S. Naseer Pasha vs The Deputy Commissioner

Dr. Jawad Rahim, J.—The petitioner herein, admittedly the owner of a stage carriage bearing Registration No. KA-07/5233 seeks writ in the nature of certiorari to quash the order dated 3-7-2013 in Taxation Appeal No. 1 of 2013-2014, Annexure-E and also the order of 2nd respondent dated 13-2-2013 vide Annexure-A. Sri S.V. Girikumar, learned AGA takes notice for respondents 1 and 2.

As the learned Counsel on both sides are ready, I have heard them.

Not in dispute is the fact that petitioner, the owner of stage carriage bearing Registration No. KA-07/5233 applied to the Regional Transport Officer for non-use of the vehicle through his intimation dated 30-4-2010. The intimation was received by the Officers concerned and the Inspector of the Motor Vehicle Department was directed to investigate who reported that the vehicle in question was not found at the declared place of garage. It was also reported that one of the conditions laid down in the notification dated 6-9-2007 issued under Section 16 of the Karnataka Motor Vehicles Taxation Act, 1957 (for short, ''the Act'') that on submission of declaration about non-use, the vehicle shall not be removed from the declared place of garage without prior permission of the Registering Authority (vide Condition No. 9 of the notification) was violated and the applicant had removed the vehicle from the declared place.

On the basis of such report of the Inspector and regarding alleged violation of condition No. 9 of the Notification, the authority notified the petitioner through a show-cause notice calling upon him to submit his reply. He sent a reply stating that due to formation of Railway lane (Kolar-Chickaballapur), the track line was modified and cleared and the vehicle in question which was blocking the area was removed from the place under the direction of the R.O. Thus, he submitted to the authorities that the vehicle was removed from the declared place and was kept only at 100 yards away near KSB Body Builders, which was nearby.

Reply so given did not convince the Competent Authority and thus, the Competent Authority held that non-use of the vehicle reported by the petitioner was factually incorrect and therefore, rejected the intimation of non-use.

Based on that opinion, the Regional Transport Officer, the Competent Authority under the Act passed the order Annexure-A directing the petitioner to pay tax due on the vehicle for the period from 1-6-2010 to 28-2-2013 amounting to Rs. 3,53,508/- within of 15 days after receipt of notice thereof.

Assailing it, the petitioner preferred an appeal availing the benefit of Section 15 of the Act on 25-6-2013. It was registered by the Appellate Authority under Tax Appeal No. 1 of 2013. As the appeal was preferred beyond the period of 30 days from the date of order passed by the 2nd respondent, impugned in the appeal, the petitioner claims he filed an application under Section 5 of the Limitation Act, 1963 seeking condonation of delay and also an application under Section 15 of the Act seeking to dispense with the deposit of the admitted/disputed tax amount for the reasons stated in the affidavits.

The Appellate Authority, scrutinising the appeal has issued an order Annexure-E declining to entertain and ordered it to be returned to the petitioner.

The petitioner has assailed the said order on the ground that the first respondent has failed to exercise the appellate jurisdiction conferred on it by returning the appeal to the petitioner instead of considering the applications filed by him under Section 5 of the Limitation Act as also under Section 15 of the Act to dispense with deposit of the amount.

Several grounds are urged by the learned Counsel amongst which his core contention is, if at all the Appellate Authority found no favour with the circumstances explained by the petitioner explaining the delay in filing the appeal, the authority was required to pass a reasoned order. The order impugned is not an order, it is described as endorsement and reads "the appeal is returned to the petitioner". Undoubtedly, the learned Counsel has taken advantage of the use of the words "the appeal has been returned to the petitioner" in the impugned order Annexure-E to contend that the appeal has been returned without adjudication. He would also submit that challenge to Annexure-E is tenable because no opportunity was given to the petitioner to explain about shifting of vehicle from the declared place of garage. Therefore, the order at Annexure-A is also unsustainable.

In negation of these grounds, learned AGA, Dr. Girikumar would submit the order Annexure-A is not an endorsement as urged by the petitioner, but it is an order passed in exercise of appellate power conferred on first respondent. In this regard, he would submit that Annexure-E is actually an order rejecting the appeal on the question of limitation and is not an endorsement. He would submit the very fact that the Appellate Authority has referred to the details of date of order passed by the 2nd respondent impugned in the appeal and the date of presentation of appeal and has also referred to the mandatory provision of Section 15 (proviso) of the Act as also the relevant provisions of the Karnataka Motor Vehicles Taxation Rules, 1957 (Amendment of Rules 31 and 31-A) which envisages that the Appellate Authority has jurisdiction to entertain the appeal and adjudicate only if the appeal is preferred within a period of 30 days fixed statutorily from the date of the impugned order. He submits, even by virtue of amendment, discretion is conferred on the Appellate Authority to condone the delay of maximum 30 days on sufficient cause being shown. He submits beyond the extended period of 30 days indicated in the said Rule (amendment of Rules 31 and 31-A), the authority will have no legal competence to condone the delay beyond that period.

In view of such legal impediment, the first respondent could not have granted extension of time to file the appeal and therefore, there was no question of considering the grounds urged in the appeal against the impugned order Annexure-A. He thus supports the order impugned passed by the first respondent is sustainable being in accordance with law requiring no interference.

Learned AGA, Dr. Girikumar sought citational support to his contentions relying on the following decisions:

"(1) In the case of Narayanaswamy and Others Vs. The Tahasildar, M. Venkataswamy and Muninarayana,

(2) In the case of Singh Enterprises Vs. Commissioner of Central Excise, Jamshedpur and Others, ."

To address the grievance of the petitioner in the light of the grounds urged on behalf of the State against it, the moot question that arises for consideration in this petition is about legal competence of the Appellate Authority constituted under Section 15 of the Act to entertain the appeal beyond the period of limitation indicated in the provision of Section 15 of the Act and Rules 31 and 31-A of the Karnataka Motor Vehicles Taxation Rules, 1957. Naturally, the conspectus of these two provisions is necessary.

Section 15 which provides statutory remedy of appeal to a person aggrieved by the original order of the Revenue and spells out clearly by its terminology that:

"15. (1) Any person who is aggrieved by any order of a Taxation Authority made under this Act, may within the prescribed time and in the prescribed manner, appeal to the prescribed authority.

(2) (a) No appeal shall be entertained by the Appellate Authority unless it is accompanied by satisfactory proof of the payment of the tax not disputed in the appeal.

(b) Notwithstanding that an appeal has been preferred under sub-section (1), the tax or other amount shall be paid in accordance with the order against which the appeal has been preferred and such appeal shall be accompanied with a proof of payment of such amount:

Provided that the Appellate Authority may, in its discretion, give directions as it thinks fit in regard to the payment of the tax or other amount payable under clause (b), if the applicant furnishes sufficient security to its satisfaction in such form and in such manner as may be prescribed.

Sub-section (3) of Section 15 is very relevant for the purpose which mandates any appeal preferred after the period prescribed period shall be dismissed".

Now, we have to consider the effect of Rule 31 of the Karnataka Motor Vehicles Taxation Rules, 1957 to which our attention undoubtedly is drawn because it prescribes the period.

Rule 31 would read:

"31. Any person aggrieved by an order made by any officer under the Act or these Rules may, within 30 days of the date of receipt of the order by such person, appeal to.--

(i) the Deputy Commissioner for Transport, if the original order is that of an officer other than the Commissioner and the Deputy Commissioner for Transport; and:

Provided that if the original order has been passed by the Deputy Commissioner for Transport himself in some other capacity appeal against such original order shall lie to the Commissioner.

(ii) the Karnataka Revenue Appellate Tribunal, if the original order is that of the Commissioner or the Deputy Commissioner for Transport".

The said provision has been amended in the recent past by the Government vide its Notification No. TRD 196 SAEPA 2008, dated 26-10-2010 (sic) whereby the Karnataka Motor Vehicles Taxation Rules framed under the provisions of the Karnataka Motor Vehicles Taxation Act, 1957 (Karnataka Act No. 35 of 1957) was amended amending the provision of Rule 31.

By virtue of amendment, the repealed Rule reads thus:

"In the Karnataka Motor Vehicles Taxation Rules, 1957 (hereinafter referred to as the ''said rules'') after the words "within thirty days of the date of the receipt of the order by such person", the words "or within a further period of thirty days, as the Appellate Authority may allow on an application made to it by the Appellant showing just and sufficient cause" shall be inserted".

Thus, it could be seen even the Government has shown benevolence to help the aggrieved person to appeal beyond the period of 30 days prescribed by Rule 31 amending it, inserting a clause conferring power upon the Appellate Authority, the jurisdiction to extend the period of filing of appeal beyond the period of 30 days by another 30 days if just and sufficient cause is shown. There is no indication in the amended Rule or provision to Section 15 of the Act that the Appellate Authority has discretion to extend the period of filing of appeal beyond the period indicated even in the amended Rule 31. In other words, statutorily, the legal competence of the Appellate Authority to condone delay beyond the initial period of 30 days is extended only by another 30 days and not more.

In this view, there is a clear embargo on the discretionary power of the Appellate Authority to entertain the appeal beyond the period of 30 days from the date of receipt of the original order and/or to condone further delay of 30 days calculated therefrom on sufficient cause being shown.

In the resultant position, any appeal preferred beyond the period indicated in the amended Rule 31 would not be maintainable in view of sub-section (3) of Section 15 of the Act which declares clearly that any appeal preferred after prescribed period shall be dismissed on the basis of interpretation of Section 15(3) of the Act and Rule 31 (amended provision).

Another legal issue is whether Section 5 of the Limitation Act is applicable which gives a wider power to the Courts and quasi-judicial authorities to condone delay in any revision, appeal or review actions.

On this issue the learned Counsel for the petitioner would submit even though the period as indicated above is prescribed by Rule 31 and the amended provision of Rule 31, yet Section 5 has applicability and the Appellate Authority is required to consider the cause shown and decide the issue. He would reiterate that the Appellate Authority has not heard the petitioner before passing the impugned order Annexure-E and has failed to consider the cause shown which is permissible under Section 5 of the Limitation Act.

This proposition has to be considered only with reference to Section 29 of the Limitation Act. Section 29 clearly mandates ''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''. Thus it could be seen in the instant case, though Section 5 of the Limitation Act gives discretion to the appellate or Revisional Authority to condone the delay beyond the period prescribed in filing such appeal or revision, if sufficient cause is shown, Rule 31 and the amended provision of Rule 31 does not grant any discretion to the Court and fixes a maximum of 30 + 30 days. In view of Section 29 of the Limitation Act, the period of limitation prescribed by the special law, i.e. Section 15 of the Act and Rule 31 of Rules and the amended provision of Rule 31 prevails and Section 5 gets excluded. For clarity, Section is extracted below:

"Section 29 of Limitation Act:

"29. (1) Nothing in this Act shall affect Section 25 of the Contract Act, 1872 (9 of 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".

In this view, the Appellate Authority will have no legal competence to entertain an appeal by virtue of sub-section (3) of Section 15 and all that the Appellate Authority has to do is to reject the appeal. There is no question of Appellate Authority being required under law to consider the facts and circumstances and the cause shown by the applicant/appellant in preferring an appeal beyond the period prescribed. Had the Appellate Authority referred to facts and the grounds urged, it would have been an exercise in futility in view of the legal bar in exercise of appellate power. Therefore, all that the Appellate Authority could do is to examine the relevant dates of passing of the impugned order with the date of preferring an appeal and if the appeal is beyond that period of 30 days prescribed, then consider if he has sufficient cause to explain and such delay of course, only to the maximum of 30 days. Even if there is sufficient cause to extend for want of legal competence, delay beyond 30 days as provided by amended Rule 31 is not permissible.

In the circumstances, the order impugned at Annexure-E has to be treated as an order passed by the Appellate Authority in exercise of power under sub-section (3) of Section 15 which requires appeal to be dismissed being barred by time. There was no for the Appellate Authority to record any reasons or finding on facts. Consequently, learned Counsel''s contention that the Appellate Authority has not passed an order but has returned the appeal to the appellant does not appear to be factually correct as the impugned order reads thus:

All that the Appellate Authority has done is instead of recording "appeal rejected", it has recorded "appeal is returned". Therefore, I find no legal infirmity in the order Annexure-E and consequently, the writ action fails against it.

As regards Annexure-A is concerned, since the petitioner has statutory remedy against Annexure-A, which remedy is lost by virtue of mandatory provisions of the Statute, the petitioner has to answer for his own predicament.

In fact, in the case of Narayanaswamy, the view taken is thus:

"In the above circumstances, the only question is, whether the second respondent could file an appeal beyond time and seek condonation of delay under Section 5 of the Limitation Act, 1963. An application under Section 5 of the Limitation Act is relevant only if the provisions of the Limitation Act are applicable. In the event that the period of limitation is prescribed under a special statute, an application under Section 5 of the said Act could not be pressed into service. This apart, if the ratio of the decisions cited above are to be applied, it may be possible in a given case, that an appellant could bring an appeal within the period of limitation prescribed under a Special Act from the date of knowledge. But even if this position is applied in the case on hand, it cannot be said that the appeal was filed within the period of limitation prescribed under the provision. In this light of the matter, the impugned order would suffer from these two infirmities, in that, the lower Court could not have exercised power under Section 5 of the Limitation Act in condoning the delay and even if the law as laid down by the aforesaid decisions is to be applied, the appeal was far beyond the period of limitation prescribed and therefore is bad in law".

In the case of Singh Enterprises, the Supreme Court has taken the view thus: "The Commissioner of Central Excise (appeals) as also the Tribunal being creatures of statute are vested with jurisdiction to condone the delay beyond the permissible period provided under the statute. The period upto which the prayer for condonation can be accepted is statutorily provided. It was submitted that the logic of Section 5 of the Limitation Act, 1963 (in short, ''the Limitation Act'') can be availed for condonation of delay. The first proviso to Section 35 makes the position clear that the appeal has to be preferred within, three months from the date of communication to him of the decision or order. However, if the Commissioner is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of 60 days, he can allow it to be presented within a further period of 30 days. In other words, this clearly shows that the appeal has to be filed within 60 days but in terms of the proviso further 30 days time can be granted by the Appellate Authority to entertain the appeal. The proviso to sub-section (1) of Section 35 makes the position crystal clear that the Appellate Authority has no power to allow the appeal to be presented beyond the period of 30 days. The language used makes the position clear that the Legislature intended the Appellate Authority to entertain the appeal by condoning delay only upto 30 days after the expiry of 60 days which is the normal period for preferring appeal. Therefore, there is complete exclusion of Section 5 of the Limitation Act. The Commissioner and the High Court were therefore justified in holding that there was no power to condone the delay after the expiry of 30 days period".

In the result, impugned order Annexure-E sustains. Writ petition fails. Sri S.V. Girikumar, learned AGA is permitted to file his memo of appearance within three weeks.