Gujarat High Court
Keshavlal Fulabhai Vyas vs Deputy Engineer (O And M) on 4 January, 2023
Author: Biren Vaishnav
Bench: Biren Vaishnav
C/SCA/20295/2021 ORDER DATED: 04/01/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 20295 of 2021
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KESHAVLAL FULABHAI VYAS
Versus
DEPUTY ENGINEER (O AND M)
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Appearance:
MS NIPABEN R GOR(12129) for the Petitioner(s) No. 1
DS AFF.NOT FILED (N) for the Respondent(s) No. 2
NANAVATI & CO.(7105) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
Date : 04/01/2023
ORAL ORDER
1. By way of this petition under Article 226 of the Constitution of India, the petitioner has challenged the communication dated 27.09.2021, by which, the Appellate Authority has refused to entertain the appeal and opine that there is no provision to condone delay and therefore the appeal filed beyond the period of 30 days in light of Section 127 of the Indian Electricity Act, 2003, cannot be entertained.
2. Taking into consideration the judgement of the Page 1 of 10 Downloaded on : Wed Jan 04 21:00:39 IST 2023 C/SCA/20295/2021 ORDER DATED: 04/01/2023 Calcutta High Court in case of Sudipta Koley v.
Smt. M Bhowmick and Anr. passed in WP No.84 of 2019 passed by the Division Bench on the question of whether Section 127 of the Indian Electricity Act provides for condonation of delay, the Division Bench held as under:
"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 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 Page 2 of 10 Downloaded on : Wed Jan 04 21:00:39 IST 2023 C/SCA/20295/2021 ORDER DATED: 04/01/2023 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 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 Page 3 of 10 Downloaded on : Wed Jan 04 21:00:39 IST 2023 C/SCA/20295/2021 ORDER DATED: 04/01/2023 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 127thereof. 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 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 Page 4 of 10 Downloaded on : Wed Jan 04 21:00:39 IST 2023 C/SCA/20295/2021 ORDER DATED: 04/01/2023 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 127does 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 hundred twenty) days and under section 127beyond 30 (thirty) days would be similar, i.e., the delay cannot be condoned.Page 5 of 10 Downloaded on : Wed Jan 04 21:00:39 IST 2023
C/SCA/20295/2021 ORDER DATED: 04/01/2023 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 Page 6 of 10 Downloaded on : Wed Jan 04 21:00:39 IST 2023 C/SCA/20295/2021 ORDER DATED: 04/01/2023 of limitation resembles the provision in section 125. Popular Construction (supra) and Chhatisgarh State 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) Page 7 of 10 Downloaded on : Wed Jan 04 21:00:39 IST 2023 C/SCA/20295/2021 ORDER DATED: 04/01/2023 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 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 Page 8 of 10 Downloaded on : Wed Jan 04 21:00:39 IST 2023 C/SCA/20295/2021 ORDER DATED: 04/01/2023 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 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 Page 9 of 10 Downloaded on : Wed Jan 04 21:00:39 IST 2023 C/SCA/20295/2021 ORDER DATED: 04/01/2023 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.
3. In light of the aforesaid position of law, no fault can be found in the impugned communication.
4. The petition is accordingly dismissed.
(BIREN VAISHNAV, J) ANKIT SHAH Page 10 of 10 Downloaded on : Wed Jan 04 21:00:39 IST 2023