Delhi High Court – Orders
Sarabjeet Singh Alias Sarban & Ors vs Competent Authority And Administrator … on 12 November, 2024
Author: Yashwant Varma
Bench: Yashwant Varma, Dharmesh Sharma
$~60
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ MISC. APPEAL(PMLA) 35/2024
SARABJEET SINGH ALIAS SARBAN
& ORS. .....PETITIONERS
Through: Mr. Rajat Sharma, Adv.
versus
COMPETENT AUTHORITY AND ADMINISTRATOR
SMUGGLERS AND FOREIGN EXCHANGE
MANIPULATORS FORFEITURE OF
PROPERTY .....RESPONDENT
Through: Mr. Piyush Beriwal, Adv.
CORAM:
HON'BLE MR. JUSTICE YASHWANT VARMA
HON'BLE MR. JUSTICE DHARMESH SHARMA
ORDER
% 12.11.2024
1. This writ petition is directed against the order passed by the
Appellate Tribunal [„Tribunal‟] under the Smugglers and Foreign
Exchange Manipulators (Forfeiture of Property) Act, 19761 on the
basis of which the appeal has been dismissed on the ground of the
same being barred by limitation. The appeal had laid challenge to an
order dated 29 May 2023 which according to the writ petitioner was
received by him on 08 June 2023. The appeal was ultimately filed on
20 October 2023.
2. The Tribunal noted that the sixty-day maximum period for the
preferment of an appeal had expired on 08 August 2023 and the
appeal itself coming to be instituted ninety-two days thereafter.
3. We note that Section 68O(1) of the Narcotic Drugs and
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Psychotropic Substances Act, 1985 [„Act‟] makes the following
provisions:-
“68-O. Appeals.-
(1) Any officer referred to in subsection (1) of section 68E or
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.”
4. As is evident from the Proviso to Section 68O(1), the period of
forty-five days within which an appeal may be originally filed can be
condoned up to a maximum of sixty days. However, post the expiry of
sixty days, the curtains are wrung down and the right to appeal
terminates. This becomes evident from the statute using the phrase
„but not after sixty days‟. The language so employed is thus framed in
peremptory terms and follows a structure that is akin to that contained
in Section 34(2) of the Arbitration and Conciliation Act, 1996 [„1996
Act‟] and other statutes in which the period of limitation is restricted
upto a certain extent only.
5. Dealing with terminal points of limitation which statutes
sometimes construct, a learned Single Judge of the Court in Suman
Kumar Rana-in-Jail vs. Competent Authority and Administrator
& Anr. [2023 SCC OnLine Del 6789] had rendered the following
pertinent observations:-
“5. The short question which arises for consideration is as to
whether the Appellate Authority has the power to condone the delay
in filing an appeal beyond the period prescribed in the statute. The1
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relevant facts for the purpose of limitation are that the date of the
order against which the appeal is filed is 22.11.2022 and the same
was served on the Petitioner herein on 05.12.2022 and the appeal
was filed on 01.05.2023.
6. If 05.12.2022 is taken as the day when the period of
limitation starts then also the period of 45 days, as specified in
Section 68-O (1) of the NDPS Act expires on 19.01.2023 and the 60
days period expires on 04.02.2023. In the present case the appeal
was filed on 01.05.2023, i.e. with a delay of 178 days. As per
Section 68-O of the NDPS Act, an Appeal has to be filed within 45
days from the date of service of the Order. Section 68-O of the
NDPS Act further provides that the Appellate Tribunal may entertain
an appeal after forty-five days, but not after sixty days, from the date
of service of the order, if it is satisfied that the appellant was
prevented by sufficient cause from filing the appeal in time. There is
no provision under the Act to entertain an appeal beyond the period
of 60 days.
7. Section 29(2) of the Limitation Act, 1963 reads as under:
“29(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.”
8. The question as to whether the Courts have the power to
condone the delay in case of special Acts, which provides for a
separate period of limitation, has been succinctly explained in a
number of judgments. While considering an appeal which is filed
beyond the period of limitation under Section 125 of the Electricity
Act, 2003, the Apex Court in Chhattisgarh SEB v. Central Electricity
Regulatory Commission, (2010) 5 SCC 23, has held as under:
“25. 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 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 limitationThis is a digitally signed order.
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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 the 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.
26. 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.
27. It is thus 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.
28. In Hukumdev Narain Yadav v. Lalit Narain 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: (SCC p. 146, para 17)This is a digitally signed order.
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“17. … 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 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)
29. 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 Co. [(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. MCD
[(1976) 1 SCC 392: 1976 SCC (Cri) 10], Vidyacharan
Shukla v. Khubchand Baghel [AIR 1964 SC 1099],
Hukumdev Narain Yadav v. Lalit Narain Mishra [(1974) 2
SCC 133], Patel Naranbhai Marghabhai v. Dhulabhai
Galbabhai [(1992) 4 SCC 264] and held: (Popular
Construction Co. case [(2001) 8 SCC 470], SCC pp. 474-76,
paras 12 & 16)
“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
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
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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-sections (2) and sub-
sections (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:
„36. Enforcement.–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 (5 of 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)
30. In Singh Enterprises v. CCE [(2008) 3 SCC 70] the
Court interpreted Section 35 of the Central Excise Act, 1944
which is pari materia to Section 125 of the Electricity Act
and observed: (SCC p. 72, para 8)“8. The Commissioner of Central Excise (Appeals) as also
the tribunal being creatures of statute are not vested withThis is a digitally signed order.
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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 CCE and Customs v. Punjab
Fibres Ltd. [(2008) 3 SCC 73]
31. In CCE and Customs v. Hongo India (P) Ltd. [(2009)
5 SCC 791] a three-Judge Bench considered the scheme of
the Central Excise Act, 1944 and held that the 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: (SCC pp. 801-02, paras
30, 32 & 35)
“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
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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 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
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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)
32. 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 the 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.”
(emphasis supplied)
11. A perusal of the abovementioned judgments show
that if a special Act provides for any limitation then Sections
4 to 28 of the Limitation Act cannot be made applicable and,
therefore, there is no power in the Appellate Authority to
condone the delay.
12. In the present case, the competent Authority passed
the Order on 22.11.2022. Certified copy of the said order was
served on the Petitioner herein on 05.12.2022 reckoning the
period for filing an appeal as 05.12.2022. The appeal ought
to have been filed on or before 45 days from the receipt of
the order and the said time limit expired on 19.01.2023.
Section 68-O (1) of the NDPS Act gives the Tribunal the
discretion to entertain the appeal with a delay of a maximum
of 15 days if sufficient cause is shown as to why the appeal
was not filed within the stipulated 45 days. The said period
expired on 04.02.2023 and no appeal could have been
entertained beyond that period. Since the present appeal was
filed on 01.05.2023, there is a delay of about 174 days in
filing the appeal which could not have been condoned by the
Appellate Authority. This Court, therefore, does not find any
reason to interfere with the Order dated 11.07.2023, passed
by the Appellate Tribunal, refusing to entertain the appeal
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filed by the Petitioner herein beyond the prescribed period.
The fact that the Petitioner was in jail cannot be a reason to
condone the delay in light of the various judicial
pronouncements of the Apex Court.
13. In view of the above, the Writ Petition is dismissed.
Pending applications, if any, also stands dismissed.”
6. The host of precedents which the learned Judge had an occasion
to review in Suman Kumar Rana have unequivocally held that where a
statute creates a special period of limitation, the general power of
condonation stands excluded. We find no reason to differ from the
legal position which has been correctly enunciated in that decision.
7. On an overall conspectus of the aforesaid, we find no error in
the view taken by the Appellate Tribunal.
8. The writ petition, consequently fails and shall stand dismissed.
YASHWANT VARMA, J.
DHARMESH SHARMA, J.
NOVEMBER 12, 2024/Ch
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