TMI Blog2011 (1) TMI 18X X X X Extracts X X X X X X X X Extracts X X X X ..... etitioner is that as limitation period of 60 days expired on 28th October, 2006 which was a Saturday, the petitioner was entitled to benefit of 28th and 29th October, 2006 being Saturday and Sunday and, thereafter, the further period of 30 days would commence and, therefore, the appeal was presented within the period of limitation. The said proposition, in our considered opinion, runs counter to the principles which are culled out from the authorities we have referred to hereinbefore. We are disposed to think that the Commissioner as well as the revisional authority has correctly computed the period of limitation and appositely opined that the memorandum of appeal was presented on the 91st day and hence, the Commissioner could not have condoned the delay even if sufficient grounds have been shown beyond 30 days, i.e., 90 days in toto. - 8084/2010 - - - Dated:- 7-1-2011 - Dipak Misra, CJ and Manmohan, J Appellant Represented. by : Mr. Dinesh Kumar Gupta, Adv Respondent Represented. by : Ms. Rajdipa Behura, Mr.C.S. Chauhan, Advs. for R-1 Mr. Mukesh Anand, Adv. for R-2 JUDGEMENT Per : Dipak Misra, CJ : Invoking the extraordinary and inherent jurisdiction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he impugned order contained in Annexure F‟ without adverting to the merits of the case gave the stamp of approval to the order passed by the first appellate authority on the basis that the appeal was barred by time as the delay was not condonable by the appellate authority. 6. In the writ petition, though numerous averments have been made contending, inter alia, that the petitioner is entitled to exemption and the demand made by the authorities is totally unsustainable, yet the gravamen of the stand that arises for consideration is whether the respondent No.2 was justified in rejecting the appeal on the ground that delay was non-condonable and the revisional authority was correct in treating the said order as impeccable. 7. We have heard Mr. Dinesh Kumar Gupta, learned counsel for the petitioner and Ms. Rajdipa Behura along with Mr. C.S. Chauhan, learned counsels for respondent No.1 and Mr. Mukesh Anand, learned counsel for respondent No.2. 8. It is submitted by Mr. Gupta, learned counsel for the petitioner that the petitioner received the order passed by the adjudicating officer on 29th August, 2006 and the right to prefer an appeal under Section 35 of the Act was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e reference application under unamended Section 35(H)(1) of the Act beyond the prescribed period by applying Section 5 of the Limitation Act. A three-Judge Bench referred to Section 35H of the Act, Sections 5 and 29(2) of the Limitation Act, 1963 and eventually held as follows: 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 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. 33. Even otherwise, for filing an appeal of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Limitation Act. It is well-settled law that it is the duty of the court to respect the legislative intent and by giving liberal interpretation, limitation cannot be extended by invoking the provisions of Section 5 of the Limitation Act. 12. In Singh Enterprises (supra) while dealing with the issue relating to jurisdiction of appellate authority to condone delay beyond permissible period provided under Section 35 of the Act, a two-Judge Bench of the Apex Court after referring to Section 35 of the Act which provides appeals to Commissioner (Appeals) held thus: 8. 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. H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... indicated earlier, has commended us to certain authorities. In Manohar Joshi (supra), the Apex Court was dealing with presentation of an election petition under Representation of the People Act, 1951 (hereinafter referred to as 'the RP Act'). The last date for filing the election petition according to the limitation prescribed in sub-section (1) of Section 81 of the RP Act was 14.4.1990, but the election petition was actually presented in the High Court on 16.4.1990. It was an admitted position that 14.4.1990 was a Saturday on which the High Court as well as its office was closed on account of a public holiday and 15.4.1990 was a Sunday on which date also the High Court as well as its office was closed and, therefore, the election petition was presented on 16.4.1990. Their Lordships referred to the amended sub-section (1) of Section 81 of the RP Act and also the decision in Ramlal v. Rewa Coalfields Ltd., AIR 1962 SC 361 and posed the question whether Section 10 of the General Clauses Act, 1897 is applicable to the election petition under the RP Act. After posing the question, their Lordships answered the issue as follows: 13. It is settled by the decision of this Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Clauses Act ipso facto would not apply to Rules framed under the Central Act, even though it would to the Act itself. The context supports the applicability of Section 10 of the General Clauses Act instead of indicating its exclusion for the purpose of computing the limitation prescribed in sub-section (1) of Section 81 for presentation of election petitions. 15. In view of the basic premise that the election petitioner is entitled to avail of the entire limitation of 45 days for presentation of the election petition as indicated by Ramlal (supra), if the contrary view is taken, it would require the election petitioner to perform an impossible task in a case like the present, to present the election petition on the last day of limitation on which date the High Court as well as its office is closed. It is the underlying principle of this legal maxim which suggests the informed decision on this point, leading to the only conclusion that Section 10 of the General Clauses Act applies in the computation of the limitation prescribed by sub-section (1) of Section 81 of the R.P. Act for presentation of an election petition. So computed, there is no dispute that the election petition pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er period of time, to use the word to . 8. Hence, there is no reason for not adopting the rule enunciated in the aforesaid case which is consistently followed and which is adopted in the General Clauses Act and the Limitation Act, Ordinarily in computing the time, the rule observed is to exclude the first day and to include the last . 17. In view of the aforesaid dicta, it is quite clear that the day the cause of action arose for preferring the appeal, that is, the date of receipt of the order from the adjudicator is to be excluded. The Commissioner (Appeals) has excluded the same. Hence, the said decision is also of no help to the learned counsel for the petitioner. 18. In this context, we may refer with profit to the decision in H.H. Raja Harinder Singh v. S. Karnail Singh, AIR 1957 SC 271, wherein the Apex Court stated that the basic object under Section 10 of the General Clauses Act is to enable a person to do what he could not have done on a holiday on the next working day. 19. In Rambir Narhargir Gosai v. Prabhakar Bhaskar Gadhaway Ors., AIR 1955 Nagpur 300, a Division Bench has held thus: (4) Section 4, Limitation Act and S. 10, General Clauses Act embody ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e effect of Section 4 of the Limitation Act is indirectly to extend the period of limitation. The time limited by law would, therefore, be the time prescribed by the relevant Article as extended or enlarged by Section 4. 23. In M/s Flowmore Pvt. Ltd. v. Keshav Kumar Swarup, AIR 1983 Delhi 143, this Court after referring to Section 10 of the General Clauses Act, 1897 came to hold that if the office of the Rent Controller is closed, an application for leave to appear and contest the eviction petition would be filed on the next day of the re-opening of the Court by virtue of Section 10 of the General Clauses Act, 1897. 24. From the aforesaid pronouncement of law, it is clear as crystal that Section 4 of the Limitation Act, 1963 and Section 10 of the General Clauses Act, 1897 enable a person to do what he could not have done on a holiday on the next working day. If the last day for filing an appeal expires on a holiday when the Court is closed and the memorandum of appeal cannot be presented, it is obligatory on the part of the appellant to present the same day when the Court reopens. It is also evincible that where Section 4 of the Limitation Act is not applicable, Section 10 of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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