REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL D. NO. 37598 OF 2007

Chhattisgarh State Electricity Board …Appellant

Versus

Central Electricity Regulatory Commission …Respondents

and others

J U D G M E N T

G.S. Singhvi, J.

1.Whether Section 5 of the Limitation Act, 1963 (for short, ‘the

Limitation Act’) can be invoked by this Court for allowing the aggrieved

person to file an appeal under Section 125 of the Electricity Act, 2003 (for

short, ‘the Electricity Act’) after more than 120 days from the date of

communication of the decision or order of the Appellate Tribunal for

Electricity (for short, ‘the Tribunal’) is the question which requires

determination in this appeal filed against order dated 17.5.2007 passed by

the Tribunal in I.A. No.4 of 2007 in Appeal No.21 of 2006.

2.Appellant, Chhattisgarh State Electricity Board was established under

Section 58 of the M.P. Reorganization Act, 2000. In a sense, it is a

successor of Madhya Pradesh Electricity Board insofar as the State of

Chhattisgarh is concerned. A dispute arose between the appellant and

respondent No.3 – Madhya Pradesh State Electricity Board in the matter of

payment of FLEE charges to the beneficiaries in the Western Region under

the “Frequency Linked Energy Exchange” scheme, which was introduced

with effect from 1.6.1992. The FLEE charges were payable to the

beneficiaries on the basis of monthly advises issued by Western Regional

Electricity Board (renamed as Western Regional Board Committee)

(respondent No.5 herein). The matter was considered by respondent No.1 –

Central Electricity Regulatory Commission, which passed an order dated

8.12.2005 fixing the liability of the appellant and respondent No.3 in the

matter of payment of FLEE charges.

3.The appellant challenged the aforementioned order in Appeal

No.21/2006, which was allowed by the Tribunal vide its order dated

14.11.2006. Soon thereafter, respondent No.3 filed IA No.4/2007 for issue

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of a direction to respondent No.5 to recalculate FLEE charges in accordance

with the Tribunal’s order in relation to post-reorganization period. By order

dated 17.5.2007, the Tribunal allowed that application and directed

respondent No.5 to recalculate FLEE charges in accordance with order dated

14.11.2006.

4.Feeling aggrieved by the last mentioned order of the Tribunal, the

appellant filed this appeal on 24.12.2007. Along with the appeal, the

appellant filed an application for condonation of 160 days’ delay. The

reasons for not filing appeal within the period of 60 days specified in Section

125 of the Electricity Act, as disclosed in the application are as under: -

i)The impugned order had been pronounced by the Tribunal on

17.5.2007 but the counsel for the appellant did not receive intimation of the

said pronouncement and as such he was not aware of the same.

ii)That the procedure which was being followed by the Tribunal at that

time was that the Registry of the Tribunal used to telephonically give

advance intimation to the counsel of the parties regarding pronouncement of

the order.

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iii)The appellant came to know about the order in July, 2007 when

respondent No.5 sent intimation for payment of FLEE charges to the

beneficiaries in the Western Region. Thereupon, the appellant informed its

counsel about the impugned order who then sent letter dated 26.7.2007 to

the Registrar of the Tribunal that intimation regarding pronouncement of the

order had not been given to him (the date has been wrongly typed in

paragraph 3 of the application as 26.11.2007).

iv)Respondent No.3 had filed a review petition against order dated

14.11.2006, which was not decided by the Tribunal along with I.A. No.4 of

2007 and the same was withdrawn on 25.10.2007.

v)Thereafter, the impugned order was considered and discussed by the

appellant and after obtaining legal opinion, it was decided to file an appeal.

vi)In the light of the decision taken by the appellant, the counsel

proceeded to prepare the appeal but some delay was caused due to extensive

pleadings and voluminous documents.

5.In the reply filed on behalf of respondent No.3, it has been averred

that the impugned order was communicated by the Deputy Registrar of the

Tribunal vide his letter dated 11.6.2007; that the appellant and the

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respondents before the Tribunal were informed by the said letter that the

matter was disposed of on 14.5.2007 and the parties may request for a copy

of the order in PDF format through e-mail at registrar-aptel@nic.in or apply

for a certified copy and further that the order would also be available in the

Tribunal’s website (www.aptel.gov.in). It has been further averred that

letter sent by the Deputy Registrar of the Tribunal was received by the

appellant on 21.6.2007 which was entered in its receipt register at serial No.

2082 and subsequently, the same was received by the office of the Chief

Engineer (Commercial) on 29.6.2007. Respondent No.3 has supported this

assertion by placing on record photostat copies of the inward register

maintained in the office of Secretary of the appellant, which were made

available pursuant to an application filed under the Right to Information Act.

Respondent No.3 has then relied upon the appellant’s assertion that it came

to know about order dated 17.5.2007 in July, 2007 and prayed that in the

absence of any explanation by the appellant for remaining silent from July,

2007 to December, 2007, the appeal cannot be entertained. As regards the

review application, respondent No.3 has averred that the same has no

bearing on the appellant’s grievance against order dated 17.5.2007 and in the

absence of any explanation for the delay after 21.6.2007, the appeal should

be dismissed as barred by time.

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6.In the rejoinder affidavit filed on behalf of the appellant, it has been

pleaded that in the absence of communication of order by the Tribunal in

accordance with the provisions contained in Chapter XVI of Appellate

Tribunal for Electricity (Procedure, Form, Fee and Record of Proceedings)

Rules, 2007 (for short, ‘the Rules’), the appeal cannot be dismissed as barred

by time. It has then been averred that letter dated 7.6.2007 of the Tribunal,

which was signed by Deputy Registrar on 11.6.2007 cannot be treated as

communication of order dated 17.5.2007. It has been further averred that

letter dated 7.6.2007 was received in the secretariat of the appellant on

25.6.2007 and the same was forwarded to the concerned department on

28.6.2007. In paragraph 6 of the affidavit, it has been averred that officers

of the appellant had no knowledge of the impugned order till the receipt of

intimation from respondent No.5 in July 2007 regarding payment to the

beneficiaries in the Western Region and, thereafter, steps were taken for

filing appeal.

7.Shri Ravi Shankar Prasad, learned senior counsel for the appellant

argued that even though the appeal was filed after more than 120 days

counted from the date of the Tribunal’s order and, in terms of proviso to

Section 125 of the Electricity Act, this Court can extend the time for filing

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an appeal up to a maximum of 60 days only, power under Section 5 read

with Section 29(2) of the Limitation Act can be exercised for condonation of

delay beyond the period of 120 days. In support of this argument, Shri

Prasad placed reliance on the judgment of this Court in Mukri Gopalan v.

Cheppilat Puthanpurayil Aboobacker (1995) 5 SCC 5. Learned senior

counsel laid considerable emphasis on the fact that by virtue of the

impugned order huge liability has been created against the appellant and if

the appeal is not entertained, it will suffer irreparable injury.

8.Shri C.S. Vaidyanathan, learned senior counsel appearing for

respondent No.3 argued that in view of the plain language of the proviso to

Section 125 of the Electricity Act, this Court has no power to extend the

period for filing an appeal beyond 120 days and the provisions of the

Limitation Act cannot be invoked for negating the legislative intendment to

prescribe special limitation for filing an appeal against any decision or order

of the Tribunal. Learned senior counsel further argued that letter dated

7.6.2007 sent by Deputy Registrar of the Tribunal informing the parties that

the IA was disposed of on 17.5.2007 and they may request for a copy of the

order in PDF format through e-mail or apply for a certified copy amounts to

communication of the order within the meaning of Section 125 of the

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Electricity Act read with Rule 98 of the Rules and the appeal filed after more

than 120 days from the date of receipt of letter dated 7.6.2007 is liable to be

dismissed as barred by time. Learned senior counsel submitted that even if

intimation given by the Deputy Registrar of the Tribunal vide letter dated

7.6.2007 is ignored, the appeal is liable to be dismissed because the

appellant had become aware of the Tribunal’s order on 17.7.2007 i.e., the

day on which letter dated 6.7.2007 sent by respondent No.5 was received in

the office of its Secretary. Learned senior counsel submitted that if the

period of limitation is counted from 17.7.2007, the appeal could be filed by

15.9.2007 whereas the same was actually filed on 24.12.2007. Learned

senior counsel then invited the Court’s attention to the memo of appeal and

application filed for condonation of delay to show that the same had been

prepared on 7.9.2007 but were filed on 24.12.2007 i.e., after more than three

and half months. In support of his argument that this Court cannot extend

the time beyond 60 days in terms of proviso to Section 125 of the Electricity

Act, Shri Vaidyanathan relied upon the judgments of this Court in Union of

India v. Popular Construction Company (2001) 8 SCC 470, Singh

Enterprises v. Commissioner of Central Excise, Jamshedpur and others

(2008) 3 SCC 70 and Commissioner of Customs and Central Excise v.

Hongo India Private Limited and another (2009) 5 SCC 791.

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9.For deciding the question framed at the threshold of this judgment, it

will be useful to notice the relevant statutory provisions.

Electricity Act and the Rules

125. Appeal to Supreme Court.– Any person aggrieved by

any decision or order of the Appellate Tribunal, may, file an

appeal to the Supreme Court within sixty days from the date of

communication of the decision or order of the Appellate

Tribunal, to him, on any one or more of the grounds specified

in section 100 of the Code of Civil Procedure, 1908 (5 OF

1908):

Provided that the Supreme Court may, if it is satisfied that the

appellant was prevented by sufficient cause from filing the

appeal within the said period, allow it to be filed within a

further period not exceeding sixty days.

94. Pronouncement of order.–(1) The Bench shall as far as

possible pronounce the order immediately after the hearing is

concluded.

(2) When the orders are reserved, the date for

pronouncement of order shall be notified in the cause list which

shall be a valid notice of intimation of pronouncement".

(3) Reading of the operative portion of the order in the open

court shall be deemed to be pronouncement of the order.

(4) Any order reserved by a Circuit Bench of the Tribunal

may also be pronounced at the principal place of sitting of the

Bench in one of the aforesaid modes as exigencies of the

situation require.

98. Transmission of order by the Court Master.– (1) The

Court Master shall immediately on pronouncement of order,

transmit the order with the case file to the Deputy Registrar.

(2) On receipt of the order from the Court Master, the

Deputy Registrar shall after due scrutiny, satisfy himself that

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the provisions of these rules have been duly compiled with and

in token thereof affix his initials with date on the outer cover of

the order. The Deputy Registrar shall thereafter cause to

transmit the case file and the order to the Registry for taking

steps to prepare copies and their communication to the parties.

106.Filing through electronic media. – The Tribunal may

allow filing of appeal or petition or application through

electronic media such as online filing and provide for

rectification of defects by e-mail or net and in such filing, these

rules shall be adopted as nearly as possible on and from a date

to be notified separately and the Chairperson may issue

instructions in this behalf from time to time.

Limitation Act

5. Extension of prescribed period in certain cases.– Any

appeal or any application, other than an application under any

of the provisions of Order XXI of the Code of Civil Procedure,

1908 (5 of 1908) , may be admitted after the prescribed period,

if the appellant or the applicant satisfies the court that he had

sufficient cause for not preferring the appeal or making the

application within such period.

Explanation.––The fact that the appellant or the applicant

was misled by any order, practice or judgment of the High

Court in ascertaining or computing the prescribed period may

be sufficient cause within the meaning of this section.

29. Savings.– (1) Nothing in this Act shall affect section 25

of the Indian 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 in so far as, and to the extent to

which, they are not expressly excluded by such special or local

law.

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(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 (5 of 1882), may for the

time being extend.

10.The Electricity Act was enacted in the backdrop of dismal

performance of various state electricity boards and alarming decline in the

availability of power necessary for domestic, agricultural and industrial

sectors. Before enactment of the Electricity Act, the electricity supply

industry was governed by the Indian Electricity Act 1910, The Electricity

(Supply) Act, 1948 and the Electricity Regulatory Commissions Act, 1998.

The Electricity (Supply) Act, 1948 mandated the creation of electricity board

for every state. The state electricity boards had the responsibility of

arranging the supply of electricity in the state. Over a period of time, the

performance of state electricity boards deteriorated on account of various

factors including their inability to take decisions on tariffs in a professional

and independent manner. In practice, the state governments started

determining tariff and huge concessions were provided to various segments

of the consumers, many of which were not deserving. Cross-subsidies had

reached unsustainable level. To address this issue and to provide for

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independent determination of tariffs, the Electricity Regulatory

Commissions Act, 1998 was enacted. Under that Act, the Central

Government created the Central Electricity Regulatory Commission and

most of the state governments created the State Electricity Regulatory

Commissions either under the Central Act or under their respective state

legislations with a view to implement the policy of encouraging private

sector participation in generation, transmission and distribution of electricity

and to harmonize and rationalize the provisions of the three Acts, the

Electricity Act was enacted. Part II thereof contains provisions under

which the Central Government is entitled to prepare the National Electricity

Policy and tariff policy, in consultation with the state governments and the

Central Electricity Authority for development of the power system based on

optimal utilisation of resources such as coal, natural gas, nuclear substances

or materials, hydro and renewable sources of energy. Under the same part,

the Central Government can prepare and notify national policies, permitting

stand alone systems for rural areas, for rural electrification and for bulk

purchase of power and management of local distribution in rural areas

through panchayat institutions, users’ associations, co-operative societies,

non-governmental organisations or franchisees. Part III contains provision

relating to generation of electricity. Part IV regulates grant of licenses for

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transmission of electricity, distribution of electricity and trading in

electricity. Part V deals with transmission of electricity including inter-state

transmission. Part VI deals with distribution of electricity. Part VII contains

provision relating to tariff. The provisions contained in Part IX provide for

establishment of the Central Electricity Regulatory Authority and its

functions and duties and those contained in Part X provide for establishment

of the Central and State Electricity Regulatory Commissions and their

functions. The Electricity Act also envisages establishment of Tribunal to

hear appeals against the orders of adjudicating officers or regulatory

commissions (Part XI). In terms of Section 111, any person aggrieved by an

order made by an adjudicating officer except the one made under Section

127 or an order made by an appropriate Commission under this Act can

prefer an appeal to the Tribunal. The composition of the Tribunal and

qualifications prescribed for appointment of Chairperson and Member shows

that the legislature intended to create a specialized adjudicatory forum for

deciding various disputes emanating from the operation of the Act. Section

125 provides for an appeal to this Court against any order or decision of the

Tribunal which can be filed within 60 days from the date of communication

of the decision or order of the Tribunal. The limitation placed on the

jurisdiction of this Court is that the appeal can be entertained only on one or

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more of the grounds specified in Section 100 of the Code of Civil Procedure.

Proviso to Section 125 empowers this Court to entertain the appeal within a

further period not exceeding 60 days, if it is satisfied that the appellant was

prevented by sufficient cause from filing the appeal within the said period.

In other words, an appeal under Section 125 can be filed within a maximum

period of 120 days if this Court is satisfied that there was sufficient cause for

not filing the same within 60 days from the date of communication of the

decision or order appealed against. Part XII contains provisions relating to

investigation leading to assessment of electricity charges payable by the

consumer and enforcement of the orders of assessment. It also contains

provisions for appeal against the final order passed under Section 126. Part

XIV contains provisions to deal with theft of electricity, electric lines and

materials, interference with meters and work of licensees and also provides

for fiscal penalties and substantive punishments. Section 145 declares that

no civil court shall have jurisdiction to entertain any suit or proceeding in

respect of any matter which an assessing officer referred to in Section 126 or

an appellate authority referred to in Section 127 or the adjudicating officer

appointed under the Act is empowered by or under the Act to determine and

no injunction shall be granted in such matters.

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11.The brief analysis of the scheme of the Electricity Act shows that it is

a self-contained comprehensive legislation, which not only regulates

generation, transmission and distribution of electricity by public bodies and

encourages public sector participation in the process but also ensures

creation of special adjudicatory mechanism to deal with the grievance of

any person aggrieved by an order made by an adjudicating officer under the

Act except under Section 127 or an order made by the appropriate

commission. Section 110 provides for establishment of a Tribunal to hear

such appeals. Section 111(1) and (2) lays down that any person aggrieved

by an order made by an adjudicating officer or an appropriate commission

under this Act may prefer an appeal to the Tribunal within a period of 45

days from the date on which a copy of the order made by an adjudicating

officer or the appropriate commission is received by him. Section 111(5)

mandates that the Tribunal shall deal with the appeal as expeditiously as

possible and endeavour to dispose of the same finally within 180 days from

the date of receipt thereof. If the appeal is not disposed of within 180 days,

the Tribunal is required to record reasons in writing for not doing so.

Section 125 lays down that any person aggrieved by any decision or order of

the Tribunal can file an appeal to this Court within 60 days from the date of

communication of the decision or order of the Tribunal. Proviso to Section

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125 empowers this Court to entertain an appeal filed within a further period

of 60 days if it is satisfied that there was sufficient cause for not filing appeal

within the initial period of 60 days. This shows that the period of limitation

prescribed for filing appeals under Sections 111(2) and 125 is substantially

different from the period prescribed under the Limitation Act for filing suits

etc. The use of the expression `within a further period of not exceeding 60

days’ in Proviso to Section 125 makes it clear that the outer limit for filing

an appeal is 120 days. There is no provision in the Act under which this

Court can entertain an appeal filed against the decision or order of the

Tribunal after more than 120 days. The object underlying establishment of

a special adjudicatory forum i.e., the Tribunal to deal with the grievance of

any person who may be aggrieved by an order of an adjudicating officer or

by an appropriate commission with a provision for further appeal to this

Court and prescription of special limitation for filing appeals under Sections

111 and 125 is to ensure that disputes emanating from the operation and

implementation of different provisions of the Electricity Act are

expeditiously decided by an expert body and no court, except this Court,

may entertain challenge to the decision or order of the Tribunal. The

exclusion of the jurisdiction of the civil courts (Section 145) qua an order

made by an adjudicating officer is also a pointer in that direction. It is thus

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evident that the Electricity Act is a special legislation within the meaning of

Section 29(2) of the Limitation Act, which lays down that where any special

or local law prescribes for any suit, appeal or application a period of

limitation different from the one prescribed by the Schedule, the provisions

of Section 3 shall apply as if such period were the period prescribed by the

Schedule and provisions contained in Sections 4 to 24 (inclusive) shall apply

for the purpose of determining any period of limitation prescribed for any

suit, appeal or application unless they are not expressly excluded by the

special or local law.

12.In Hukumdev Narain Yadav v. L.N. Mishra (1974) 2 SCC 133, this

Court interpreted Section 29(2) of the Limitation Act in the backdrop of the

plea that the provisions of that Act are not applicable to the proceedings

under the Representation of the People Act, 1951. It was argued that the

words “expressly excluded” appearing in Section 29(2) would mean that

there must be an express reference made in the special or local law to the

specific provisions of the Limitation Act of which the operation is to be

excluded. While rejecting the argument, the three-Judge Bench observed:

“………..what we have to see is whether the scheme of the

special law, that is in this case the Act, and the nature of the

remedy provided therein are such that the Legislature intended

it to be a complete code by itself which alone should govern the

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several matters provided by it. If on an examination of the

relevant provisions it is clear that the provisions of the

Limitation Act are necessarily excluded, then the benefits

conferred therein cannot be called in aid to supplement the

provisions of the Act. In our view, even in a case where the

special law does not exclude the provisions of Sections 4 to 24

of the Limitation Act by an express reference, it would

nonetheless be open to the Court to examine whether and to

what extent the nature of those provisions or the nature of the

subject-matter and scheme of the special law exclude their

operation.”

(emphasis supplied)

13.Section 34(3) of the Arbitration and Conciliation Act, 1996, which is

substantially similar to Section 125 of the Electricity Act came to be

interpreted in Union of India v. Popular Construction Company (2001) 8

SCC 470. The precise question considered in that case was whether the

provisions of Section 5 of the Limitation Act are applicable to an application

challenging an award under Section 34 of the Arbitration and Conciliation

Act, 1996. The two-Judge Bench referred to earlier decisions in Mangu

Ram v. Municipal Corporation of Delhi (1976) 1 SCC 392, Vidyacharan

Shukla v. Khubchand Baghel AIR 1964 SC 1099, Hukumdev Narain

Yadav v. L.N. Mishra (supra), Patel Naranbhai Marghabhai v.

Dhulabhai Galbabhai (1992) 4 SCC 264 and held:

“12.As far as the language of Section 34 of the 1996 Act is

concerned, the crucial words are “but not thereafter” used in the

proviso to sub-section (3). In our opinion, this phrase would

amount to an express exclusion within the meaning of Section

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29(2) of the Limitation Act, and would therefore bar the

application of Section 5 of that Act. Parliament did not need to

go further. To hold that the court could entertain an application

to set aside the award beyond the extended period under the

proviso, would render the phrase “but not thereafter” wholly

otiose. No principle of interpretation would justify such a result.

16. Furthermore, Section 34(1) itself provides that recourse

to a court against an arbitral award may be made only by an

application for setting aside such award “in accordance with”

sub-section (2) and sub-section (3). Sub-section (2) relates to

grounds for setting aside an award and is not relevant for our

purposes. But an application filed beyond the period mentioned

in Section 34, sub-section (3) would not be an application “in

accordance with” that sub-section. Consequently by virtue of

Section 34(1), recourse to the court against an arbitral award

cannot be made beyond the period prescribed. The importance

of the period fixed under Section 34 is emphasised by the

provisions of Section 36 which provide that

“where the time for making an application to set aside the

arbitral award under Section 34 has expired … the award

shall be enforced under the Code of Civil Procedure, 1908 in

the same manner as if it were a decree of the court”.

This is a significant departure from the provisions of the

Arbitration Act, 1940. Under the 1940 Act, after the time to set

aside the award expired, the court was required to “proceed to

pronounce judgment according to the award, and upon the

judgment so pronounced a decree shall follow” (Section 17).

Now the consequence of the time expiring under Section 34 of

the 1996 Act is that the award becomes immediately

enforceable without any further act of the court. If there were

any residual doubt on the interpretation of the language used in

Section 34, the scheme of the 1996 Act would resolve the issue

in favour of curtailment of the court’s powers by the exclusion

of the operation of Section 5 of the Limitation Act.”

(emphasis

supplied)

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14.In Singh Enterprises v. C.C.E., Jamshedpur and others (supra), the

Court interpreted Section 35 of Central Excise Act, 1944, which is pari

materia to Section 125 of the Electricity Act and observed:

“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 up to 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 up to 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.”

(emphasis supplied)

The same view was reiterated in Commissioner of Customs, Central

Excise v. Punjab Fibres Ltd. (2008) 3 SCC 73.

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15.In Commissioner of Customs and Central Excise v. Hongo India

Private Limited and another (2009) 5 SCC 791, a three-Judge Bench

considered the scheme of the Central Excise Act, 1944 and held that High

Court has no power to condone delay beyond the period specified in Section

35-H thereof. The argument that Section 5 of the Limitation Act can be

invoked for condonation of delay was rejected by the Court and observed:

“30. In the earlier part of our order, we have adverted to

Chapter VI-A of the Act which provides for appeals and

revisions to various authorities. Though Parliament has

specifically provided an additional period of 30 days in the case

of appeal to the Commissioner, it is silent about the number of

days if there is sufficient cause in the case of an appeal to the

Appellate Tribunal. Also an additional period of 90 days in the

case of revision by the Central Government has been provided.

However, in the case of an appeal to the High Court under

Section 35-G and reference application to the High Court under

Section 35-H, Parliament has provided only 180 days and no

further period for filing an appeal and making reference to the

High Court is mentioned in the Act.

32. As pointed out earlier, the language used in Sections 35, 35-

B, 35-EE, 35-G and 35-H makes the position clear that an

appeal and reference to the High Court should be made within

180 days only from the date of communication of the decision

or order. In other words, the language used in other provisions

makes the position clear that the legislature intended the

appellate authority to entertain the appeal by condoning the

delay only up to 30 days after expiry of 60 days which is the

preliminary limitation period for preferring an appeal. In the

absence of any clause condoning the delay by showing

sufficient cause after the prescribed period, there is complete

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exclusion of Section 5 of the Limitation Act. The High Court

was, therefore, justified in holding that there was no power to

condone the delay after expiry of the prescribed period of 180

days.

35. It was contended before us that the words “expressly

excluded” would mean that there must be an express reference

made in the special or local law to the specific provisions of the

Limitation Act of which the operation is to be excluded. In this

regard, we have to see the scheme of the special law which here

in this case is the Central Excise Act. The nature of the remedy

provided therein is such that the legislature intended it to be a

complete code by itself which alone should govern the several

matters provided by it. If, on an examination of the relevant

provisions, it is clear that the provisions of the Limitation Act

are necessarily excluded, then the benefits conferred therein

cannot be called in aid to supplement the provisions of the Act.

In our considered view, that even in a case where the special

law does not exclude the provisions of Sections 4 to 24 of the

Limitation Act by an express reference, it would nonetheless be

open to the court to examine whether and to what extent, the

nature of those provisions or the nature of the subject-matter

and scheme of the special law exclude their operation. In other

words, the applicability of the provisions of the Limitation Act,

therefore, is to be judged not from the terms of the Limitation

Act but by the provisions of the Central Excise Act relating to

filing of reference application to the High Court.”

(emphasis supplied)

16.In view of the above discussion, we hold that Section 5 of the

Limitation Act cannot be invoked by this Court for entertaining an appeal

filed against the decision or order of the Tribunal beyond the period of 120

days specified in Section 125 of the Electricity Act and its proviso. Any

interpretation of Section 125 of the Electricity Act which may attract

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applicability of Section 5 of the Limitation Act read with Section 29(2)

thereof will defeat the object of the legislation, namely, to provide special

limitation for filing an appeal against the decision or order of the Tribunal

and proviso to Section 125 will become nugatory.

17.The judgment in Mukri Gopalan v. Cheppilat Puthanpurayil

Aboobacker (supra) on which reliance has been placed by Shri Ravi

Shankar Prasad has no bearing on this case. The issue considered in that

case was whether Section 5 of the Limitation Act can be invoked for

condoning the delay in filing an appeal under Section 18 of the Kerala Rent

Control Act. A two-Judge Bench interpreted Section 18 of the Kerala Rent

Control Act and held that even though that section is a special provision, in

the absence of any indication of maximum period within which the appeal

can be entertained by the Appellate Authority, Section 5 of the Limitation

Act would get attracted. It is significant to note that there is no provision in

the Kerala Rent Control Act similar to the one contained in proviso to

Section 125 of the Electricity Act, Section 34(3) of the Arbitration and

Conciliation Act and Section 35(1) or 35-H of the Central Excise Act, 1944.

Therefore, the ratio of Mukri Gopalan v. Cheppilat Puthanpurayil

Aboobacker (supra) cannot be invoked for declaring that this Court has the

23

power to entertain an appeal under Section 125 of the Electricity Act after

120 days counted from the date of communication of the decision or order of

the Tribunal.

18.The next question which requires consideration is as to what is the

date of communication of the decision or order of the Tribunal for the

purpose of Section 125 of the Electricity Act. The word `communication’

has not been defined in the Act and the Rules. Therefore, the same deserves

to be interpreted by applying the rule of contextual interpretation and

keeping in view the language of the relevant provisions. Rule 94(1) of the

Rules lays down that the Bench of the Tribunal which hears an application

or petition shall pronounce the order immediately after conclusion of the

hearing. Rule 94(2) deals with a situation where the order is reserved. In

that event, the date for pronouncement of order is required to be notified in

the cause list and the same is treated as a notice of intimation of

pronouncement. Rule 98(1) casts a duty upon the Court Master to

immediately after pronouncement transmit the order along with the case file

to the Deputy Registrar. In terms of Rule 98(2), the Deputy Registrar is

required to scrutinize the file, satisfy himself that provisions of rules have

been complied with and thereafter, send the case file to the Registry for

taking steps to prepare copies of the order and their communication to the

24

parties. If Rule 98(2) is read in isolation, one may get an impression that the

registry of the Tribunal is duty bound to send copies of the order to the

parties and the order will be deemed to have been communicated on the date

of receipt thereof, but if the same is read in conjunction with Section 125 of

the Electricity Act, which enables any aggrieved party to file an appeal

within 60 days from the date of communication of the decision or order of

the Tribunal, Rule 94(2) which postulates notification of the date of

pronouncement of the order in the cause list and Rule 106 under which the

Tribunal can allow filing of an appeal or petition or application through

electronic media and provide for rectification of the defects by e-mail or net,

it becomes clear that once the factum of pronouncement of order by the

Tribunal is made known to the parties and they are given opportunity to

obtain a copy thereof through e-mail etc., the order will be deemed to have

been communicated to the parties and the period of 60 days specified in the

main part of Section 125 will commence from that date.

19.The issue deserves to be considered from another angle. As

mentioned above, Rule 94(2) requires that when the order is reserved, the

date of pronouncement shall be notified in the cause list and that shall be a

valid notice of pronouncement of the order. The counsel appearing for the

25

parties are supposed to take cognizance of the cause list in which the case is

shown for pronouncement. If title of the case and name of the counsel is

printed in the cause list, the same will be deemed as a notice regarding

pronouncement of order. Once the order is pronounced after being shown in

the cause list with the title of the case and name of the counsel, the same will

be deemed to have been communicated to the parties and they can obtain

copy through e-mail or by filing an application for certified copy.

20.In Raja Harish Chandra Raj Singh v. Deputy Land Acquisition

Officer AIR 1961 SC 1500, this Court considered whether an award made

under the Land Acquisition Act, 1894 can be treated to have been

communicated on the date of its making. The application filed by the

respondent for making reference under Section 18 of the Land Acquisition

Act was rejected by the Collector on the ground that the same had been

made after more than six months from the date of award i.e., 25.3.1951. The

High Court dismissed the writ petition filed by the appellant. This Court

noted that no notice of the award was given to the appellant as per the

requirements of Section 12(2) and it was only on or about January, 1953 that

he received the information about making of the award. He then filed

application on 24.2.1953 for reference. This Court considered the nature of

26

the award made by the Collector under Section 12(2) and held that the

period of six months prescribed for making application would commence

from the date the award was made known to the party. Paragraph 6 of the

judgment which contains discussion on the issue of communication of award

reads as under:

“There is yet another point which leads to the same conclusion.

If the award is treated as an administrative decision taken by the

Collector in the matter of the valuation of the property sought to

be acquired it is clear that the said decision ultimately affects

the rights of the owner of the property and in that sense, like all

decisions which affect persons, it is essentially fair and just that

the said decision should be communicated to the said party. The

knowledge of the party affected by such a decision, either

actual or constructive, is an essential element which must be

satisfied before the decision can be brought into force. Thus

considered the making of the award cannot consist merely in

the physical act of writing the award or signing it or even filing

it in the office of the Collector; it must involve the

communication of the said award to the party concerned either

actually or constructively. If the award is pronounced in the

presence of the party whose rights are affected by it it can be

said to be made when pronounced. If the date for the

pronouncement of the award is communicated to the party and

it is accordingly pronounced on the date previously announced

the award is said to be communicated to the said party even if

the said party is not actually present on the date of its

pronouncement. Similarly if without notice of the date of its

pronouncement, an award is pronounced and a party is not

present the award can be said to be made when it is

communicated to the party later. The knowledge of the party

affected by the award, either actual or constructive, being an

essential requirement of fairplay and natural justice the

expression “the date of the award” used in the proviso must

mean the date when the award is either communicated to the

party or is known by him either actually or constructively. In

27

our opinion, therefore, it would be unreasonable to construe the

words “from the date of the Collector’s award” used in the

proviso to Section 18 in a literal or mechanical way.”

(emphasis supplied)

21.In Assistant Transport Commissioner, Lucknow v. Nand Singh

(1979) 4 SCC 19, this Court considered a somewhat similar question in the

context of filling an appeal under Section 15 of the U.P. Motor Vehicles

Taxation Act, 1935. The Allahabad High Court held that the date of the

communication of the order will be the starting point for limitation of filing

an appeal. While approving the view taken by the High Court, this Court

observed as under:

“In our opinion, the judgment of the High Court is right and

cannot be interfered with by this Court. Apart from the reasons

given by this Court in the earlier judgment to the effect that the

order must be made known either directly or constructively to

the party affected by the order in order to enable him to prefer

an appeal if he so likes, we may give one more reason in our

judgment and that is this: It is plain that mere writing an order

in the file kept in the office of the Taxation Officer is no order

in the eye of law in the sense of affecting the rights of the

parties for whom the order is meant. The order must be

communicated either directly or constructively in the sense of

making it known, which may make it possible for the authority

to say that the party affected must be deemed to have known

the order. In a given case, the date of putting the order in

communication under certain circumstances may be taken to be

the date of the communication of the order or the date of the

order but ordinarily and generally speaking, the order would be

effective against the person affected by it only when it comes to

his knowledge either directly or constructively, otherwise not.

28

On the facts stated in the judgment of the High Court, it is clear

that the respondent had no means to know about the order of

the Taxation Officer rejecting his prayer until and unless he

received his letter on October 29, 1964. Within the meaning of

Section 15 of the U.P. Motor Vehicle Taxation Act that was the

date of the order which gave the starting point for preferring an

appeal within 30 days of that date.”

(emphasis supplied)

22.In Muthiaha Chettiar v. I.T. Commissioner, Madras AIR 1951

Madras 2004, a two-Judge Bench of Madras High Court considered the

question whether the limitation of one year prescribed for filing revision

under Section 33-A (2) of the Income Tax Act, 1922 is to be computed from

the date when the order was signed by the Income-tax Commissioner or the

date on which the petitioner had an opportunity of coming to know of the

order. It was argued on behalf of the department that other provisions of the

Act have been amended to provide for appeal within specified time to be

counted from the date of the receipt of the order sought to be appealed

against, but no such amendment was made in Section 33-A and therefore,

the period of limitation will start from the date of order. While rejecting the

argument, Rajamannar, C.J., referred to earlier decisions in Secretary of

State v. Gopisetti Narayanasami 34 Madras 151 and Swaminatha v.

Lakshmanan AIR 1930 Madras 490 and observed:

29

“………..The only question that we have to decide is as to

whether there is anything in the reasoning of the learned Judges

in Secretary of State v. Gopisetti Narayanasami, 34 Mad. 151 :

(8 I.C. 398) & Swaminatha v. Lakshmanan, 53 Mad.

491:(A.I.R. (17) 1930 Mad. 490) which makes the application

of the rule laid down by them dependent on the provisions of a

particular statute. We think there is none. On the other hand,

we consider that the rule laid down by the learned Judges in the

above two decisions – & we are taking the same view – is based

upon a salutary & just principle, namely that, if a person is

given a right to resort to the remedy to get rid of an adverse

order within a prescribed time, limitation should not be

computed from a date earlier than that on which the party

aggrieved actually knew of the order or had an opportunity of

knowing the order & therefore, must be presumed to have had

knowledge of the order.”

23.In Collector of Central Excise, Madras v. M/s. M.M. Rubber and

Co., Tamil Nadu (1992) Supp 1 SCC 471, a three-Judge Bench highlighted

a distinction between making of an order and communication thereof to the

affected person in the context of Section 35-E (3) and (4) of the Central

Excise Act, 1944. The Bench noted the scheme of Section 35, distinction

between sub-sections (3) and (4) thereof and held that in case where the

order is subject to appeal, the same is required to be communicated to the

affected person. Relevant portions of that judgment are extracted below:

“5. Before we discuss the arguments of the learned counsel,

it is necessary to set out some relevant provisions in the Act.

Section 35 of the Act provides for an appeal by a person

aggrieved by any decision or order passed under the Act by a

Central Excise Officer lower than a Collector of Central Excise

30

and that such an appeal will have to be filed “within three

months from the date of the communication to him of such

decision or order”. Sub-section (5) of Section 35-A requires

that on the disposal of the appeal, the Collector (Appeals) shall

communicate the order passed by him to the appellant, the

adjudicating authority and the Collector of Central Excise.

Section 35-B provides for a right of appeal to any person

aggrieved by, among other orders, (1) an order passed by the

Collector (Appeals) under Section 35-A and (2) a decision or

order passed by the Collector of Central Excise as an

adjudicating authority. Such an appeal will have to be filed

“within three months from the date on which the order sought

to be appealed against is communicated to the Collector of

Central Excise or as the case may be the other party preferring

the appeal”. The Appellate Tribunal also is required to send a

copy of the order passed in the appeal to the Collector of

Central Excise and the other party to the appeal………………

…..

8. At this stage itself we may state that sub-section (4) of

the Act provides that the adjudicating authority shall file the

application before the Tribunal in pursuance of the order made

under sub-section (1) or sub-section (2) “within a period of

three months from the date of communication of the order

under sub-section (1) or sub-section (2) to the adjudicating

authority”.

9. The words “from the date of decision or order” used with

reference to the limitation for filing an appeal or revision under

certain statutory provisions had come up for consideration in a

number of cases. We may state that the ratio of the decisions

uniformly is that in the case of a person aggrieved filing the

appeal or revision, it shall mean the date of communication of

the decision or order appealed against. However, we may note a

few leading cases on this aspect.

10. Under Section 25 of the Madras Boundary Act, 1860 the

starting point of limitation for appeal by way of suit allowed by

that section was the passing of the Survey Officer’s decision

and in two of the earliest cases, namely, Annamalai Chetti v.

Col. J. G. Cloete and Seshama v. Sankara it was held that the

decision was passed when it was communicated to the parties.

31

In Secretary of State for India in Council v. Gopisetti

Narayanaswami Naidu Garu construing a similar provision in

the Survey and Boundary Act, 1897 the same High Court held

that a decision cannot properly be said to be passed until it is in

some way pronounced or published under such circumstances

the parties affected by it have a reasonable opportunity of

knowing what it contains. “Till then though it may be written

out, signed and dated, it is nothing but a decision which the

officer intends to pass. It is not passed so long it is open to him

to tear off what he has written and write something else.” In

Raja Harish Chandra Raj Singh v. Deputy Land Acquisition

Officer construing the proviso to Section 18 of the Land

Acquisition Act which prescribed for applications seeking

reference to the court, a time-limit of six weeks of the receipt of

the notice from the Collector under Section 12(2) or within six

months from the date of the Collector’s award whichever first

expires, this Court held that the six months period will have to

be calculated from the date of communication of the award. In

Asstt. Transport Commissioner, Lucknow v. Nand Singh

construing the provision of Section 15 of the U.P. Motor

Vehicles Taxation Act, it was held that for an aggrieved party

the limitation will run from the date when the order was

communicated to him.

11. The ratio of these judgments were applied in interpreting

Section 33-A(2) of the Indian Income Tax Act, 1922 in Muthia

Chettiar v. CIT with reference to a right of revision provided to

an aggrieved assessee. Section 33-A(1) of the Act on the other

hand authorised the Commissioner to suo moto call for the

records of any proceedings under the Act in which an order has

been passed by any authority subordinate to him and pass such

order thereon as he thinks fit. The proviso, however, stated that

the Commissioner shall not revise any order under that sub-

section “if the order (sought to be revised) has been made more

than one year previously”. Construing this provision the High

Court in Muthia Chettiar case held that the power to call for the

records and pass the order will cease with the lapse of one year

from the date of the order by the subordinate authority and the

ratio of date of the knowledge of the order applicable to an

aggrieved party is not applicable for the purpose of exercising

32

suo moto power. Similarly in another decision reported in

Viswanathan Chettiar v. CIT construing the time-limit for

completion of an assessment under Section 34(2) of the Income

Tax Act, 1922, which provided that it shall be made “within

four years from the end of the year in which the income, profit

and gains were first assessable,” it was held that the time-limit

of four years for exercise of the power should be calculated

with reference to the date on which the assessment or

reassessment was made and not the date on which such

assessment or reassessment order made under Section 34(2)

was served on the assessee.

13. So far as the party who is affected by the order or

decision for seeking his remedies against the same, he should

be made aware of passing of such order. Therefore courts have

uniformly laid down as a rule of law that for seeking the

remedy the limitation starts from the date on which the order

was communicated to him or the date on which it was

pronounced or published under such circumstances that the

parties affected by it have a reasonable opportunity of knowing

of passing of the order and what it contains. The knowledge of

the party affected by such a decision, either actual or

constructive is thus an essential element which must be satisfied

before the decision can be said to have been concluded and

binding on him. Otherwise the party affected by it will have no

means of obeying the order or acting in conformity with it or of

appealing against it or otherwise having it set aside. This is

based upon, as observed by Rajmannar, C.J. in Muthia Chettiar

v. CIT “a salutary and just principle”. The application of this

rule so far as the aggrieved party is concerned is not dependent

on the provisions of the particular statute, but it is so under the

general law.”

(emphasis supplied)

24.Reverting to the facts of this case, we find that even though the name

of the counsel for the appellant was not shown in the cause list of 14.5.2007

i.e., the date on which the impugned order was pronounced by the Tribunal,

33

the factum of pronouncement was conveyed to the parties including the

appellant vide letter dated 7.6.2007, which was signed by the Deputy

Registrar on 11.6.2007 and they were informed that they can obtain copy

through e-mail or make an application for certified copy. Undisputedly, that

letter was received in the secretariat of the appellant on 21.6.2007. The

appellant had come to know about the impugned order in July 2007 from

another source i.e., respondent No.5, which had sent communication for

payment of FLEE charges. The communication sent by respondent No.5

was received by the appellant on 17.7.2007. It is, thus, evident that on

21.6.2007 or at least on 17.7.2007, the appellant had come to know through

proper channel that the order has been pronounced by the Tribunal in I.A.

No.4/2007. It is not clear from the record whether the appellant had applied

for certified copy or obtained the one through e-mail, but this much is

evident that the appellant did obtain/receive a copy of order dated 17.5.2007.

If that was not so, the appellant could not have filed appeal under Section

125 of the Electricity Act. The preparation of appeal, which bears the date

7.9.2007 is a clinching evidence of the fact that the appellant had not only

become aware of the order of the Tribunal, but had obtained copy thereof.

However, instead of filing appeal within 60 days from the date of receipt of

letter dated 7.6.2007 sent by the registry of the Tribunal or the

34

communication sent by respondent No.5, the appellant chose to file appeal

only on 24.12.2007 and that too despite the fact that the same was prepared

on 7.9.2007. The appellant has not offered any tangible explanation as to

why the appeal could not be filed for more than three and half months after

its preparation. Thus, there is no escape from the conclusion that the appeal

has been filed after more than 120 days from the date of communication of

the Tribunal’s order and, as such, the same cannot be entertained.

25.In the result, the appeal is dismissed. However, the parties are left to

bear their own costs.

….….………………….…J.

[G.S. Singhvi]

…..…..…………………..J.

[Asok Kumar Ganguly]

New Delhi

April 15, 2010.

35