Krishnan, T. and Another vs State of Kerala and Others

K.S. Radhakrishnan, J.—Question raised in both these appeals has already been answered by a Division Bench of this Court in District Executive Officer Vs. Abel, . Bench has taken the view that Government have no power to condone delay in filing an appeal beyond sixty days from the date of receipt of order u/s 8(5) of the Motor Transport Workers Welfare Fund Act, 1985. Bench also held that Section 5 of the Limitation Act does not apply to proceedings under that Act.

Counsel appearing for the Appellants, however, has sought for re-consideration of the Bench decision in Abel''s case. Counsel submitted that the impact of Section 29(2) of the Limitation Act has not been considered by the Bench. Counsel submitted that Section 29(2) of the Limitation Act specifically provides that Section 4 - 24 of the Limitation Act would squarely apply to Government and also other authorities to condone the delay in filing application. Counsel submitted that the period of limitation is prescribed in the Kerala Motor Transport Workers Welfare Fund Act which is a special law. The period of limitation for filing appeal is fixed as sixty days from the date of receipt of a copy of the order of the original authority and the Limitation Act does not prescribe any period of limitation for filing appeal under the provisions of the Motor Transport Workers Welfare Fund Act. Under such circumstance Section 29(2) would squarely apply and hence Section 5 of the Limitation Act as well. Counsel also submitted that the Kerala Motor Workers Welfare Fund Act does not exclude expressly any of the provisions of the Limitation Act and hence Section 5 is applicable by virtue of Section 29(2) of the Limitation Act. In support of the contention counsel placed reliance on the decision of the apex court in Gopalan v. Aboobacker 1995 (2) KLT 205

Counsel appearing for the Welfare Fund Board submitted that there is no necessity for reconsidering Abel''s case and submitted that the Government acting under the Motor Transport Workers Welfare Fund Act is not acting as a court and hence the provisions of the Limitation Act would not apply. In support of that contention counsel also placed reliance on the decisions of the apex court in Nityananda, M. Joshi and Others Vs. Life Insurance Corporation of India and Others, and Officer on Special Duty (Land Acquisition) v. Shah Manilal Chanduial AIR 1996 S.C.W. 941.

We may point out that this issue came up for consideration before this Court for the first time in Kerala Motor Transport Workers Welfare Fund Board v. Government of Kerala 2001 (1) KLT 608. The Bench while interpreting Section 8(5) of the Motor Transport Workers Welfare Fund Act, 1985 held that the Government is not entitled to entertain any appeal filed u/s 8(5) of the Act beyond the prescribed period of sixty days. The court took the view, in the absence of any provision expressly conferring power on the appellate authority to entertain an appeal on any count after the period of limitation prescribed under the statute, the appellate authority is not competent to entertain a time-barred appeal and there is no implied power conferred on the appellate authority to condone the delay and entertain the appeal. This view was endorsed by Anr. Division Bench consisting of one of us, K.S. Radhakrishnan, J., in Abel''s case (supra).

The decision in Abel''s case was followed in Khalid Vs. State of Kerala, . Abel''s case was decided placing reliance on the decision of the apex court in Sakuru Vs. Tanaji, , where the apex court was dealing with the powers of the District Collector functioning under the Andhra Pradesh (Telengana Area) Tenancy and Agricultural Lands Act, 1950. Delay in filing the appeal before the Collector u/s 90 beyond the period prescribed u/s 93 was sought to be condoned. Claim was considered by the District Collector and refused. Rejecting the contention the apex court held that the Collector before whom the appeal was preferred by the Appellant u/s 90 of the Act not being a court, the Limitation Act, as such has no applicability to the proceedings before him. In Nityanand''s case (supra) the apex court was dealing with the provisions of the Industrial Disputes Act, 1947 and Section 5 of the Limitation Act. Apex court held that u/s 5 it is only a court which is enabled to admit an application after the prescribed period has expired if the court is satisfied that the applicant had sufficient cause for not preferring the application to condone the delay. Apex court held that the scheme of the Indian Limitation Act is that it only deals with applications to courts, and that the Labour Court is not a court within the Indian Limitation Act, 1963. Reference may also be made to the decision of the apex court in Officer on Spl. Duty (Land Acquisition) v. Shah Manilal Chandulal AIR 1996 S.C. 209, wherein the apex court held that the Collector acting as statutory authority while making reference u/s 18, is not a court and hence Section 5 of the Limitation Act is not applicable for extending period of limitation prescribed under proviso to Section 18(2).

We may also refer to a Full Bench decision of this Court in Jokkim Fernandez v. Amina Kunhi Umma 1973 KLT 138. This Court held that Sub-section (2) of Section 29 and Section 5 of the Limitation Act do not apply to the proceedings under the Kerala Buildings (Lease and Rent Control) Act and that therefore, the Tribunal is not a Court u/s 5 of the Limitation Act We may also refer to Anr. Full Bench decision of this Court in Commissioner of Agricultural Income Tax v. T.R.I. 1981 KLT 398. Bench was considering the question as to whether the appellate tribunal functioning under the Agricultural Income tax Act is a court and Section 5 read with Section 29(2) of the Limitation Act would apply in respect of an application for reference. Court held that the appellate authority is not a court and Section 5 would not apply to condone the delay.

There is a delay of more than six years in filing the appeal before the Government in W.P. (C) 31349/05. Order challenged was despatched on 4-1-1999 and the same was received by the Appellant on 8-1-1999. Appeal was filed only on 7-4-2005 and the same was received by me Government only on 12-4-2005. Government therefore passed the impugned order dated 30-5-2005 rejecting the appeal on the ground of delay since there was no provision to condonation of delay. Counsel for the Appellant however, submitted that though the Government have rejected the appeal on the ground of delay this Court under Article 226 of the Constitution of India can entertain the writ Petition in the interests of justice. We have already held in Abel''s case that a party cannot invoke the provisions of Article 226 so as to bypass a statutory remedy, especially when no power is conferred on the statutory authority to condone the delay. This legal position has been approved by this Court in Assistant Commissioner of Central Excise Vs. Krishna Poduval, , where this Court held that once the period of limitation has run itself out and the appellate authority does not have the power to condone the delay in filing the appeals beyond the maximum period prescribed under the Act, the remedies come to an end just like in the case of a time barred suit and cannot, by invoking the discretionary remedy under Article 226 of the Constituiton of India, resurrect unenforceable cause of action.

We may also refer to the decision of the Supreme Court in Commissioner of Sales Tax, Uttar Pradesh v. Parson Tools and Plants Kanpur 1975 35 S.T.C. 413, where the court stated that if the legislature in a special statute prescribes a certain period of limitation for filing a particular application there under and provides in clear terms that such period on sufficient cause being shown, may be extended, in the maximum, only up to a specified time-limit and no further, then the tribunal concerned has no jurisdiction to treat within limitation, application filed before it beyond such maximum time-limit specified in the statute, by excluding the time spent in prosecuting in good faith and due diligence any prior proceeding on the analogy of Section 14(2) of the Limitation Act. That being the legal position we are of the view the contention of the counsel for the Petitioner that this Court shall entertain the writ Petition under Article 226 of the Constitution of India cannot be sustained. We reject that contention also.

In view of the above-mentioned circumstance we find no reason to reconsider Abel''s case.

Writ appeals lack merit and they are accordingly dismissed.