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E.K. Venkaimarbon Vs. Dakshinamoorthy - Court Judgment

LegalCrystal Citation
SubjectTenancy;Limitation
CourtChennai High Court
Decided On
Reported in(1981)1MLJ275
AppellantE.K. Venkaimarbon
RespondentDakshinamoorthy
Cases ReferredAchuthan Nair v. Kuppah Shah
Excerpt:
- - to section 23, section 5 of the limitation act fully applies, precisely for the reason that that provision does not expressly apply section 5. section 25 rules out section 5 precisely for the reason that it expressly legislates on the very subject which is dealt with by section 5. 4. there are cases in the books which say that section 5 of the limitation act is capable of being applied to a special or local law only where the special or local law prescribes a period of limitation for proceedings before a court. 7. the supreme court bad occasion to lay down what meaning mast be assigned to this expression 'persona designata' in legal writings. mark the words 'authority' and 'officer'.these expressions clearly forbid any appointment by government of named individuals, the government.....v. balasubrahmanyan, j.1. the question in this case is whether an appellate authority under the tamil nadu buildings (lease and rent control) act, 1960 hereinafter called the rent control act has power to excuse the delay in filing an appeal from an order of the rent controller. the appellate authority concerned ia this ease is thiru a. raman, the principal subordinate judge, cuddalore, he said that the rent control act gave him no power to excuse any delay in the appeal. he said that the act was a complete code in itself. he said that section 5 of the limitation act, 1963 had no application to the proceedings before him as an appellate authority under the kent control act.2. the learned subordinate judge is light in thinking that the rent control act is a complete code. but that, by.....
Judgment:

V. Balasubrahmanyan, J.

1. The question in this case is whether an appellate authority under the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 hereinafter called the Rent Control Act has power to excuse the delay in filing an appeal from an order of the Rent Controller. The appellate authority concerned ia this ease is Thiru A. Raman, the Principal Subordinate Judge, Cuddalore, He said that the Rent Control Act gave him no power to excuse any delay in the appeal. He said that the Act was a complete Code in itself. He said that Section 5 of the Limitation Act, 1963 had no application to the proceedings before him as an appellate authority under the Kent Control Act.

2. The learned Subordinate Judge is light in thinking that the Rent Control Act is a complete Code. But that, by itself, does not rule out the application of Section 5 of the Limitation Act, 1963. The Limitation Act, 1963 is a central legislation on a concurrent subject under oar Constitution. It lays down generally the law relating to limitation. Section 29(2) of the Limitation Act, 1963, however, takes note of special or local laws which might prescribe special periods of limitation in a way not found in the Schedule to the Limitation Act. Section 29(2) saves these special periods of limitation, by the simple expedient of declaring that all such special periods shall be deemed to have been incorporated in its own Schedule. Having done so, Section 29(2) further provides that to these special periods of limitation prescribed by special and local laws, the provisions of Sections 4 to 24 of the Limitation Act shall, as a rule, apply except where the special or local law concerned expressly excludes or limits the application of these sections.

3. The Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 is a special law in the sense that it provides a special machinery for proceedings between landlords and tenants of buildings. It is also a local law because it does not have any force beyond the confines of this State, and even in this State it applies only to certain areas such as cities and municipal towns. Section 29(2) of the Limitation Act would, therefore, govern the special periods prescribed in this Act. Section 23(1) (b) of our Rent Control Act prescribes a time-limit of 15 days for filing an appeal from an order of the Rent Controller. Neither in Section 23(1) (b) nor elsewhere in the Rent Control Act is there any provision which runs counter to Section 5 of the Limitation Act. It, follows, therefore that Section 5 of the Limitation Act applies to an appeal provided under Section 23 of this Act. The question is not whether our Rent Control Act is a complete Code, in the sense that it provides for everything or almost everything. The question is, whether it expressly rules out, either wholly or to any lesser extent, the applicability of Section 5 of the Limitation Act. This is always the approach which Section 29(2) of the Limitation Act demands as respects any special or local law. This is illustrated by another limitation provision in this very Rent Control Act, namely, Section 25(2). This Section prescribes a period of one month as the time limit for a revision to the High Court from an order passed by an appellate authority. Under the proviso to Section 25(2), however, the High Court is empowered to admit a revision beyond the time-limit. But this power of extension is itself subject to the restriction that She High Court cannot extend the time, in any case, beyond one month of the expiry of the period of limitation. This means that whatever might be the cause and however sufficient it might be, the High Court will be powerless to condone the delay beyond one month. There is no such restriction on the Court's power no extend the time under Section 5 of the Limitation Act. Section 23 and Section 25 of the Rent Control Act thus present a study in contrast. To Section 23, Section 5 of the Limitation Act fully applies, precisely for the reason that that provision does not expressly apply Section 5. Section 25 rules out Section 5 precisely for the reason that it expressly legislates on the very subject which is dealt with by Section 5.

4. There are cases in the books which say that Section 5 of the Limitation Act is capable of being applied to a special or local law only where the special or local law prescribes a period of limitation for proceedings before a Court. They mention that there is a pointed reference in Section 5 of the Limitation Act to a 'Court'. According to the decisions, this reference to a 'Court' at once rules out the applicability of Section 5 of the Limitation Act to applications and appeals which are not before Courts.

5. As for the appellate authorities functioning under the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, a similar view has been expressed by learned Judges of this Court in a long line of decisions spanning a period of more than three decades. There are rulings by Yahya Ali, J., in Abdul Wahid v. Abdul Khader : AIR1947Mad400 . by Clarke, J., in Chinniah Thevar v. F. M. Badsha : (1948)1MLJ314 . by Mack, J., in Rajan Ayyar v. Pavanammal AIR 1949 Mad 787. by N. S. Ramaswami, J., in Easwaran v. Palaniammal (1947) TNLJ 380. and by Gokulakrishnan, J., in Ganapathy v. Kumaraswami (19(SIC)5) TNLJ 264. All these learned Judges have uniformly held that an appellate authority under our Rent Control Act is not a Court. The reason which they have expressed for this view is also uniform. All of them proceed on the footing that an appellate authority is persona designata, and because he is persona designata, he cannot be regarded as a Court for the purpose of invoking Section 5 of the Limitation Act.

6. It is noteworthy that with the solitary exception of Gokulakrishnan, J., all the other learned Judges have not taken the trouble to explain what they mean by a persona designata and why they regard the appellate authority under the Rent Control Act as persona designata. It would not, therefore, be wrong to say that their views are based on the tacit assumption that an appellate authority is persona designata without first settling who a persona designata is.

7. The Supreme Court bad occasion to lay down what meaning mast be assigned to this expression 'persona designata' in legal writings. This is what they said in Central Talkies Ltd. v. Dwarka Prasad : 1961CriLJ740 .

A persona designata is a person who is pointed out or described as an individual, as opposed to a person ascertained as a member of a class or is filling a particular character.

8. After this decision, we are, I think, bound to apply this test in every case that comes before us to find out whether any appointee to an office or any one conferred with a power is or is not persona designata. We mast accordingly apply the same test to the appellate authority constituted under the Rent Control Act. We must not flinch from applying the decision of the Supreme Court merely out of respect for the long line of previous decisions of learned Judges of this Court.

9. The gist of what the Supreme Court said was that only those appointed by their proper names as Mr. 'So-and So' or Miss. or Mrs. 'So-and-So' are persona designata. It would be a misnomer, and a misconception in law, to regard as persona designata those who are appointed by reference to a class-name, or by a generic description of status or legal character. The question then is, what is the position of appellate authorities under our Rent Control Act? How do they emerge as appellate authorities under that Act?

10. Section 23 of the Act says that the State Government may confer the powers of appellate authority on any 'authority' or 'officer' they may think fit. Mark the words 'authority' and 'officer'. These expressions clearly forbid any appointment by Government of named individuals, The Government cannot appoint Thiru X, or Thiru Y, or Thiru Z, as appellate authority. What is more, the statute restricts the Government's choice even in cases where persons bear a certain character. For instance, the Government cannot appoint any office-bolder like the President of the Lawyers Association or the Secretary of a Chamber of Commerce although such appointees may not, strictly, be persona designata in the sense that they are not appointed by their proper names. The choice of the State Government under Section 23 is limited to authorities and officers. They much be either officers or authorities functioning under the imprimature of a statute or statutory instrument in the service of the State. What is more, those on whom the State Government may choose to confer appellate jurisdiction under the section must already be functioning as authorities and officers. The jurisdiction is conferred only on existing officers and existing authorities. The appellate authority is not a new authority, but an old authority with new powers, like new wine in an old bottle.

11. The State Government have seldom, if ever, misunderstood the scope of their powers of appointment under Section 23 of the Act. All their notifications from the very inception of the Act down to the present day have been directed to conferring appellate powers only on pre-existing officers. As it happens, all of them are members of the Tamil Nadu State Judicial Service. The first general order to this effect was passed by the Government in Notification II-1 No. 3310 of 1961 published in the Fort St. George Gazette dated 9th August 1961. This was replaced by another order, which is currently in force, subject to some subsequent amendments. This later order was notified in the Gazette dated 30th June, 1973 in Notification II-1 No. 3006(f) of 1973. Under the broad scheme of this Notification, the State is divided presently into the City of Madras, on the one hand, and stations in the Districts in mofussil on the other. For the metropolitan area, appellate powers under the Act have been conferred on all the Judges of the Court of Small Causes, Madras, excepting the 6th, 7th and 8th Judges. For areas in the mofussil, all Subordinate Judges are to be appellate authorities within their respective jurisdictions To tackle places where there are more Subordinate Judges than one, the Government's Notification laid down that the Principal, Subordinate Judge shall alone be the appellate authority under the Act.

12. Incidentally, this was how Thiru A. Raman happened to have jurisdiction as appellate authority when the appeal in the instant case came to be filed before him. It is not pretended that Thiru Raman was personally called by the State Government and appointed by name as the appellate authority under the Rent Control Act for Cuddalore Town. The basis of his jurisdiction seems from his being the Principal Subordinate Judge, at Cuddalore and from the terms of the Government order published in the Notification dated 30th June, 1973 which clothed the Principal Subordinate Judge with powers of the appellate authority under the Act.

13. It is thus demonstrable from the record that the appellate authority in this case, namely, the Principal Subordinate Judge, Cuddalore, as well as the other appellate authorities functioning under the Rent Control Act in different parts of the State are all possessed of appellate jurisdiction under the Act because they were at the time of their appointment authorities or officers already in service and already functioning as such under the State Judicial Service. They were by no stretch of language or semantics appointed persona designatae.

14. In none of the earlier decisions render, ed by learned Judges of this Court, has there been any inquiry as to the jural basion which appellate authorities were to be constituted under Section 23 of the Rent Control Act Nor was there any discussion about the effect of the Government Notification under which appellate powers under the Act were actually conferred on those who were already active members of the State Judicial Service.

15. All the earlier decisions to the contrary, rendered by learned Judges of this Court are thus based on a thorough misconception alike of the legal attributes of persona de signal a and of the terms of the statute and the statutory notifications. It follows, therefore, that none of these decisions are strictly binding on me as per curium. I am, on the contrary, bound by the decision of the Supreme Court to which I have earlier referred. I must accordingly pursue the line, and reach the result, dictated by that decision.

16. Gokulakrishnan, J., in the decision in Ganapathy v. Kumaraswami (1975) TNLJ 264. also had the opportunity of applying the decision of the Supreme Court and coming to the same conclusion to which I am inexorably driven in this case. The Supreme Court's decision was judicially noticed in his judgment. But he to took the view that the Supreme Court did not lay down any binding principle for application to the position and powers of appellate authorities under our Rent Control Act Having entertained this view, the learned Judge apparently thought he was bound to adhere to the long line of authorities of learned Judges of this Court, beginning from Yahya Ali, J. And in disposing of the case before him, he simply adopted, without question, the view expressed by them to the effect that an appellate authority is persona designata and is appointed as such under Section 23 of the Rent Control Act.

17. I think the Supreme Court's decision cannot be robbed of its authority by being isolated or limited to its facts. On the contrary, it must be properly understood as having laid down a legal distinction which is highly relevant to an understanding of the position of the appellate authority under the Rent Control Act. In my judgment, it is precisely because all the learned Judges of this Court had worked upon the assumption that an appellate authority under the Act is persona designata that the judgment of the Supreme Court must come to be accepted as the preferred precedent, for cases like the present one. This has got to be so, because the expression, persona designata, which had all along been misunderstood by learned Judges, came to be clarified and vivified by the Supreme Court in this judgment. And once the clarification came, it necessarily became part of the law to be applied in every other case where the question arose whether the appointment of someone was as persona designata or otherwise.

18. Even the particular context of the facts before the Supreme Court in which they had entered their enunciation about persona designata has a bearing to the present discussion. The Supreme Court in that case had to deal with the argument that a District Magistrate was persona designata under a particular statute, and that being so, an Additional District Magistrate could not lawfully do what the District Magistrate alone was empowered to do under that statute. The question arose in an ejectment suit which was instituted by a landlord against a tenant under Section 3 of the United Provinces (Temporary) Control of Rent and Eviction Act, 1946. Under that particular provision, any landlord seeking to sue his tenant in ejectment on certain grounds must get the prior permission of the District Magistrate; otherwise the suit would not lie. The landlord in that case got the permission of an Additional District Magistrate. This officer was a Magistrate of the First Class on whom the Provincial Government had conferred powers as District Magistrate under Section 10 of the Criminal Procedure Code. The question was whether an Additional District Magistrate can give permission under the Uttar Pradesh Eviction Act, 1946. It was argued before the Supreme Court for the tenant that when Section 3 of that Act named the District Magistrate, he was persona designata and this meant that any one other than a District Magistrate could not discharge that function. The Supreme Court rejected this contention. It was while examining the validity of this argument that the Supreme Court had to go into the question of what was meant by persona designata, and they did so in the passage which I have earlier quoted. It was urged before the Supreme Court in that case that there was no provision in the Uttar Pradesh Eviction Act enabling an Additional District Magistrate to be equated to a District Magistrate, The Supreme Court rejected this contention and said it was quite sufficient that the Additional District Magistrate was conferred with the powers of a District Magistrate by the Provincial Government under Section 10 of the Criminal Procedure Code. The Supreme Court's view was that the power of sanctioning an eviction suit was conferred by the U. P. Act not to a named individual, but to the District Magistrate and this power applied to all those who under the general law belonged to that class, or bore that legal status.

19. The reasonings in the decision of the Supreme Court in all its detail shows the pertinence of that authority to the present discussion. We cannot seek to distinguish the Supreme Court's decision on the score that the Uttar Pradesh Act is not in pari materia with our Rent Control Act. Nor can we argue that the Supreme Court's decision turned on the terms of the Criminal Procedure Code or on the terms of a notification issued under that Code. I am of the view that the decision of the Supreme Court is very much in point, and in the face of that authoritative ruling, all the earlier decisions of this Court, not excluding that of Gokulakrishnan, J., must be regarded as having been incorrectly rendered, when they said that the Appellate Authority constituted under Section 23 of our Rent Control Act is persona designata.

20. As I earlier mentioned, the whole logic behind the decisions of this Court was that Section 5 applied only to Courts and that appellate authorities under the Rent Control Act are not Courts because they are persona designata. If on the basis of the decision of the Supreme Court, it would be quite an error to dub them as persona designata, then the only objection to their being regarded as Courts goes, and Section 5 of the Limitation Act must, without any further ado, apply. For, in none of these cases do we find any other objection put forward as to why an appellate authority cannot be called a Court.

21. Section 5 of the Limitation Act does not deign to define who or what a Court is. The books contain reports of decisions as to whether this or that tribunal is or is not a Court for the purposes of Section 5 of the Limitation Act. But no decision has gone to the extent of supplying what the legislature has omitted, namely, a working definition of what a Court is for purposes of Section 5 Considering the scheme of the Limitation Act as a whole and Section 29(2) of that Act relating to special and local laws, it might, I think, be reasonable to suppose that an appellate authority under Section 23 of the Rent Control Act can well be held to be a Court for purposes of Section 5 of the Limitation Act. An examination of the role of the appellate authority in the hierarchy of tribunals under the Rent Control Act would also lead us to the same conclusion without raising forensic qualms of any kind. Under the statutory scheme, it is the allotted function of this authority to hear appeals against orders passed in the first instance by the Rent Controller, AS an appellate authority, its powers are co-equal to those of the Rent Controller. The Act provides for a hearing procedure. Provision is made for appearance of parties by counsel. The appellate authority has power to make further inquiry or remand the matter for further inquiry. The appellate authority is armed also with a power to stay the operation of the order appealed against. The appellate authority has finally to decide the appeal. Any order it passess has the force of a decree and is executable as a decree. The appellate authority has power to award costs and vary the Rent Controller's order for costs. Above all, the appellate authority's decision is subject to the revisional jurisdiction of the High Court. In every sense, therefore, the appellate authority under the Rent Control Act deserves to be regarded as a Court. This is, perhaps, the reason why all the earlier decisions of this Court had singularly harped on the notion of persona designata, now seen to be mistaken, as the only ground for not recognising the appellate authority to be a Court.

22. As I earlier mentioned, there are many cases in the books which have concerned themselves with determining whether this or that tribunal is a Court within the scope of section S of the Limitation Act. It is difficult to reconcile all the cases. Nor is it easy to pick out of them all a common thread of principle which lays down what is that which distinguishes a Court from a pseudo court or non-court. For instance, a Labour Court is not regarded as a Court for purposes of Section 5, whereas a Registrar of Assurances is so regarded. The best we can do, therefore, is to concentrate on the particular judicial or quasi-judicial tribunal we have on hand and find out on an examination of its origins, its functions and its tenure, whether it can be treated as a Court for purposes of Section 5 of the Limitation Act. We should not be comparing notes in cases of this kind, and seeking to decide the place of any given authority under Section 5 by analogical deductions drawn from other case having to do with other tribunals created under other statutory enactments.

23. There is as yet no decision which discusses the position of an appellate authority under the Rent Control Act with particular reference to the nature and function of that authority. In all the earlier decisions of this Court which I have cited, no attempt whatever was made to find out if the appellate authority, by virtue of the statutory role it fills, is a Court or not. Attention was rivetted solely to the manner of appointment. And even with this extremely limited approach to the question the Courts had led themselves to error, as shown by the Supreme Court's ruling There s, accordingly, no principle or precedent now, which stands in the way of my holding that appellate authorities under the Rent Control Act are Courts within the meaning of Section 5 of the Limitation Act.

24. Apart from the indications in the scheme and structure of the Rent Control Act itself, there are other weighty considerations of practical significance which seem to me to point to the same conclusion. The time-limit under Section 23 for an appeal is a period of 15 days. It must, I think, rank amongst the shortest time-limits prescribed for any appeal under any statute. I concede that the legislature must be left to its wisdom in matters of this kind. And if the legislature had thought that this duration [was sufficient to enable a party to make up his mind whether to appeal or not, the Courts shall have very little to say on the point. But Courts are not, on that account, to close their eyes to the realities of litigation. Any one who knows anything about our legal system must grant that fifteen days' time, in actual practice, must turn out to be woefully inadequate. Practical difficulties abound under present day conditions which might beset even fairly diligent appellants from keeping to the time-schedule. A short time-limit may not matter if the procedure involves no exertion to the appellant excepting the exertion of filing the appeal memorandum. This can be ensured if copies of the order of the Rent Controller are, as a matter of course, delivered at the party's doors. The procedure under the Act, however, is different. While the Rent Controller is required to pronounce his order in open Court, the parties have to apply for copies and keep a watch over the notice board all the time. This procedure involves many traps for the unwary. And limitation always lies in wait, and begins to run when least expected. These are only a few of the considerations which might throw doubt, on the wisdom of limiting the time for an appeal to a paltry fifteen days, without at the same time providing for condonation of the delay in appropriate cases.

25. Rent Control cases are new about the most important and the most prolific line of private civil litigation in this country. The normal period of gestation for an eviction petition before the Rent Controller and the appellate authorities is not inconsiderable. Parties may have to bide their time to get a decision. It may take six months or a year or more, even for the hearing to be taken up. I see no logic in forcing a party to hurry with filing his appeal, when he has to wait for a long time getting a decision, and our legal system can do nothing about it. Parties wishing to appeal against an order of a Rent Controller, the same as appellants in a regular appeal suit, may be victims of circumstance, such as death in the family or Illness They may be susceptible to other disturbances or distractions beyond their control All of which might prevent them from hastening to the appellate body within the time stipulated for presenting the appeal. It would be odd and quite irrational that the same cause which would provide a party with a lawful excuse in an appeal before a regular Court of appeal should prove worse than useless in a rent control appeal.

26. A place for rent control legislation in the statute book can be justified only on its claim to be a beneficial legislative measure, reflecting the concern of a welfare state to keep la proper check the abrasive relations between landlords and tenants who at present form the bulk of middle class urban populations. To deny either the tenants or even the landlords the right or the privilege of getting an extension of time of sufficient cause being shown would tend to defeat the very purpose of the statute in creating a special machinery for a satisfactory resolution of disputes. There is a lot to be said for maintaining a certain tempo in the administration of justice, and for imposing periods of rest in the enforcement of rights and obligations. But rigidity of law in matters of this kind might be self-defeating. Far from advancing the cause of justice, it might be the cause of rank injustice. A legal system must therefore temper the rigour of legal procedure by reference to the realities of law practice, at least in deserving cases. This is the whole rationale behind Section 5 of the Limitation Act. I do not see how it could have been the intention of the framers of the Rent Control Act that parties should labour under a handicap and be put out of reach of the appellate authority in circumstances which would present little or no problem to similar persons before other appellate forums.

27. These are practical considerations which seem to me of a weighty character. I am persuaded to hold that there is nothing inherently extraordinary about the fixation of time-limit for an appeal under the Rent Control Act that any idea of excusing the delay even for sufficient cause must be assumed to have been quire beyond the contemplation of the state legislature.

28. Even if the appellate authorities are held to be not Courts, in a puritan sense of the expression, yet the principle behind Section 5 of the Limitation Act must, ia my judgment, be applied according to the dictates of justice, equity and good conscience. This is a position which I derive with confidence from two decisions of the Supreme Court. As far as my knowledge goes, both these cases are reported only in specialised tax reports, and not in law journals in general circulation. The first case is reported as Commissie or of Sales Tax v. Madanlal and Sons : [1977]1SCR683 . In this decision, the Supreme Court had to consider the validity of proceedings before a sales tax revisional authority going by the name 'Judge (Revision)' functioning under Section 10 of the Uttar Pradesh Sales Tax Act, 1948. In an earlier decision Commissioner of Sales Tax v. Parson Took and Plants : [1975]3SCR743 . the Supreme Court had occasion to hold that the Judge (Revisions) under the Uttar Pradesh Sales Tax Act, 1948, was not a Court within the meaning of Section 14 of the Limitation Act, 1960. Nevertheless, in their subsequent decision, the Supreme Court applied Section 12(2) of the Limitation Act in a revision filed by an assesses before that very authority. The Supreme Court rejected the argument based on the circumstance that the Uttar Pradesh Sales Tax Act was a complete Code and it did not contain any provision like Section 12(2) of the Limitation Act. The Supreme Court applied Section 29(2) of the Limitation Act on the score that the Uttar Pradesh Sales Tax, Act was a special and local Act. They further held that there was nothing in the Uttar Pradesh Sales Tax Act which expressly excluded the application of Section 12(2) of the Limitation Act. They accordingly concluded that Section 12(2) of the Limitation Act can be relied upon in computing the period of limitation for a revision petition under Section 10 of the Uttar Pradesh Sales Tax Act.

29. I regard this decision of the Supreme Court as authority for the position that even though a limitation provision in a special law relates to a proceeding before a quasi-judicial tribunal and not before a Court in the strict sense of the term, yet by the force of Section 29(2) of the Limitation Act, the provisions of Section 12(2) of the Limitation Act may be applied for computing the special period of limitation, notwithstanding that the special or local law does not itself contain a provision of that kind. It may be of interest to consider the language of Section 12(3) of the Limiation Act which makes mention of the expression 'Court' even as Section 5 does. But this consideration apparently did not deter the Supreme Court from applying Section 12(2) to a proceeding before a taxing authority sitting in revision. Apparently, the Supreme Court thought that in such cases the inquiry was not so much whether any Section of the Limitation Act, in terms, applied but whether the principle of the section had application.

30. This approach is illustrated more explicitly in the earlier decision of Commissioner of Sales Tax v. Parson Tools and Plants (1976) IS CJ 242 : 1975 Tax LR 1529 : (1975) 35 STC 413. It that case, the question before the Court was:

Whether Section 14(2) of the Limitation Act, 1963, in terms, or, in principle, can be invoked for computation of the period of limitation for filing a revision under Section 10(3-B) of the Uttar Pradesh Sales Tax Act, 1948 ?

On the first part of the question, the Supreme Court held that the revisional authority under the Uttar Pradesh Sales Tax Act known as a Judge (Revisions) was not a Court. They referred to the language of Section 14 of the Limitation Act which refers to a Court and held that Section 14 will not per se apply to a sales tax revision before a Judge (Revisions) notwithstanding Section 29(2) of the Limitation Act. The Supreme Court, however, did not close the discussion with holding that the revisional authority under the Uttar Pradesh Sales Tax Act was not a Court. They proceeded to discuss the question whether the principle behind Section 14(2) of the Limitation Act can be applied to the sales tax revision petition by reference to the fundamental doctrines of justice, equity, and good conscience. The following are the prefatory words with which the Supreme Court entered into a detailed discussion of the scheme and the relative provisions of the Uttar Pradesh Sales Tax Act.

Further question that remains is:Is the general principle underlying Section 14(2) applicable on grounds of justice, equity and good conscence for excluding the time spent in prosecuting the abortive applications under Rule 68(6) before the appellate authority for computing limitation for the purpose of revision applications.

31. In the course of the discussion in that case, the Supreme Court expressed the view that.....from the scheme and language of Section 10, the intention of the Legislature to exclude the unrestricted application of the principles of Sections 5 and 10 of the Limitation Act is manifestly clear.

32. This decision is valuable not so much for the actual decision in the case under the particular schema and purpose of the Uttar Pradesh Sales Tax Act as for its being an example as to how the provisions of the Limitation Act have to be construed and applied to special or local laws prescribing special periods of limitation. The method of approach which the Supreme Court pursued in that case is, in my view, eminently adaptable for the purposes of the present case as well. That approach is not merely to see whether Sections 4 to 24 of the Limitation Act literally applies to any special law or local law prescribing a special period of limitation, but to find out whether the principles incorporated in any of these provisions are applicable having regard to the scheme, the structure and the thrust of the provisions of the special or local law concerned. The Supreme Court had justified this manner of inquiry as one dictated by the rules of justice, equity, and good conscience--principles which remain for ever paramount under our Court system.

33. I have in an earlier context in the present discussion indicated the purpose of the Rent Control Act, the kind of proceedings for which the Act has created appropriate machinery by constituting a hierarchy of tribunals, and also the important part which the appellate authority has to play in the resolution of disputes, not to speak of its functions, its powers and its duties. I have also touched upon some of the pragmatic considerations which in actual practice, considerably affect the fortunes of the parties in rent control proceedings. Having regard to all these considerations, I have no doubt whatever that the legislature could not have closed its mind altogether against placing an appellant before an appellate authority under Section 23 at least in the same position as an appellant before a civil appellate Court. Nor am I prepared to accept that when the legislature thought fit to provide for extension of time for filing a revision under Section 25 where the period of limitation is somewhat more liberally fixed as one month, the legislature, at the same time, had set its mind totally against a similar indulgence in the realm of appeal in which it had already cut short the period of limitation to 15 days, barely half of that which it had assigned to a revision. The inference from this statutory scheme, on the contracy must rather be that the legislature being quite aware of the imperatives of Section 29(2) of the Limitation Act was content to let the limitation therein enacted to take its course by not legislating on the subject. This is also clear from the position that when the legislature thought of legislating at all, which was in Section 25, if was only to cut down the latitude which the High Court would otherwise would have had quite freely under Section 5 of the Limitation Act. It is in this sense that the inaction of the legislature in Section 23 is masterly, for it leaves room for the principles of Section 5 to be read into Section 23 of the Act in their full plenitude.

34. The decision of the Supreme Court in Madanlal & Sons's case (1976) 38 S.T.C. 543 : 1977 Tax L. R.1626. provides an illustration to show that the principles of Section 4 to 24 of the Limitation Act can be applied to special or local laws in the absence of any express provision to the contrary in these laws. It may be observed, incidentally, that the Orissa High Court applied the basic idea of Section 5 of the Limitation Act, on the principles of justice, equity, and good conscience in order to condone the delay in filing a reference application under the Orissa Sales Tax Act, 1947. Vide Raghunath Agarwalls v. State of Orissa (1975) Tax L R 2075; 35 STC 461. and Gandhar Misra v. State of Orissa (1975) 36 STC 466 : 1976 Tax L. R. 1650. The learned Judges of the Orissa High Court relied in that regard on the two decisions of the Supreme Court.

35. I do not wish to notice any other reported decision, excepting Achuthan Nair v. Kuppah Shah (1959) 1 MLJ 148 : 1958 MWN 576. a case decided by Rajagopalan, J., under Section 12(1) (b) of the Madras Buildings (Lease and Rent Control) Act, 1949. In that case an appellant before an appellate authority filed a belated appeal and asked for condonation of the delay invoking Section 5 of the Indian Limitation Act, 1908 read with Section 29(2) of that Act. Rajagopalan, J., agreed that Section 29(2) of the Limitation Act applied to that case, but nevertheless held that Section 5 of the Limitation Act cannot be invoked. The basis of his decision was that Section 29(2) of the Indian Limitation Act, 1908, did not apply to Section 5, but expressly excluded it from application to special and local laws.

36. The importance of this decision lies as much in what it said as in what it left unsaid. Rajagopalan, J., did not say that the appellate authority under the Rent Control Act was persona designata and not a Court and hence Section 3 did not apply. All that he said was that Section 5 is not one of the applied sections in Section 29(2) of the Indian Limitation Act, 1908. I fancy that if Section 29(2) had been cast in its present mould in the Indian Limitation Act, 1908, the learned Judge might well have sustained the applicability of Section 5 of the Limitation Act. That I think was fairly implicit in his judgment Incidentally, I may also observe that while the preamble to the Indian Limitation Act, 1908, specifically referred to 'proceedings in Courts' the preamble to the Limitation Act, 1963, generously declared that it was intended 'to consolidate and amend the law for the limitation of suits and other proceedings', eschewing any reference to Courts.

37. The result of the above discussion is that the application filed by the appellant before the appellate authority for excusing the delay in filing the appeal was quite, competent, and nonetheless so for its having been filed under Section 5 of the Limitation Act, 1963 The appellate authority was in error in assuming that he had no jurisdiction to hear and determine the application. The dismissal of the application in limine therefore amounts to failure to exercise jurisdiction.

38. The appellate authority in its order did not stop short with saying that the application did not lie. The order contained a further remark that there was no sufficient cause. 1 regard this is an off-the-cuff finding, which the appellate authority had permitted itself to make only because it felt quite sure all the while that the application itself had to be dismissed as incompetent. I think this is not a proper way of disposal. If a judicial authority does not wish to limit its decision to a preliminary question as to jurisdiction or as to the competence of proceeding before it, but prefers to enter a finding on the merits as well, it is its duty to do so by going the whole-hog with the issues on merits. It cannot render less than what It should do by way of a finding on the merits, merely because it is already committed to the view that the proceedings do not lie anyway. In this sense, the finding of the appellate authority in this case that the appellant had not made out sufficient cause is not a proper finding and no effect should be given to it.

39. The result is that the order of the appellate authority (the Principal Subordinate Judge, Cuddalore) is set aside. The application under Section 5 of the Limitation Act is restored to its file. The appellate authority is hereby directed to hear and determine that application on merits. If it is satisfied that the appellant had sufficient cause for not filing the appeal within time, it is its duty to entertain the appeal and proceed to go into its merits in accordance with the law.

40. The Civil Revision petition is accordingly allowed and the matter is remanded. There will, however, be no order as to costs.


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