TMI Blog2019 (3) TMI 20X X X X Extracts X X X X X X X X Extracts X X X X ..... ond the said period of 45 days if it is satisfied that the appellant was prevented by sufficient cause from filing the said appeal. However, this power is not available to entertain an appeal beyond a period of 60 days. The contention that the petitioner has any inherent right to file an appeal against the order of the Competent Authority, is flawed. It is well settled that an appeal is a creature of statute and there is no inherent right of appeal. In Durga Shankar Mehta v. Thakur Raghuraj Singh and Ors [1954 (5) TMI 25 - SUPREME COURT] the Supreme Court had held that “It is well known that an appeal is a creature of statute and there can be no inherent right of appeal from any judgment or determination unless an appeal is expressly provided for by the law itself.” Plainly, if the right of appeal is a creature of statute, it would be open for the legislature to curtail the said right as well. Therefore, there is no infirmity in the legislature providing a limited right of appeal. The Parliament has provided a right of appeal against an order of the Competent Authority, albeit, subject to the condition that the same be preferred within the specified period. It has expressl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this Court can condone the delay beyond the said period in exercise of its powers under Article 226 of the Constitution of India. 6. Briefly stated, the aforesaid controversy arises in the following factual context:- 6.1 The investigating authorities of Narcotic Control Bureau had effected recoveries of psychotropic substances from certain persons, namely, Amit Kohli, Diwakar Gupta, Nafe Singh and Rajesh Sharma on 05.05.2008. The said persons were thereafter arrested on 06.05.2008, for alleged contravention of the provisions of the NDPS Act. 6. 2 It is stated that during the course of investigation, the Investigating Officer became aware that the aforementioned accused persons had acquired certain immovable properties. It was alleged that the said properties were acquired from tainted money and illicit income generated from trafficking in psychotropic substances. 6.3 The Competent Authority passed an order confirming the order of the Investigating Officer whereby certain properties of the aforementioned accused persons were frozen. The said properties also included (i) Flat No. 201, Florence D-Tower, Grandwood Omaxe, Sector 93B, Noida, U.P. standing in the name of Amit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which reads as under:- 68-O. Appeals (1) Any person aggrieved by an order of the competent authority made under section 68F, section 68-I, sub-section (1) of section 68K or section 68L, may, within forty-five days from the date on which the order is served on him, prefer an appeal to the Appellate Tribunal: Provided that the Appellate Tribunal may entertain an appeal after the said period of forty-five days, but not after sixty days, from the date aforesaid if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal in time. 8. The plain reading of the proviso to Sub-section (1) of Section 68-O of the NDPS Act indicates that the Appellate Tribunal has no jurisdiction to entertain an appeal which is filed beyond a period of sixty days from the date on which the order passed by the Competent Authority is served on the appellant. An appeal under Sub-section (1) of Section 68-O of the NDPS Act can be filed only within a period of 45 days from the date on which the order is served. However, the Appellate Tribunal can entertain an appeal even beyond the said period of 45 days if it is satisfied that the appellant was prevented by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bai v. Vijay Kumar and Ors. : 1974 (2) SCC 393 , the Supreme Court observed as under:- There is a basic distinction between the right of suit and the right of appeal. There is an inherent right in every person to bring suit of a civil nature and unless the suit is barred by statute one may, at one's peril, bring a suit of one's choice. It is no answer to a suit howsoever frivolous the claim, that the law confers no such right to sue. A suit for its maintainability requires no authority of law and it is enough that no statute bars the suit. But the position in regard to appeals is quite the opposite. The right of appeal inheres in no one and therefore an appeal for its maintainability must have the clear authority of law. That explains why the right of appeal is described as a creature of statute. 14. In a recent decision in Hindustan Petroleum Corporation. Ltd. v. Dilbahar Singh: 2014 (9) SCC 78 , the Constitution Bench of the Supreme Court has observed as under:- Both, appellate jurisdiction and revisional jurisdiction are creatures of statutes. No party to the proceeding has an inherent right of appeal or revision. 15. Plainly, if the right of app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 Indian 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 authorit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar Construction Co. : (2001) 8 SCC 470 , the Supreme Court noted the express language of Section 34 of the Arbitration and Conciliation Act, 1996 and held that the usage of the words but not thereafter as used in the proviso to Sub-section (3) of Section 34 of the said Act, would bar an application of Section 5 of the Limitation Act, 1963 and, therefore, the Court could not entertain an application to set aside an arbitral award beyond the period as specified therein. 20. It would also be relevant to refer to the decision of the Division Bench of this Court in Amikna Bi Kaskar (Deceased) v. Union of India Ors. : 194 (2012) DLT 57 (DB), wherein this Court considered the power of the Appellate Tribunal to entertain an appeal under Sub-section (4) of Section 12 of the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976 and held that in terms of Sub-section (4) of Section 12 of the said Act which reads as under:- Section 12(4) of SAFEMA reads as under:- 12. Constitution of appellate tribunal.- (1) xxxxxxxxx (2) xxxxxxxxxx (3) xxxxxxxxxx (4) Any person aggrieved by an order of the competent authority made under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cle 226 of the Constitution of India is available to enforce a legal right. 22. In Calcutta Gas Company (Proprietary) Ltd. v. The State of West Bengal Anr : AIR 1962 SC 1044, the Supreme Court held as under: Article 226 confers a very wide power on the High Court to issue directions and writs of the nature mentioned therein for the enforcement of any of the rights conferred by Part III or for any other purpose. It is, therefore, clear that persons other than those claiming fundamental right can also approach the court seeking a relief thereunder. The Article in terms does not describe the classes of persons entitled to apply thereunder; but it is implicit in the exercise of the extraordinary jurisdiction that the relief asked for must be one to enforce a legal right. 23. Clearly, if the petitioner has no statutory right to file an appeal, the question of issuing directions under Article 226 of the Constitution of India to provide the same, contrary to the statue, would not arise. 24. Since, the right to appeal is a statutory right, this court is not persuaded to accept that relief can be granted to the petitioner who has lost such a right on account of delay. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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