Article 141 and is the law of the land. As such. all other judgments holding contra are inapplicable and the judgments of this Court, be it of single Judge or Full Bench referred to above stood impliedly over-ruled.
10. Let us see now as to whether the principles enunciated by the Supreme Court in Mnkri Gopalan's case (1 supra) are applicable to the appeals arising either under Essential Commodities Act, 1955 or the Orders issued thereunder. E.C. Act is a special law. Under the said Act, appeal is maintainable against the orders of the primary authority, if filed, within a period of one month of communication. In some Orders passed in exercise of the powers under Section 3 of the Essential Commodities Act like A.P. Scheduled Commodities (Regulation and Distribution by Card System) Order, 1973, the period of limitation prescribed for appeal is 30 days from the date of communication. As such the periods of limitation prescribed therein are different from what is prescribed in the schedule appended to the Limitation Act and in fact, the Limitation Act does not prescribed any such limitation to the appeals filed either under E.C. Act or under the Orders issued thereunder. Neither E.C. Act nor the Orders issued thereunder exclude the operation of the Limitation Act. If that be so, Section 29(2) of Limitation Act, 1963 is applicable and as a necessary corollary, Sections 4 to 24 thereof automatically apply to the appeals under Section 6-C of E.C. Act, 1955 and also under the Orders issued in exercise of the powers under Section 3 of the said Act.
11. In view of what is stated supra, we hold:
(i) That Section 5 of Indian Limitation Act, 1963 is applicable to the appeals filed under Section 6-C of the Essential Commodities Act, 1955 and also the appeals provided under the Orders which are promulgated under Section 3 of the said Act;
(ii) That in cases where condone-delay applications have been filed, they shall be dealt with by the appellate authority as to whether there was plausible explanation or cause for delay and if there is such plausible explanation or cause, then the said delay be condoned
(iii) That in cases where applications for condoning the delay were not filed, a time of one month from the date of the receipt of this order is granted to file such applications and if the same are filed as stipulated, they shall be dealt with as mentioned in clause (ii) above; and
(iv) That in cases where the appeals have not been preferred, they are directed to be preferred within one month from the date of the receipt of this order with a delay-condonation petition and if complied, the same consideration is applicable as mentioned in clause (ii) above.
12. The Writ Petitions are allowed to the extent indicated above. Each party shall bear his own costs.