Madhya Pradesh High Court
Gyan Singh Parmar vs Employee State Insurance Corporation on 1 May, 2024
Author: Gurpal Singh Ahluwalia
Bench: Gurpal Singh Ahluwalia
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
ON THE 1st OF MAY, 2024
WRIT PETITION No. 9129 of 2024
BETWEEN:-
GYAN SINGH PARMAR S/O SHRI S S
PARMAR, AGED ABOUT 59 YEARS,
OCCUPATION: SELF EMPLOYED
WARD NO. 11 IN FRONT OF WESTERN
GROUP TEMPLE KHARJURAO
DISTRICT CHHATARPUR (MADHYA
PRADESH)
.....PETITIONER
(BY SHRI MANU V.JOHN - ADVOCATE)
AND
1. EMPLOYEE STATE INSURANCE
CORPORATION THROUGH THE
REGIONAL DIRECTOR NANDA
NAGAR INDORE (MADHYA
PRADESH)
2. DEPUTY DIRECTOR, SUB
REGIONAL OFFICE EMPLOYEES
STATE INSURANCE
CORPORATION BHOPAL
(MADHYA PRADESH)
3. RECOVERY OFFICER, SUB
REGIONAL OFFICE EMPLOYEES
STATE INSURANCE
CORPORATION BHOPAL
(MADHYA PRADESH)
4. BRANCH MANAGER, STATE
BANK OF INDIA, KHAJURAHO
DISTRICT CHHATARPUR
(MADHYA PRADESH)
2
.....RESPONDENTS
(RESPONDENTS NO.1 TO 3 BY SHRI GAURAV SHARMA - ADVOCATE)
This petition coming on for admission this day, the court passed the
following:
ORDER
1. This petition under Article 226 of Constitution of India has been
filed seeking the following relief(s) :-
(i) To issue a writ in the nature of Certiorari to quash the
impugned order dated 29-12-2023 (Annexure P/1) in
the interest of justice.
(ii) To issue a writ in the nature of mandamus to direct
the respondent authorities to reconsider the entire
matter after affording the opportunity of hearing and
the submissions put forthwith by the petitioner and
pass speaking order.
(iii) To issue a writ in the nature of mandamus directing
the respondents to consider the appeal after condoning
the delay in filing the appeal and direction may be
issued to the appellate authorities to consider the
appeal preferred by the petitioner.
(iv) Any other order/orders, direction/directions which
deems fit and proper may also be passed.
(v) Award cost of the litigation to the petitioner.
2. It is submitted by Counsel for the Petitioner that by order dated 21-
11-2022 passed under Section 45A of the Employees State Insurance Act
(In short Act), the authorities had assessed the liability of the Petitioner
to the tune of Rs. 7,95,218 towards default contribution. Thereafter,
another order dated 26-4-2023 was issued for recovery of Rs. 10,79,087/-
and the Bank Account of the Petitioner maintained in respondent
no.4/bank was also seized. The petitioner preferred a writ petition No.
25435/2023 which was disposed of by co-ordinate bench of this Court
with a direction to the respondents to consider the appeal of the petitioner
under Section 45AA of the Act after considering the application for
condonation of delay.
3. However, by the impugned order, the Appellate Authority has
rejected the application filed under Section 5 of Limitation Act, on the
ground that the Appellate Authority has no jurisdiction to condone the
delay.
4. Challenging the impugned order passed by the Appellate Authority,
it is submitted by the Counsel for the Petitioner that since, the provisions
of Limitation Act have not been excluded under the Act, therefore, in the
light of Section 29(2) of Limitation Act, the Appellate Authority has
jurisdiction to condone the delay.
5. Heard the learned Counsel for the petitioner.
6. The moot question for consideration is that in absence of any
provision for condonation of delay under the Act, whether the Appellate
Authority can condone the delay or not?
7. Section 29 of Limitation Act reads as under :
29. Savings.--(1) Nothing in this Act shall affect Section 25
of the Indian Contract Act, 1872.
(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 insofar as, and to the extent to which, they are
not expressly excluded by such special or local law.
(3) Save as otherwise provided in any law for the time being
in force with respect to marriage and divorce, nothing in this
Act shall apply to any suit or other proceeding under any
such law.
(4) Sections 25 and 26 and the definition of "easement" in
Section 2 shall not apply to cases arising in the territories to
which the Indian Easements Act, 1882, may for the time
being extend.
8. From plain reading of Section 29(2) of Limitation Act, it is clear
that it is applicable to Suit, Appeal or application to be filed before the
Courts only and not before the Authorities or Tribunal. The Supreme
Court in the case of M.P. Steel Corpn. v. CCE, reported in (2015) 7
SCC 58 has held as under :
25. It is clear that this judgment clearly laid down two
things--one that authorities under the Sales Tax Act are not
"courts" and thus, the Limitation Act will not apply to them.
It also laid down that the language of Section 10(3-B) of the
U.P. Sales Tax Act made it clear that an unusually long
period of limitation had been given for filing a revision
application and therefore said that the said section as
construed by the Court would not be unduly oppressive.
Most cases would, according to the Court, be filed within a
maximum period of 18 months but even in cases, rare as
they are, filed beyond such period, the revising authority
may on its own motion entertain the revision and grant
relief. Given the three features of the U.P. Sales Tax Act
scheme, the Court held that the legislature deliberately
excluded the application of the principle underlying Section
14 except to the limited extent that it may amount to
sufficient cause for condoning delay within the period of 18
months.
26. Close upon the heels of this judgment comes another
three-Judge Bench decision under the same provision of the
U.P. Sales Tax Act. In this judgment, another three-Judge
Bench in CST v. Madan Lal Das & Sons, without adverting
to either Parson Tools or the three other judgments
mentioned hereinabove went on to apply Section 12(2) of
the Limitation Act to the proceedings under the U.P. Sales
Tax Act. None of the aforesaid four decisions were pointed
out to the Court and it was not argued that the Limitation
Act applies only to courts and not to Sales Tax Authorities
who are quasi-judicial tribunals. This judgment, therefore, is
not an authority for the proposition that the Limitation Act
would apply to tribunals as opposed to courts. Clearly the
conclusion reached would be contrary to four earlier
decisions three of which are three-Judge Bench decisions.
27. In fact, even after this judgment, in Officer on Special
Duty (Land Acquisition) v. Shah Manilal Chandulal, this
Court held that a Land Acquisition Officer under the Land
Acquisition Act not being a court, the provisions of the
Limitation Act would not apply. The Court concluded, after
adverting to some of the previous judgments of this Court as
follows: (SCC p. 421, paras 18-19)
18. "Though hard it may be, in view of the specific
limitation provided under proviso to Section 18(2) of
the Act, we are of the considered view that sub-section
(2) of Section 29 cannot be applied to the proviso to
sub-section (2) of Section 18. The Collector/LAO,
therefore, is not a court when he acts as a statutory
authority under Section 18(1). Therefore, Section 5 of
the Limitation Act cannot be applied for extension of
the period of limitation prescribed under proviso to sub-
section (2) of Section 18. The High Court, therefore,
was not right in its finding that the Collector is a court
under Section 5 of the Limitation Act.
19. Accordingly, we hold that the applications are
barred by limitation and the Collector has no power to
extend time for making an application under Section
18(1) for reference to the court."
28. Two other judgments of this Court need to be dealt
with at this stage. In Mukri Gopalan v. Cheppilat
Puthanpurayil Aboobacker, a two-Judge Bench of this Court
held that the Limitation Act would apply to the appellate
authority constituted under Section 13 of the Kerala
Buildings (Lease and Rent Control) Act, 1965. This was
done by applying the provision of Section 29(2) of the
Limitation Act. Despite referring to various earlier
judgments of this Court which held that the Limitation Act
applies only to courts and not to tribunals, this Court in this
case held to the contrary. In distinguishing the Parson Tools
case, which is a three-Judge Bench binding on the Court that
decided Mukri Gopalan case the Court held: (Mukri
Gopalan case, SCC p. 23, para 18)
18. "... If the Limitation Act does not apply then
neither Section 29(2) nor Section 14(2) of the
Limitation Act would apply to proceedings before him.
But so far as this Court is concerned it did not go into
the question whether Section 29(2) would not get
attracted because the U.P. Sales Tax Act Judge
(Revisions) was not a court but it took the view that
because of the express provision in Section 10(3-B)
applicability of Section 14(2) of the Sales Tax Act was
ruled out. Implicit in this reasoning is the assumption
that but for such an express conflict or contrary
intention emanating from Section 10(3-B) of the U.P.
Sales Tax Act which was a special law, Section 29(2)
would have brought in Section 14(2) of the Limitation
Act even for governing period of limitation for such
revision applications. In any case, the scope of Section
29(2) was not considered by the aforesaid decision of
the three learned Judges and consequently it cannot be
held to be an authority for the proposition that in
revisional proceedings before the Sales Tax Authorities
functioning under the U.P. Sales Tax Act Section 29(2)
cannot apply as Mr Nariman would like to have it."
It then went on to follow the judgment in CST v. Madan Lal
Das & Sons, which, as has been pointed out earlier, is not an
authority for the proposition that the Limitation Act would
apply to tribunals. In fact, Mukri Gopalan case was
distinguished in Om Prakash v. Ashwani Kumar Bassi, at
para 22 as follows: (Om Prakash case, SCC p. 188)
22. "The decision in Mukri Gopalan case relied
upon by Mr Ujjal Singh is distinguishable from the
facts of this case. In the facts of the said case, it was the
District Judges who were discharging the functions of
the appellate authority and being a court, it was held
that the District Judge, functioning as the appellate
authority, was a court and not persona designata and
was, therefore, entitled to resort to Section 5 of the
Limitation Act. That is not so in the instant case where
the Rent Controller appointed by the State Government
is a member of the Punjab Civil Services and, therefore,
a persona designata who would not be entitled to apply
the provisions of Section 5 of the Limitation Act, 1963,
as in the other case."
The fact that the District Judge himself also happened to be
the appellate authority under the Rent Act would have been
sufficient on the facts of the case for the Limitation Act to
apply without going into the proposition that the Limitation
Act would apply to tribunals.
29. Quite apart from Mukri Gopalan case being out of
step with at least five earlier binding judgments of this
Court, it does not square also with the subsequent judgment
in Consolidated Engg. Enterprises v. Irrigation Deptt.A
three-Judge Bench of this Court was asked to decide
whether Section 14 of the Limitation Act would apply to
Section 34(3) of the Arbitration and Conciliation Act, 1996.
After discussing the various provisions of the Arbitration
Act and the Limitation Act, this Court held: (Consolidated
Engg. Enterprises case, SCC pp. 181-82, para 23)
23. "At this stage it would be relevant to ascertain
whether there is any express provision in the 1996 Act,
which excludes the applicability of Section 14 of the
Limitation Act. On review of the provisions of the 1996
Act this Court finds that there is no provision in the said
Act which excludes the applicability of the provisions
of Section 14 of the Limitation Act to an application
submitted under Section 34 of the said Act. On the
contrary, this Court finds that Section 43 makes the
provisions of the Limitation Act, 1963 applicable to
arbitration proceedings. The proceedings under Section
34 are for the purpose of challenging the award whereas
the proceeding referred to under Section 43 are the
original proceedings which can be equated with a suit in
a court. Hence, Section 43 incorporating the Limitation
Act will apply to the proceedings in the arbitration as it
applies to the proceedings of a suit in the court. Sub-
section (4) of Section 43, inter alia, provides that where
the court orders that an arbitral award be set aside, the
period between the commencement of the arbitration
and the date of the order of the court shall be excluded
in computing the time prescribed by the Limitation Act,
1963, for the commencement of the proceedings with
respect to the dispute so submitted. If the period
between the commencement of the arbitration
proceedings till the award is set aside by the court, has
to be excluded in computing the period of limitation
provided for any proceedings with respect to the
dispute, there is no good reason as to why it should not
be held that the provisions of Section 14 of the
Limitation Act would be applicable to an application
submitted under Section 34 of the 1996 Act, more
particularly where no provision is to be found in the
1996 Act, which excludes the applicability of Section
14 of the Limitation Act, to an application made under
Section 34 of the Act. It is to be noticed that the powers
under Section 34 of the Act can be exercised by the
court only if the aggrieved party makes an application.
The jurisdiction under Section 34 of the Act, cannot be
exercised suo motu. The total period of four months
within which an application, for setting aside an
arbitral award, has to be made is not unusually long.
Section 34 of the 1996 Act would be unduly oppressive,
if it is held that the provisions of Section 14 of the
Limitation Act are not applicable to it, because cases
are no doubt conceivable where an aggrieved party,
despite exercise of due diligence and good faith, is
unable to make an application within a period of four
months. From the scheme and language of Section 34 of
the 1996 Act, the intention of the legislature to exclude
the applicability of Section 14 of the Limitation Act is
not manifest. It is well to remember that Section 14 of
the Limitation Act does not provide for a fresh period of
limitation but only provides for the exclusion of a
certain period. Having regard to the legislative intent, it
will have to be held that the provisions of Section 14 of
the Limitation Act, 1963 would be applicable to an
application submitted under Section 34 of the 1996 Act
for setting aside an arbitral award."
(emphasis supplied)
30. While discussing Parson Tools, this Court held:
(Consolidated Engg. Enterprises case, SCC pp. 183-84,
paras 25-26)
25. "... In appeal, this Court held that (1) if the
legislature in a special statute prescribes a certain period
of limitation, then the Tribunal concerned has no
jurisdiction to treat within limitation, an application, by
excluding the time spent in prosecuting in good faith,
on the analogy of Section 14(2) of the Limitation Act,
and (2) the appellate authority and the revisional
authority were not 'courts' but were merely
administrative tribunals and, therefore, Section 14 of
the Limitation Act did not, in terms, apply to the
proceedings before such tribunals.
26. From the judgment of the Supreme Court in
CSTit is evident that essentially what weighed with the
Court in holding that Section 14 of the Limitation Act
was not applicable, was that the appellate authority and
the revisional authority were not 'courts'. The stark
features of the revisional powers pointed out by the
Court, showed that the legislature had deliberately
excluded the application of the principles underlying
Sections 5 and 14 of the Limitation Act. Here in this
case, the Court is not called upon to examine the scope
of revisional powers. The Court in this case is dealing
with Section 34 of the Act which confers powers on the
court of the first instance to set aside an award rendered
by an arbitrator on specified grounds. It is not the case
of the contractor that the forums before which the
Government of India undertaking had initiated
proceedings for setting aside the arbitral award are not
'courts'. In view of these glaring distinguishing
features, this Court is of the opinion that the decision
rendered in CST did not decide the issue which falls for
consideration of this Court and, therefore, the said
decision cannot be construed to mean that the
provisions of Section 14 of the Limitation Act are not
applicable to an application submitted under Section 34
of the 1996 Act."
(emphasis supplied)
31. In a separate concurring judgment Raveendran, J.
specifically held: (Consolidated Engg. Enterprises case,
SCC p. 190, para 44)
44. "It may be noticed at this juncture that the
Schedule to the Limitation Act prescribes the period of
limitation only to proceedings in courts and not to any
proceeding before a tribunal or quasi-judicial authority.
Consequently Sections 3 and 29(2) of the Limitation Act
will not apply to proceedings before the tribunal. This
means that the Limitation Act will not apply to appeals
or applications before the tribunals, unless expressly
provided."
(emphasis supplied)
While dealing with Parson Tools, the learned Judge held:
(Consolidated Engg. Enterprises case, SCC pp. 194-95, para
56)
56. "In Parson Tools this Court did not hold that
Section 14(2) was excluded by reason of the wording of
Section 10(3-B) of the Sales Tax Act. This Court was
considering an appeal against the Full Bench decision
of the Allahabad High Court. Two Judges of the High
Court had held that the time spent in prosecuting the
application for setting aside the order of dismissal of
appeals in default, could be excluded when computing
the period of limitation for filing a revision under
Section 10 of the said Act, by application of the
principle underlying Section 14(2) of the Limitation
Act. The minority view of the third Judge was that the
revisional authority under Section 10 of the U.P. Sales
Tax Act did not act as a court but only as a Revenue
Tribunal and therefore the Limitation Act did not apply
to the proceedings before such Tribunal, and
consequently, neither Section 29(2) nor Section 14(2) of
the Limitation Act applied. The decision of the Full
Bench was challenged by the Commissioner of Sales
Tax before this Court, contending that the Limitation
Act did not apply to tribunals, and Section 14(2) of the
Limitation Act was excluded in principle or by analogy.
This Court upheld the view that the Limitation Act did
not apply to tribunals, and that as the revisional
authority under Section 10 of the U.P. Sales Tax Act
was a tribunal and not a court, the Limitation Act was
inapplicable. This Court further held that the period of
pendency of proceedings before the wrong forum could
not be excluded while computing the period of
limitation by applying Section 14(2) of the Limitation
Act. This Court, however, held that by applying the
principle underlying Section 14(2), the period of
pendency before the wrong forum may be considered as
a 'sufficient cause' for condoning the delay, but then
having regard to Section 10(3-B), the extension on that
ground could not extend beyond six months. The
observation that *pendency of proceedings of the nature
contemplated by Section 14(2) of the Limitation Act,
may amount to a sufficient cause for condoning the
delay and extending the limitation and such extension
cannot be for a period in excess of the ceiling period
prescribed*, is in the light of its finding that Section
14(2) of the Limitation Act was inapplicable to
revisions under Section 10(3-B) of the U.P. Sales Tax
Act. These observations cannot be interpreted as laying
down a proposition that even where Section 14(2) of the
Limitation Act in terms applied and the period spent
before wrong forum could therefore be excluded while
computing the period of limitation, the pendency before
the wrong forum should be considered only as a
sufficient cause for extension of period of limitation and
therefore, subjected to the ceiling relating to the
extension of the period of limitation. As we are
concerned with a proceeding before a court to which
Section 14(2) of the Limitation Act applies, the decision
in Parson Tools which related to a proceeding before a
Tribunal to which Section 14(2) of the Limitation Act
did not apply, has no application."
32. Obviously, the ratio of Mukri Gopalan does not
square with the observations of the three-Judge Bench in
Consolidated Engg. Enterprises. In the latter case, this Court
has unequivocally held that Parson Tools is an authority for
the proposition that the Limitation Act will not apply to
quasi-judicial bodies or tribunals. To the extent that Mukri
Gopalan is in conflict with the judgment in Consolidated
Engg. Enterprises case, it is no longer good law.
33. The sheet anchor in Mukri Gopalan was Section
29(2) of the Limitation Act. Section 29(2) states:
"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 insofar as, and to the extent to which, they are
not expressly excluded by such special or local law."
A bare reading of this section would show that the special or
local law described therein should prescribe for any suit,
appeal or application a period of limitation different from
the period prescribed by the Schedule. This would
necessarily mean that such special or local law would have
to lay down that the suit, appeal or application to be
instituted under it should be a suit, appeal or application of
the nature described in the Schedule. We have already held
that such suits, appeals or applications as are referred to in
the Schedule are only to courts and not to quasi-judicial
bodies or tribunals. It is clear, therefore, that only when a
suit, appeal or application of the description in the Schedule
is to be filed in a court under a special or local law that the
provision gets attracted. This is made even clearer by a
reading of Section 29(3). Section 29(3) states:
"29. Savings.--(1)-(2) * * *
(3) Save as otherwise provided in any law for the time
being in force with respect to marriage and divorce, nothing
in this Act shall apply to any suit or other proceeding under
any such law."
When it comes to the law of marriage and divorce, the
section speaks not only of suits but other proceedings as
well. Such proceedings may be proceedings which are
neither appeals nor applications thus making it clear that the
laws relating to marriage and divorce, unlike the law of
limitation, may contain proceedings other than suits, appeals
or applications filed in courts. This again is an important
pointer to the fact that the entirety of the Limitation Act
including Section 29(2) would apply only to the three kinds
of proceedings mentioned all of which are to be filed in
courts.
9. Thus, it is clear that the Appellate Authority did not commit any
mistake by holding that in absence of any power to condone the delay, it
cannot condone the delay in filing the appeal.
10. Faced with such a situation, it is submitted by Counsel for the
Petitioner, that since, the co-ordinate Bench of this Court by order dated
12-10-2023 passed in W.P. No. 25435/2023 had directed the Appellate
Authority to consider and decide the application for condonation of delay
sympathetically, therefore, the Appellate Authority should not have
dismissed the application on the ground of maintainability.
11. Considered the submissions made by Counsel for Petitioner.
12. In absence of any provision for condonation of delay, this Court
cannot compel the Appellate Authority to decide the application for
condonation of delay. This Court, by passing a Judicial Order cannot
give the power to the Appellate Authority to condone the delay. It is
well established principle of law that Constitutional Court cannot
legislate and if the Court directs the Appellate Authority to consider the
application for condondation of delay even in absence of any provision
of law, then it would amount to legislation, which cannot be done. The
Supreme Court in the case of Sangeeta Singh v. Union of India,
reported in (2005) 7 SCC 484 has held as under :
9. While interpreting a provision the court only interprets the
law and cannot legislate it. If a provision of law is misused
and subjected to the abuse of process of law, it is for the
legislature to amend, modify or repeal it, if deemed
necessary. (See CST v. Popular Trading Co.) The legislative
casus omissus cannot be supplied by judicial interpretative
process.
13. The Supreme Court in the case of V.K. Naswa v. Union of India,
reported in (2012) 2 SCC 542has held as under:
6. It is a settled legal proposition that the court can neither
legislate nor issue a direction to the legislature to enact in a
particular manner.
7. In Mallikarjuna Rao v. State of A.P. and V.K. Sood v.
Deptt. of Civil Aviation, this Court has held that the writ
court, in exercise of its power under Article 226, has no
power even indirectly to require the executive to exercise its
law-making power. The Court observed that it is neither
legal nor proper for the High Court to issue directions or
advisory sermons to the executive in respect of the sphere
which is exclusively within the domain of the executive
under the Constitution. The power under Article 309 of the
Constitution to frame rules is the legislative power. This
power under the Constitution has to be exercised by the
President or the Governor of a State, as the case may be. The
courts cannot usurp the functions assigned to the executive
under the Constitution and cannot even indirectly require the
executive to exercise its law-making power in any manner.
The courts cannot assume to themselves a supervisory role
over the rule-making power of the executive under Article
309 of the Constitution. While deciding the said case, the
Court placed reliance on a large number of judgments,
particularly Narinder Chand Hem Raj v. UT, H.P., where it
has been held that legislative power can be exercised only
by the legislature or its delegate and none else.
8. In State of H.P. v. Parent of a Student of Medical College,
this Court deprecated the practice adopted by the courts to
issue directions to the legislature to enact a legislation to
meet a particular situation observing : (SCC p. 174, para 4)
"4. ... The direction given by the Division Bench was
really nothing short of an indirect attempt to compel the
State Government to initiate legislation with a view to
curbing the evil of ragging, for otherwise it is difficult
to see why, after the clear and categorical statement by
the Chief Secretary on behalf of the State Government
that the Government will introduce legislation if found
necessary and so advised, the Division Bench should
have proceeded to again give the same direction. Thus
the Division Bench was clearly not entitled to do. It is
entirely a matter for the executive branch of the
Government to decide whether or not to introduce any
particular legislation."
9. In Asif Hameed v. State of J&K this Court while dealing
with a case like this at hand observed : (SCC p. 374, para
19)
"19. ... While doing so the court must remain within its
self-imposed limits. The court sits in judgment on the
action of a coordinate branch of the Government. While
exercising power of judicial review of administrative
action, the court is not an appellate authority. The
Constitution does not permit the court to direct or
advise the executive in matters of policy or to sermonise
qua any matter which under the Constitution lies within
the sphere of legislature or executive."
(emphasis added)
10. In Union of India v. Deoki Nandan Aggarwal, this Court
similarly observed : (SCC p. 332, para 14)
"14. ... It is not the duty of the court either to enlarge
the scope of the legislation.... The court cannot rewrite,
recast or reframe the legislation for the very good
reason that it has no power to legislate. The power to
legislate has not been conferred on the courts."
11. Similarly in Ajaib Singh v. Sirhind Coop. Marketing-
cum-Processing Service Society Ltd., this Court held that the
court cannot fix a period of limitation, if not fixed by the
legislature, as "the courts can admittedly interpret the law
and do not make laws". The court cannot interpret the
statutory provision in such a manner "which would amount
to legislation intentionally left over by the legislature".
12. A similar view has been reiterated by this Court in
Union of India v. Assn. for Democratic Reforms observing
that the court cannot issue direction to the legislature for
amending the Act or Rules. It is for Parliament to amend the
Act or Rules. In District Mining Officer v. TISCO, this Court
held that function of the court is only to expound the law
and not to legislate.
13. Similarly, in Supreme Court Employees' Welfare Assn.
v. Union of India, this Court held that the court cannot direct
the legislature to enact a particular law for the reason that
under the constitutional scheme Parliament exercises
sovereign power to enact law and no outside power or
authority can issue a particular piece of legislation. (See also
State of J&K v. A.R. Zakki.)
14. In Union of India v. Prakash P. Hinduja, this Court held
that if the court issues a direction which amounts to
legislation and is not complied with by the State, it cannot
be held that the State has committed the contempt of court
for the reason that the order passed by the court was without
jurisdiction and it has no competence to issue a direction
amounting to legislation.
15. The issue involved herein was considered by this Court
in University of Kerala v. Council of Principals of Colleges.
The Court elaborately explained the scope of separation of
powers of different organs of the State under our
Constitution; the validity of judicial legislation and if it is at
all permissible, its limits; and the validity of judicial
activism and the need for judicial restraint, etc. The Court
observed : (SCC p. 361, para 13)
"13. ... '19. At the outset, we would say that it is not
possible for this Court to give any directions for
amending the Act or the statutory rules. It is for
Parliament to amend the Act and the rules.'*"
16. In State of U.P. v. Jeet S. Bisht, this Court held that
issuing any such direction may amount to amendment of law
which falls exclusively within the domain of the
executive/legislature and the court cannot amend the law.
17. In Delhi Jal Board v. National Campaign for Dignity
and Rights of Sewerage and Allied Workers, this Court
while dealing with the issue made the observation that in
exceptional circumstances where there is inaction by the
executive, for whatever reason, the judiciary must step in, in
exercise of its constitutional obligations to provide a
solution till such time the legislature acts to perform its role
by enacting proper legislation to cover the field. (See also
Vishaka v. State of Rajasthan; Common Cause v. Union of
India and Destruction of Public and Private Properties v.
State of A.P.)
18. Thus, it is crystal clear that the court has a very limited
role and in exercise of that, it is not open to have judicial
legislation. Neither the court can legislate, nor has it any
competence to issue directions to the legislature to enact the
law in a particular manner.
14. No other argument is advanced by the Counsel for the Petitioner.
15. For the reasons mentioned above, this Court is of the considered
opinion, that no illegality was committed by the Appellate Authority by
dismissing the application for condonation of delay on the ground of
maintainability.
16. Accordingly, the petition fails and is hereby Dismissed.
(G.S. AHLUWALIA)
JUDGE
HEMANT SARAF
2024.05.03 11:29:01
+05'30'
HS
