Bombay High Court
Rakhee Gupta vs The State Of Maharashtra And 4 Ors on 18 October, 2016
Bench: R.M. Savant
wp-1674.16
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO.1674 OF 2016
Rakhee Gupta ]
of Mumbai, an adult, Indian Inhabitant, ]
having her address at 203, Network CHS ]
Murari Ghag Marg, Off. A.M.Marg, ]
Prabhadevi, Mumbai 400 025 ]..... Petitioner.
Versus
1] The State of Maharashtra ]
Through its Ministry of Industries, Energy
ig ]
and Labour having its office at Mantralaya, ]
Mumbai. ]
]
2] The Municipal Corporation of ]
Greater Mumbai ]
a body constituted under the provisions of ]
Mumbai Municipal Corporation Act, 1888 ]
having its Head office at Mahapalika Bhavan ]
Mahapalika Marg, Opp. C.S.T. Mum 400 001 ]
]
3] The Brihan Mumbai Electric Supply ]
& Transport Undertaking ]
(of Brihan Mumbai Mahanagarpalika) having ]
its office at 3rd Floor, New Ancillary Building ]
Wadala Depot, Tilak Road Extn. Wadala ]
Mumbai - 400 031 ]
]
4] Appellate Authority And ]
Superintendent Engineer ]
Mumbai Regional Electrical Inspection ]
Committee, having its office at Industries ]
rd
Energy and Labor Department, 3 Floor, ]
Administrative Building, Ramkrishna ]
Chemburkar Marg, Chembur (East) ]
Mumbai 400 071 ]
]
5] Assessing Officer ]
Divisional Engineer, Customer Care (F/South) ]
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having its office at 3rd Floor, New Ancillary ]
Building, Wadala Depot, Tilak Road Extn. ]
Wadala, Mumbai 31. ]..... Respondents.
Mr. Ankit Lohia a/w Ms. Kausar Banatwala i/by Mr. Tushar Goradia for the
Petitioner.
Mr. U S Upadhyay, AGP, for the Respondent No.1 State.
Dr. Abhinav Chandrachud a/w Mr. Rakesh Singh and Mr. Kunal Chheda
i/by M. V. Kini & Co. for the Respondent No.3.
CORAM : R. M. SAVANT, J.
Reserved on : 01/10/2016
Pronounced on : 18/10/2016
ORAL JUDGMENT :
1 The writ jurisdiction of this Court under Article 226 of the
Constitution of India is invoked against the order dated 18/01/2016 passed by
the Appellate Authority i.e. the Superintendent Engineer, Mumbai Regional
Electric Inspection Committee, Industry, Energy and Labour Department,
Mumbai by which order, the Appeal filed by the Petitioner under Section 127 of
the Indian Electricity Act, 2003 came to be rejected for the reasons mentioned
therein.
2 The facts giving rise to filing of the above Petition can in a nutshell
be stated thus :-
The Petitioner herein is the owner of Flat bearing Nos.605/606
situated at Kingston Towers, G.D.Ambedkar Marg, Kalachowki, Parel, Mumbai
- 400 033. The Petitioner had entered into a Leave and License Agreement
with one M/s. Laurent & Benon Management Consultants Ltd. It seems that
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the said Company defaulted in making payment of the license fees, on account
which the license came to be terminated by the Petitioner and the Petitioner
thereafter took possession of the said flats in question. The Petitioner in respect
of the said flats on 07/04/2015 received a final assessment order dated
30/03/2015 issued by the Respondent No.5 herein. In the said final assessment
order a reference is made to the provisional assessment order dated
17/04/2014. It is the case of the Petitioner that she was never served with the
provisional assessment order. On receipt of the said final assessment order
dated 30/03/2015, the Petitioner addressed a letter to the Respondent No.3
calling upon the Respondent No.3 to furnish copies of the documents relating
to the said assessment along with calculations and the provisional assessment
order dated 17/04/2014 which was for an amount of Rs.6,23,145/- for the
period between 07/01/2011 and 24/02/2014. The Petitioner once again vide
letter dated 26/11/2015 reiterated the said requisition. The Petitioner
thereafter forwarded a cheque bearing No.335571 dated 01/11/2015 for an
amount of Rs.2,24,263/- being 50% of the amount mentioned in the final
assessment order. The Petitioner requested that since there is a delay in filing
the Appeal, the Petitioner may be permitted to file the Appeal under the
provisions of the Indian Electricity Act, 2003 ("the Electricity Act" for short).
3 The Respondent No.3 in response to the said letter communicated
to the Petitioner that it has no objection to the Petitioner filing an Appeal under
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Section 127 of the said Act. The Petitioner accordingly filed an Appeal under
Section 127 of the said Act in respect of the final assessment order dated
30/03/2015. The Respondent No.4 herein i.e. the Appellate Authority by the
impugned order dated 18/01/2016 dismissed the Appeal inter-alia on the
ground that the Appeal was filed beyond the period of limitation; that the
Petitioner had not deposited 50% of the amount as required under Section 127
of the said Act and that the Petitioner had not paid 2% of the assessment
amount as the fees.
4 The Respondent No.3 thereafter vide letter dated 05/02/2016
demanded the remaining amount of Rs.2,24,263/- within a period of 15 days.
The Petitioner vide letter dated 11/02/2016 requested the Respondent No.3
not to proceed in terms of their demand letter dated 05/02/2016 as the
Petitioner intended to take recourse in law against the said order dated
18/01/2016. That is how the instant Writ Petition has been filed challenging
the order dated 18/01/2016 passed by the Respondent No.4 dismissing the
Appeal filed by the Petitioner.
5 Heard the learned counsel for the parties.
6] SUBMISSIONS ON BEHALF OF THE PETITIONER BY THE
LEARNED COUNSEL SHRI ANKIT LOHIA :-
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A] That the Appellate Authority had erred in rejecting the Appeal
filed by the Petitioner on the grounds mentioned in the order.
B] That in so far as the ground of non-deposit of 50% of the amount
due which is a condition precedent for filing of the Appeal is
concerned, the said ground is not sustainable in view of the fact
that the Petitioner has already deposited the amount of
Rs.2,24,263/- which is more than 50% of the amount due and
that the said fact is acknowledged by the Respondent No.3;
C] That in so far as ground of non-payment of the fees is concerned,
the Petitioner was always ready and willing to pay the fees, as the
Petitioner has already deposited 50% of the amount with the
Respondent No.3.
D] That in so far as the ground of delay is concerned, though Section
127 of the Electricity Act postulates the Appeal to be filed within
30 days, on the application of Sections 5 to 24 of the Limitation
Act, the delay can be condoned by the Appellate Authority and
therefore the Appellate Authority ought not to have dismissed the
Appeal on the said ground. Reliance is sought to be placed on the
judgments of the Apex Court reported in (1995) 5 SCC 5 in the
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matter of Mukri Gopalan V/s. Cheppilat Puthanpurayil
Aboobacker; reported in (1974) 2 SCC 133 in the matter of
Hukumdev Narain Yadav v/s. Lalot Narain Mishra and on the
judgment of the Division Bench of this Court reported in 2008(3)
Bom. C.R. 290 in the matter of UCO Bank v/s Kanji Manji
Kothari & Co. and ors.
E] That the language of Section 125 of the Electricity Act being
different than the language of Section 127 of the Electricity Act,
the said Section 127 would have to construed differently though
may be appearing in the same Act. Reliance is sought to be placed
on the judgment of the Apex Court reported in AIR 1956 SC 35 in
the matter of The Member, Board of Revenue v/s. Arthur Paul
Benthall and (2015) 3 SCC 274 in the matter of Sher Singh alias
Partapa v/s. State of Haryana.
7] SUBMISSIONS ON BEHALF OF THE RESPONDENT NO.3 BY THE
LEARNED COUNSEL DR.A D CHANDRACHUD :-
i] That in terms of the procedure applicable to the filing of an Appeal
under the Regulations framed under the Electricity Act, the
Petitioner was required to deposit 2% of the amount due as fees.
The Petitioner having not done so, the Appeal was liable to be
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dismissed on the said ground. Reliance is sought to be placed on
the judgment of the Apex Court reported in (1995) 5 SCC 284 in
the matter of Buta Singh (Dead) by LRs v/s. Union of India.
ii] That though the Petitioner having filed the Appeal belatedly had
not even filed an application for condonation of delay, therefore,
the Petitioner now cannot contend that there is a delay in filing the
Appeal which has to be condoned.
iii] That the Electricity Act is a special act and a self contained code
and therefore there has to be strict compliance and hence there
can be no application of Sections 5 to 24 of the Limitation Act.
Reliance is sought to be placed on the judgments of the Apex
Court reported in AIR 1969 SC 872 in the matter K.
Venkateswara Rao & Anr. V/s. Bekkam Narasimha Reddi & ors.
reported in (2009) 8 SCC 736 in the matter of G V Sreerama
Reddy and Anr. v/s Returning Officer & ors, reported in (2011)
15 SCC 30 in the matter of Ketan V Parekh v/s. Special Director,
Directorate of Enforcement & anr, reported in (2012) 6 SCC
782 in the matter of DSR Steel (Pvt.) Ltd. V/s. State of Rajasthan
& ors, reported in (2016) 1 SCC 444 in the matter of Baleshwar
Dayal Jaiswal v/s. Bank of India and ors; reported in (2010) 5
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SCC 23 in the matter of Chhattisgarh State Electricity Board v/s.
Central Electricity Regulatory Commission and others, and
reported in (2016) 1 SCC 444 in the matter of Baleshwar Dayal
Jaiswal v/s. Bank of India and others.
CONSIDERATION :-
8 The question that arises in the above Petition is whether the delay
in filing the Appeal under Section 127 of the Electricity Act can be condoned.
Incidental to the said question is the applicability of Section 29(2) of the
Limitation Act to an Appeal filed under Section 127 of the Electricity Act. In
the said context Section 127 of the Electricity Act and Section 29(2) of the
Limitation Act assume relevance. The same are therefore reproduced herein
under for the sake of ready reference:-
"127. Appeal to appellate authority.- (1) Any person
aggrieved by a final order made under section 126 may,
within thirty 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.
(2) No appeal against an order of assessment under
sub-section (1) shall be entertained unless an amount
equal to [half of the assessed amount] is deposited in
cash or by way of bank draft with the licensee and
documentary evidence of such deposit has been
enclosed along with the appeal.
(3) The appellate authority referred to in sub-section
(1) shall dispose of the appeal after hearing the parties
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and pass appropriate order and send copy of the order
to the assessing officer and the appellant.
(4) The order of the appellate authority referred to in
sub-section (1) passed under sub-section (3) shall be
final.
(5) No appeal shall lie to the appellate authority
referred to in sub-section (1) against the final order
made with the consent of the parties.
(6) When a person defaults in making payment of
assessed amount, he, in addition to the assessed
amount, shall be liable to pay, on the expiry of thirty
days from the date of order of assessment, an amount
of interest at the rate of sixteen per cent. per annum
compounded every six months."
"29 Savings --- (1) ..........
(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."
In so far as the Electricity Act is concerned, it inter-alia governs the generation,
transmission, distribution of electricity, tariff fixation, protecting the interest of
consumers, constitution of Central Electricity Authority, Regulatory
Commission and Appellate Tribunal. Hence it is a special law enacted for the
aforesaid purposes.
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In so far as Section 29 of the Limitation Act is concerned, it
becomes applicable in two contingencies that there must be a provision for
period of limitation under any special or local law in connection with any suit,
appeal or application; and secondly when the said special or local law
prescribes the period of limitation for an appeal or application for which there
is no provision in the Schedule to the Limitation Act. In such cases all the
provisions of Sections 4 to 24 of the Limitation Act would become applicable.
The application of Section 29(2) of the Limitation Act had come up for
consideration before the Apex Court in Cheppilat Puthanpurayil
Aboobacker's case (supra). In the said case, Section 18 of the Kerala Rent
Control Act was in contention. The said provision is reproduced herein under:-
"18. Appeal. - (1) (a) The Government may, by general
or special order notified in the Gazette, confer on such
officers and authorities not below the rank of a
Subordinate Judge the powers of appellate authorities
for the purposes of this Act in such areas or in such
classes of cases as may be specified in the order.
(b) Any person aggrieved by an order passed by the
Rent Control Court, may, within thirty days from the
date of such order, prefer an appeal in writing to the
appellate authority having jurisdiction. In computing
the thirty days aforesaid, the time taken to obtain a
certified copy of the order appealed against shall be
excluded.
(2) On such appeal being preferred, the appellate
authority may order stay of further proceedings in the
matter pending decision on the appeal.
(3) The appellate authority shall send for the records of
the case from the Rent Control Court and after giving
the parties an opportunity of being heard and, if
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necessary, after making such further inquiry as it thinks
fit either directly or through the Rent Control Court,
shall decide the appeal.
Explanation:- The appellate authority may, while
confirming the order of eviction passed by the Rent
Control Court, grant an extension of time to the tenant
for putting the landlord in possession of the building.
(4) The appellate authority shall have all the powers of
the Rent Control Court including the fixing of arrears of
rent.
(5) The decision of the appellate authority, and subject
to such decision, an order of the Rent Control Court
shall be final and shall not be liable to be called in
question in any court of law, except as provided in
Section 20."
The Apex Court adverted to the two requirements necessary to be satisfied for
the applicability of Section 29(2) of the Limitation Act which have been
adverted to herein above and observed that if the two requirements are
satisfied, the consequences namely that 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, for the purpose of determining any period of
limitation which is prescribed by such special or local law for any suit, appeal
or application, all the provisions containing in Sections 4 to 24 would apply
only in so far as and to the extent to which, they are not expressly excluded by
such special or local law. The relevant paragraphs of the said judgment are
paragraphs 10 and 11 which are reproduced herein under for the sake of ready
reference :-
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"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 Vs.
Khubchand Baghel and Ors. (AIR 1964 SC 1099), when
the first schedule of the Limitation Act prescribes no
time limit for a particular appeal, but the special law
prescribes a time limit for it, it can be said that under
the first schedule of the Limitation Act all appeals can
be filed at any 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
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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 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 Vs. Amina Kunhi
Umma(supra). 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.
9 The Division Bench of this Court in UCO Bank's case (supra) in the
context of Section 17 of the Securitization and Reconstruction of Financial
Assets & Enforcement of Security Interest Act, 2002 which provides for an
Appeal to be filed within 45 days from the date on which measures were taken,
held that Section 5 of the Limitation Act gets attracted. The Division Bench in
the said case has referred to the judgment of the Apex Court in Cheppilat
Puthanpurayil Aboobacker's case (supra).
The Apex Court in Baleshwar Dayal Jaiswal's case (supra)
observed that it differed from the view taken by the Andhra Pradesh High
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Court, the Madras High Court and the Bombay High Court (UCO Bank v/s
Kanji Manji Kothari & Co. and ors ) but confirmed the applicability of
Section 5 on a different ground.
10 Thereafter in Municipal Corporation of Delhi's case (supra) in
the context of Section 417(4) of the Code of Criminal Procedure 1898 which
provides for an Appeal against the order of acquittal and which stipulates the
period of 45 days for the filing of the said Appeal, held that the provisions of
the Limitation Act 1963 which had by then come into force replacing the
Limitation Act 1908, would apply, as the application of the Limitation Act was
not explicitly excluded, whereas Section 29(2)(b) of the Limitation Act 1908
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
application of Section 5 was in clear and specific terms excluded.
11 Per contra, on behalf of the Respondent No.3 judgments were
cited in support of the contention that application of Section 29(2) of the
Limitation Act is ruled out where the limitation is fixed under a special law
which is a self contained Code. In Bekkam Narasimha Reedi's case (supra)
the Apex Court was concerned with the issue whether an Election Petition
could be permitted to be filed beyond the period of 45 days as prescribed by
Section 81 of the Representation of the People Act. The Apex Court adverted
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to the scheme encompassed within the Representation of People Act governing
the holding of elections, the nature of the right to contest for elections, the
reddressal of disputes regarding elections under the said Act, how the elections
can be called in question, which courts have jurisdiction, how an election
petition is to be presented, who are the parties to the election petition as also
the relief claimed in the election petition. On an analysis of the provisions of
the said Act the Apex Court held that the trial of the election petition is not the
same thing as a trial of a suit. The Apex Court then concluded that Section
29(2) would have no application to the filing of an election petition inasmuch
as the Representation of People Act is a complete Code in itself which does not
admit of the introduction of the provisions of the Limitation Act.
12 The view taken by the Apex Court in Bekkam Narasimha Reedi's
case (supra) was reiterated by the Apex Court in G.V. Sreerama Reddy's case
(supra) wherein the Apex Court held that the provisions of Section 29(2)
would not apply to the provisions of Section 81 of the Representation of People
Act.
13 In Ketan V. Parekh's case (supra) the Apex Court was concerned
with Section 35 of the Foreign Exchange Management Act, 1999. The said
provision reads thus :-
"35. Appeal to High Court - Any person aggrieved by
any decision or order of the Appellate Tribunal may
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file an appeal to the High Court within sixty days from
the date of communication of the decision or order of
the Appellate Tribunal to him on any question of law
arising out of such order:
Provided that the High 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.
Explanation.--In this section "High Court" means--
(a) the High Court within the jurisdiction of which the
aggrieved party ordinarily resides or carries on
business or personally works for gain; and
(b) where the Central Government is the aggrieved
party, the High Court within the jurisdiction of which
the respondent, or in a case where there are more
than one respondent, any of the respondents,
ordinarily resides or carries on business or personally
works for gain."
The Apex Court in the said case relied upon its judgment in the matter of
Union of India v/s. Popular Construction Company reported in (2001) 8
SCC 470 amongst other judgments and held that the issue of applicability of
Section 29(2) of the Limitation Act would have to be held against the
Appellant. In Popular Construction Company's case (supra) the issue was as
regards the applicability of Section 29(2) of the Limitation Act to a proceeding
under Section 34 of the Arbitration and Conciliation Act 1996. The said
provision reads thus :-
"34 Application for setting aside arbitral award.
(1) ..................
(2) ..................
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(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 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".
(emphasis supplied)
The Apex Court held that having regard to the crucial words in Section 34 of
the Arbitration and Conciliation Act 1996 which were to the effect "but not
thereafter" would amount to an exclusion of the applicability of Section 29(2)
of the Limitation Act and would therefore be a bar to the application of Section
5 of the Limitation Act.
14 From a reading of the aforesaid judgments, the special laws can be
carved out into two categories, one category of special laws are those where
the Appeal provision lays down a period of limitation couched in a peremptory
or imperative language which as held by the Apex Court is not sufficient to
displace the applicability of Section 5 of the Limitation Act and the 2 nd category
is of those special laws where on account of the language used in the Appeal
provision the applicability of the limitation Act is ruled out or are those special
laws where the applicability of Section 5 of the Limitation Act is specifically
excluded. Reference could be made to Section 34 of the Arbitration and
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Conciliation Act 1996 and Section 35 of the FEMA 1999.
In so far as the judgment of the Apex Court in Chhattisgarh State
Electricity Board's case (supra) is concerned, the Apex Court in the said case
was dealing with an Appeal filed under Section 125 of the Electricity Act
before it. The question before the Apex Court was whether the delay in filing
the Appeal could be condoned. In so far as Section 125 of the Electricity Act is
concerned, it provides for an Appeal to the Apex Court against the order
passed by the Appellate Tribunal. The said Section 125 of the Electricity Act
reads thus :-
"125. 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
Having regard to the language of Section 125 the Apex Court held
that normal limitation period is 60 days, which under the proviso to the said
Section can be extended by a further period of 60 days . The Apex Court held
that there cannot be an extension beyond the period of 120 days and Section 5
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of the Limitation Act cannot be invoked for condoning the delay beyond 120
days.
In the instant case, the Appeal is under a different provision
namely Section 127 of the Electricity Act. The said Appeal lies against the final
assessment order passed by the Assessing Officer. The language of Section 127
of the Electricity Act stands in contradistinction to the language of Section 125
of the Electricity Act. The scheme encompassed within the said two provisions
is therefore different. Though Section 127 is couched in a peremptory or
imperative manner, Sections 5 to 24 of the Limitation Act would have to be
applied for determining the period of limitation to file an Appeal under the
said provision, though the Electricity Act is held to be a special law. Having
regard to the tests laid down for applicability of Section 29(2) of the Limitation
Act which have already been adverted to herein above, the said tests can be
said to have been satisfied in so far as the applicability of Section 29(2) to a
proceeding under Section 127 of the Electricity Act is concerned.
By holding that Section 29(2) would be application to a
proceeding under Section 127 of the Electricity Act, this Court has construed
Section 127 of the Electricity Act is different than Section 125, though both are
part of the same special law. Support for the same can be drawn from the
judgment of the Apex Court in The Member, Board of Revenue's case (supra).
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In the said case, the Apex Court was concerned with the provisions of the
Indian Stamp Act and especially the issue as to under which provision the
document in question therein was exigible to stamp duty. The provisions in
question were Sections 4 to 6 of the Indian Stamp Act. The Apex Court held
that the topics dealt with by the 3 Sections above being different no useful
purpose would be served by referring to Section 4 or Section 6 of the Indian
Stamp Act for determining the scope of Section 5 or for construing its terms, as
in the said case, the legislature has used three different words in relation to
the three sections "transaction" in Section 4, "matter" in Section 5, and
"description" in Section 6. Same is the case with Section 125 and Section 127
of the Electricity Act. The language of the said provisions is different and they
provide for an Appeal against different orders. In my view, therefore, the
applicability of Section 29(2) of the Limitation Act to a proceeding under
Section 127 of the Electricity Act cannot be ruled out and the period applicable
for filing an Appeal would therefore have to be necessarily construed keeping
in mind Sections 5 to 24 of the Limitation Act.
A reference could also be made to the judgment of the Apex Court
in Sher Singh's case (supra) wherein the Apex Court referred to the well
settled canon of interpretation of statutes namely where the same word is used
in a section and or in sundry segments of a statute it should be given the same
meaning unless there are compelling reasons to do otherwise. The Apex Court
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observed that the obverse is where different words are employed in the same
section or in the same enactment the assumption would be that the legislature
intended them to depict different situations and delineate dissimilar and
diverse ramifications.
15 Having held that Section 29(2) of the Limitation Act would be
applicable to an Appeal filed under Section 127 of the Electricity Act, it would
now be necessary to turn to the facts of the instant case. It is an undisputed
position that the Petitioner in the instant case has not filed any application for
condonation of delay along with the Appeal,. This is sought to be explained
away by the Petitioner by contending that the Petitioner having not received
the copy of the provisional assessment order had sought permission from the
Respondent No.5 to file an Appeal by depositing 50% of the amount due under
the final assessment order. The Respondent No.5 granted such permission to
the Petitioner vide letter 01/11/2015. It is in the said circumstances that the
application for condonation of delay was not filed by the Petitioner. Though the
reason as afore-stated does not commend acceptance to this Court, in my view,
the interest of justice requires that an opportunity be given to the Petitioner to
file an application seeking condonation of delay. In so far as payment of fees is
concerned, since the Petitioner has already deposited 50% of the amount due
under the final assessment order, some indulgence would have to be shown to
the Petitioner in respect of the payment of the fees. The judgment of the Apex
lgc 21 of 23
wp-1674.16
Court in Buta Singh (Dead) By LRs' case (supra) would have no application.
The judgment in the said case was rendered in the fact situation where the
claimants after the arguments had concluded in an Appeal filed under Section
54 of the Land Acquisition Act 1894, after gaining an impression that the
Appeal would be allowed had filed an Application for permission to pay
additional court fees for claiming enhanced compensation. The Apex Court in
the said fact situation had found the application not bonafide. However, as
mentioned above, in the instant case the Petitioner has already deposited an
amount of Rs.2,24,263/- with the Respondent No.3 which is 50% of the
amount due from her. Hence the facts in the instant case are clearly
distinguishable from the facts in the case before the Apex Court in Buta Singh
(Dead) By LRs' case (supra). However, since the Petitioner has not filed an
application for condonation of delay and since the final order has been passed
as long back as on 18/01/2016, the Petitioner would have to be put to terms.
The Petitioner to therefore deposit the balance amount of Rs.2,24,263/- with
the Respondent No.3 within four weeks from date. The application for
condonation of delay to be also filed within the aforesaid time. The said
amount would lie with the Respondent No.3 pending consideration of the
application for condonation of delay and pending consideration of the Appeal
if the delay is condoned. It is clarified that the total amount deposited by the
Petitioner would be subject to the result of the Appeal. If the amount as
directed by the instant order is not deposited, or the application for
lgc 22 of 23
wp-1674.16
condonation of delay is not filed within the time as aforesaid, the right to file
the application would stand forfeited.
16 For the reasons stated herein above the impugned order dated
18/01/2016 is set aside. The Petitioner would be entitled to file an application
for condonation of delay in terms of the directions as above. Needless to state
that the said application, and thereafter the Appeal, if the delay is condoned,
would be tried on its own merits and in accordance with law. The above Writ
Petition is allowed to the aforesaid extent. Rule is accordingly made absolute
with parties to bear their respective costs of the Petition.
[R.M.SAVANT, J]
lgc 23 of 23
