E.Muthusamy vs The Commissioner
2021 Latest Caselaw 9374 Mad

                                                                             W1.P.(MD).No.7657 of 2021


                             BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                                 DATED : 09.04.2021

                                                      CORAM :

                             THE HONOURABLE MR.JUSTICE N.ANAND VENKATESH

                                              W.P.(MD).No.7657 of 2021


                      E.Muthusamy                                             ...Petitioner
                                                         Vs.

                      1. The Commissioner,
                         Hindu Religious and Charitable Endowments Department,
                         Nungambakkam, Chennai.

                      2. The Joint Commissioner,
                         Hindu Religious and Charitable Endowments Department,
                         Madurai.

                      3. The Fit Person,
                         A/N. Kattumariamman Temple,
                         Thirumangalam,
                         Also the Executive Officer,
                         A/M. Dhandayuthapani Temple,
                         Nethaji Road, Madurai-1.                            ... Respondents


                      Prayer: This Petition filed under Article 226 of the Constitution of India,
                      to issue a Writ of Certiorarified Mandamus, to call for the entire records
                      pertaining to R.C.No.17819 of 2019 D2, order returning the petition
                      dated 17.12.2019, by the first respondent and directing the first
                      respondent to number the Appeal in A.P.No. Unnumbered of 2018,
                      dated, 23.01.2018 and thereby order condoning the delay of 189 days
                      in filing the appeal.
                                   For Petitioner               : Mr.S.Madhavan
                                   For R-1 & R-2                : Mr.KP.Narayanakumar
                                                                Special Government Pleader

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                                                                            W1.P.(MD).No.7657 of 2021



                                                       ORDER

This Writ Petition has been filed challenging the order

passed by the first respondent dated 17.12.2019, wherein, the appeal

petition filed by the petitioner was dismissed on the ground that it has

been filed with a delay and the first respondent does not have the power

to condone the delay by exercising jurisdiction under Section 5 of the

Limitation Act.

2. The petitioner filed an application under Section 64 (1) of

the Hindu Religious and Charitable Endowments Act, 1959, before the

Joint Commissioner, H.R & C.E., Madurai and the same came to be

dismissed by an order dated 12.05.2017. Aggrieved by the same, the

petitioner filed an appeal before the first respondent with a delay of 189

days. The first respondent dismissed the petition on the ground that

the said Authority does not have the power to condone the delay under

Section 5 of the Limitation Act. Aggrieved by the same, the present

Writ Petition has been filed before this Court.

3. Heard Mr.S.Madhavan, learned counsel appearing for the

petitioner and Mr.K.P.Narayanakumar, learned Special Government

Pleader appearing for the first and second respondents.

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W1.P.(MD).No.7657 of 2021

4. The issue involved in the present case is squarely covered

by the judgment of the Hon'ble Supreme Court in the case of Ganesan,

represented by its Power Agent, G.Rukmani Ganesan Vs. 1.The

Commissioner, Tamil Nadu Hindu Religious and Charitable

Endowments Board, Chennai, 2. The Joint Commissioner, Tamil

Nadu Hindu Religious and Charitable Endowments Board,

Sivagangai and 3. P.R.Ramanathan, Thirupathur Taluk,

Sivaganga, reported in 2019 3 CTC 469. The relevant portions in the

Judgment are extracted hereunder:-

“60. A Special or Local law can very well provide for applicability of any provision of Limitation Act or exclude applicability of any provision of Limitation Act. The provisions of Limitation Act including Section 5 can very well be applied in deciding an Appeal by Statutory Authority which is not a Court by the Statutory scheme of Special or Local Law. We, thus, need to notice the provisions of Act, 1959, as to whether the scheme under Act, 1959, shows that enactment intended to apply Section 5 of the Limitation Act.

61. Section 110 provides for procedure and powers at inquiries under Chapters V & VI. The Commissioner hears appeals under Section 69 which is under Chapter V of the Act. Section 110 of the Act is as follows:

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W1.P.(MD).No.7657 of 2021

“Section 110. Procedure and powers at inquiries under Chapters V and VI.- (1) Where a Commissioner or a Joint Commissioner or a Deputy Commissioner makes an inquiry or hears an appeal under Chapter V or Chapter VI, the inquiry shall be made and the appeal shall be heard, as nearly as may be, in accordance with the procedure applicable under the Code of Civil Procedure, 1908 (Central Act V of 1908) to the trial of suits or the hearing of appeals, as the case may be.

(2) The provisions of the Indian Evidence Act, 1872 (Central Act I of 1872) and the Indian Oaths Act, 1873 (Central Act X of 1873), shall apply to such inquiries and appeals.

(3) The Commissioner [or a Joint Commissioner or a Deputy Commissioner] holding such inquiry or hearing such an appeal shall be deemed to be a person acting judicially within the meaning of the Judicial Officers Protection Act, 1850 (Central Act XVIII of 1850).”

62. The mere fact that a statutory authority is empowered to follow the procedure as nearly may be in accordance with procedure under C.P.C. to the trial of suits or hearing of appeals, the statutory authority shall not become a Court. There is nothing under Section 110 which indicates that Limitation Act is also made applicable in hearing of the appeal.

63. Section 115 deals with limitation. It only provides that in computing the period of limitation

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W1.P.(MD).No.7657 of 2021

prescribed under Act, 1959 for any proceeding, suit, appeal or application for revision against any order or decree passed under this Act, the time requisite for obtaining a certified copy of such Order or Decree shall be excluded.

64. The provision of Section 69 of Act, 1959 also indicates that Legislature never contemplated applicability of Section 5 of the Limitation Act in proceedings before Commissioner. Section 69(2) noted above provides that any Order passed by the Joint Commissioner or the Deputy Commissioner, as the case may, in respect of which no appeal has been preferred within the period specified in sub-section (1) may be revised by the Commissioner suo motu and the Commissioner may call for and examine the records of the proceedings to satisfy himself as to the regularity of such proceedings or the correctness, legality or propriety of any decision or Order passed by the Joint Commissioner or the Deputy Commissioner, as the case may be.

65. Thus, Section 69(2) gives suo motu power to the Commissioner to call for and examine the records of the proceedings of Joint Commissioner or the Deputy Commissioner in respect of which no appeal has been preferred within the period specified in sub-section (1). Thus, in a case appeal is not filed within 60 days against the order of Joint Commissioner or the Deputy Commissioner, the Commissioner is vested with suo http://www.judis.nic.in

W1.P.(MD).No.7657 of 2021

motu power to call for and examine the records. The suo motu power has been given to the Commissioner to correct the Orders of Joint Commissioner or the Deputy Commissioner, even if no appeal has been filed within 60 days. Giving of suo motu power to the Commissioner is with object to ensure that an order passed by the Joint Commissioner or the Deputy Commissioner may be corrected when appeal is not filed within time under Section 69(1). The scheme of Section 69 especially sub-section (2) also re-enforces our conclusion that Legislature never contemplated applicability of Section 5 in Section 69(1) for condoning the delay in filing an appeal by applying Section 5 of the Limitation Act.

66. Learned counsel for the respondent has referred to two Rules framed under Section 116 of 1959, Act, namely, the Application and Appeal Rules dated 30.08.1961 and the Holding of Inquiries Rules dated 30.08.1961. The Application and Appeal Rules provide for procedures and details of filing Application, Affidavits, Memorandum of Appeal, Application for Revision, etc. The said Rules, in no manner, support the contention of the learned counsel for the respondent that Section 5 of the Limitation Act is applicable. Similarly, Holding of Inquiries Rules provide for procedure of holding of inquiries, issue of notice, etc. The above Rules also do not throw any light on the applicability of Section 5 of the Limitation Act.

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W1.P.(MD).No.7657 of 2021

67. The above provision clearly indicates that provision for only computation of limitation has been made applicable to the proceedings under Act, 1959. Section 115 cannot be read in a manner as to providing applicability of Section 5. There is no other provision in the scheme from which it can be inferred that Act, 1959 intended applicability of Section 5 of the Limitation Act to proceedings of Appeal before the Commission. We, thus, conclude that Section 5 of the Limitation Act is not applicable as per the scheme of Act, 1959.”

5. It is clear from the above that the first respondent is not

vested with the power to condone the delay and the law has been

settled by the Hon'ble Supreme Court. Therefore, the first respondent

was perfectly right in refusing to entertain the appeal filed by the

petitioner.

6. The learned counsel appearing for the petitioner would

submit that the substantial right of the petitioner has now been lost and

hence, this Court in exercise of its power under Article 226 of the

Constitution of India can test the validity of the order passed by the

Joint Commissioner, H.R. & C.E., Madurai.

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W1.P.(MD).No.7657 of 2021

7. In the considered view of this Court, the above said

submission made by the learned counsel appearing for the petitioner

does not hold water. The appellate remedy lies before the first

respondent and the first respondent was not able to exercise that power,

since the appeal was filed with a delay. If this Court exercises its

jurisdiction under Article 226 of the Constitution of India, the same will

amount to judicial overreach and it will indirectly amount to exercise of

jurisdiction which could not have been exercised by the first respondent.

This Court in exercise of its jurisdiction under Article 226 of the

Constitution of India, cannot exercise its discretion to such an extent

and the law on this issue is well-settled.

8. In the result, this Court does not have any ground to

interfere with the order passed by the first respondent.

9. Accordingly, the Writ Petition stands dismissed. No costs.

                                                                                    09.04.2021
                      Internet : Yes/No
                      Index    : Yes/No
                      tsg




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                                                                            W1.P.(MD).No.7657 of 2021




                      To
                      1. The Commissioner,

Hindu Religious and Charitable Endowments Department, Nungambakkam, Chennai.

2. The Joint Commissioner, Hindu Religious and Charitable Endowments Department, Madurai.

NOTE:

In view of the present lock down owing to COVID-19 pandemic, a web copy of the order may be utilized for official purposes, but, ensuring that the copy of the order that is presented is the correct copy, shall be the responsibility of the advocate/litigant concerned.

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W1.P.(MD).No.7657 of 2021

N.ANAND VENKATESH, J.

tsg

Order made in W.P.(MD).No.7657 of 2021

Dated:

09.04.2021

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